OA522: Roe v. Wade is Dead.

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 522. I'm Thomas and that's Andrew Torrez, legal expert. How you doing, Andrew?

0:01:25 Andrew: Not fantastic today. I think today is the lowest day in our democracy since 1-6, and maybe worse than that. Everyone knows what we're here to talk about. We're here to talk the Supreme Court overruling Roe v. Wade. Now, that is not legally accurate, But that is how you should be describing it. And and we will be describing it that way. But it's it's worse than that. But that's the level of outrage that you should have.

0:01:26 Thomas: Yeah. Wow. Yeah. Hmm. Wow! Oh, boy. Yeah, this is a bad feeling, Andrew. This feels like back, during you the previous administration, we'd record a lot of these where it's like, alright, not really in the mood for fun and games, like let's let's get to the horror, but we haven't had to have one of those since, as you say, I was going to reach all the way back in my mind to January of the same year, so not that long ago, but but still, like it had been nice to not have um, you know, complete crumbling of democracy every several days uh, under the previous administration, but this feels like that, it's that same feeling. And I hate it. It's not fun.

0:02:18 Andrew: Yeah, right. Right.

0:02:32 Andrew: It It's the right feeling. And look, you're new to the show, this is not an alarmist show. Right? We're we're a left wing show. We were very critical of the Trump administration. We were very hopeful about a lot of things in the Biden administration. Don't say this lightly. And I also want to emphasize that the harm that I worry about in terms of the coverage of what the Supreme Court did is in some ways a harm that I caused. Right.

0:03:06 Andrew: So, well, you know, attenuated. But five but years ago when we started the show, if you look at those first hundred episodes, oftentimes the lead story would be something like the press would say Supreme Court blocks Trump's Muslim ban. Right. And we would have to get on to say, well, look, that's not exactly what the Supreme Court did. Right. Like they didn't rule on the merits of the Muslim ban. And as we sadly predicted for you, eventually, when they figure this out and get it right and correct the procedural defects, this Supreme Court is going to rule that Trump has the power to do the thing that.

0:03:06 Thomas: Oh, geez. Yeah.

0:03:46 Thomas: And you were

0:03:47 Andrew: Right. Right. So I see news outlets reporting. There's an NPR story that is infuriating that says, Supreme Court allows Texas abortion law to stand, comma, for now. And you're like, what do you what do you think? Oh, yes. At some point in the next year and a half on the merits, Amy Coney Barrett is going to change her mind off of the belief she's been indoctrinated in since birth that abortion is murder.

0:03:47 Thomas: Right. Oh my God.

0:04:14 Thomas: Wow.

0:04:14 Andrew: Like, come on. It is my belief, notwithstanding the fact that this misstates the law, that every newspaper in America should lead with the headline Supreme Court overturns Roe v. Wade. OK, not because that's true. That's not true. Right. They have not yet done that. But what they've actually done is so much worse. And let me explain what That is. In the briefest possible terms, they have allowed a law that blatantly contradicts is prohibited by both Roe v. Wade and Planned Parenthood versus Casey in Texas. That is SB 8, which we will break down. They've allowed that to go into effect. So, you know, in what sense can you say there is a constitutional protection for the right to an abortion if a law that contravenes those protections is allowed to go into effect? Fact.

0:04:26 Thomas: Yeah. Oh. Yeah. Yeah. Yeah. It's like if, if a state passed a law that was like no talking and then the court was like, all right, uh, we see no problem with that and then you're like yeah is there still a First Amendment then like for now they're allowing that law like no that they struck down the First Amendment essentially like that, you know

0:05:11 Andrew: Yeah, yeah. I'm gonna allow it right right yeah yeah now you would say right those same headlines would say yeah yeah That is right. Those headlines would saying, Okay, well, you know, they're still, they've yet to hear the merits of the law, but like, we understand what an injunction, and, and, and we're gonna break all that down. Um, a couple things I want to say preliminarily, right? And the first, again, every time we do an abortion episode, I want be very, very clear about this. OK, trans men are men and they can and do get pregnant. They can and do have abortions. So we strive to be very gender inclusive in our language on the show. Our trans friends, our trans listeners, trans people generally are taking it on the chin right now, are the major target of the Republican culture war. So our hearts go out to you. We try to be allies. SB8 and the accompanying opinions use the word women.

0:06:15 Andrew: So when I'm quoting from the law, when I'm quoting from the opinions, I am going to use the word women because I'm quoting from those opinions. And I think there's also a larger point that I struggle with a little bit, and that is many of the religious impulses to control abortion and birth control are meant to To control women. They're not meant to affect men. Right. So I really do struggle with this. So if you're a trans listener, write in via Patreon or openarguments@gmail.com. Um, I struggle with this because I want to talk about the Republican war on women.

0:06:37 Thomas: Right. Yeah.

0:06:47 Andrew: I do not want to contribute to trans male erasure in society. Um, and I'm trying to do the best I can.

0:06:53 Thomas: Yeah, I see what you're saying. We It want to be able to talk about the Republican war on women. There's also a Republican war on trans people, but that's a different war. You know what I mean? Like it's two different wars happening and this is more about the war on women. I don't know how we, I think clear what you're going for, hopefully that will cue people into what you mean.

0:07:00 Andrew: Yeah. Yep. Yeah. All I can say is we we value, we try and listen to those voices. Um, please continue sharing them with us. And we will continue to do the best we can. The second thing I want to say related to voices, will have women's voices on our show on this issue. This story broke at midnight last night and we record at one o'clock the next day. And so it just is not technologically schedule wise feasible, you for us to bring on different voices. We have reached out that that is important to us. And I guess my third sort of preliminary thought is, you rich white women are going to be OK.

0:07:52 Andrew: They're going to they're goingto continue to do what they did before Roe v. Wade, which is travel out of state or even out of the country to to to get abortions, to get medical care. It is poor people who will suffer the burdens that we've talked about.

0:07:34 Thomas: Yeah. Yeah, yeah.

0:08:03 Thomas: And one of my questions for not just you, but anybody listening is like, cause Lydia, her first impulse was like, okay, how do we sponsor people? You know, like how do We, how do WE help? So that's going to be one of the questions. I mean, there's gotta be, I assume organizations that are going to try to handle that.

0:08:20 Andrew: I would think so. I do not know. I think this caught everyone.

0:08:22 Thomas: Well, perhaps, perhaps listeners can, yeah, perhaps it's a listeners can shoot us some links or anything about which organizations might be the most helpful. Yeah, you're right. We're all kind of scrambling this, this hit us out of, I mean I guess not out of nowhere, but Like you say, it broke late.

0:08:24 Andrew: Yeah. Yeah, even for this Supreme Court, I was surprised. And I'm about to explain that. So get this right. To be opening arguments levels of clear here, the Supreme Court did not overturn Roe v. Wade because it did not issue a ruling on the merits. They did not rule on the merit of anything. This is what we call the shadow docket. What Right. They did was allow a blatantly unconstitutional law to go into effect before overturning Roe v. Wade, which is something they were probably going to do around April or May of next year. And as far as I can tell, and I spent the better part of the morning looking for counterexamples, this is what happened today is literally unprecedented in the history of

0:08:37 Thomas: Yeah, All, Right, Wow. Wow.

0:09:18 Andrew: This country. So let Me, let me give you an example of how this never happens. And let's.

0:09:19 Thomas: Do, Blows.

0:09:23 Andrew: Suppose let's, it's 1962 and I'm a poor person in prison, I did not have a lawyer appointed for me at the time. The law of the land was a case called Betts v. Brady, which said, yeah, you know, you get a court-appointed lawyer if it's a capital case or if there are issues with competence or in, you know, certain extenuating circumstances, but just because you're too poor to afford a lawyer, you don't get one. There was no right to court-appointed counsel as of 1962.

