OA593: Roe Was Never About a 'Right to Abortion'

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

0:01:23 Andrew: Well, I can't say I'm doing fantastic, Thomas, but I am feeling energized, right?

0:01:25 Thomas: I know, yeah. Energi‐ oh, I love it. What if that's the new fantastic? Yeah.

0:01:30 Andrew: Yeah. I, maybe it is.

0:01:35 Thomas: Energized.

0:01:35 Andrew: I yeah, right, we'll have the little, uh, transporter noise behind that, that'll be great. Um. No, we recorded pretty raw on Monday night when the leaked Dobbs opinion Came out. And since then, you and I have had a lot to think and a lot time to try and take that raw energy and focus it in a productive way. And we have a lot that are sort of in the works. I don't want to talk about stuff that's in the works other than to say that you and I are establishing an Opening Arguments charitable foundation. We will give you more details as that comes to fruition. But the idea is to take our expertise, our platform here and use that to do good for folks who are victimized by what the Supreme Court not only is about to do in the next couple of weeks, but over the next couple of years. So I'm really, really excited. I know you're really, really excited about that and um

0:01:47 Thomas: Yeah. Absolutely. Yeah, I can't

0:02:34 Andrew: And As soon as we have details, we will share that with you.

0:02:34 Thomas: Wait. Yep. So much to figure out, but energized, I like that. That's the appropriate thing. It's a little tough to be fantastic per se, but motivated, trying to you fix things, trying to make it better. All right. So much to talk about. Also, another on the lighter side, better announcement. We do have that Q&A coming up. We're really looking forward to interacting with you folks. We could use it right now. I know I could. It'll be fun to interact with you guys. And we posted the question thread before all this happened, and I believe it's been inundated it even more than usual. So we'll see. You know what? We'll see, maybe we can go a little extra on the Q&A. We'll say, I can't, with kids, I could never fully commit to anything, but possibly, depending on how they treat me that day, we can, yeah.

0:02:54 Andrew: Absolutely.

0:03:23 Andrew: You hear You heard it here first, a solid maybe from Donna Smith.

0:03:26 Thomas: A solid maybe, that's better than nothing. A solid, maybe on the, cause there's so many good questions, but make sure you go to patreon.com/law. You find that Q&A thread. Only the patrons get to ask and vote on questions, but everybody listening can come join us on YouTube. And that is Tuesday at 5 p.m. Pacific, 8 p.m. Eastern. Nice time that I think everybody can get after work, you know, have to after work drink of your choice. Maybe it's a cocktail, maybe it's water, maybe its tea, whatever it is. Join us the 10th, Tuesday coming up. And one more reminder to please go ask those questions and also browse Browse through the questions and vote. Hit the heart of the questions that you really want to hear because that tells me we can never get to all of them, even if we go extra. So that tells us which ones to prioritize, which ones you guys want to here. It's a great system. Love it. Can't wait.

0:03:30 Andrew: No,

0:04:15 Thomas: See you there. OK, and Andrew, you have a couple little updates on, you the handmaid's tale ending of our country.

0:04:23 Andrew: Yeah, that's right. So a lot of folks have asked this question. I expressed with, you know, like 99 plus percent confidence on our Monday night bonus episode that this draft opinion was indeed authentic. The Supreme Court has now confirmed that it is authentic. It issued a press release from the office of John Roberts that says, yesterday, a news organization published a copy of a draft opinion in a pending case. Justices circulate draft opinions internally as a routine and essential part of the court's confidential deliberative work. That's true. Although the document described in yesterday's reports is authentic, it does not represent a decision by the court or a final position of any member on the issues in the case.

That is also true. Judges will switch and go back and forth, but it's not hard to figure out at least five votes for this opinion. And I think, I believe I said this on Tuesday, that this is going to be a 5-1-3 split. I think John Roberts will not sign on to this opinion, but I think he will concur in the judgment that the 15-week abortion ban in Mississippi is just perfectly peachy. And that will have no effect, Whether this is a five-justice majority

0:04:35 Thomas: Yeah. Right. Yep.

0:05:35 Andrew: Or a six-justice majority will have no effect whatsoever. And then Roberts continued issuing his own statement. To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way.

0:05:54 Thomas: We will undermine our own selves. Thank you very much. No one's going to out undermine us. But besides us.

0:06:00 Andrew: You See, I mean, we've been saying this ever since Trump got into office that, you know, now, John Roberts cares about the fact that his name is about to be permanently affixed to the worst Supreme Court in United States history. So he continues, we at the court are blessed to have a workforce, permanent employees and law clerks alike, intensely loyal to the institution and dedicated to the rule of law. Court employees have exemplary and important traditions of respecting the confidentiality of the judicial process and upholding the trust of the court. This was a singular and egregious breach of that trust that is an affront to the court and the community of public servants who work here. I have directed the marshal of the court to launch an investigation into the source of the leak.

0:06:47 Andrew: I include that, A, because, again, if you're more outraged by the fact that the leak happened than the substance of the opinion, your priorities are messed up. Uh, but, but, B, you know, we've been engaged in, even while trying not to, this sort of speculation of who was behind this and I

0:07:05 Thomas: Yeah? Yeah. Oh, I was trying to speculate on who's behind it. Were we trying not to? Why?

0:07:09 Andrew: Think we were trying to, but I at least was pretending like I was above that. But, you know, it's all rank speculation, so, it, to me, this indicates, you know, kind of another, another possibility out there. And again, I have no way of waiting any one more than any other, but it looks like Roberts believes that this is maybe a rogue clerk or employee or, you know, somebody without the consent and possibly without the knowledge of, the of any of the justices, which, which is interesting. I hadn't really considered that, because I do not think, again, again, I've talked about the sort of sacred bond between a judge and their clerks. I could not imagine. I would no more have, you leaked a draft opinion that my judge had, know, was circulating when I was a clerk than, insert you any activity.

0:07:43 Thomas: Yeah.

0:08:03 Thomas: Question, though, was that opinion striking down a 50 year precedent in Roe v. Wade? You know, like this is.

