Listen to the episode and read the show notes
Topics of Discussion:
- Breakin’ Down the Law: Originalism Part 1
- Pop & Law with Morgan Stringer – Deshaun Watson Allegations
- T3BE Answer
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 477. I’m Thomas, that’s Andrew. How’re you doing, sir?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: I am excited to get into today’s episode.
Andrew: [Laughs]
Thomas: We’ve got a new Morgan segment, I mean how exciting is that? Can’t wait to do that. Then we’ve got to break down why originalism is bad and why that episode of Rationally Speaking was perhaps not the best. Perhaps not the best.
Andrew: This is a topic about which I may be well known as having some strong feelings.
Thomas: Yeah, yeah.
Andrew: Can’t wait for both of those.
Thomas: And lots of listeners have asked us for this episode, including listener Thomas S.
Andrew: Yeah.
Thomas: I can’t wait, we’d better get to it.
Breakin’ Down the Law: Originalism Part 1
[2:01.9] [Segment Intro]
Thomas: Okay, so the Rationally Speaking podcast is – it’s got Julia Galef and it’s all about presenting – you know, it’s all about rationalism and presenting the best arguments, etc. etc., which is a great goal. It’s a good show, a lot of people listen to it, but maybe, Andrew, maybe it missed the mark a little bit with this originalism episode. What do you think?
Andrew: It did, and I think that there is actually some really good underlying lessons for skepticism here, as well as my argument about the law. Let me make my thesis up front and clear, and that is originalism has both a jurisprudential side and also a public facing marketing side.
Thomas: Hmm.
Andrew: The side that we make fun of all the time, “judges just need to be neutral umpires calling balls and strikes,” that sort of thing.
Thomas: Yup. Mm-hmm.
Andrew: William Bode, the guest that Julia had on the show, I think represented the public marketing side, and I would like to show why I think that ultimately the discussion that was had was meant to evade, rather than engage, with substantive legal questions. To do that, to prove that for you, I need to explain a lot of background. [Laughs]
Thomas: Sure!
Andrew: This will not be a surprise.
Thomas: It’s a Tuesday OA.
Andrew: Yeah!
Thomas: I wouldn’t have expected any less.
Andrew: This necessary background is part of the reason why the alternatives to originalism, which, by the way, are 90-plus percent of the legal profession.
Thomas: Yeah.
Andrew: The overwhelming majority of the legal profession-
Thomas: That is not at all how the guest described it!
Andrew: [Sighs] [Laughs]
Thomas: The guest described originalism as if you are reading a law and not changing it, and also that’s what everybody does, everybody’s an originalist according to this guest, and anybody who isn’t is, uh, doing it wrong.
Andrew: Yeah. I think the reason we’re losing that marketing war is because we’ve given more thought to jurisprudence than how to put it on the back of a bumper sticker.
Thomas: Mm-hmm.
Andrew: So that nobody takes me too seriously, I want to begin with the only prognosticator that made a worse prediction than mine, is my jurisprudential hero, Ronald Dowrkin. I’m gonna quote him a lot in this episode and the follow-up. He wrote this in the book “Freedom’s Law” in 1996 about the defeat of Robert Bork to be nominated to the Supreme Court. He wrote, (quote) “Many of the positions that Bork justified by appealing to original intention,” (by appealing to originalism) “that the equal protection clause specifically condemns only racial discrimination; that the constitution, in spite of what the Supreme Court has said, contains no general right to privacy; were so thoroughly discredited in the hearings and proved so generally unpopular that I doubt they will any longer be advanced even by lawyers and judges who found them congenial before.”
Thomas: Ooph. [Sighs]
Andrew: “The standard of original intention is a strict and exclusive limit on the grounds of legitimate Supreme Court decisions is probably dead.” (End of quote). Not great as a prediction.
Thomas: Yeah, that overestimated America.
Andrew: [Laughs]
Thomas: By quite a bit.