0:09:49 Thomas: My mind blows. My mind every time, yeah, mm-hmm.

0:09:50 Andrew: Yeah. So let's imagine then I file a habeas petition to the Supreme Court and I say, yeah, I know, Betts v. Brady, but you're about to hear, you've already got pending on your docket a habeas petition from my buddy Clarence Gideon, and and you know, you, you guys on the Supreme Court, you're pretty, it's 1962, you're a pretty liberal bunch, so I'm pretty sure you're going to rule in Gideon's favor, uh, and you're gonna overturn that Betts v. Brady case, uh, you're to say that everybody gets the right to a lawyer, that's gonna free me eventually, um, so why not just let me out early, right?

0:10:08 Thomas: Right,

0:10:23 Andrew: And and and, you know what? Like Gideon, Gideons v. Wainwright, right, came out in 1963 and it was 9-0, right? Like not controversial, unanimous, overturned Betts v. Brady, did exactly what we said. But yeah, this hypothetical petition and by the way, there were actual petitions at this time, right. This hypothetical petition, the Supreme Court, that same super liberal Supreme Court would not have granted relief at that time, Right. Right. They

0:10:22 Thomas: Right, and What Did They do not, that Yeah, Mm.

0:10:40 Thomas: Right,

0:10:53 Andrew: Would not have granted anticipatory relief. They wouldn't.

0:10:54 Thomas: Because Because you haven't Changed The law yet,

0:10:56 Andrew: Yeah, they would have said, right, maybe we'll change the law. But until then, we live in a country with the rule of law and the law says you're not entitled to it. Sorry. This is to be an episode for we have covered almost every component of this on multiple previous episodes of the show. So episodes 27 and 28 are when we covered the Planned Parenthood versus Casey decision. If you haven't listened to those, if you came in like it stormed at Stormy Daniels, maybe go back and listen to 27, 28. They're pretty good.

0:10:56 Thomas: Right? Yeah, yeah, yeah. And the shadow docket late, much later on, obviously, but the shadow docket with Andrew Seidel, right. Didn't we talk about that or

0:11:26 Andrew: It Yep, yep, the shadow docket. We talked about on episode 507, yeah, Um, so all of the components here are things you can search the OA website for, and we have covered it in depth. This

0:11:33 Thomas: Maybe a couple of different episodes, but even if you only get this far, what they're doing, it's not just, which is already bad enough. It's not that they're obviously overturning Race. That row that's already bad enough, it's that the this is completely unprecedented. I'm so sick of Republicans getting to feel like and call themselves the, oh, they're just calling ball and strikes, balls and strikes, they're just constitutional umpires over there, and they're doing crap like this

0:12:02 Andrew: Would be like calling a field goal in the middle of a baseball game, right? Like, it I'm not kidding. So let me break down exactly what happened, because, and I think I can make, I think I can make this clear even to Uncle Frank, exactly how radical this is. OK, so point number one, Texas passed a law, and we're going to talk about all the provisions of this law because, wow, is it a doozy. It's SB8 that bans abortion after six weeks. Okay. Point two, existing constitutional law is super duper to the ends of the earth clear that you cannot do that.

0:12:03 Thomas: Yeah, so Yeah.

0:12:39 Andrew: And I am going to quote from Planned Parenthood versus Casey 505 U.S. 833 at 845 to 46. Quote, we are led to conclude this. The essential holding of Roe v. Wade should be retained and once again reaffirmed. It must be stated at the outset and with clarity, this is the Supreme Court talking, that Roe's essential holding, the holding we reaffirm, has three parts. And again, if you listen to our episodes, they're actually changing Roe v. Wade a little bit here. But nevertheless, this is the law of the land, good law right now, the essential holding of Roe v. Wade as reaffirmed by Planned Parenthood v. Casey has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and obtain it without undue interference, without undue interference from the state.

0:13:30 Andrew: Continuing, just in case that's not clear enough, before viability, the state's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. So that's the law. The law says if it's pre-viability, you cannot ban abortion. The state's interest is not strong enough. Now, if you've listened to the show, you know, I don't think viability is a great argument.

0:13:59 Andrew: You know, No, I prefer the original Roe strong, but it doesn't matter what I think it matter. It should matter what the law is. Right. So the law states cannot prohibit abortion before viability. SB8 prohibits abortion before viability, six weeks way, way, way beforehand. Ergo states can't prohibit abortion at six weeks. So what happened? What happened was what what I expected to happen. Whole Woman's Health, an abortion provider in Texas, they went to a U.S. district court judge to get the law enjoined, which happened because it's obvious because of

0:13:58 Thomas: Yeah, yeah, yeah. Yeah. It's oh, my God.

0:14:33 Thomas: Yeah

0:14:33 Andrew: The reason I just said it's obviously unconstitutional. So then Texas appealed to the Fifth Circuit and the Fifth Circuit, as we have documented at great length, hates abortion. It is stacked with anti-abortion activists who have bent over backwards to misconstrue laws whenever it comes to upholding the conservative result of that law. Right. And we talked about at that at length in the Whole Woman's Health versus heller's step opinion. Right. So Fifth Circuit hates abortion, and they reversed the district court. I wasn't surprised by that either. Whole Woman's Health appealed to the Supreme Court, and the Supreme Court then did two things. First is they did nothing. Right.

They just sat on the application and let SB8 go into effect, and then belatedly, a day later, at around midnight last night, as of our recording this midnight night on Wednesday, they released an opinion that I will read to you in full because that opinion, citations included, is 411 words. So, two thirds of a page, the length that you might expect from a reasonably bright fifth grader's book report. And so when we explain the shadow docket in episode five, this is what we mean. We mean with no explanation, with no analysis, without committing to anything in print, this opinion allowed a blatantly unconstitutional law to go into effect.

0:14:34 Thomas: Yeah. Yeah.

0:15:57 Andrew: So there is no discussion of the case on the merits. There is no analysis of SB8. There was no analysis of Roe. It does not cite to Roe, it does not say to Casey. It is just procedural. But that procedural means that the Texas law goes into effect until it is briefed, argued, litigated at the district court level, appealed to the Fifth Circuit on the merits, briefed argues, goes to oral argument before the Fifth circuit. The Fifth circuit writes an opinion and then the losing side petitions to the Supreme Court. And if you're thinking, Jesus, that sounds like it's going to take a long time. That's the point.

0:16:34 Thomas: That's, I mean, that's like years, isn't it? That could be.

0:16:36 Andrew: That's Three, three plus years. Years. Yes. And

0:16:38 Thomas: Oh my God. So for now, the no talking bill for now. We'll see. We're see God.

0:16:41 Andrew: Yeah yeah Check back in 2024. Yeah.

0:16:46 Thomas: Yeah. Maybe there'll be talking in 20. The court probably has the right thing in mind. Just going to take three years for the no talking. I mean this is unbelievable. They have banned abortion that look, and I know we say this every time, but just in case it hasn't gone, gotten through someone's thick skull all. Banning abortion after six weeks is banning abortion.

0:16:47 Andrew: Yeah

0:17:03 Thomas: I mean, yeah, you don't find out until like four, five, six weeks. I don't know what the exact percentage would be, but people do not even find out they are pregnant until around that time. And then with all the restrictions and everything, that means you have to go through, jump through all these hoops that take time. You can't just get an instant abortion, especially in the South and these other areas. Like, this is a full-on ban on abortion. That this, this bill is in in Texas and

0:17:02 Andrew: In its entirety. Yes. Yeah.

0:17:31 Andrew: That is that is correct.