0:08:08 Andrew: I had to work on an opinion that essentially, essentially reinstated capital punishment in Maryland under, under certain conditions. Um, and I talked about, the you know, with my close, uh, family members, you how morally and emotionally difficult that was and how hard I, I lobbied, uh, the judge to come out a different way. But I didn't leak that opinion. I, you know, I wouldn't, wouldn't have done that. So not, not quite as bad, but it was still something that was a terrible opinion that I felt very, very strongly about. But the idea that I would have gone to the Baltimore Business Journal and said, hey, look, here's an opinion that's about to come out. No, right? Wouldn't have betrayed my judge like that. Could bet that John Roberts not going to be able to stop the howler monkey contingent from rolling roughshod on, uh, individual liberties over the next couple of decades. But he's, uh, gonna find that leaker, so

0:08:51 Thomas: Yeah, It's one thing if somebody who ostensibly is on the left cares about the leak. Leak, but obviously people who agree with this decision largely are going to be more concerned about the leak than the decision, because they agree with the decision. I don't know what we expect Roberts to do. Yeah, that's what I expect from him. I have never been more... We shouldn't spend any time on the speculation, but I've never been like, could go any way on who leaked it. I wonder if we'll ever find out.

0:09:31 Thomas: Seriously, at this point, it could substantive thing I did want to talk about regarding the whole draft opinion thing. While it's obviously not true that, you know, it's truly a draft and it could go either way. Like they could just erase all that and it could be upholding. That's not true. But how much do you think this opinion is subject to change? I mean, this, my understanding from all the coverage and from you and everything is, like, you're writing a draft opinion. You basically know, you take a little head count of who's going to vote where, and they get that count, and then, you know, they assign the opinion. The fact that Alito had the opinion, this is something that I don't think you and I talked about, but, so, that doesn't that mean that Roberts isn't, isn't voting for it, because essentially Clarence Thomas got, got to assign who's writing the opinion? I heard some other legal podcast talking about that. Does that, is that right? I want to ask you about that,

0:09:16 Andrew: Yeah, right, I so I think that includes the speculation, speculation, that Roberts would not assign the opinion to Alito, right, and I don't and I don't know that, that, that's, I don't know that we have evidence for that proposition, right, it certainly could be. Um, that's

0:10:31 Thomas: Yeah. Yeah. That is necessary to that. Yeah. Hmm. Okay. And the, and the reason for that is like, if he's not on the majority side, then the senior most justice on the minority side assigns the, okay. Just wanted to cover that, that basic thing. And Then my other question is, yes, it's a draft opinion, and yes, it's you know, it's not going to change like the the outcome, but will some of this extreme language by Alito, would that, would you expect that to be soft and change? You know, would some justices be like, "All right, I'm not goingto sign on to this part where you quoted the guy who had witches put to death," like, I'm not gonna whatever the heck that was, you know, like, do, you would you expect this opinion to be a lot more softened in its language once it, it was a final draft?

0:10:46 Andrew: Right, that's right yep yep no I do not expect that this will substantively change anything in the, the draft opinion. I'm glad you asked that as a question. The typical practice, if you can recall any of the Supreme Court decisions that we've broken down over the past couple of years, in which we will jump to, for example, the Sotomayor dissent, and the dissent will say, the majority says that rights are dependent upon longstanding history and tradition, end of quote. And then it will say, you know, slip up at nine, right? Well, did how they get quoting from the majority opinion in the dissent?

0:11:57 Andrew: And the answer is because they circulate these things around. And so, you know, one of the things that will often happen then is you have a little bit of that back and forth gets preserved in the opinions themselves. Sometimes it does, does cause the initial opinion draft to get modified slightly to remove something that is ambiguous or maybe, you know, overstated in a particular way. So, for example, it would not surprise me. It went back in red because the section that I think is getting a lot of attention that I completely ignored because I don't care at all about it is the lengthy section of, of, you know, historical abortion laws, And I don't care about that at all, because that shouldn't be any part of the jurisprudence of whether abortion is protected inherently in the Constitution or not.

So I just skipped it. A lot of people have noted, you now, these citations are misleading or incomplete or whatever, and it would not surprise me to see adjectives inserted, right, to have this go from, you this was absolutely prohibited at common law to, you Differing sources talk about the level of prohibitions at common law. But by the time, you don't write, you and it's 98 pages counting the but you don't write 60 plus pages with all of these citations to then just come back and be like, oh, no, wait, you yeah, we're to massively change A, B, and this is in final form, you so I think

0:11:49 Thomas: Oh, right, right. Yeah, yeah. Mm-hmm, yeah, wow, okay.

0:13:32 Andrew: They're going to be edits maybe, but those edits will not be substantive. They, may tone you down a couple of the more egregious mistakes, no, but not.

0:13:42 Thomas: So you would guess this is 90-something-plus percent finalized, you would think.

0:13:46 Andrew: Yeah, 99 point, you you know, something percent finalized. Yeah.

0:13:48 Thomas: Oh, wow. Okay, interesting. I'm glad I asked because I think some of the coverage has has gone, you know, a little further to the other side of that and suggested that this would be softened a bunch. So that's interesting. Okay. Okay. Yeah, that makes sense to me. All right. Well, anything else on the updates or are we going to get to our next segment, which is more about Roe v. Wade overturned?

0:14:06 Andrew: More about this, right? So it kind of merges, I think. A lot of folks rightly asked us, okay, you described the jurisprudence, what but happens once this passes, right, what is the real effect on real people on the ground? And the answer is it depends upon which state you're in. There are somewhat surprisingly, I guess, only 17 states right now that explicitly protect abortion either throughout the pregnancy, right? And that number is only four in the District of Columbia. So if if you live in Colorado, New Jersey, Oregon, Vermont, or Washington, D.C., those states have either constitutional or statutory protections for the right to an abortion throughout the pregnancy.

