Transcript of OA427: Roe is Doomed, Contraceptives Next? Your Guide to Amy Coney Barrett

Listen to the episode and read the show notes

Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 427.  I am Thomas, that is Andrew.  How’re you doing, Andrew?

Andrew:         I am fantastic, Thomas, how are you?

Thomas:         [Sighs] Just, I mean so – I’m … what timeline are we in?  I’m really happy about the Q&A we did right now, essentially.  [Laughs]

Andrew:         Indeed, yeah! 

Thomas:         I hope you enjoy-

Andrew:         There’s no better time than simultaneously.

Thomas:         Yeah, the live Q&A for patrons, it’s coming up on Monday, 4:30 Pacific/ 7:30 Eastern.  For normies it just happened, I hope you all came.  I bet it was great.  Other than that, I’m great.  How’re you doing?  Fantastic, as usual?

Andrew:         Yeah, as always!

Thomas:         Awesome.  We have so much more that we didn’t even get to last episode.  It’s just there’s too much, Andrew.  There’s too much news at all times.  Let’s see what we can do today!

Andrew:         Yeah!  [Laughs]

Thomas:         [Laughs]

Andrew:         I need an army of assistants, I’m telling you.

Thomas:         Yeah.

Andrew:         I pushed off – we are going to talk about, because Donald Trump doubled down on the “I’m gonna save the suburbs for white people” in his debate.

Thomas:         [Sighs]  

Andrew:         I really want to talk about the anarchist jurisdictions and the fantastic research that Morgan Stringer did.

Thomas:         Oh my gosh, yeah.

Andrew:         But, you know, not this week. [Chuckles] I promise!

Thomas:         I had forgotten about that.

Andrew:         Yeah.

Thomas:         That was, you know, several-

Andrew:         It was literally last week.  That was literally last week when that happened.

Thomas:         Which I was gonna say is several billion clownhorn-

Andrew:         Parsecs ago?

Thomas:         Yeah, clownhorn news cycles ago?  Several stories that are just as bat-S crazy.

Breaking Down the Law: Amy Coney Barrett

[Segment Intro]

Andrew:         We received, last week, Amy Coney Barrett’s judicial questionnaire response and I want to delve into this with some depth for a number of reasons.  Look, I don’t think there is any way we are going to stop the President from putting Amy Coney Barrett on the court.  But as you and I talked about in the fabulous and fun episode of SIO that we did with my son, Alex – go listen to that if you haven’t yet – I was kind of heartened by the fact that the President has made this sort of a naked power play.

Thomas:         Hmm.

Andrew:         He’s said “why do I get to appoint Judge Barrett when Obama couldn’t appoint justices in 2016?  Because I’m the Republican President and I’ve got a Republican Senate.”

Thomas:         Mm-hmm.

Andrew:         The one thing that’s true about politics, or at least was true about politics pre-Trump, and I’d like to see it be true again, is that naked power plays tend to not be particularly popular with the electorate.

Thomas:         Well that makes me worried because 2020, my campaign is “Naked Power Plays” but for good things.

Andrew:         Well that’s the thing, that’s right, you need to build a justification and the more you have a record of look, this was just a naked power play so if those are the rules now, those are the rules now, the easier it is I think to set the groundwork for the kind of massive structural changes that are going to be necessary if Joe Biden is to accomplish anything from 2021 to 2024. 

I’m a little bit encouraged by that, and I think therefore that it is worth – actually went on Andrew Seidel’s podcast, we’re gonna try and bring that audio to patrons.  I did a little bit, about an hour with Andrew and the FFRF in terms of answering questions about Amy Coney Barrett.  I think it is important that we continue to educate the public and sort of take this fight to the streets whether we win or lose. 

I have been through Amy Coney Barrett’s 69-page judicial questionnaire.  I wanna tell you a number of thoughts that I have about this and also delve into some of her self-described most important opinions before anybody has talked about them.

Thomas:         Hmm.

Andrew:         Some of her cases people have talked about already, but these are the cases she lists on the questionnaire as being her most significant in her whopping three years of judicial service.  I wanna talk about those.  So first, a couple sort of overview issues.  This is a 69-page document, it is incredibly comprehensive and lots of people, as I have been posting bits of Judge Barrett’s answers on social media, have replied with the way a normal person thinks, which is this seems unbelievably intrusive, aren’t you being a little harsh on her for getting stuff wrong or leaving stuff off?

Thomas:         Huh.

Andrew:         Let me – I dunno how many people feel that, but at least some people on Twitter have kinda been like “come on, it says you’ve gotta upload every copy of every speech you’ve ever made, that would take me forever!”  That’s kind of the point.  Let me say this, I know Morgan is listening.  If you’ve ever applied to be admitted to the bar you have to go through and provide unbelievable amounts of detail.  Every place you lived in the last 15 years, every job you had.  Again, for me, which dated back to high school.  You have to provide contact information.  It is amazingly oppressive, it took me months to fill out, and that’s what legal documents are like.  Every judicial nominee that fills out these Senate questionnaires takes months to fill them out because they’re incredibly long and detailed and you wanna get it right. 

I wanna say this, even for Trump appointees, even for right wing appointees, generally speaking when you’re about to serve on the federal bench you don’t want to accidentally perjure yourself before the United States Senate Judiciary Committee.  Against that backdrop, I wanna tell you Judge Barrett’s questionnaire was prepared in less than one week.

Thomas:         Wow.