Andrew: Quite a bit. Again, this is the most important legal scholar to my personal development. Okay, on Rationally Speaking, March 19th, this was a half hour discussion of the legal theory of originalism. If you listen to it, it mentioned zero provisions in the Constitution, and obliquely talked about exactly one case, Roe v. Wade, and not in any depth.
Thomas: Yeah.
Andrew: Just in general you should be skeptical that you’re getting a robust treatment of judicial philosophy if we’re not talking about laws, the Constitution, and Supreme Court cases. The host, Julia Galif, the interviewee, William Bode, mentioned how important it is to steel-man the other side, but the definition of originalism that you’ve described and are not straw manning in any way, that’s a near-direct quote, is so ridiculous that it strawman’s everyone else into virtual nonexistence.
Thomas: Yeah.
Andrew: I’m going to show that. Originalism is an umbrella term that encompasses a variety of different approaches, but honest originalists, we had one on our show, will conceded that although their position is now a majority of the U.S. Supreme Court, it is a tiny, tiny minority in the legal community as a whole, however you subdivide it. All judges, all lawyers, all law professors, whatever you’re looking at, this is a minority philosophy. Here’s what Antonin Scalia said in 2016 right before he died: “I am (quote) one of a small hardy minority who believe in a philosophy called originalism” (end of quote).
Thomas: I feel like he’s a good representative of originalism. Like, if you wanna, you know?
Andrew: You wanna find out? Yeah.
Thomas: Yeah.
Andrew: We’ve never really done – I went back to look through the archive-
Thomas: I swear we have!
Andrew: There are lots of bits and pieces.
Thomas: Crazy.
Andrew: It’s kind of a through line, but I’ve never made the comprehensive case against originalism.
Thomas: This is Shazaam all over again, or Berenstain Bears, or whatever-
Andrew: [Laughs] Berenstain, yeah!
Thomas: Yeah.
Andrew: Again, I think kind of the first thing to remember is I’m going to be talking about the jurisprudential side of this, not the public marketing side of it.
Thomas: Mm-hmm.
Andrew: This is such a weird thing for me. Because if you were to ask the average non-lawyer Republican “hey, what do you think about the Incorporation Doctrine,” they would say “well, I don’t know what that is.” You would say, “well, it’s the doctrine of how the Bill of Rights gets incorporated to the States via the 14th Amendment-
Thomas: Mm-hmm.
Andrew: -that’s been piecemeal throughout the-” They’d be like “I dunno, man, you’re the lawyer, you tell me.”
Thomas: Yeah. [Laughs]
Andrew: But if you ask them “how should Supreme Court decisions be decided?” They will articulate something like Bode’s definition of originalism. They’ll be like “well, it’s important that judges not make law, that they be neutral umpires and not act as policy makers.”
Thomas: Mm-hmm.
Andrew: That is – it is such a reductionist approach, I want to explain that. I want to unpack the underlying philosophical assumptions. The first one is something we’ve talked about a lot on the show, it is the rule of law.
Thomas: Wow, we’re really starting at the beginning here. Okay! [Laughs]
Andrew: Yeah, we really are! Look, why any of this matters starts from a principle that I would hope most people agree with. Because laws have the power to shape outcomes, and in particular to punish you, sometimes by death, they require some kind of moral justification.
Thomas: Hmm.
Andrew: Now, you can opt out of that. Think about all of the Nazi Germany hypotheticals. You can say “I have a supervening moral reason.”
Thomas: Mm-hmm.
Andrew: The law says go turn in, you know, escaping slaves-
Thomas: Anne Frank, yeah.
Andrew: Yeah, or Anne Frank, or whatever, I would say no, I have a moral duty to obey the law, but I have a higher moral duty not to be a monster.
Thomas: Sure.
Andrew: But, you have to have a good reason to break the law. If you don’t have one, the default is you should obey it.
Thomas: Is this guy is going way too slow a good enough?
Andrew: [Laughs]
Thomas: Just asking for a friend.
Andrew: Well, it – it might be.