0:15:02 Andrew: So, good, good if you leave in one of those five jurisdictions. There are 12 more states that protect the right of someone who is pregnant to undertake an abortion pre-viability, before 20, 21, 22 weeks, after post-viability if necessary to protect the life of the mother. That And grouping together is what the Guttmacher Institute classifies as as protecting abortion rights. They are, the Guttmacher Institute is an invaluable resource on this. I'm going to link this chart from the show notes. 12 states are California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New York, Rhode Island, and Washington.

0:15:47 Andrew: So that forms the corpus of your states that have voted to protect abortion rights. We can add to that one jurisdiction. We talked about this in Opening Arguments episode 276. The state of Kansas has held at the Supreme Court level that their state state constitution, independent of Roe, protects the right of pregnant individuals to have an abortion. Of course, as a result of that, there was an August ballot initiative to amend the Kansas state constitution. So if you're in Kansas and you're thinking, what can I do? Organize against that ballot initiative is absolutely one of the things that you can do. Get out.

0:16:10 Thomas: Right. Yeah. Was that the one weird trick one for saving abortion rights at a state level? Okay. Yeah. The OG.

0:16:32 Andrew: Yeah. Yep. The OG gee, on that. Yeah, absolutely. That case was called Hodes and Nauser versus Schmidt. And really articulates how state Supreme Courts can enshrine protection for rights that go independent of what a conservative Supreme Court is going to do. Those 17 plus plus a question mark, states robust protections for those who may become pregnant. Flip side are 24 additional jurisdictions in which one of a number of things is going to happen.

And when we talked about the reliance interest, this is really what, again, pre-Alito, that reliance interest was meant to be so for example there are a bunch of states that have pre-existing statutes that prohibit abortion, some of these go back, all of them go back at least 50 years, right, because they're pre Roe versus Wade, so they are 1972 or earlier, but some of these are statutes from the 1920s, the 1930s, that are a hundred years old, and the legislature hasn't done anything about it because, you know, Roe v. Wade, once, right? Roe v. Waite is gone, those will become good law again. And in many cases, these are criminal statutes, right, so you might ask, right, how valid is a, you know, 1937 criminal statute in, you South Dakota? The and answer is, you probably, maybe there will be some argument, but when you think think about the, you liberty finds no refuge in a jurisprudence of doubt.

0:16:36 Thomas: Okay.

0:18:14 Andrew: When you think about the question of whose reliance interests are about to be trampled on. Yeah. Saying, oh, by the way, a law that hasn't been enforced for a century might just come back.

0:18:26 Thomas: So is there no Principle of law and order that's, yeah, if a thing was was made unconstitutional and we just just this clutter in the basement that nobody cared about or knew about, you don't rely on that as good law, there's no, there's a principle of law that tells you that, so Whenever anything Is declared unconstitutionally, you need to like pass another law to also double down and say, okay, this has been, we undo do this law. It feels like nobody would do that.

0:18:27 Andrew: No, isn't. There well, so again, let me clarify a little bit. When you challenge a statute directly and the Supreme Court strikes it down, that statute that was challenged becomes invalid? So you don't have to do anything else with respect to that particular law. But then the question is, when the Supreme Court says, for example, Roe v. Wade says, abortion is thus protected absolutely in the first trimester, well, then you look at state laws that were not directly challenged that would prohibit abortion in that first trimestre. And in some of the cases, you you would bring a declaratory judgment action? Somebody would say, okay, hey, well, let's bring a lawsuit. And then the court would either overrule that statute or stay the enforcement of that statute.

But in many cases, it would just be the case where, okay, we know we're operating under Roe versus Wade, so we're not going to try and prosecute anybody under this particular criminal provision because, what would you The point be? And remember, right, federal courts are courts of unlimited jurisdiction. And so the fact that you haven't challenged that specific law means that there's nothing to invalidate it until you do. So that's the distinction. Ones The that were directly appealed all the way up, yeah, do those go by the wayside. There's another wrinkle to that. So, for example, Texas SB8 has has uh a reaffirmation clause in it, section right two, this is the vigilante bill, but it also includes section two that says the legislature finds that the state of Texas never repealed either expressly or by implication the state statutes enacted before the ruling in Roe versus Wade that

0:19:13 Thomas: Okay. Yeah. Wow.

0:20:42 Andrew: Prohibit and criminalize abortion unless the mother's life is in danger, right? That I think very clearly that the pre-existing Texas statutes are going to spring back once this opinion is entered. And then sitting on top of that, and I deliberately use the word spring, are a number of that have been passed over the past decade that contain a contingent effective date. So, for example, Arkansas Senate Bill 149 bans abortion, and it says, section 2, contingent effective date. This act becomes effective on and after the certification of the Arkansas State Attorney General that, one, the United States Supreme Court overrules in whole or in part the central holding of Roe v.

0:21:30 Andrew: Wade, reaffirmed by Planned Parenthood v. Casey, thereby restoring to the state of Arkansas the authority to prohibit abortion. Proportion, know, or if there's a constitutional amendment that allows them to, a U.S. constitutional amendment, not that that was necessary. So in other words, a lot of states passed anticipatory legislation, particularly watching the composition of the Supreme Court, watching it drift further and further to the right, or, boy, I shouldn't say drift.

We use that, I mean, watching it be loaded onto a rocket sled and accelerated to the the right, yeah, but um, so states did that, and if you add all of that together you get 23 states that have either pre-existing laws or these sort of springing, you contingent effective legislation, uh, plus Florida just passed a 15-week ban, and you, the Florida legislature is is monstrous right now. So, you know, it wouldn't surprise me if, in between my doing the research and you listening to this show, if somebody has introduced a bill outlaw to all abortions in Florida. Even discounting them, you have 23 jurisdictions in which criminal abortion statutes are about to either be rehabilitated back into existence or go into effect.