Andrew:         A speed that I have never seen.  It contains numerous things that you could only describe charitably as errors or omissions and no one individual omission is, I think, perjurious, is necessarily – would meet the standard of something you would, as our friend Gabe at Fix the Court, because I’ve run all these by him, would say I wouldn’t make a federal case about this, but…

Thomas:         Hmm.

Andrew:         So, I want to say that the reason behind this is because they had to crank this out in record time.  I’m gonna talk about a couple of those things.  [Sighs] I also wanna add something to the bio which is, I did not know this until reading her judicial questionnaire.  She was a Covington & Burlington Coat Factory summer associate-

Thomas:         Wow!

Andrew:         In 1997.  I missed her by one year.  So, you know, we could’ve gotten drunk together.  That would’ve been a lot of fun.

Thomas:         She sounds like a riot.

Andrew:         [Laughs]

Thomas:         Just an absolute party.

Andrew:         That is pretty much – I’ve talked about this before, but big law summer associate programs are essentially a test of how well you hold your alcohol.  Be careful, particularly if you like to drink alcohol, and if you listen to this show you know that Thomas and I do, it can be dangerous.  I’ll give that warning again in May of 2021 before the session starting, but particularly big law, you’re not doing a lot of work and you’re being wined and dined a lot and there are a lot of events where the alcohol is flowing and you’re in your 20s. 

So anyway, as I said, this questionnaire is 69 pages long, contains numerous questions.  The last narrative question, and I probably should have started there, but I didn’t, I read it sequentially because, you know, it wasn’t that long- [Laughs] is question 26, which is about the selection process. 

Subpoint “a.” says “Describe your experience in the entire judicial selection process, from beginning to end (including the circumstances which led to your nomination and any interviews in which you participated).  List all interviews or communications you had with anyone in the Executive Office of the President, Justice Department, President-elect transition team, or presidential campaign.  Additionally, list all interviews or communications you or an individual known to you to be acting on your behalf had regarding your nomination or your potential nomination with outside organizations or individuals at the behest of anyone in the Executive Office of the President, Justice Department, President-elect transition team, or presidential campaign.”

It goes on, I’m just gonna stop reading there for a little bit.  That is pretty comprehensive.  Judge Barrett, we know, we talked about her on this show when I predicted that it would be Brett Kavanaugh who would be nominated to the Supreme Court in 2018.  Judge Barrett was vetted, was considered in 2018 for that Supreme Court seat.  Will it surprise you to learn that Amy Coney Barrett’s explanation, her answer to that entire 26.a. is one paragraph long and begins September 19th, 2020?  There are a couple different ways to interpret that.

Thomas:         Well my interpretation would just be that people know that nothing matters now, so who cares?  Why’d she even answer any of this?

Andrew:         No-

Thomas:         That’s the Negatron view, feel free to push back, but I don’t know why any of this would matter.

Andrew:         It’s part of why I was encouraged.  This sort of goes back to the – I’m glad you asked the question; it threw me for a second but we’ll keep that in.  I think that goes back to the overview at the beginning of this segment, which is the more you’re able, clearly, to convey to the public that they are not taking this seriously and they’re just cramming through this nomination and it is about naked power the better you are in terms of taking steps to oppose it or counter it in 2021. 

I think Judge Barrett has a vested interested in making the process appear fair and appear like she’s complying with the process, and if they just scoffed and released a single napkin or whatever that said “nope nope nope nope, nothing happened,” that it would be easier-

Thomas:         Yeah, but they’re not gonna try very hard.  Maybe not a napkin, but like oh yeah, it’s just a quick nothing answer.

Andrew:         Well that is certainly one interpretation.  I think the most charitable interpretation would be your cramming to get this done at breakneck pace so you forgot.  I also think what she does disclose is incredibly revealing. 

So, Ruth Bader Ginsburg died on September 18th, 2020, on a Friday, in the evening.  You and I know this because we were in the process of recording Law’d Awful Movies and yucking it up.

Thomas:         I think everybody knows it because it happened and it was big news.

Andrew:         Yeah, it had to stop.  So, her description is the next morning, on Saturday, September 19th, Pat Cipollone, counsel to the President, and Chief of Staff Mark Meadows, called me about the vacancy.  On Sunday I spoke to them on the phone, they invited me to fly down to Washington, I did.  On Monday I met with Donald Trump and he confirmed the invitation to be on the Supreme Court.  The President offered me the nomination on that day, Monday, September 21, 2020, and I accepted subject to finalizing the vetting process.  I’ve also been in regular contact with members of the White House Counsel’s Office and the Department of Justice. 

So that’s it.  RBG passes away, Judge Barrett is called on Saturday and said hey, probably gonna be you, stand by.  Sunday, can you come down to Washington?  She gets on a plane, gets in that evening, goes to the White House Monday morning and Trump says I’m offering you the job.  Not what you would consider a thorough and lengthy vetting process.  That’s question 26, and again, as I point out, it is woefully incomplete by the standards of Trump – by the standards of Justin Walker!

Thomas:         Wow.

Andrew:         We talked about how in Justin Walker’s answer to question 26 he talked about the conversations that he had with Mitch McConnell in which he said “hey, I’m really interested in being a judge,” and we learned all of that because, like most judicial nominees, he answered the question fully and forthrightly.  Judge Barrett didn’t do that.  We have no idea, and this question is meant to give us some idea of how you came under consideration, the people you’ve talked to, the vetting that was done, and we get no information from this whatsoever.