0:17:33 Thomas: The court has said that's fine. The Supreme Court has said that's a-okay. The fetus has a tail at six weeks. This, this is, it's not viable. There's no God.

0:17:34 Andrew: So Yes. And Here's their reasons. And if, if, if you will struggle to hear. I I have have included a photo which I hope you will use

0:17:51 Thomas: It's the size of a raspberry. Oh, we haven't even gotten to raspberry size

0:17:51 Andrew: No no, uh, that's eight weeks. At, at six weeks the fetus is five millimeters long. That is a quarter of an inch. It is approximately the size of a grain of rice. I have taken that language not from some crazy Planned Parenthood but from verywellbaby.com, uh, which, is you know, refers to it as the little baby inside you. Right. Like, it's. It's not it. It isn't.

0:18:18 Andrew: I get that. But but, you know, it is a site to.

0:18:16 Thomas: It's not a baby yeah it's one of those sea monkeys. Yeah.

0:18:23 Andrew: Yeah, it's to make pregnant individuals happy and to track the progress. Right. So.

0:18:27 Thomas: Yeah yeah No, I know.

0:18:28 Andrew: So, yeah.

0:18:28 Thomas: I've been been through all this. I

0:18:29 Andrew: Oh, I know we both have. Right. So I want you to include the picture of from very well, baby dot com of six weeks and make it the show graphic. Of

0:18:29 Thomas: Sure and and let me just say it, lest it sound like I'm being insensitive, I love my children more than life itself, and still, at this point in the pregnancies, yes, it was going to become for us, it's going to become a person eventually. We're nowhere near that. God.

0:18:42 Andrew: Course.

0:18:53 Andrew: All right.

0:18:54 Thomas: It's fuck

0:18:55 Andrew: Now, as I read to you the Supreme Court's opinion in full, you will struggle in vain to hear any analysis related to anything related to the court's abortion jurisprudence. Here it is. And literally all I'm skipping are citations and a couple of legalese words. The application for injunctive relief is denied. To prevail, an applicant must carry the burden of making a strong showing that it is likely to succeed on the merits, that it will be irreparably injured absent a stay, and that the balance of equities favors it and that a stay is consistent with the public interest. Correct statement of the law, you know that, right?

0:19:36 Andrew: I can skip the citations. The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. That's an understatement. Yep, yep, yep. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.

0:19:27 Thomas: God yeah really serious wow what

0:19:56 Andrew: For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, but not the laws themselves. There's a citation to California v. Texas put up in that. And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The state has represented that neither it nor its executive employees possess the authority to enforce this Texas law either directly or indirectly, nor is it clear whether under existing precedent this court can issue an injunction against state judges asked to decide a lawsuit under Texas's law. Finally, the sole private citizen responded before it has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say that applicants have met their burden to prevail on an injunction or stay application.

0:19:56 Thomas: Oh my god okay

0:20:46 Andrew: In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicant's lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas's law, and in no way limits other procedurally proper challenges to the Texas law, including in the Texas state courts. And that's it. I have now read you 100% of the law on this subject.

0:20:46 Thomas: Let's make sure we all understand so the no talking bill, and I, again, I'm using this as a hyperbole, but it's, it's like that level of unconstitutionality, like we know it's that clear cut of a case, right? I mean, it based on existing law, how it should be. So the no talking bill, they're saying, well, we don't know that any person is going to enforce the no-talking law in Texas. And so therefore you can't enjoin just a law. You would have to enjoin a person. We don't knows that a person is gonna enforce this. So for now, nothing we can do. Is that kind of what they're seeing?

0:21:12 Andrew: Yeah. Correct. I read you the language.

0:21:45 Andrew: That is exactly right. And at the end, when they say It in no way limits other procedurally proper challenges, including in the Texas state courts. Yeah. I mean, OK.

0:21:50 Thomas: Yeah, I guess. But again, wouldn't the analogous thing be like, yeah, but a no-taking law is clearly against the first, You know, like this is clearly unconstitutional. Why? What? What am I missing?

0:22:02 Andrew: Yeah. You are missing only one thing. OK. And that is remember, I told you to put a pin in that citation to California versus Texas. You might be thinking, what's California versus Texas? And the answer is, yeah, we did a special episode on it. That was Opening Arguments episode 500B. It was the bonus on California v. Texas, which was widely portrayed in the press as Justice Roberts saving Obamacare.

0:22:19 Thomas: Oh, wait, I remember that. Oh,

0:22:37 Andrew: Yeah. And we told you was a huge restriction on standing for people to sue. So here's the language. Now, mind you, this is not only dicta, but as inapposite as you could possibly imagine. This is talking about the standing of states to sue Obamacare to enforce a mandate that was reduced to zero compared to the right of pregnant individuals to seek health care. But but in any event, this is the entirety of the language. Quote, remedies, however, ordinarily operate with respect to specific parties, citation. In the absence of any specific party, they do not simply operate on legal rules in the abstract, citation.

That's it. So in other words, yeah, the howler monkey contingent is now saying is that because Texas SB8 empowers private individuals to bring civil lawsuits to enforce its provision, you have to get relief against the vigilantes enforcing it and not against the state legislature itself. And if you're thinking that's not how any of this should work, that makes absolutely no sense. And if you would like to be further terrified, this shadow docket decision is 5-4, with with all four filing separate dissents, and we're going to talk about that. But the Roberts dissent, Roberts joins none of the other liberals

0:22:36 Thomas: Yeah. Yeah, sure. Right. Huh.

0:23:46 Thomas: But that makes no sense. Yeah.

0:24:09 Thomas: Yeah?

0:24:09 Andrew: In dissent. And the Roberts' dissent says, quote, Quote, defendants argue that existing doctrines preclude judicial intervention and they may be correct. See California v. Texas, but see additional case. Both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the state takes effect. And so Roberts says, yeah, you know what? You might be right that we are powerless to award relief here, but I would at least issue a preliminary injunction preserving the status quo and let us figure that out. So it's not like this is five four. If something were to happen to Clarence Thomas, maybe we could. No, this is it is five votes for shred democracy as we know it. One vote for, eh, I don't know. And three votes for what the hell is going on here.

0:24:44 Thomas: Yeah. Yeah Yeah.

0:25:05 Thomas: And three human beings who have some understanding of the law and and how this should work. And that's it. That's all we, we have. Yeah. No, like you say, that's five votes for get rid of abortion, no matter how unprecedented our procedures, no matter what, right? That's just five votes for stop abortion. We don't care about the details, whatever, whatever the hell they may be.

0:25:13 Andrew: Yeah. Yeah, yeah. And I do not want even our listeners to be sort of distracted by the legalese there. Let me parse in plain English what's happened. The majority, I mean, the howler monkey, Neil Gorsuch, whoever wrote this, says in what I read to you, hey, without the crazy bounty hunter stuff that's in Texas SB 8, this would be a slam dunk case for an injunction. Right. It's super clear on the law.

0:25:55 Thomas: Hmm. Wait, he says that?

0:25:57 Andrew: At the beginning. The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But it also presents the complex and novel antecedent procedural questions, i.e. the civil bounty hunter stuff. So that's why we're not sure we have standing. Let me make this crystal as clear as I possibly can. OK. You do not take a slam dunk case for an injunction and even crazier stuff.

0:26:29 Andrew: Right. And then somehow make it less likely that that should be enjoined. Right? Like this should just be this underlying law is blatantly unconstitutional. By the way, the implementing mechanism is also of dubious merit itself and is almost certainly ex post facto. We'll put a bit in that. And so, yeah, we would enjoin this. We would enjoign this if the state were enforcing it. It gets double secret extra enjoined right now. Now, that's what any normal, sensible court with. And I don't with I hasten to predict how Antonin Scalia would have voted in this case. But I kind of think we would have a chance of picking off Scalia. Right. Like it is with with anybody.