0:21:56 Thomas: Yeah, yeah,

0:22:51 Andrew: Those are Alabama, Arizona, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Michigan. So yeah, maybe get some grassroots organizing on the ground there. Mississippi, Missouri, North Carolina, North Carolina again, a pretty purple state. North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, another, you blue to purple state, and Wyoming. And so uh, if you live in those states, um, get, to work because you've got something that will go into effect, you probably in about a month or so, and

0:23:26 Thomas: Yeah, it's obvious to say, but this did shift it all to the states. So like, that's the level we need to look at to, uh, get you informed about your particular state that you're in and, and, um, find out what organizations, uh might be working to lobby for some of these these things, because it's in the hands of the states now. And, you can make a difference. You have probably a greater chance of making a difference at the state level than you do at the national level anyway. So that's a tiny encouraging thing.

0:23:31 Andrew: Yeah.

0:23:51 Andrew: Yeah, absolutely, that's where our battleground is going to be, over the next however long it takes.

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0:24:46 Thomas: Now, I can't wait to be at work, and sometimes, even if I'm not working, I sit in my X chair just to get that feeling. Take my advice. Try Xchair for yourself, risk-free, for 30 days. Once you realize how much better your chair should be, you'll never go back, I promise. Go to xchairoa.com now. That's the letter X, chair, OA, dot com, now. Or call 1-844-4X-CHAIR for $100 off your order. Xchair has a 30-day guarantee of complete comfort, and you can finance your purchase for as little as $30 a month. xchairoa.com All right. Well, let's get to our main breakdown for the day. So, Andrew, I see this segment is entitled "The Constitutional Right to a Blowjob." Blowjob, um, seems a little out of left field, but my ears, uh, are perked up, I'm curious wondering if there's a right somewhere that I didn't know about that

0:25:38 Andrew: I thought I might get your attention by that. I want to emphasize just how much it is important for us to push back against even the characterization of the right to an abortion, because this isn't really about the right right to an abortion. This is about the right to fundamental bodily autonomy. This is about the kind of liberty interests that allow you to stand back and go, yeah, not in America, we don't do that sort of thing. And one of the things that really struck me as I was going over the draft Dobbs opinion in more detail after our initial review on Monday night, I have spent a lot of time flagging that I thought this opinion, when it came down, was going to target Griswold versus Connecticut and contraceptives and Obergefell versus Hodges and gay marriage.

0:26:34 Andrew: I certainly did not expect the degree to which the opinion is critical of Loving versus Virginia. And the other issue that I missed, quite frankly, was that it was going going to take on a case called Lawrence versus Texas. And Lawrence versus Texas is a six to three decision authored by, you know, that no tort went by center right swing justice, Anthony Kennedy. Um, it reminds us that, and that opinion is from 2003 and it remind us that it has been one generation.

0:27:13 Andrew: It feels like, you know, yesterday for me, in which it was okay for states to deliberately target people simply for being gay. And that decision that reaffirmed, yeah, go right after them, was a case called Bowers v. Hardwick. It's 1986 Supreme Court case, and it deals with a Georgia law that criminalizes sodomy, criminalized sodomy, and that was Georgica code 16-6-2, which says a person commits the offense of sodomyy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another, a person convicted of the offenseof sodomye I, I want you to just predict the the rest of the sentence, what, what, kind, kind of a criminal conviction do you think Georgia had, this this law was passed in 1984, okay, so yeah 1984, at, the a apex of uh modern American music, um, within my lifetime, just just before yours, um, what do you thank yeah

0:28:23 Thomas: You've laid the rake down in front of me, I'm gonna step on it, a misdemeanor $200 fine, wow and

0:28:26 Andrew: Shall be punished by imprisonment for not less than one nor more than 20 years, so let's break this one down, and this is why I called this the Constitutional Right to a Blowjob a blowjob is defined as sodomy in every state statute that I know of uh criminalizes it and uh as of 1961, 1961, all 50 states had laws that prohibited sodomy. So 61 years ago, it was illegal for any person to receive a blowjob or give a blow job, or, don't need to go through the various permutations here, in all 50 states. You might notice that extends rather beyond being gay. But let's talk now about how those anti-blowjob laws were enforced. In August of 1982, Hardwick was charged with violating that Georgia statute criminalizing sodomy by, quote, committing that act with another adult male in the bedroom of a respondent's home, you do right?

0:28:39 Thomas: Sorry, is a blowjob sodomy me huh the more you know wow

0:29:36 Andrew: Not get more personal privacy than what you do in your bedroom with with the door locked, the shades drawn. There was a preliminary hearing, and then the district attorney decided not to present the matter to a grand jury for an indictement, quote, unless further evidence developed, end of quote. So, yeah, for now, Hardwick, you're okay. We're not going to try and throw you in jail for 20 years. Respondent Hardwick then brought a declaratory judgment suit in the federal district court in Georgia, challenging the constitutionality of the statute insofar as a criminalized consensual sodomy. He asserted that he was a, and again, I'm sorry for the archaic language here, a practicing homosexual. I should

0:30:20 Thomas: Time wow, now, now, uh, my gay friends have perfected, by the way, they're they're amazing at it and I love them

0:30:27 Andrew: Here, here. So John and Mary Doe were also plaintiffs in the action, they allege that they wish to engage in certain sexual activity prescribed by 16-6-2 in the privacy of their home, which, which I bet they did, right, there's... there's a lot of good activity that is prohibited by 16 to 6-2 yeah, that they had been chilled and deterred from engaging in such activity by both the existence of the statute and by the publicity of Hardwick's arrest. And this is the part I wanted to bring to your attention. The district court, however, held that because they had neither sustained nor were in any immediate danger of sustaining any direct injury from the enforcement of the statute that they did not have standing. And then that was affirmed by the court of appeals. So let's think about what that really means in practice, that right? Was married couple said, hey, you know what's really great is sexual activity that is prohibited by 16-6-2. And essentially at the district court level, at trial court, the overwhelming evidence was, yeah, yeah, yeah, you guys aren't gay, so there's no chance we're

0:30:47 Thomas: I'm

0:31:37 Andrew: Going to enforce the statute against you. Come on. We all know this is for this reason, right? And of

0:31:41 Thomas: But it's not written in the statute, right, it would have have applied

0:31:43 Andrew: Course it's not, yeah. And so the court said, because of that, because it's not enforced, because, because if discriminatory unequal enforcement, you lack the ability, you lack standing, because let's face it, you're not not really ever going to get arrested for this.