So, again, as Gabe says I wouldn’t make a federal case about this, but do kinda wish we had that information.  Other things that are omitted, and again, how does this fit in?  You let me know.

Friday a report came out from The Guardian which said that Amy Coney Barrett was one of the signatories to a full-page ad taken out in the South Bend Indiana Tribune.  South Bend, Indiana is where Notre Dame is located, so this is her neighborhood newspaper, by a lunatic group called the South Joseph County Right to Life that stated “we, the following citizens of Michiana,” and I dunno, I guess that’s the county?  Whatever.  “Oppose abortion on demand and defend the right to life from fertilization to natural death.  Please continue to pray to end abortion.”

Now that position is an ideological extreme.  It packs a ton of truly unpopular positions into one statement, the idea that a fertilized embryo is a human being and the idea that death must be natural, i.e. no euthanasia, no ability to choose your end of life procedures.  The grotesque language of “abortion on demand” which is one of the stupidest and most offensive things that I’ve ever heard of.  But more importantly, it was sponsored by the St. Joseph County Right to Life. 

Questions 11 and 12 of Judge Barrett’s questionnaire require you to make certain disclosures.  Again, I wanna tell you ordinarily these are excessively lengthy sections.  And these are fairly lengthy sections from Judge Barrett. 

Question 11 says “List all professional, business, fraternal, scholarly, civic, charitable, or other organizations to which you belong, or which you have belonged, or in which you have participated, from the beginning of law school.”  Then it defines “participation” as “consistent or repeated involvement in a given organization, membership, or regular attendance at events or meetings.”  I have no idea how long and how consistently Judge Barrett was associated with the St. Joseph County Right to Life, but there are two options here.

Punchline:  St. Joseph County Right to Life is not listed as one of these organizations.

Thomas:         But is the People of Praise, or People of Hope, I can’t remember which one.

Andrew:         [Laughs] No, that is also not listed.

Thomas:         Huh.

Andrew:         The People of Praise, that is well known.  What she does list is Trinity Schools, on which she served as a member of the board of trustees for three years from 2015 to 2017 and those are three Christian schools that are operated by People of Praise.

Thomas:         Oh.

Andrew:         So, she does disclose that she served on their board.

Thomas:         Yeah, gotta train up the next 32-year-old justice!

Andrew:         Yup.  So, no disclosure of this St. Joseph County Right to Life group.  There are only two possibilities:  Either a group with which she was not affiliated and did not participate on a regular basis called her up and said “hey, can we use your signature on this ad?” and she was like “sure” without having vetted the group; or she had an ongoing relationship with this group and did not disclose it.  Neither of those are good!  I would also add, we have no idea to what extent she participated. 

Question 12.a says “List all,” then it says “books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited, including material published only on the Internet, regardless whether it was published in your name, another name, or anonymously.”  Again, I wanna point out, Judge Barrett’s list here runs to two pages, which is … somewhat lengthy.  Justin Walker’s ran twelve pages.  This is when [Laughing] Opening Arguments appeared in a Senate transcript because he listed our debate and he said, yeah, the transcript is available at OpenArgs and gave the exact URL so that people could go download that debate if they so chose.  I dunno how many members of the Senate Judiciary Committee listened to the show as a result of that, I sure would have if I was a staffer!  But, you know, you should be listening anyway.

Again, this is the kind of thing where prospective judges tend to err on the side of caution.  They list everything, that’s the whole idea.  You’re supposed to be disclosing the public positions that you have taken.  So, has she perjured herself under question 12 by not disclosing that she signed onto this full-page advertisement?  No.  She’s probably not perjuring herself, it’s probably not something that you could arrest her, lock her up, but would a conscientious judge said “oh, by the way, I put my name on a full-page ad saying that life begins at conception.”  Yeah, a conscientious judge would have done that.

Thomas:         But Trump told me that Roe is not on the ballot, so this is news.  This makes no sense.

Andrew:         I want to say what Andrew Seidel said on our appearance on his show, which again, faithful patrons will get a chance to hear that audio.  Roe is gone.  Roe v. Wade is absolutely, 100% gone with an Amy Coney Barrett on the Supreme Court.  She is, her public statements evidence an outward hostility to abortion that is – we have her words, in print, criticizing Mario Cuomo for saying you can be a catholic and still enforce the legal right to an abortion.  There is zero doubt what she is going to do with the next abortion case that comes before the Supreme Court. 

What Andrew Seidel said, and I take seriously, with which this dovetails, is that the right to contraception could be next.  If you think that sounds hyperbolic, you are not a lawyer or a law student.  Roe v. Wade was the logical extension of a 1968 case, five years later, it was the logical extension of a 1968 case called Griswold v. Connecticut, which invalidated a Connecticut law that forbade the sell of condoms to unmarried couples.  I want you to think about that when you think about Handmaid’s Tale type America.

Thomas:         Yeah.  [Laughing] That’s the first thing I’ve been thinking about.

Andrew:         Yeah.  And you should.  It was the law in Connecticut in 1968, and the Supreme Court said no, you have a fundamental right to privacy.  That right to privacy includes the right to make deeply personal decisions about family planning and therefore you cannot discriminate on the basis of marital status in terms of selling contraception by law.  It would prohibit it.  This would not stop, by the way, 7-Eleven from saying “we’re not gonna sell condoms to married people,” but this was a state law and the Supreme Court said no.  That violates, you can’t forbid that by law. 