0:26:13 Thomas: Yeah. Yeah, yeah, yeah. Exactly. Is weird. Yeah?

0:27:11 Thomas: At least for this this part of it, right? Where it's like, well, yes, this is enjoined until they actually vote to overturn. Right. Cause that's all we're talking about, right. This is just procedural BS before they actually decide to do what they want to do.

0:27:13 Andrew: Yes. Yeah. For the Roberts part. Yeah, right. Right. Yeah, that's right. This is it. But but I. So, yes. Yes. But I want to tell you when I started the show, what you're wrapping up as procedural PS is what I would call the rule of law. Right. Like it's the it's The Idea.

0:27:37 Thomas: That's fair. Yeah. Yeah, what? No. When I mean, sorry, when I say BS, it's they are using BS procedural language to do this is kind of what I mean by that.

0:27:39 Andrew: No, I know. And I know you're not. Yes. Yeah. And what I mean is, look, bad, for example, as DCV Heller is, at least that required Antonin Scalia to put pen to paper, able to put fingers to keyboard, and commemorate for all time, for history, for legal scholars to analyze right what his argument is, and by doing that, that opened the way for Colby versus Hogan, the Fourth Circuit case, that said, look, we're just parsing your words, man, and you said now, obviously, the the the Second Amendment doesn't protect military weapons, right?

0:28:04 Thomas: Yeah for opening arguments to analyze. Yeah, yeah Right.

0:28:23 Andrew: Well, you said that. So. So we took that as, this is, there will be language. And I'm going to tell you, in the next segment, right, the case that will be decided in April or May of 2022 that that will overturn Roe v. Wade. But there will be language in that opinion that will help us understand the arguments we need to make before this and other courts.

0:28:24 Thomas: Yeah, Yeah.

0:28:48 Andrew: This does not even give us that. It just says. And by the way, Florida has already announced, hey, we're going to pass that Texas statute thingy. If you don't think every pro, you know, every state in which Republicans control the state legislature and the governorship is not rushing out to do the same thing, then you don'T pro-life activists. This. Maybe that's a good time to kind of migrate over to what I expected the Supreme Court to do. So I expected this Supreme Court, even this Supreme court, to enjoin the Texas statute. And then they've already taken up a case. We've talked about it. We talked about this in episodes four twenty seven and four ninety two. It's a case called Dobbs versus Jackson Women's Health Organization. It has to do with an Alabama law that bars abortion after 16 weeks. And by the way, that Alabama law is stayed, right? The exact same, it's the Fifth Circuit, came all the way up to the Supreme Court and the Supreme court was like, yeah, no, obviously you can't ban abortion at 16 weeks, six, you know, right.

0:28:50 Thomas: Of Course. Yeah.

0:29:52 Andrew: You just didn't pick the magic number. Remember, the Alabama law is stayed, could not possibly go into effect because it blatantly contradicts Planned Parenthood versus Casey.

0:30:01 Thomas: Well, they made the mistake of not saying this will be enforced via Mind Ray, or something confusing. That, then.

0:30:05 Andrew: Yeah. If they did. Yeah.

0:30:07 Thomas: It's like well, I guess it's fine now. Yeah.

0:30:07 Andrew: They just said abortion is banned at 16 weeks. And by the way, like we're going to release packs of chimpanzees.

0:30:15 Thomas: Yep. That means it's fun. 2008, the residents of the Valley View apartment complex in Redmond, Washington, held a Halloween party. Dozens of people in costume mingled, drank, and danced, but before the night was over, one of them was murdered. The police had a suspect. His story kept changing, but his DNA was at the crime scene. When he finally came in for questioning, the detectives felt like they were a breath away from a confession, but it didn't happen. And so the police focused their attention on another man, a man with a criminal record whose DNA was also found at the crime scene. And he just so happened to be the only black man at the party. Suspect is a new true crime miniseries about cutting edge forensic science and mislaid justice, about race and policing, and ultimately the kinds of weighty decisions that cops and prosecutors make every day.

0:30:15 Andrew: Yeah, exactly. OK,

0:31:06 Thomas: Decisions that once made change lives forever ever and are almost impossible to reverse. And I gotta say, I love podcasts that will further drive home the fact that maybe the criminal justice system isn't perfect. Maybe a lot of it is based on, you know, happening to only be the one black man at a party, at a place. I love that about Suspect. And if you are a fan of true crime and if you're a fan of criminal justice reform, forum, you should check out the Suspect podcast from Wondery. Spoilers on the show. You'll have to listen for yourself and find out more about that. But safe to say, if you like true crime, if your interested in the and maybe, who knows, the virtues of the justice system, check out Suspect from Wundery.

0:31:51 Thomas: Follow Suspect on Apple Podcasts, Amazon Music, or you can binge binge all nine episodes ad-free by subscribing to Wondery Plus in Apple Podcasts or on the Wondory app. So you can binge all nine. They're already out. Go check it out. Suspect from Wondry. This show's brought to you by Blinkist. Apparently I stressed somebody out last time when I said that the number of books that you are going to read in your life is a lot less, quite a bit, than the number books that exist in the universe. Somebody was like a little stressed out by that. Hey, here's thing. It's true. That's just a fact. You're never going to have time to read all the books you want. But with Blinkists, maybe you do, because with with Blinkist, you can have all the most important ideas and takeaways from the world's top nonfiction bestsellers, all in fun 15-minute reads or listens.

0:32:41 Thomas: Use these blinks, as they call them, to get inspiration or like to read next, broaden your knowledge, and get new perspectives. Blinkist top non-fiction books like Happened or Fire and Fury to take a couple Trump-era ones. I'll get back to that in a minute, why I chose those. It takes those and out the key takeaways and puts them into 15-minute text and audio explainers called Blinks, with over thousands of titles in 27 categories, plus Shortcasts, which are Blinks for podcasts. Guess. The Blinkist app gives you the knowledge you need in the time you actually have. So I like Blinkists because as I said, I'm kind of done with Trump era books. Them. I've enough of them, I don't want to read an entire another one, if I'm being honest.

0:33:30 Thomas: But I don'T mind blinking another one because that's only a 15 minute investment of time. I can get the key takeaways, you know, if there's something, I dunno, something I might've missed, some new perspective. But like, I've kind of been there and done that with that particular era. And maybe you have that, but for something else, who knows? Maybe there's some other area where you're like, well, I don't want to read another one of these kinds of books, but you wouldn't mind getting the 15 minute takeaways so that you basically know what's in the book. I use Blinkist to be able to read more. It's not about replacing reading for me. It'S just about getting the key insights from books that I wouldn't have been able to get to anyway. That's how I use it. I think it's great for that purpose and I recommend it right now. Blinkist has a special offer just for our audience. Go to blinkist.com slash opening to start your free seven day trial and get 25% off a Blink is premium membership.

0:34:19 Thomas: That's Blink ist spelled B L I N K I S T, blinkist dot com slash opening to get 25 off and a seven day free trial, blinkist.com slash opening. This show is brought to you by Ex-Chair. Oh, it's my favorite time again when I get to tell you about Ex-chair while sitting in my very own Ex-chair. The unknown came in 2020 and changed the workplace forever. While some of us are getting back to the office, some of find ourselves in a new normal at home. Let me give you a tip, folks. Are you working from home and has your back or neck been bothering you and you're just not sure why? If you haven't caught on yet, it is because you're probably sitting in a bad chair, or you're sitting on the couch, or you sitting in something not meant for you to be sitting in all day. And so I think you should get an X chair.