Thomas: [Laughs]
Andrew: But think about this: have you ever driven through a downtown city at like 2:00 in the morning?
Thomas: Oh, sure.
Andrew: And you stop at the stoplights. You don’t run the red light. Really, the odds of there being a cop nearby are pretty low.
Thomas: Yeah. I absolutely do turn left on red left turn arrows, though.
Andrew: [Laughs]
Thomas: 100%, that’s a judgment call. You don’t need to obey those, if you – never mind, I’ve said too much.
Andrew: Yup.
Thomas: My lawyer’s advising me to stop talking.
Andrew: [Laughs] I’m giving him the, you know-
Thomas: Yeah.
Andrew: -finger across the throat motion there. The reason for that is we’ve settled in on a kind of social contract. The idea is if you know the rules and you live in a relatively free society where, you know, you could leave if you don’t like the rules, and you choose to stay anyway, then you have at least a rebuttable presumption to obey the rules. Again, the rules are horrible? Commit civil disobedience, protest, whatever. But, by and large, you live here, you knew what you were getting into, so you’re stuck with it.
Thomas: I don’t want to get bogged down on this-
Andrew: Yeah.
Thomas: But also you could be like “well, there was no one there so I turned on that red and I happened to get caught so, eh, I accept it.” That’s also accepting the system.
Andrew: Yup.
Thomas: [Laughs] Accept the consequences.
Andrew: Yeah! Exactly right. Think about the underlying assumptions now for the rule of law to exist. Number one, it is that the laws must be made public.
Thomas: Mm-hmm.
Andrew: You must be capable of understanding what they are. And then, related to that, the laws themselves are capable of being understood in advance so that you can conform your conduct to them. They don’t change between when they’re posted and when you act. Super easy example of that, you drive by a sign that says “Speed Limit 35,” you look down, you’re like “oh, I’m going 35, cool.” Cop pulls you over and you say “the sign said 35,” and the cop’s like [Laughing] “oh, yeah, signs. Sorry, the city council changed the speed limit here to 25 back in 1987.”
Thomas: Or he goes over with a Sharpie and just changes it-
Andrew: Yeah!
Thomas: -in front of you?
Andrew: That violates the idea of the rule of law.
Thomas: Mm-hmm.
Andrew: It’s meant to say “oh, I looked at the sign, the sign says go 35, I can conform my conduct.” Similarly, if the cop were to say, “oh, yeah, but that sign says 35 but if you look in the small print it doesn’t say 35 miles per hour, it says 35 feet per eternity,” or-
Thomas: Yeah.
Andrew: Yeah, you would still say “alright, you’ve misled me.” That’s part of the idea that the laws must be understood, capable of being understood in advance, so that you can conform your conduct to them, and crucial to that – you’re gonna want to put a pin in this, this will be obvious – more than just the sign matters.
Thomas: Hmm.
Andrew: You’re in downtown Los Angeles, there’s a sign that says “no jaywalking.” There’s a cop on the other side of the street. 19 white people jaywalk in front of you and the cop waives to them. You happen to be Black and then jaywalk and the cop pulls you over and writes you a ticket and is like “oh, this is super severe.”
Thomas: “Look at the sign,” yeah.
Andrew: Yeah, and says “what, the sign.” You’d have a real good argument of, like, right, but I’ve been living here for forever and white people get to break the law and you’re saying I don’t?
Thomas: Mm-hmm.
Andrew: That’s a hard principle to articulate. We can strawman that principle pretty easily of you get pulled over going 80 in a 65 and you’re like “well, why didn’t you pull over the guy going 90” and the cop’s like, “well, because I got you first.”
Thomas: Yeah.
Andrew: Not all unequal enforcement results in a different understanding, but the idea that the law is more than just what’s written down, I think, is a pretty noncontroversial statement. Here’s the first thing you need to know: almost every lawyer I can think of, left, right, center, far left, far right, believes in these principles.
Thomas: Hmm.