That could come back, (quote) “on the ballot,” so to speak because Amy Coney Barrett believes in (quote) “defending the right to life from fertilization to natural death.”  The Catholic church is 100% clear in its teachings that we have described, that she has endorsed in her 1998 law review article, that interfering with a fertilized egg is tantamount to murder, is a form of murder under their theology and we have already seen in connection with the Affordable Care Act right wing Christian organizations saying that providing contraception that in their view interferes with a fertilized egg runs contrary to their religious beliefs.

Expect to see that.  If you are not terrified enough, expect to see that, expect to see contraception litigated before the U.S. Supreme Court.  That is not hyperbole, that is not just an atheist lawyer being crazy.  If you’re one of our more moderate listeners, go ahead and write in, but read Griswold v. Connecticut and tell me which parts of that you think Judge Barrett would sign onto.

Question 13 asks Judge Barrett to list the ten most significant cases in which she has sat.  This is a terrifying list.

Thomas:         Well, side note, I mean she doesn’t have that many to choose from, right?  Because she’s been a judge for all of a couple of years?

Andrew:         Yeah, she’s been a judge for three years, so not that many to choose from.

Thomas:         [Laughing] It’s like when a resume asks you for your most important, relevant three positions and you’ve only had like one job.  You’re like “ah, hmm, uh, where to choose from?”

Andrew:         Your joke is actually not off by much.  She lists her ten most significant opinions and then she adds an eleventh in connection with another question.  Four of those are dissents.  So that’s seven opinions that she’s authored, and then she lists another twenty cases in connection with subsection “I.”  That appears to be the extent of her published decisions.  The great majority of her decisions since joining the 7th Circuit are what we call unpublished decisions.

Thomas:         Hmm.

Andrew:         Which are not for publication and carry no precedential value.  In fact, you are prohibited in most jurisdictions from citing them even as this was the outcome in subsequent cases.

Thomas:         Wow, I didn’t – huh. 

Andrew:         Yeah.

Thomas:         Is that just because we’re normally talking Supreme Court and that wouldn’t exist but in circuit court that would?  What kind of cases are those?  Why would they be unpublished?

Andrew:         There are lots of different reasons.  This seems to me; I have to tell you I have not done a statistical analysis.  This seems an extraordinary number for a U.S. Circuit Court of Appeals.  I will tell you that at the state intermediate appellate level, so the equivalent of the 7th Circuit at the state level it’s a fairly common practice and it’s a way of reducing the judge’s workload.  If you author on opinion and you’re basically like “this seems like kinda an oddball case, it’s not gonna have a lot of significance.  I wanna author this opinion but I don’t wanna be stuck with it down the line in case I’ve screwed up so I’m gonna make it an unpublished opinion,” meaning that lawyers can’t cite this as part of the canon of established case law.  It encourages you to think maybe the circumstances here were unique.

It seems odd to me, and again happy, we’ve got lots of lawyers, lots of appellate lawyers who are listening, maybe I’m wrong on this.  It seems odd to have a large number of unpublished decisions coming out from the 7th Circuit.  You come across them from time to time, there are other reasons for a decision to be unpublished.  A lot of hers are.

So not too many to choose from, and the ones from which she has chosen should terrify you.  [Laughs] I want to talk about the opinions that she’s authored that nobody else, as far as I can tell, I’ve done Google searches for these, have broken down with any kind of detail because that’s what people have come to expect from this show, right?  So, let’s dig into it.  I’m gonna go through all ten, but I’ll tell you when they are things that we’ve either discussed or have been discussed elsewhere.

She leads off, her number one-

Thomas:         Yeah.

Andrew:         The first song in the mix tape is her dissent in Kanter v. Barr, which is the terrifying opinion on the 2nd Amendment that we discussed last week.  That’s the one she’s most proud of or at least it’s the one she lists as number one.  Go back and listen to last weeks’ episode, it is bananas in pajamas level crazy opinion, and that’s her one. 

Her number 2 is a dismissal from the denial of rehearing en banc in a case called Yafai v. Pompeo.  Not gonna get into that here, it has been analyzed elsewhere, you can Google it.  I don’t have a single great source for that, but it has been discussed.

The third is a dissent from a case called Cook County v. Wolf, again that has been discussed elsewhere, don’t have a single great case but you can go ahead and Google that.

Number 4 is a case called Doe v. Purdue, and it has been discussed at great length by my friends at the Public Justice Center, I will include a link in the show notes.  I wanna tell you two paragraphs about this case because this is John Doe, a student at Purdue University, who was found responsible for having sexually assaulted a classmate.

Thomas:         I already don’t like where this is going.

Andrew:         Oh, it gets worse.  Filed a lawsuit claiming that the school was motivated to discipline him under anti-male bias, which violates Title IX of the Education Amendments of 1972.  Title IX, the sex discrimination law that requires students – that requires schools to protect students from sexual assault and to remedy that educational impact.  Here I just wanna quote from what the PJC has said:

(Quote) “One of the most disturbing parts of Purdue” (meaning the case) “is that it treats the Department of Education’s efforts to enforce survivors’ Title IX rights as evidence of anti-male bias.  A few years before Doe was suspended, the Department had sent a letter to schools reminding them of their Title IX responsibilities to victims.  And it had opened investigations into Purdue’s compliance [with Title IX].  That, Judge Barrett wrote, (quote) ‘gives [Doe] a story about why Purdue might have been motivated to discriminate against males accused of sexual assault.’ (end of quote).”