0:31:44 Thomas: Yeah wow geez so they they put in the official decision, well, because of quiet part, you're fine, like really, wow, ah

0:32:08 Andrew: Yeah, 11th Circuit said, and again, remember this is now 1985, right? The 11th Circuit looked at the courts, the Supreme Court line of cases that we have talked about, Griswold, right, remember Griswald was about the Connecticut law that criminalized the sale of contraceptives to married couples, uh, that was followed, uh, four years later, so a fair period of ambiguity there, by a case that we have not talked about much called Eisenstadt versus Baird, that also extended that right to unmarried couples, right because Griswold uses phrases like the sanctity of the marital bedroom, and you the court in Eisenstein was like, right, even if you're not married. This is a liberty right possessed by individuals, not possessed by individuals, couples who belong to a certain status.

0:32:39 Thomas: Oh

0:32:57 Andrew: Yeah, it

0:32:57 Thomas: But interesting that they needed another decision for that, because I kind of had gotten the impression from the coverage that that established this privacy right, you know, that would have applied to everybody, but but no, they needed to further emphasize that in another decision, okay yeah

0:33:10 Andrew: Was clarifying the extent of the privacy right. That in other words, it's not just about marriage, right? Because if you took just Loving versus Virginia on interracial marriage and Griswold versus Connecticut on the right of married couples to use contraceptives, you could craft a, you history and tradition argument that says, right, decisions in marriage are part of that long-standing history and tradition and therefore implicit in the concept of ordered liberty. But, you know, if you're not married, you too bad on you. And Eisenstadt said, yeah, no, we're rejecting that kind of a narrow reading of what privacy means. Privacy means, you and we all know what privacy means. It means the right to be secure in your bedroom from the government coming in and going, hey, is that a man or a woman who is, you know, performing a particular act that's prohibited by 16-6-2 on you?

0:33:55 Thomas: Don't put that there don't put that they're, stop, yeah

0:34:00 Andrew: Yeah, right, right. And so the 11th Circuit said very straightforwardly, yeah, private and intimate association is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment, the same reasoning from Roe. And I want to just stop for a minute and a little shout out to that 11th Circuit opinion, because this is 1985. The gay rights movement was about a decade old publicly at that point. It was still relegated to the fringes. AIDS panic was everywhere, right? And grotesque amounts of misinformation. And, has never been a fantastic time to be LGBTQ plus in this country. 1985 was not a great time And the 11th Circuit said, yeah, well, know, that's you not for us to decide. What's for us to decide is looking at the Supreme Court's precedents and plainly applying them to this case.

0:34:53 Andrew: It is obvious that you can't criminalize consenting adult sexual behavior in their bedroom. That led to a split among the circuits. The Fifth Circuit, always a conservative circuit. The Eleventh Circuit, again, this is Georgia, right? This is Georgia. Florida and Alabama Bama is what the 11th Circuit sits over. Not exactly a bastion of liberalism, but at least a baston of honesty at that point in time. The Fifth Circuit, which is the neighboring circuit directly to the West, had gone the other way, and the D.C. Circuit had gone the other away. So that was ripe for adjudication at the Supreme Court, and the Supreme Court bitterly divided 5-4 opinion reversed. The opinion was written by center-right Justice Byron Whizzer White.

0:35:41 Andrew: And this reasoning is basically either plagiarized by Alito or it's an example of convergent evolution, these are 40-year-old arguments. And I'm going to read them to you, so you understand just how bad these arguments were back then, and just how wholesome, right? And the Supreme Court, again, as I said, 6-3 rejected these arguments 20 years ago, 19 years ago. And, like a bad penny, they're back again. So here's what White said in his majority opinion. Striving to assure itself in the public that announcing rights not not readily identifiable in the Constitution's text, involves much more than the imposition of the justices' own choice of values on the states and the federal government, the court has sought to identify the nature of rights qualifying for heightened judicial protection. In Palco v. Connecticut, we said that this category included those fundamental liberties that are implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they're sacrificed.

0:35:49 Thomas: Huh

0:36:39 Andrew: A differing description appears in Moore v. East Cleveland, where they're characterized as those liberties that are deeply rooted in this nation's history and tradition. It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Prescriptions against that conduct have ancient roots. See, generally, blah, blah.

0:37:05 Andrew: Sodomy was a criminal offense of common law, Forbidden by the laws of original 13 states. In 1868, when the 14th Amendment was ratified, all but five of the 37 states had criminal sodomy laws. In fact, until 1961, all 50 states outlawed sodomY. Come on! We outlaw this stuff all the time. So, yeah, can't be a right. Right. And that led to Justice Blackmun's blistering dissent, which is, this case is no more about a fundamental right to engage in homosexual sodomy than Stanley v. Georgia, which is a First Amendment case about obscenity, was about a Fundamental Right to Watch Obscene Movies, or Katz v. U.S., which is the Fourth Amendment case on wiretapping, was a Fundament right to place interstate bets from a telephone booth. Rather, this case is about the most comprehensive of rights and the right most valued by civilized persons, namely the right to be let alone.

0:36:59 Thomas: Oh yeah Wow yeah since we've always done it, definitely, great yeah and

0:38:05 Andrew: And that takes us to 2003, and that's why I cheekily titled that the right-to-a-blowjob, right? It's not about the right—to a blowjob. It's about the—to the—the—the sodomy. It's not about even the right to an abortion. It is about the fundamental right to bodily autonomy, the right-to-be-let-alone, the most essential concept in the collection of the rights that are necessary to a system of ordered liberty.

0:38:32 Thomas: It strikes me that we should have just an army of libertarians on our side about this, this, right? There should just be, you know, Paul Ryan.

0:38:37 Andrew: You would think, where is all of that yeah Rand Paul

0:38:42 Thomas: Yeah. All of them that are libertarian leaning should be up in arms about this and we should win the midterms. So, you know, 70, 30.