Andrew: Because if you don’t, if you reject the idea of the rule of law, then what you’re left with is “might makes right.” There’s no difference between the United States and North Korea; there’s no nobility in our profession; it’s just who gets to convince who of what, and I don’t know, maybe that’s how Sidney Powell and Rudy Giuliani do it. They’re just like “pfft, the law doesn’t mean anything.” They’re nihilists.
Thomas: That sounds Trumpy.
Andrew: Yeah. If that’s the case then why not perjure yourself and say “Dominion was invented by Hugo Chavez to-
Thomas: Mm-hmm.
Andrew: Who the hell cares? You make up whatever you can to win because the only thing that counts is the outcomes. But the rest of us disagree with that approach. We think laws should be public and predictable, and crucially, agreeing to those assumptions does not make us originalists. It makes us non-anarchists.
Thomas: Mm-hmm.
Andrew: That’s sort of the first principle, the idea of the rule of law. The second – this is a bit more nuanced. It’s the idea of “is there a right answer in every case for the law?”
Thomas: Hmm.
Andrew: The way to think about that, you and I have actually had a discussion on the question of objective morality. Are there moral facts that are true in the same way that it is true that two plus two equals four? Plenty of moral theorists are like “no, there’s not such a thing.” But plenty of moral theorists are like “yes, there are.” There are moral facts that are capable of being known. This is the image – the mirror image of that – in the legal world. It is, given laws as written and given the system of interpretation, is there a right outcome in every case?
Thomas: There’s so much in that question that makes it difficult.
Andrew: [Laughs] Yeah!
Thomas: What’s right? How do you define right? [Laughs] Are you defining right in a way that’s taking on some exterior kind of assumptions as to morally right? Or are you saying right as in internally consistent with the system you’ve already invented? You know, there’s a lot of different ways you could say something is “right” (quote, unquote), I think.
Andrew: Yeah, exactly! Right, I might add.
Thomas: [Laughs]
Andrew: That is exactly correct. You need to parse out what we mean by that. Let’s start with a slightly easier question: Are there any laws that have correct answers to them?
Thomas: What’s an answer to a law? I don’t understand.
Andrew: That has a right answer. One and only one result such that you can say if the judge reaches that result, the judge did the right thing.
Thomas: Oh, when you say law you mean like a decision? Like a case?
Andrew: Yup. Yeah, I mean a ruling in a case.
Thomas: Oh, okay, that’s dif-
Andrew: Answering a legal question.
Thomas: Not a law.
Andrew: Yeah, well, but answering how the law is applied.
Thomas: Yeah.
Andrew: This is really – I’m super glad we’re doing this. Yeah.
Thomas: I mean, when we’re dealing with this level of philosophy we’ve got to be precise in our words.
Andrew: Yeah.
Thomas: I did not understand. Okay, so you’re saying is there a ruling – again, this is something that a million different people can bring a million different assumptions into this to say yes or no to if something’s (quote, unquote) “right.” One example, and one thing I wanted to bring up in this recording that they talked about was stuff like well, the President has to be 35 years old. That gets to be counted as originalist, according to this guy.
Andrew: [Laughs]
Thomas: Everything that is like very basic, word for word, text says, you know, President has to be 35. If you agree with that you’re an originalist, and it’s implied if you’re not an originalist you wouldn’t agree with that idea, which I think is problematic.
Andrew: I think that’s – in fact, that was the example I was trying to steer you towards.
Thomas: Sure.
Andrew: Most lawyers would say at least some questions have right answers. The answer to the question “how old do you have to be to be President” is not “well, you’ve got to be old enough.”
Thomas: Well, so you define – I think it’s important to say you’re defining “right” in this case, then, as consistent with the Constitution. You’re trying to answer – if we’re accepting that [Laughs]
Andrew: Yup.
Thomas: If we’re accepting that background philosophy, or whatever, that the judge is doing the job of, in this case that you’re talking about, interpreting the Constitution-
Andrew: Yes.
Thomas: -and saying whether or not a law is consistent with that, then yes. There are gonna be some slam dunk, easy questions.