Thomas:         [Laughs] What?

Andrew:         The decision was overturning a district court opinion that said “no, John Doe, you do not have a viable Tile IX discrimination claim against Purdue for anti-male bias against you for disciplining you for having sexually assaulted somebody at your school,” and Judge Barrett reversed that decision and said “no, absolutely, the fact that the school received this letter from the Department of Education” (from the Obama Department of Education) “indicates that they (quote) ‘might have been motivated to discriminate against males accused of sexual assault’” (end of quote).  Lots more we could say, it’s bad. 

Case number 5 that Judge Barrett identifies is a case called Rainsberger v. Benner and it is 913 F.3d 640 (2019).  I wanna cut to the punchline here because this is [Chuckles] of these 11 cases that she identifies as her opinions and dissents that are her most significant, one and a half do not reach the doctrinaire conservative outcome and will be trotted out by supporters of Judge Barrett to say “look!  She’s not lockstep, she sometimes does things you liberals like!”

Thomas:         Well, and keeping all in mind, correct me if I’m wrong.  This is not a Supreme Court position; she’s just supposed to apply the laws that already exist.

Andrew:         [Laughs]

Thomas:         Go ahead.

Andrew:         No, you have instantly anticipated exactly what this case is about.

Thomas:         Yeah.

Andrew:         This is a straightforward application of the law that she got right on an important hot button issue.  Let’s summarize very quickly.  This was a cop, Detective Benner, falsified information, there’s no doubt about this, in his probable cause affidavit in order to get an arrest warrant for William Rainsberger.  Rainsberger was charged with murder, he was imprisoned for two months before the prosecutor was like “holy crap this evidence is terrible,” and dropped all the charges.  Rainsberger then sued Benner for violating his civil rights under § 1983, and Benner tried to invoke qualified immunity – hot button issue right now.

Thomas:         Hmm.

Andrew:         Judge Barrett wrote, on a panel with Judge Diane Wood, my personal hero, unanimous, totally straightforward application said qualified immunity requires that the officer act in good faith, if the officer has falsified information in his affidavit that’s not good faith, case closed.  Again, reached the right result.

Thomas:         But, like, this means she did her damn job once successfully.

Andrew:         [Laughing] Once.

Thomas:         That’ll be characterized as a … liberal outcome?

Andrew:         Yup, that will be characterized as-

Thomas:         Doing your job correctly once is “we gave the liberals one thing.”

Andrew:         Yup. 

Thomas:         Okay.

Andrew:         But you need to know that.


Andrew:         Case number 6, Grussgott v. Milwaukee Jewish Day School, 882 F.3d 655.  [Sighs] Here’s what happened.  This is a private Jewish school that employed an elementary school teacher.  She taught the Hebrew language.  She underwent treatment for brain tumor in 2013 and stopped working during the recovery, then she went back to teaching and has suffered memory losses.  So, returned to work in 2014.  On a telephone call with a parent in 2015 she was unable to remember something and then the parent – again, I’m reading from the court decision here – (quote) “taunted her about her memory problems.”

Thomas:         Ah.

Andrew:         Then Grussgott’s husband sent an email from Grussgott’s work address that criticized that parent for being disrespectful.  The school then fired Grussgott.  She sued the school under the Americans with Disabilities Act saying “um, you fired me because I have a brain tumor, that is discrimination on the basis of disability.”  Let’s walk through.  The school then moved for summary judgment and they said look, we don’t have to follow the Americans with Disabilities Act because the ADA has an exception, has a ministerial exception, and she was a minister because we’re a private school.

Thomas:         Hmm.

Andrew:         The district court agreed with that and said yup, it’s a religious institution and your role was ministerial.  Came up for review on the law before the 7th Circuit and here are the facts of that case:  Miriam Grussgott, her job description was grade school teacher; she taught the Hebrew language; she was not a minister.

Thomas:         Yeah.

Andrew:         Obviously she can’t be an Orthodox Rabbi, that job is restricted to men.  She had no religious requirements for her job.  She described and had an expert witness confirm that her teaching was (quote) “historical, cultural, and secular rather than religious.”

Now here is what Judge Barrett wrote: “Hebrew teachers at Milwaukee Jewish Day School were expected to follow the unified Tal Am curriculum, meaning that the school expected its Hebrew teachers to integrate religious teachings into their lessons… the final factor” (I’m alighting a little bit) “The final factor also supports the application of the ministerial exception.  Specifically, Grussgott performed ‘important religious functions’ for the school.  She taught her students about Jewish holidays, prayer, and the weekly Torah readings; she practiced the religion alongside her students by praying with them and performing certain rituals and … drew a distinction between leading prayer as opposed to ‘teaching’ and ‘practicing’ … that we reject.” 

Then, ultimately, here’s the one line takeaway from the entire case.  (Quote) “It is sufficient that the school clearly intended for her role to be connected to the school’s Jewish mission.” 

So put all that together.  We have talked about the trend – the disturbing trend – on this Court that began in 2017 when we got the 7-2 decision in Trinity Lutheran that we had to do a mis-take on where I called it 2-7 because I couldn’t believe it wen the other way.