0:35:06 Thomas: The future of work has changed. And so has the future of seating X chairs at the forefront of home and office seating during this transition. And now X chairs, newest innovation, LMAX temperature regulation will take your seating comfort to a whole new level. Patent pending LMA X allows you to experience cooling, heating, and massage in your low back feeling a bit warm this summer. Yeah, Yeah, definitely. We're on fire, as usual. Set your LMAX to cooling. I'm going to need double LMAx cooling for mine. The air conditioning in your home office cranked up too high? Set your LMX to heating so you can warm up and soothe those tired muscles. Feeling stressed from too many Zoom calls? Turn on LMX massage therapy and relax. Xchair's patented Dynamic Variable Lumbar DVL support was already best in class with incredible responsive low back support.

0:35:53 Thomas: Now, with LMX, your comfort is guaranteed. You won't believe the difference until you feel it for yourself. Imagine regulating your body temperature and getting massage therapy while you're working. X chair LMX delivers cooling, heat, and massage technology directly to your core, regulating body temperature and helping increase blood flow, muscle recovery, and energy. All perks that make working from home or the office a joy. There's never been a better time to ditch that old no-name office chair and boost your productivity by treating yourself to the joys of x chair Go to x chair oa.com that's the letter x chair OA dot com, or call 1-844-4x chair and save 100 on your order. X chair has a 30-day guarantee of complete comfort, and you can finance your purchase for as little as 30 a month. Go to to xchairowa.com now and use code XWHEELS for free X-Wheel blade casters. Yep.

0:36:52 Andrew: That case was then appealed all the way up to the Supreme Court. And the cert petition raised three questions, but the Supreme Court granted cert on just one. And that question is defined as, quote, whether all pre-viability prohibitions on elective abortions are unconstitutional, end of quote. Quote, that means do you overrule Planned Parenthood versus Casey, summarizing the, quote, central holding of Roe? OK, so the Supreme Court has before it. It is not yet calendared for oral argument, but it has been fully briefed. It is on the fall 2021 docket. It will probably get heard in November or December of this year. They have before it the Dobbs case. That case will be used next year to overturn Roe v.

0:37:41 Andrew: Wade. And now the howler monkey majority writing to overturn Roe v. Wade is going to be able to pile on and go, yeah, and by the way, like, you know, lots of laws restricting previability abortions have been in effect for six months and we seem to be fine. So, you know, yep, diabolical what this court has done. And you find someone defending this decision, they are an ideologue motivated by their hatred for abortion and not they are not. Not you. You need not take their legal opinion seriously. No lawyer, no judge.

0:37:56 Thomas: Yep. Balls.

0:38:18 Thomas: And strikes just calling balls and stripes here. Um, here's my question, uh, from, could this be then, now I understand this bizarre ruling a little better, maybe we give slight credit to that NPR headline, is the idea maybe that like, okay, uh, using this one weird trick, it hasn't been joined, but the minute a person, like an actual human, stops another human from getting an abortion, then will we see another case, and then it'll be like, well, you don't have that same reasoning, so now you do have to enjoin that.

0:38:20 Andrew: Yeah, could could could do so.

0:38:52 Andrew: So why don't I talk about what SB8 does? OK, because I think that'll help answer that that question. Yeah, well, I mean, it's it's we're sort of dancing around that pin because I, I think I think the answer to that is that procedurally, no, that's not going to help. But it's a really good point. So let's so let's talk about it. SB8 is not a long bill, but it is a disaster. It begins with this is Section 171.201 of the Texas Code. Um, it defines fetal heartbeat as cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart, by the way, not a medical term within the gestational sack. Uh, that is the medical term. That is that, black um, voidy thing you see on a, uh, on an, on a ultrasound. Fetal hart just means a tube that is pumping blood, uh.

0:38:56 Thomas: Well, we'll put a pin in it. Sure. Yeah.

0:39:45 Thomas: Yeah

0:39:45 Andrew: Through the sack. Um, 203 mandates that before performing any abortion, doctors have to search for that fetal heartbeat. Section 204 says if they find it, they may not perform an abortion. Section 205 gives the exception, and you will notice I have said singular, that exception is for a medical emergency. Medical emergency, not defined in the statute, um, but, uh, very clearly does not include exceptions for rape, incest, almost certain to miscarry severe trauma to the fetus, severe trauma to the pregnant person. Nope, none of that.

And by the way, it also amends if you're wondering how how deep the cruelty goes, it amends Section 245.011 of the Texas Health and Safety Code that requires doctors who perform abortions to provide a monthly report of all the abortions that they that they provide and detail 11 separate things. And one of them is subsection 10, whether the abortion was performed or induced because of a medical emergency and any medical condition of the pregnant woman. And again, that's the language of the statute that required the abortion. So in other words, inaccuracies on your monthly reporting requirements are themselves, it's misdemeanor, but are themselves criminal and you'll get fined for it.

0:40:14 Thomas: Yeah

0:41:13 Andrew: Right. So creates an entire new bureaucratic mess of, OK, we're going to allow, you know, medical emergency, but the doctor has to certify under penalty of perjury that it really is. They have to describe what it is. They have to put it in these monthly reports. Right. Like if you're thinking, oh, abortion clinics will just stay open and, you Know, we'll construe everything.

0:41:18 Thomas: They'll

0:41:36 Andrew: Everything.

0:41:35 Thomas: Just fudge the paperwork, kind of thing. Wow. Well,

0:41:37 Andrew: No, they will not. If I represented an abortion clinic in Texas, my advice would be shut down. And I believe that that's what is going to happen to every abortion provider in the state of Texas.

0:41:50 Thomas: Okay, but I, for the sake of protest, for the sake of just pure you know, service to, right?

0:41:54 Andrew: I'm not saying I'm telling Planned Parenthood to close their doors. I'm saying if you're asking me what is your legal exposure as an abortion clinic continuing to operate in In Texas, the answer is it's off the charts for reasons that I'm about to describe. OK, of 205. That's the sole exception to a six-week ban, just in case, because the people who wrote this were lawyers, even though they were evil lawyers, says, now, by the way, just because we're saying you can't have an abortion after a fetal heartbeat, quote, nothing in this statute is intended to confer a right to an abortion before a fetal heartbeat. Right. Yeah. Yeah, they want to reserve. Look, they're not happy with six weeks. They want, right, to restrict this all the way back to conception. They want to get rid of abortifacient drugs. They want to get to get read of every bit of progress that we have made the 21st century, in the 20th century, towards reproductive health freedom. This codifies it.

Section 206, by the way, we're going to come back and we're going to take away, you know, this heartbeat thing is just, you know, that's just so we can run commercials, right, like that it doesn't have have anything to do with with our, uh, view of the law. So, um, that's 206. 207, this is the part that got them past Neil Gorsuch, that was enough of a fig leaf

0:42:09 Thomas: Right. Oh.

0:42:33 Thomas: My

0:43:18 Andrew: Uh, to get Gorsuch and Cavanaugh, uh, to say, uh, hey, um, this is different, oh, yeah, we're not, yeah, we're not going to intervene, because, because, because it's different. Um, I mean, I believe, and by that I say, I, I believe, you know, it was very clear, Alito, Thomas, and and Barrett, I mean, their writings are, um, suffused with righteous moral anger about what abortion is. So, you know, that was never happening. Section 207, requirements of this subchapter shall be enforced exclusively through private civil actions as described in the next subsection. No enforcement of the subchapter, and no enforcement of the penal code in response to violations of the subject, or may be taken or threatened by the state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of the state or of a political subdivision against any person, except is provided in the text.