Andrew: I love that, because Ronald Dworkin divides up jurisprudence into “easy questions” and “hard questions.”
Thomas: Mm-hmm.
Andrew: And uses the same rhetoric that you just used. Yeah, “how old do you have to be President?” is an easy question. “Can the government quarter soldiers in your house in peacetime?” is an easy question.
Thomas: Yeah. I don’t want to derail you-
Andrew: Yeah.
Thomas: But it’s worth saying that’s also not necessarily a morally correct answer. I don’t think there’s any reason why the President has to be 35, that sounds kind of stupid to me.
Andrew: Sure.
Thomas: I think that part of the Constitution is a bit arbitrary.
Andrew: It 100% is.
Thomas: But, if we’re gonna agree-
Andrew: But if you were a judge-
Thomas: Mm-hmm.
Andrew: And AOC has filed a motion for declaratory judgment-
Thomas: Right.
Andrew: -in your court saying “yeah, I get it, I’m only 31 but I’m way smarter than everybody else.”
Thomas: I don’t think the leftiest of left wing judges, I don’t know if there’s a judge in the country who would rule in her favor, is there?
Andrew: There is not.
Thomas: Right.
Andrew: That is the beginning of creating my cumulative point.
Thomas: Sure, okay.
Andrew: Yeah, these are easy questions, and as you point out – and Dworkin makes this exceptionally clear – easy questions don’t go to Court, or if they do they don’t go to the Supreme Court.
Thomas: Yeah.
Andrew: You don’t need to go to the Supreme Court with easy questions, because there are lots of hard questions.
Thomas: [Laughs]
Andrew: I want to give you an example of something that at least used to be a hard question. Let’s suppose New Jersey passes a law that says “we’re going to use taxpayer funds,” (because that’s what they all are) “to transport kids on buses to K-12 schools, and we’re going to let that open for any school including public, secular private schools, and the only schools we have in New Jersey at the time, Catholic private schools.”
Thomas: Hmm.
Andrew: Um, there were no – as far as I can tell in this case, in this school district there were no non-Catholic private schools, but whatever.
Thomas: Sure.
Andrew: Feel free to arrange the hypothetical in your mind however you want. This is a real case, Everson v. Board of Education of Ewing. The question is, is it permissible to bus kids with taxpayer dollars to Catholic schools? It’s a hard case, because it pits two Constitutional principles against each other.
Thomas: Right.
Andrew: On the one hand, you have the Establishment Clause, which prevents aiding religion, and subsidizing the transportation costs of parents to Catholic schools absolutely aides those Catholic schools.
Thomas: Or at least used to be considered to do that, but yeah.
Andrew: [Laughs] There’s no question more parents will be able to send their kids to Catholic schools after this law passes than beforehand.
Thomas: Right, right.
Andrew: So, benefits the Catholic school. On the other hand, you have this general principle of equality that suggest that this is – I’m gonna quote from the case – “a general program to help parents get their kids, regardless of their religion” (or no religion. I’m adding that, the Supreme Court did not say this in 1947, but I’m being charitable here.) “safely and expeditiously to and from school.” It’s a hard case. You may not be surprised, given where the Supreme Court is today, to learn that in 1947 the Supreme Court affirmed this general bussing law in New Jersey. You might be surprised to know that it was 5-4.
Thomas: Hmm.
Andrew: And you will definitely be surprised, having read the Court’s 1st Amendment jurisprudence over the past 5 years, to learn that this was in the majority opinion. Upholding the New Jersey, the majority says, “The 1st Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”
Thomas: [Sighs] Those were the days!
Andrew: “We could not approve the slightest breach-
Thomas: Wow.
Andrew: -but New Jersey has not breached it here.” My question to you, was there a single right answer in the Everson case?
Thomas: No. I don’t really think so.