Thomas:         [Laughs]

Andrew:         Which said that prohibiting a church from applying for public tax dollars to resurface its playground was discrimination on the basis of religion because it forced the church to choose between its religious beliefs and competing for secular money.  Why that’s a constitutional right, I have no idea, but the insidiousness that we highlighted was the focus on the “rights of the church,” which are found nowhere in constitution.  The constitution protects individual rights to religious liberty, not institutional rights.  That has gone out the window since 2014’s Hobby Lobby decision and Judge Barrett is 100% – I mean, that’s what this Grussgott decision is behind.  It is focused not on the rights of the teacher.

This is a teacher who said “I was not a religious employee,” and the school said “yeah, yeah, yeah, you were.” 

Thomas:         Yeah.

Andrew:         The 7th Circuit under Judge Barrett said “yup, we’re going with what the school says, not with what the individual says.”  That is disturbing. 

Her 7th opinion is Wallace v. Grubhub, this is probably a correct opinion.  It’s straightforward but it reaches the conservative outcome.  It is that Grubhub can force their workers to sign arbitration agreements, they do not fall under the exemption for interstate commerce even though sometimes I guess if you live in-

Thomas:         Yeah.

Andrew:         Eastern Wisconsin you might have Grubhub bring you food from, you know, the Chicago suburbs or whatever.  Again, I don’t want us to be overly nitpicking, I just wanna point out there’s very little to suggest that she’s not happy to reach conservative outcomes.

8th is a case called A.F. Moore & Associates v. Pappas.  This is a little bit tricky.  This is a challenge to the taxing authority in Cook County, Illinois.  So, here’s what happened.  Some landowners got qualified for this particular tax exemption, but not the plaintiffs, so they went to state court and filed a bunch of lawsuits to try and challenge the tax allocation for property county taxes in Cook County.  They didn’t get what they wanted and their case languished for a while so finally they went to federal court and they said look, we’re not getting anywhere with the state court, we want you to tell the state court that they’ve gotta give us the tax relief.  The problem is there’s a law called the Tax Injunction Act and it prohibits you from bringing a federal lawsuit if you have a (quote) “plain, speedy and efficient” (end of quote) remedy in state court.

The district court said yup, that’s super-duper clear.  I know you’ve been pending in state court for 10 years, but there are 20 years of precedent that says that this procedure falls within the plain, speedy, and efficient remedy provided by the Tax Injunction Act, therefore you cannot go to federal court, therefore I’m granting the motion to dismiss.  Judge Barrett – and by the way, it clarified in the 20 years of precedent, super-duper clear, that that is a procedural right and not a substantive one.  In other words, the question is do you have certain procedures that you are entitled to follow?  Not do we look at the adequacy of those procedures.

Judge Barrett reversed and said that the state courts hadn’t done anything in ten years so they didn’t have a remedy, so therefore the tax injunction act did not apply. 

I wanna talk, super quickly, just about two implications of that.  Again, I’m trying to be as fair as possible here.  If this were a civil rights case, we would probably want Judge Barrett’s result.  We would want you to say yeah, at some point defects in procedures can wind up being defects in substance when it affects, you know, a prisoner being released from death row, for example.

Thomas:         Mm-hmm.

Andrew:         So, I don’t wanna overly challenge the reasoning, I want to flag that so far, I have not been able to find comparative reasoning that is not directed at rich landowners challenging specific allocation of tax rebate credits.  I have no problem, if you wanna apply this consistently – again this is another panel on which she got the vote of Judge Wood.  If you want to say “we are going to expansively look back and question whether you have a substantive right if the state courts have delayed for 10 years,” I’m 100% behind that.  I don’t have any problem with that.  I will say that does not seem to be consistent with how Judge Barrett has ruled in other individual rights, civil rights cases.  I think this is a subject about which she needs to be asked.

Case number 9 is a case called Casillas v. Madison Avenue Associates and I am shocked that nobody has mentioned this case yet.  This is – I suspect that this will come up in the Senate Judiciary Committee because this is the most disgusting defendant that Judge Barrett has come down on the side of.

Thomas:         Even worse than the sexual assault kid?  Okay.

Andrew:         [Sighs] Alright.

Thomas:         [Laughs]

Andrew:         It’s a challenge.  Let me describe the case for you and then lots not play anti-oppression Olympics here.

Thomas:         We’ll see.

Andrew:         This is a case about the Fair Debt Collection Practices Act.  On its face I think this is the reason maybe why this has not yet penetrated into the public consciousness.  The holding is that the plaintiff lacked standing under the FDCPA because the only harm she suffered was (quote) “the receipt of an incomplete letter,” (end of quote).  You might be thinking that doesn’t seem that weird.  This opinion was then so bad that we’ve talked about this procedure before.  The rest of the 7th Circuit moved sua sponte for reconsideration en banc – I shouldn’t say the rest of the 7th Circuit.  Other judges on the 7th Circuit said oh no no, we want the whole 7th Circuit to come in and take a look at this because your opinion is off the rails, Judge Barrett.

Thomas:         Wow.

Andrew:         But unfortunately, not enough votes for reconsideration.

Thomas:         Huh.

Andrew:         Let me describe the facts and you tell me.  This involved a scumbag debt collection agency called Madison Avenue Associates.  They’re the type of people that send out harassing payment demands.  You sell your debt to them then they get the legal right to collect and they harass the hell out of you until you pay them.  You know what that practice is.

Thomas:         Mm-hmm.