0:44:11 Andrew: This is the vigilante provision. So what's in 208? It confers standing on anyone anyone to bring a private civil lawsuit. And if you're asking, is that constitutional? Probably is, right? There are statutes that name individuals as state's attorneys general, right, as private attorneys general. So you can outsource to vigilantes for state cause of action. It imposes statutory damages. That's also constitutional, right. You don't have to show these vigilantes that they've suffered any harm. You can just presume the harm because you've defined it by law. So what does it say? 208 says, any person other than officer or employee of state bring a civil action against any person who, one, performs or induces an abortion in in violation of this subchapter.

0:45:08 Andrew: Two, knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the cost of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of the subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of the subchapter, or against any person who intends to engage in the conduct described in the previous two subsections. So that means private citizens in Texas are incentivized to hang out outside abortion clinics, which they're already doing, and if anyone goes inside, they are empowered to bring a lawsuit if they prevail in that lawsuit.

0:46:00 Andrew: But not if they lose. By the way, this is one of the only fee-shifting statutes I've ever seen that only goes one way, right? If a claimant prevails, the court shall award injunctive relief to stop the abortion if they can. Statutory damages in an amount not less than $10,000 for each abortion. So could be more if the judge decides that it's more for each abortion that the defendant performed or induced in violation. Right. And costs and attorney's fees. So I just want you to let that sink in for a minute.

0:46:06 Thomas: God. And You're saying it doesn't go the other way, so if they somehow brought it, just, they're, they're incentivized to bring as many suits as possible if they are wrong.

0:46:34 Andrew: No. Yeah. If exactly right.

0:46:40 Thomas: Doesn't matter, no harm, no foul. Yeah.

0:46:42 Andrew: Each side pays their own costs. That's exactly right? This is where Sidney Powell and Larry Klayman are going to relocate, right? Relocate to? Sidney Powell's already in Texas. Thankfully, she will not be practicing law much longer. But yeah, bring bring as many of these suits as you possibly can. Get your wealthy clients who don't care if they have to pay your attorney's fees lined up and tell them, yeah, you know, probably we'll get my attorney's fee paid for. So it's all all good.

0:46:50 Thomas: So Abortion is illegal in Texas right now.

0:47:14 Andrew: It Is 100, I mean, again, you fit into the category of, uh, the second you notice a missed period, uh, prior to, you know, somewhere in between weeks four and six, and you manage to schedule an abortion, uh, in that time period consistent with all the other Texas access laws. But yeah, no, it is. It is, abortion is illegal in Texas and will be enforced by a mob of crazy right wing religious lunatics. The ones who are protesting in the Planned Parenthood parking lot right now are incentivized to hire Sidney Powell to bring as many lawsuits as they can and cash into the tune of ten thousand dollars for tattling on you. Now, some folks have asked on social media, well, why don't we just weaponize it the other way around and start bringing these cases against pro-life activists in Texas?

And the answer is because the cases will get dismissed. Your lawyer will get disbarred and you will get sanctioned. Right. Because think about what I just read to you, the requirements are performs knowing an abortion, knowingly engages in conduct that aids or abets the performance of an abortion or intends to engage in the above named conduct. Um, those impose a rigorous pleading requirement that cannot be satisfied by, on information and belief. Right. Well, I'll prove that in discovery. No, you gotta, you're going to have to say, right, when it says knowingly, what's your evidence that they knowingly engaged in that? What's your evidence that they intended to engage in that. And any evidence that you would put on, you know, to fraudulently get somebody, you know, hoist by their own petard, right, would involve you perjuring yourself in a court of law. So,

0:47:30 Thomas: God. Yeah they Yeah. God.

0:49:00 Andrew: No, you can't just turn this around. It is a one way ratchet that only works for the bad guys.

0:49:08 Thomas: I'm just speechless, I mean, this is just it's so much worse than I, I even thought, and I already thought it was bad.

0:49:10 Andrew: It it's. And are you ready for it to get worse?

0:49:15 Thomas: No, absolutely not. But that's the world we live in. So lay it on me, I guess.

0:49:21 Andrew: Subsection E says, notwithstanding any other law, the following are not a defense to an action brought under the section. One, ignorance or mistake of law. Two, defendant's belief that the requirements are unconstitutional. Three, a defendant's reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates the subchapter. Now, that's legal ease. I think you get it. But let me make sure that I'm unpacking this for my listeners, for our listeners. OK, what this says is if you get an abortion today and then you are the subject of one of these civil lawsuits, you and the abortion provider are the object of one of of these civil lawsuits.

0:50:12 Andrew: You may not rely on the defense of the Constitution at the time that I got an abortion if at any time between when the suit gets brought and when it gets adjudicated, the Supreme Court overturns the cases that you're citing. Other words, it would be a real good defense to the statute to say you cannot hold me civilly liable because the Supreme Court has said in Planned Parenthood versus Casey that I have a right to control my body pre viability. And that would otherwise be a very, very good affirmative defense. And this court says that's not a defense if Planned Parenthood versus Casey gets overruled at any time before the decision is rendered, which is to say in the next 12 months. Yeah, it

0:50:59 Thomas: This is, yeah, this is my question. Is this some sort of weird collusion? It has to be, right? I mean, otherwise this is the weirdest coincidence that it's like, oh, we put in this bizarre bounty hunter rule and that That just so happens to be the thing that is the justification for the Supreme Court not blocking it. And then also, now you're saying this. Now they're saying, oh, and by the way, if anybody, not saying naming names, but you know, if somebody overturns Planned Parenthood v. Casey or any time in the future, you're also still like you're liable, even if that didn't happen during your, like, it just doesn't this seem really weirdly colluding?

0:51:06 Andrew: 100 percent smacks of collusion.

0:51:41 Andrew: Mean on the level of the various sitting justices of the Supreme Court like Clarence Thomas, who, along with his wife, give public speeches in front of the Federalist Society, which then coordinates with local governments to write legislation like this? Yeah. No, it's not a coincidence. Right. Also that whole like you can't rely on a law that then later gets overturned seems kind of ex post facto to me.

0:52:10 Thomas: Yeah.

0:52:10 Andrew: And I'm like, yeah, kind of seems ex post facto to me, too. But but but, you know, you Knows who would, you know, who usually cares about whether laws are ex post facto or not, the Supreme Court. We do not have time for me to talk about the last section, 209, which basically redefines the Planned Parenthood versus Casey undue burden and says, if you are going to plead that this is an undue burden, you have to plead it in this specific way. You have to show that it prevented or placed a substantial obstacle in the path of the the plaintiffs, of you, or another group of women, and again, that's the language in the statute, from getting an abortion, but not, you may not establish an undue burden by demonstrating that an award will prevent women from obtaining support or assistance, financial or otherwise, from others in their effort to obtain an abortion.

0:52:11 Thomas: Are You Even Allowed To write To, well, apparently, You're allowed to do anything, So I don't, yeah. I don't, I.

0:53:04 Andrew: Or arguing or attempting to demonstrate that an award against other defendants or other potential defendants will impose an undue burden on women seeking an abortion? In other words, it makes it almost impossible for you to argue that a restriction is an undue burden. And continuing the ex post facto stuff, the end of 209 also says, hey, and by the way, this affirmative defense is not available if the U.S. Supreme Court overturns. It specifically says, quote, if the US Supreme Court overrules Roe v. Wade, Planned Parenthood versus Casey, regardless of whether the conduct on which the cause of action is based under Section 208 occurred before the Supreme Court overruled either of those decisions. So, yeah, is not a sane universe in which this law is constitutional. So, yeah. Welcome to the monkey house.

0:53:52 Thomas: I'm speechless, I don't even know what to do.