0:38:42 Andrew: Yeah, yeah Well, let's, uh, let's see if they are intellectually consistent, or if libertarian means I vote for tax cuts and occasionally weed, that takes us to 2003, and in many ways, right, we had some progress. Texas Penal Code 21.06a provides, a person commits, that's an offense, if he engages in, and again, if you ask me, am I making fun of Texas state legislators? The answer is yes. Deviant, D-E-V-I-A-T-E, I know they meant deviant, but, you know, deviant sexual intercourse with another individual of the same sex. So now, right, we've said the quiet part out loud. We're not going to include, you know, yeah, I am not going going to say that, Mr. you and Mrs. McGillicuddy can't engage in certain prohibited behaviors. But if you're the same sex, deviant sexual intercourse, again, misspelled, yeah, is as follows. A, any contact between any part of the genitals of one person and the mouth or anus of another person, or the penetration of the genital or the anus or another person with an object, because, you know, we had to, we had to get the lesbians in on this too, right?

0:38:59 Thomas: Yeah, huh?

0:39:48 Thomas: Deviant.

0:40:02 Thomas: Wow. Plenty of people

0:40:05 Andrew: Can enjoy Oh, yeah, no, I was gonna say straight couples can go continue using toys, right, but, you know, if you're gay couple, absolutely not. Litigants in that case were fined $200, so your your exact prediction yeah came, came to, to be, um, and in fact, uh, the court in, in this case, Lawrence versus Texas, um, devotes a section to, uh, the, well, you know, you might be saying, yeah, it's only 200 bucks, how bad is, you know, can that be, um, and the court's like, we take that seriously, right, like

0:40:05 Thomas: Use objects, but that's oh that's exactly what, I, wow weird that adds up if you have a healthy sex life, yeah yeah

0:40:41 Andrew: You yeah every single time, are you kidding me, 200 bucks a throw, huh. All right, um, but more than that, When something right is criminal behavior, that makes it negligence per se. It can invalidate insurance contracts, can be used as a basis for termination for cause. We should not criminalize behavior even if we attach a minor penalty to it. And the Supreme Court, 6-3 reversed. Again, written by notorious leftist Anthony Kennedy. Concurrence by notorious, again, by Sandra Day O'Connor, right? The authors of Casey, which I think is very significant to know. Kennedy and O'Connell wrote Casey, Kennedy and O'CONNOR wrote Lawrence v. Texas. Dissenting was the court's hard right wing at the time, Scalia, Thomas, and Rehnquist. This case begins with this paragraph. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.

In our tradition, the state is not omnipresent in the home, and there are other spheres of our lives and existence outside the home where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person, both in its spatial and in its more transcendent dimensions.

0:40:51 Thomas: Yeah sure

0:42:04 Andrew: And that's why this case is going to have to go. Because there is absolutely no way to square this the Lawrence v. Texas court's decision 19 19 years ago to repudiate Bowers v. Hardwick? Because this case takes on that central reasoning. Remember, Bowers v. Hardwick says, yeah, well, of course, you know, there's no right to sodomy, that sodomies been criminal for as long as I can possibly remember. So how did, yeah.

0:42:14 Thomas: History

0:42:32 Andrew: How did the Supreme Court in 2003, again, with a relatively healthy continuity of members who are still on today, deal with that, this isn't a right steeped tradition in history. And here's how it did, in a way that is beyond persuasive, I think, if you are at all an objective observer to this. They said, first, yeah, it is depending on the level of resolution, And right? This is, again, why, you know, if we want to characterize something as the right to a blowjob, no, the right to a blown job is not

0:42:30 Thomas: And tradition yeah yeah point

0:43:04 Andrew: Long-steeped.

0:43:04 Thomas: To me in the Constitution where it says I have a right to a blowjob. No, please, can you, can you point to that?

0:43:09 Andrew: The court began its substantive discussion in Bowers as follows. The issue presented is whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of many states that still make such conduct illegal, and have done so for a very long time. And then, this is the very next sentence after describing that case. That statement, we now conclude, discloses the court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim of the individual put forward, just as it would demean a married couple were it to be said that marriage is simply about the right to have sexual intercourse.

Laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have far more reaching consequences, touching upon the most private human conduct, sexual behavior, in the most privative spaces, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law is within the liberty of persons to choose without being punished as criminals. That was 19 years ago. So the court then, goes you through their list and, know, rather like my failure to flyspeck Sam Alito's list of laws criminalizing abortion, they basically go through the list and quibble with each and every one of them.

0:43:54 Thomas: Right

0:44:42 Andrew: Because, again, all of this is about cherry-picking nonsense from 400 years ago. And they're like, look, this list is kind of dubious, right? We're not sure. When you look at all of these statutes, it's not clear that they evidence a longstanding belief in prohibiting certain practices. And then they say, in summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion indicate. Their historical premises are not, not without doubt, but at very least are overstated. And then they get into the, what about it's a deeply rooted part of tradition to have these kinds of criminal laws? They say, it must be acknowledged that the court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral.

0:45:31 Andrew: The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons, these are not trivial concerns, but profound and deep convictions, accepted as ethical and moral principles to which they aspire, and which thus determine the course of their lives. So far, you can say this very same thing about pro-choice, pro-life individuals. These, right, considerations do not answer the question before us, however. The issue is whether the majority may use the power of the state to to enforce these views on the whole of society through the operation of criminal law.

Our obligation is to define the liberty of all, not to mandate our own moral code, with a citation to Casey. In all events, we think that our laws and traditions in the past half century are of the most relevance here. I just want to pause briefly, like, again, two decades ago, when answering the history and tradition argument, the answer was, okay, we look to history. You want to look at the right level of resolution. And then, in particular, you want to look to the most recent part of history for questions about directionality,

0:46:08 Thomas: Yeah Yeah. No kidding.

0:46:45 Andrew: Our, yeah, of course, course.

0:46:46 Thomas: Right after the Civil Rights Act, wouldn't you be like, well, this is, this conflicts with history. I don't know. This is no good.