Andrew:         The FDCPA is designed to protect you, and it is designed to protect you from harassment.  It specifies what these scumbag collection agencies must do.  They have statutory notice requirements.  One of the things they have to tell you is they have to tell you that you have the right to dispute that debt in writing, and if you do the scumbag debt collector is forced to go get proof of that debt and give it to you rather than just continue to shake you down with threats of lawsuit.  It has always, always, always been the practice up until 2017 that if they don’t do that you can sue them under the FDCPA and you can get $1,000 dollars in statutory damages.  That’s designed to deter them from not complying with the statute.  It is a crucial aspect of the law to protect consumers against shake down artists.

So, Madison Avenue was not doing that.  They had some of the language, but they omitted the fact that you have the right to dispute the debt in writing.

Thomas:         Hmm.

Andrew:         That’s the thing that starts the termination of them harassing you.  That’s the safe harbor for consumers.  So, them omitting it was not just a “whoopsie doodle!”  Which, by the way is about the language that Judge Barrett uses in her opinions, part of why I’m so mad about this.  It is designed to start the process that says we’re going to protect you from being shaken down by scumbags.  So, class action lawsuit was filed against Madison Avenue Associates.  They reached a settlement.  That settlement would have stopped these practices, given money to their victims, and obviously given a contingent fee to the lawyers who brought the case.

While that settlement was pending, a panel of the 7th Circuit that Judge Barrett was not on, decided a different case called Groshek v. Time Warner Cable, which said that you had to show a heightened pleading requirement of injury in fact to bring a case under a separate statute, but related, called the Fair Credit Reporting Act, which is also a consumer protection statute.  That happened while the settlement was pending.

Then the Madison Avenue Associates moved to dismiss this case and the trial court said well, look, the 7th Circuit just decided this Groshek, we’re bound to follow 7th Circuit precedent, kinda seems like it applies, we’re gonna dismiss the case.  Was then appealed up to the 7th Circuit to Judge Barrett who affirmed that dismissal, and her opinion makes fun of Casillas for not pleading the thing the court did not require her to plead when she filed her complaint.

Thomas:         Makes fun of her?

Andrew:         Yeah.  I’m going to read from it.  (Quote) “The bottom line of our opinion can be succinctly stated: no harm, no foul.  Madison Avenue Associates made a mistake.  Madison sent Paula Casillas a debt‐collection letter that described the process, but neglected to [contain the statutory provisions.]  Casillas noticed the omission and filed a class action against Madison.  The only harm that Casillas claimed to have suffered, however, was the receipt of an incomplete letter … Because Madison’s violation of the statute did not harm Casillas, there is no injury for a federal court to redress.”

I could go through and continue to pick out the places in which it openly criticizes Casillas for failing to plead a specific injury from the lack of notice, but the significant part is it omits that she was not required to plead that notice at the time she filed her complaint and the district court denied her leave to amend her complaint and change how it was pled!

Thomas:         Wow.

Andrew:         So, it is 100% unconscionable here.  I really hope that the Senate Judiciary Committee comes to recognize this case.

Thomas:         This must come from her biblical beliefs about like debt collectors should be really pushy and-

Andrew:         [Laughs]

Thomas:         -for sure enforce their debt, I think that’s how the religion goes.  I dunno, I haven’t read the bible or anything.

Andrew:         [Sighs]

Thomas:         But definitely the bible’s really pro debt collectors doing whatever it takes to wring out some spare change from anyone who has the money.

Andrew:         [Laughing] Yeah, it ends with “Casillas caught the defendant in a mistake, but it was not one that hurt her.  The district court’s judgment is AFFIRMED.”  Judge Wood wrote a dissent from – again, was not on the panel – but wrote a dissent from the denial in en banc consideration.  I don’t have time to read from it here, it is well worth reading and it lays out the significance of expanding the requirement with respect to how these kinds of cases are pled and emphasizes better than I did the significant protections that this eats away at.

Again, put this in contrast.  We had a ton of sympathy for the rich property developer who couldn’t get his tax rebate adjudicated within 10 years.  We’ve got no sympathy whatsoever for the woman who was harassed by the scumbag debt collection agency, and we tossed out – again, this is the most significant part.  There was a settlement agreement in place!  There was no need for the judiciary to act in this case.

Thomas:         Wow.

Andrew:         They could have gone forward, but the 7th Circuit crafted a new remedy, the district court denied her the opportunity to amend her complaint, and Judge Barrett made fun of her for not pleading a thing that she was not required to plead when she filed her complaint. 

The 10th – we’re not gonna be able to do it, we’ll have to do it in another show – is called EEOC v. Costco, and there’s a lot to talk about in that case.  It’s a complicated case, so we’ll just have to do it in another episode.  There are other cases that are significant that she hasn’t listed, but again, we’re way over time so all of that’s gonna have to be next time.

Thomas:         Topline conclusion, Andrew, I’m not a big fan of Amy Coney Barrett. 

Andrew:         You know?  Neither am I.

Thomas:         Maybe she shouldn’t be a justice…

Andrew:         Yeah, maybe she should not be on the Supreme Court.  Hopefully we’ve given some significant background on her legal decisions.  A lot of focus, we’ve talked about how to discuss her impartiality, her judicial temperament, her membership in religious organizations that comes to bear on her philosophy, but if the response is “well let’s look at what she’s done while on the court,” I think we’ve done that here today.

[Patron Shout Outs]

T3BE Answer

[Segment Intro]

Thomas:         And now it’s time for T3BE Answer time.  Oh boy I don’t have confidence in this one, Andrew!