0:53:54 Andrew: Kind of right. Like what can we do about this?

0:53:57 Thomas: Nothing.

0:53:57 Andrew: Yeah, we can pack the court, that is it, yeah, Elie Mistal wrote this article about, you know, how we can have uh roving gangs of federally funded free abortions, um, no, we can't, we can do that, uh I'll bawl for it, right, like, you know, you

0:54:00 Thomas: Yeah.

0:54:14 Thomas: Well, actually, I mean, okay, yeah, what about that, what about a federal thingy, a federal row, a federal whatever obvious

0:54:20 Andrew: If you could pass, you absolutely, uh, could pass a federal law that occupies the field that says the connection to interstate commerce is obvious. But then again, right.

0:54:35 Thomas: But Then the court Can Easily Just

0:54:37 Andrew: Yeah. You've got NFIB versus Sebelius. Yeah, the health care is pretty much interstate Commerce. And Robert said, no, it wasn't in that case, too. So, you know, so who knows? But but yeah, if Congress were to pass a bill And Nancy Pelosi says she intends to introduce legislation to do that, that guarantees a a federal right to reproductive health services that absolutely would would, if written properly, supersede these laws. But you can't pass that law without blowing up the filibuster.

0:54:37 Thomas: Say Nah, And It, you know, it's just so important to have the filibuster. Cause if we don't have that, then what do we have? You know, might as well not even have a country if you don't have the fucking filibbuster.

0:55:10 Andrew: Filibuster It, If You, If You are not outside, if you live in Arizona, and you are not outside Kyrsten Sinema's office right now saying, can we blow up the filibuster now that that's what's left, right? If, if you're asking what can we do, the answer is, step one, blow up the filibuster, and then we can talk about what we can do, and even then, there's still a lot of problems, even then, it's still an uphill battle, it is a zero battle, we do not even have squirt guns without the filibuster, um,

0:55:26 Thomas: Yeah.

0:55:44 Thomas: I'm so mad. I seriously, I don't, I don't t even know what to say. This is just, it's yeah.

0:55:46 Andrew: Should Be And Oh, oh, and by the way, one last, because I, because I, I took notes of all the like, uh, people who were way more optimistic than me, going like, yeah, and so, so there's some bad memes going around Twitter of like, well, see, now, now, what we should do is, you should pass, you know, vigilantes get to enforce gun control in New York, and then the Supreme Court won't enjoin that from going into effect. And the answer is, yes, they would. What, are talking about? The whole point of this being on the shadow docket is that decisions not to grant injunctive relief have zero precedential value and are not binding. That's the whole point, so yeah, there's no way they would be like, oh, yeah, good one, liberals, you got us, right? No, this is, this is Supreme Court that's writing the rules as they go along, and they intend to write it in such a way as to reach conservative outcomes, and you know, yeah, you You don't need me to tell you that.

0:56:19 Thomas: Doesn' matter.

0:56:34 Thomas: You got us. Yeah, Yeah. Yeah. We look, if, have we not learned our lesson? It's raw power. That's all it is. It'S do we have the power or do we not? Then there's no legal nuance. There's no trick that's going to save us. That we have to regain power.That's it. That'S the only thing. And you know, what doesn't help, that not voting, like, honestly, I mean, we, I again, we're, we're where we are now, uh... there's a whole lot of reasons we're here, um, but just, lest anyone think this is a reason to not participate in the system, this is what happens when you don't participate in the system, is you know, if, if your solution is, well, I quit, okay, this is what happens, people, a lot of people said, well, I quit in 2014 and we lost the Senate. And that was huge. That, arguably Trump might not have been elected because of, you things that would have been apparent about the tampering and investigations into him. Who knows? We would have had one more Supreme Court justice. That could have made a huge difference in later cases.

And a whole lot of people didn't participate in 2016. They said, oh, no, too shy. You know, they're just the same, practically the same. Not going to, it's not my fault that you didn't give me a good candidate, I'm going to not participate. Is, you know, Ezra Klein, just didn't, uh, I'm a huge fan of Ezra Klein. He just didn't ask me anything episode. And one of the things he talked about, it wasn't related to this per se.

It was actually related to veganism, not, um, to go down that rabbit trail now, but one thing he said is that we should think of ourselves as moral contagions.

0:57:03 Andrew: Yeah. Yeah.

0:58:07 Thomas: And that's how we should thing about my vote. Vote, Andrew, your vote. Honestly, yeah, it doesn't do a whole lot. It's one vote. But like our influence, your social influence, listeners, you know, that that spreads, you know, my individual vegetarianism decision doesn't really do a whole lot, no one person's actions do a lot. But think of yourselves as a moral contagion. Think of yourselves as having a point of view, having an opinion, having a stance that can spread. And what happened was a lot of people have been moral contagions for apathy, for, uh, there's no point in participating, for whatever, and, know, while, while we may agree on some things about how shitty the system is, absolutely, there, there'sno other answer than we have to take back control within this system, so be a moral contagion for getting out there and participating, this, this is what happens when we don't.

0:58:59 Thomas: And now a bar question. I don't know. What do we do? Else are we doing? I don't know. All right, fine.

0:59:05 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:11 Thomas: And now for some sense of normalcy to return to our lives, Andrew, I' try to answer a bar question. It's like, like the violinist on the Titanic, you know, kind of, I'll just keep doing my trick for anybody who cares to wants to hear a bar question this week.

0:59:20 Andrew: Yeah, right, Thomas. And just so our listeners know, and for those who are, you following you and may be sympathetic when we change up bar question sources. Sources. New source for this one. A local bartender owns Black Acre, which is an undeveloped piece of property next to his bar. On March 1, the bartender conveyed Black Acre to an investor who paid value and wanted to build an apartment complex on the property. The investor did not immediately record his interest.

1:00:00 Thomas: Let me stop you right there. Answer E, whatever the fuck the Supreme Court thinks. Whatever the the howler monkeys on the Supreme Court want. That's the answer. End of bar. Cool. All right. I'll answer this.

1:00:08 Andrew: Well, it's going to be tough to get you admitted that way. But on

1:00:16 Thomas: This bar exam question is going to become like Lord of the Rings trivia. You know, it's like, yeah, okay. Okay, we'll go to this imaginary land where the law matters, where the Constitution still matters. Travel We'll into your Tolkien-esque imaginary land, Andrew, to answer a question just for fun, just for old time's sake. All right, here we go. Property law.

1:00:39 Andrew: March 1, the bartender conveyed Black Acre to an investor who paid value and wanted to build an apartment complex on the property. The investor did not immediately record his interest. On April 1, the bartender sold the still undeveloped Black Acre to his son. The son did not know about the conveyance to the investor. The son immediately recorded the deed.

1:01:02 Thomas: Interesting.

1:01:02 Andrew: On May 1, the investor recorded the deed and had a construction company start digging on the site. On June 1, the son sold Black Acre to his friend. On July 1, the bartender died. His will left Black Acres to his brother, who immediately recorded it. On August 1,

1:01:03 Thomas: Oh, my God. Got a real sitcom situation here.

1:01:25 Andrew: Yeah. It is, this really is. On August 1, the friend recorded the deed. The jurisdiction has a race-notice recording statute in an action to

1:01:34 Thomas: What? Oh, for the love of... So I need to know the race of all these people? Race

1:01:37 Andrew: Rank the, in an action, a quiet title, who will have priority rights to Black Acre? Yep. A.

1:01:46 Thomas: Notice recording statute. So this is a pointless question, and all it is is do I know what a race notice recording statute is, and I don't, so I already don't like this new source, Andrew.

1:01:57 Andrew: Right. It. A, the investor. B, the son. C, the friend. Or D, the brother.