0:46:52 Andrew: Yeah. Traditions in the past half century, so that is 1972 to today, are of the most relevance here. That has given zero analysis in the Dobbs opinion. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. Or you might say, these references show show an emerging awareness that abortion is a key aspect of an individual's right to bodily autonomy. History and tradition are the starting point, but not, in all cases, the ending point of the substantive due process inquiry. In Bowers, the court referred to the fact that before 1961, all 50 states had outlawed sodomy, and that at the time of the court's decision, 24 states and the District of Columbia had sodomity laws.

0:47:38 Andrew: Justice Powell pointed out that those prohibitions were often being ignored. Georgia, for instance, had not sought to enforce its law for decades. The sweeping references by Chief Judge Justice Berger in the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report, court, is that citation. Parliament enacted the substance of those recommendations 10 years later in 1967. Of even more importance, almost five years before Bowers was decided, the European Court of Human Rights considered a case with parallels to Bowers. An adult male resident in Northern Ireland was from doing so by the laws of Northern Ireland.

0:48:26 Andrew: He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws prescribing the conduct were invalid under the European Convention on Human Rights. That's a case called Dudgeon v. UK, 1981. Authoritative in all countries that are members of the Council of Europe, 21 nations then, 45 nations now, the decision is at odds with the previous Bowers that the claim put forward was insubstantial in our Western civilization. I went through all of that because the same thing is true when you have these soaring appeals to Judeo-Christian values and history and tradition. Nevertheless, in countries with majority Judeo-Christian populations, if that were a thing, you see a trend away from criminalizing abortions, not a trend towards criminalizing abortion.

0:49:15 Andrew: And that's the point of all of this. And I'm going to wrap this up. I have lots more that I could talk about. I want to get to a tiny bit on the question question of stare decisis. What I want to say is, by any means, the most recent decision that touched on the concept of what it means to be fundamental in the concept of ordered liberty was Lawrence v. Texas. And a plain read, you go through and you swap out right to sodomy with the right to an abortion, or you swap them both out for the right to individual autonomy, and you come to the exact opposite conclusion of what this court has come to. So I just want to give you all of the evidence you can to push back against sort of the narrative of, you rights do have to be subject to longstanding history and tradition.

0:50:11 Andrew: No, they do not. That has never been the test. It has always been the starting point, but not the ending point for that inquiry. And this court, 19 years ago, knew how to do that, knew how to with a conservative majority that nevertheless was not willing to run roughshod over the concept of individual liberty and the concept of the rule of law. My point on stare decisis is Lawrence v. Texas does overrule Bowers v. Hardwick? And so there's a section of, wrote that stare decisus thing for Planned Parenthood versus Casey. Why are you okay with getting rid of precedent now? Now. And they tackle that head on, and they say, the rationale of Bowers does not withstand careful analysis.

0:50:58 Andrew: In his dissenting opinion, Justice Stevens came to these conclusions. Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice. Neither history nor tradition could save a law law prohibiting miscegenation from constitutional attack, right?

0:51:21 Thomas: Yeah.

0:51:21 Andrew: And second, individual decisions by married persons concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of liberty protected by the due process clause of the 14th Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons, just as Stephen's analysis in our view should have been controlling in Bowers and should control here. Bowers was not correct when it was decided. It is not correct today. It ought not to remain binding precedent. It should be and now is overruled. So very reason for declining to apply stare decisis in Bowers was yeah, you attempted to measure rights by history and tradition and we cannot imagine a bigger mistake than That. Yeah.

0:52:07 Thomas: Yeah, no kidding.

0:52:09 Andrew: Leads to one terrifying implication, which is that I, uh, cannot see if a state wanted to criminalize, uh, sodomy, if a state wanted to go back and reenact any of these laws and make it illegal to be gay explicitly, so, uh, I do not see how you could sign on to the majority opinion in Dobbs and not sign on to an opinion that says, oh yeah, that's totally fine too. So I, I weep our LGBTQ plus brothers and sisters and siblings, to be rough, rougher than it already is, which is bad. I also wanted to give you, you yet another mainstream case from less than two decades ago to throw into sharp relief just how far off the rails, just how activist this court is.

0:52:59 Andrew: Don't let them gaslight you on this, right? This has never been the test. It should not be the test, it would not be the test if not for Donald Trump getting to pack the court with acolytes of the Federalist Society who have been dying to do this for 50 years.

0:53:14 Clip: And thank you, Let's go!

0:53:15 Thomas: And now it's time to thank our new patrons at patreon.com/law. We've got a number of them to thank this week, which is super cool. Andrew why don't you start us off thank our new patrons at patreon.com/law

0:53:30 Andrew: A big thank you to Mike Hunt, David Butler, Gary M., Jordan Rosen, Totally A Real Human Person. All right. T0tes.N0t.A.R0b0t, Joe DeLazzer, Gropop Ganderfin, Patrick Byler, McCormick Williams, michael hannah, P.O. @its_sandwich time. That is I-T-S underscore sandwich underscore time. Ben Lillijord, Tim Marlette, Jared Young, Thomas Romanski, Christopher Meszaros, uh, Señor Pesquisas, Charles Eaton, Jonathan Truett Steele, Dominic Perez, Drew Buschhorn, rhiannon maclean, Brendan Wells, A. L. Loam, Richard Macy, David Remes, Turd Anderson, Reyals.

0:53:48 Thomas: Oh, Finally.

0:54:17 Andrew: Frontrunner johnsonnc65, JP Tyndall, and Keith Richards. I, I. I have been waiting I, I.

0:54:25 Thomas: I was wondering when we'd get Keith Richards Yeah.

0:54:28 Andrew: Hope he's in the uh the top tier, but, uh, all. Right, Thomas, you take it away.

0:54:31 Thomas: I Hope he's never heard me talk about how much better the Beatles are than the the Rolling Stones and that his riffs are really short and repetitive and get very old. And the entire song will be one riff. I hope he's never heard me say that, but thank you, Keith Richard. And now it's time to thank, uh, my turn. Thank you to Ali C, Chris Chandler. No need to thank me. Love the show and wanted to get back, give back after two plus years of listening. Well, tough luck. We're thanking you anyway. Eric Hathaway, Vecchi, Matthew Daly, Amanda Burns.