Andrew:         [Laughs]

Thomas:         Although, again, I really think that now that the Supreme Court is ruined enough, I can say that any of my answers would be right under – doesn’t matter!  They could decide.  No, okay, I won’t make excuses, I still need to learn how the law should be.

Andrew:         Alright, this question, it was indeed a difficult one.  It was asking the constitutionality of a Wisconsin-esque statute that was designed to restrict the power of the President.  It said this statute would require the President to make each appointment of a U.S. ambassador to a foreign country from a list of three individuals that would be provided by the Senate Foreign Relations Committee.  So, you couldn’t just take your buddies, you’d have to pick from among the three people that the Senate Foreign Relations gave you to choose from, then approved by the whole Senate.

It also says that Senate confirmation is deemed to occur automatically within 30 days after the time the President names an appointee from the list, unless the full Senate determines otherwise within that 30-day period.  So, give with one hand, take away with the other.

Thomas:         Yeah.

Andrew:         Is the statute constitutional?  You … went immediately to no and then were like “well?  Maybe there’s some good yes arguments but I’m gonna stick with no.”  You narrowed it all the way down to A, which was no, because the statute violates the constitutional requirements for the appointment of principal officers of the United States.  Thomas, A is correct my friend!

Thomas:         Alright!

Andrew:         Yeah!  Two provisions violate the appointments clause of the Constitution.  First, limiting the President to a list of three potential nominees clearly takes away a core presidential power in the Constitution to nominate principal officers, and second, the automatic confirmation provision [Laughs] You sort of think this is a two wrongs don’t make a right.  That impermissibly limits the Senate’s requirement that they have to consent to the appointment of those officers!

Thomas:         Huh.  That’s weird.  Oh, so because it’s just the Senate committee the full Senate would have the right, needs to have the right to confirm them.

Andrew:         When you nominate a principal officer like an ambassador the President gets to pick who that is, so that’s the first part, that’s super easy, but that must be done with the advice and consent of the Senate.

Thomas:         Mm-hmm.

Andrew:         The problem is this bill – it’s not the committee versus the whole thing, it’s that this bill says oh, you gotta do that in 30 days or else it’s deemed that the Senate consents.  Well, imagine that this passes in 2021 and then the Senate in 2043 is like well this is crazy, we didn’t get a chance to consent.  You’re taking away the future power, it’s a different Senate.  You’re taking away their future power to review and advise and consent into each individual case.  Impermissible restriction on both the President and the Senate.

Thomas:         Oh! 

Andrew:         Double whammy, you got it exactly right!

Thomas:         I missed the second whammy, but yeah, sure. 

Andrew:         [Laughs]

Thomas:         Only one whammy here.

Andrew:         Only one whammy was needed!

Thomas:         [Laughing] Yeah.

Andrew:         Yeah.

Thomas:         That’s about right for me, I got one of the two whammies-

Andrew:         You got the whammy!

Thomas:         It happened to also get me the correct answer, so there you have it.  Shoot, that was easy. [Laughs]

Andrew:         Yeah!  Totally straightforward!

Thomas:         I was thinking that was gonna be harder!

Andrew:         Yeah, all the other answers just state the law incorrectly.  So, B says it impermissibly restricts the foreign plenary affairs powers of the President.  No, it doesn’t have anything to do with restricting the President’s ability to conduct foreign affairs.

Thomas:         Good, I sussed that out.  I know that was probably easy to you, Andrew, but to me, you know, I wasn’t sure.

Andrew:         And also, the President does not have plenary power over foreign affairs.

Thomas:         Right.

Andrew:         For example, it is up to Congress to declare war.  [Laughing] That’s a pretty important foreign affair.

Thomas:         Good point, yeah.  Okay, just pretend – I know what this means, but for anyone who just doesn’t know what this means – [Laughing] what does “plenary” mean?

Andrew:         Yeah, plenary means “without restriction.”

Thomas:         Ooh!  Okay, I think I had a slightly different sense in my mind of what that meant because I was totally wrong, but that helps.

Andrew:         I think you knew that, but it’s good for you to do it as a hypothetical for listeners.

Thomas:         Yeah, yeah.  For anybody else …

Andrew:         And the yes answers, it is not consistent with the appointment’s clause.  D, I dunno as between B and D which answer is worse, but D was yes because the statute is a necessary and proper measure in further of Congress’s power to regulate commerce with foreign states.  Um…

Thomas:         Yeah, that was terrible.

Andrew:         That’s nonsense.

Thomas:         I wasn’t tempted by that one.  Alright, well, back to the happy music, here we go!

Andrew:         Good work, yeah!

[T3BE Triumph]

Thomas:         And hop in your time machine, Andrew.  Tell us who is this week’s big winner of T3BE.

Andrew:         Well, Thomas, this week’s winner is Nathaniel Richter on Twitter who writes “I’m gonna guess answer A.  Congress can expand what a principal officer is and make it senate confirmable, but can’t limit those choices.”  Exactly right, congratulations Nathaniel on being this week’s winner.  Everyone give him a follow on Twitter, that is @Forensic_Ling, F-O-R-E-N-S-I-C underscore L-I-N-G, and congratulations on being this week’s winner!

Thomas:         Alright, that’s our show.  We’ll see you for a rapid response Friday, can’t wait for that, whatever the news cycle tells us we have to talk about then!

Andrew:         [Laughs] I’m sure the world’ll be just as terrible next week, Thomas.  But I’ll be fantastic!

[Show Outro]

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