1:01:58 Thomas: Yeah. Tinker, Taylor, soldier spy, um, well, I guess that would all depend on what a race-notice recording statute is, so that the question should just be, what's, what's a race noticed recording statute? And I will say, I don't know, 'cause I'm not a lawyer. Mean, the wording implies maybe you need to like record the the deed right away. Race notice. I mean it implies that, you need to do it within a period of time.

I don't, but is that like whoever did it first, or is it that within a legitimate sale or conveyance you would have had to do it within a certain amount of time, otherwise it's null and void? You know, that's kind of two separate things, so like on, on one theory it could be whoever recorded it first, on the other theory it could be like whoever had a a, like a conveyance that was legitimate and and recorded it within some set amount of time.

Um, the investor played for it, um, he just didn't record his interest, his, think, honestly, it's really got to be the investor of the son, right? Because then after that it's like, uh, so so that's the next one is the son, so the investor didn't, you know, sat on it, didn't record it, the son bought it and immediately recorded it, so

1:02:12 Andrew: Sure would.

1:03:11 Thomas: It's got to be one or the other. On May, and then the next thing is, because, and also the next thing is, the investor recorded the deed and it starts working on the site. June, one's son sold it to a friend. Oh, I guess that's the question. I guess under the other theory, it will have transferred another few times. So, okay, so it's not the son. I gotcha. So the son sold to his friend. But did he have the right to sell it?

I suppose if he ever owned it, he had the right to sell it. I think on July 1st, the bartender died, he left Black Acre to his brother who recorded the deed. I don't think any of that could be it. I, so I think it's got to be either the investor, who paid and eventually did record it, or the son, who after that sold it to his friend. Could possibly one way or the other. The bartender has sold the thingy, he's either sold it to his son or to the investor. So I think I'm going to say, for sure, not the brother, that's not happening. So the answers are investor, son, friend, so it's kind of an, I think it's an order there, to go.

So I'm going to, with the, I think, so I think I'm between the friend and the investor, because if I follow that track, it's the son recorded the deed, and then later the son sold Black Acre to his friend, and then the friend later recorded the deed.

And it's pretty hard to imagine the investor getting screwed out of the thing, but then race notice regarding statute, like maybe that, maybe that means that, by the way it says in an action to quite title, I assume that just means like, you know, let's settle this, like, hey, can we quiet all this, there's a whole lot of recording, hoarding of interests, uh, here can we just quiet that down, yeah motion to, shh, and it's actually just like the, the person who works at the county who's like, all right, I'm tired of this, quiet, motion to quiet, who has the rights here.

Obviously I'm strongly between the investor and through the sun the friend, who, you know, because the sun has the other, you, I think legitimate claim here, because they bought, they didn't know, the sun didn't, no, they bought the the land, they recorded it immediately, uh, and then they later sold it, and the person who they sold it to, the friend, also eventually did record the deed, uh, June, July, August, so I wonder if there's a specific time period we're talking, um.

So the, the investor waited two months, the friend friend also waited two months, so that's kind of interesting, so I'm wondering if the race recording thing means like a, you know, fucking 90 days or something, um. Huh? Now I feel like, uh, Vizzini, since the son, uh...

1:04:49 Andrew: Motion to Ixnay on the operative pray.

1:05:40 Thomas: Recorded the deed immediately, and the son, when they sold it to their friend, the friend actually didn't file it for two months, which would be equal to how long the investor waited. So therefore I cannot choose the wine in front of me. I think that actually I've talked myself out of the friend, because if the investor got effed out of it, then the friend would have too, by the same logic, because it's two months for both of them.

Toward the son, because the son was the only one who immediately recorded the deed. Let's say it's a, maybe race notice recording means 30 days, you, that theory, the son is the only one who did anything right there, also the brother through the will, but that doesn't matter because if the sons was good, then, then I think that you can't also will the land. Boy, I am now between the son and the investor, this is interesting.

So if the way the investor did it is okay, if 60 days is okay, then the investor has it, if 60 days is not okay, then actually the sun has it, because the friend also took too long, that's so interesting, what a fun logic problem, even though you know it sucks, I don't know what the thing means, but that, that at least, I, I hope I've made at least a good observation here, so now I'm between actually back to A and B, the investor in the sun, weirdly, it's like if you follow it closely you might have gotten this wrong, if you followed it even more closely then you go back to what you would have thought if you didn't follow it close enough, which is funny, uh, if I have all this right, right.

So I'm between A and B, you know, I just, for fun, 'cause this is a new thing, I have no idea how tricky this is supposed to be, I'm getting very trickiness vibes from this new set of questions. I'm going to say the sun, because the sun is the only one who quickly recorded it.

1:07:22 Thomas: That's going, uh, to be, I'm going to go B, final answer, uh, between A&B. So let's see what the coin thinks. The coin agrees. So the coin and I agree, Be, the sun, and I have zero percent confidence in this, but this has been interesting, at least distracted me from the fall of our entire democracy.

1:07:37 Andrew: And what better role could T3BE serve than to distract you from, yeah, the fall of democracy as we know it. All right. If you, too, would like to be distracted acted from the fall of democracy as we know it, uh, play along, use the hashtag T3BE, send us your guests, share out this episode, you know, how, do this, share out the episode on social media, include the hashtag T3BE, include your guests, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune, fame and fortunate not guaranteed.

1:07:44 Thomas: You you make a great point all

1:08:07 Clip: And thank you, Let's go!

1:08:09 Thomas: Now it's time to thank our new patrons at patreon.com/law. Enjoying all the goodies, I hope you enjoyed that q a it was a lot of fun, uh, got the audio up for you, you, for folks, and a lot off of movies within the next few weeks, all those are benefits if you join on patreon.com/law, not to mention ad-free episodes each and every episode, so that all said, let's uh thank our new patrons, start us off, and

1:08:32 Andrew: Thank you to Vorpal Blade, yeah, it was always good when he got the Vorpal Blade, uh, to Sara Sapienza, Andrew Haggerty, Hail Nimrod, Kevin, and Jason Brandeis.

1:08:45 Thomas: Thanks to A Streetcar Named Deez Nutz. All right. That's actually really funny.

1:08:50 Andrew: That's so good that's so funny

1:08:54 Thomas: WFHChuck, pants free since 2020. Nice. Tom Pugh, Ryan E., Joe Hyde, and Holly Wiseman. Thank you so much, new patrons. We hope you enjoy all the bennies, all the new patron bennys.

1:09:09 Andrew: That that's what the cool kids are saying these days

1:09:11 Thomas: All. Well, that's our democracy down the toilet and reproductive rights down the drain, and abortion is illegal in Texas, uh, and this is ridiculous, and please, please fight back. Here's, uh, if you're a Californian, you want to know where to start, start by not allowing a Republican to take control of our state, uh, and vote no in the recall, please.

1:09:30 Thomas: It's Very important, imagine Larry Elder, governor Larry Elder, imagine what will, will happen there, because, um, that's a major deal. Um. Things like that, you know. Keep involved. Get to the polls. Get to, you now, vote. Participate. It's, it's the only thing we can do. All right. Thank you so much for listening. Please share this episode with an Uncle Frank or something.

1:09:30 Andrew: Nice Preview Of next Week's episode said.

1:09:51 Andrew: Yep.

1:09:52 Thomas: Actually, no, they'll be too happy to hear it. Please show it to somebody who might be reachable.

1:09:55 Andrew: Share it with a libertarian who's like, well, you know, Trump did do a good job of increasing my 401k. There you go.

1:09:59 Thomas: Oh my god. Great Great point. Great point thank you for listening we'll see you next time.

1:10:06 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.

1:10:39 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.