0:55:03 Thomas: Oh, cool. Jennifer Pohlhaus, Michael Lanman, Cait K., Sheltem, Bhodi62, Halli Starling, Jesse Colton, Matt Leischer, Your friendly neighborhood opera singer, Felix from Minneapolis! Awesome. Awesome. Cornelia Kibler, Christopher Dolan, Derek Ratliff, zuedoo, Ty Stephens, Benjamin Reinoehl, Mike Poland, Erik Doucette, Voodoo Magic Swamp Lawyer, Rigging Engineer (cranes not elections), Stephanie Ferron, Jeff S. Ethan, Cathy Solma, and Policy should be driven by science and compassion not dogma. Agreed, thank.

0:55:46 Thomas: You so much. New patrons, go hop on the question thread, join us for our Q&A, all the stuff, enjoy the ad-free episodes, everything. Everybody hop on to Patreon.com/law, join their ranks.

0:55:46 Andrew: I

0:55:58 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:56:04 Thomas: And now it's time for T3BE. I'm not doing well. That's okay. It doesn't, law doesn't matter anymore. I can just say that the history and tradition says that I this answer and then I win, but let's pretend law still does exist and see if can get this question right.

0:56:20 Andrew: All right, Thomas, a defendant is charged with homicide after the defendant was involved in a car accident that killed a pedestrian. At the defendant's trial, the prosecution calls to the stand a shop owner who testified that immediately after the accident, a witness ran into his store and said, whoa, can I use your phone? That blue car just ran a red light and hit someone.

0:56:42 Thomas: Huh. Hearsay.

0:56:45 Andrew: The witness is not testifying at trial and is not present in court. With the sole objective of discrediting this testimony, the defense sought to introduce an audio recording from when a police officer interviewed the witness at the station the next day. That recording consists of the the following exchange. Officer, did you see a blue car run a red light? Witness, no, the blue car did not run a Red Light. The light was green when it drove through the intersection. The prosecution objected to the introduction of the recording. Assume that the recording and the voices are properly authenticated and satisfy the best evidence rule. Should the court sustain the the objection.

0:56:45 Thomas: Huh. Oh.

0:57:29 Andrew: A, yes, because the recording constitutes inadmissible hearsay. B, yes, because extrinsic evidence is not admissible in this situation. C, no, because the recording constitutes admissible hearsa under the recorded recollection exception. Or D, no, because extrinsics evidence is admissible in this situation.

0:57:50 Thomas: God, oh boy, skip. So this is really confusing because the prosecution seems to be introducing hearsay that doesn't get objected to unless I don't understand hearsay, which I don't, but. They call a, yeah, follow all that logic. They call a shop owner who testified that after the accident, a witness ran in and said, hey, hearsay.

0:58:08 Andrew: All. Right.

0:58:24 Thomas: I hearsay that, yeah. That seems like hearsay the witness is not testifying and is not present in the court. Is there some like, because the witness's unavailable, maybe that's okay. Well, well, whatever. They're not, so the defense, either because they're incompetent or I don't understand something, didn't object to that. So they allow the witness to testify hearsay, in my opinion, but they do want to discredit the testimony by introducing an audio recording from when a police officer interviewed the witness and the witness contradicted that statement. This is a bizarre, I don't know, man. None of this seems like what would happen. I don't know. The prosecution objects to the introduction of the recording being like no our hearsay is fine don't introduce your actual evidence somehow, but it says assume that the recording the voices are properly authenticated and satisfy the best evidence rule. So I have never been more lost in a question.

0:59:23 Thomas: I mean, this ist worse than real property. Hearsay is always really, really, really bad. But this one, I can't even, because it feels like the testimony is hearsay, but we're just like letting that stand and then asking, can this way better evidence be introduced to contradict the obviously hearsay? It seems to me, I can't wait to get the explanation of this one, but I've noticed the answers that have a pattern there. So they're both, so it's two yeses, two noes, that's pretty common, but it's also two distinct issues. So like the A and the C are admissible hearsay, you know, A is yes, it's yes, sustain the objection because it's inadmissible hearsay, and C is no because the recording constitutes an admissible hear say under the recorded recollection exception, and then B and D are yes, because extrinsic evidence is not admissible in this situation, and D no, because because extrinsic evidence is admissible in this situation.

1:00:20 Thomas: So I guess I need to figure out, is this objection about hearsay or is this objection about extrinsIC evidence? And I lean toward extrinsIc evidence, and I'm not entirely sure why, but I think because I don't know why. I don't know why the Recording Constitution is admissable in hearsay, recollections exception, I don't know why that doesn't seem right. That's like the recorded, man. I think I'm going to go between B and D, assuming that this is about extrinsic evidence, because you're like trying to bring in extrins, extrinsick evidence, to clarify whether or not this happened. And I'm just going to say D no, because extrinsik evidence is admissible in this situation.

1:01:05 Thomas: This is a flat out guess, purely based on guessing which the issue is and which answer I want to be correct, because it seems obvious that you could introduce a tape recording that's authenticated. That's way better evidence than a witness claiming they heard somebody say something. So I'm going with D for that reason. No idea. Hardest question perhaps perhaps, in the history of T3B, or I'm just totally missing something. Either way, can't wait for next week to hear the answer on this one.

1:01:36 Andrew: And if you can't wait to hear next week's answer, you can play along, just, uh, share out this episode on social media, include your guests, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune, fame and fortune not guaranteed, I

1:01:50 Thomas: That's our show, thanks for another really valuable breakdown, and we will see you on Tuesday, assuming no other major rights get struck down And we have to do another four episode week.

1:01:58 Andrew: I would kind of like a little bit of a break if that's okay Thomas

1:02:04 Thomas: It would be nice to have a weekend. Yeah, one single weekend. That's okay. We'll see you on Tuesday or for those patrons, Sunday night. See you then.

1:02:05 Andrew: Yeah yeah

1:02:13 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.

1:02:47 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.