Andrew: Look, lots of people – your view, then, aligns with a great number of legal scholars who would say yeah, if it’s super-duper close there’s no one legal philosophy that compels and absolute result, and so there are interstices and it’s going to depend on which judge gets it, and each of the two options has a fighting chance. There are also people who say “I don’t know,” but to be an originalist your answer must be “yes.” There are objective answers even in hard cases.
Thomas: Hmm. Is that right? Just to, you know, do what they, I don’t think, did a good job of doing, which is steel-botting, as Erin says to try to take the gender out of it.
Andrew: I love that. Steel-bot.
Thomas: Steel-personing the other side, which is to say what do originalists make of cases of first impression? How do they deal with that?
Andrew: What they say is it depends on what flavor of originalism they are.
Thomas: Okay. Spicy?
Andrew: [Laughs] Yeah, extra crispy. If you are a textualist than the provision of the Constitution or the law that’s at issue, means what those words meant at the time it was enacted as applied to the particular situation, and that there is one correct answer to that, up or down, affirm or reverse.
Thomas: Mm-hmm.
Andrew: If you are of the flavor of Antonin Scalia, the original public meaning, then it does not mean what the words meant at the time, but rather it means what anybody reading those words would have thought at the time that the provision was written. Again, it is a very, very reductionist philosophy that says nope, there’s a single, clear, correct outcome and that outcome is what I imagine that the author of the provision, how they would have ruled if this had been put before them in, say, 1791.
Thomas: That’s interesting, because even philosophically if I were an originalist I think I could still grant that, well, it’s not as thought when they wrote these laws or documents they had every possible scenario in mind. There may be unanswerable-
Andrew: Let me say, I think there are correct answers in hard cases.
Thomas: Hmm.
Andrew: But this is where the next philosophical principle comes in, and that is the principle of epistemic modesty. That is, how sure am I that I got the right answer?
Thomas: Right.
Andrew: I think there’s a right answer, again let’s continue to take this Everson case. If I was on the Supreme Court in 1947 instead of Hugo Black who wrote the majority opinion, I think I would have said look, this is a hard case, but on balance I’m convinced that this does constitute an establishment of religion as we understand that prohibition in the 1st Amendment, and the case would have been 5-4 the other way and [Laughing] the history of this country would be very, very different. But if you asked me how confident I am that I’ve reached the right answer in that hard case, I would say – I mean, obviously I’m always confident of my own opinions – but I’m not as confident as I am that the President has got to be 35.
Thomas: Mm-hmm, right.
Andrew: I’m 100 to zero on that. I think I’m right, but I would also apply the principle of epistemic modesty, and I would have to admit, could be wrong. Why could I be wrong? Because I’m an atheist, and so maybe I am undervaluing the other side of the argument. I would say – just make this up – I’m 55% certain I’m right, I’m 45% certain I’m wrong. In 1947 I have a binary choice. I’m on the Supreme Court, I’ve got to affirm or reverse, and even though it’s 55/45 it would be stupid for me to say “well, I’m going to affirm because it’s 45% likely that affirming is the right-” no, you’ve gotta make your choice.
Thomas: Mm-hmm.
Andrew: I’m 55%, let’s reverse. But after that decision is made the choice isn’t binary anymore.
Thomas: Hmm.
Andrew: If I were appointed to the Court tomorrow, in 2021, and the exact same question comes up, I would go back to that principle of epistemic modesty and say “you know what? Possible that I’m wrong about this, and since it’s possible I’m wrong I want to look at other factors to see what we should do.” By far the most important other factor is reliance. That goes back to – that’s why I did all that stuff on the rule of law.
Thomas: Mm-hmm.
Andrew: For almost 75 years, that’s four generations of parents have put their kids on the bus to send them to Catholic school. Am I confident enough to want to upend that practice for tens or hundreds of millions of people? [Sighs] No. It goes back to our expectation of what the law is. I don’t come along and change the rules on tens of millions of people unless I’m more sure than 55/45.
Thomas: Yeah. If this is a super racist law.
Andrew: Yeah, yeah.
Thomas: You’re not gonna be like “we’ve had slavery for a while so I feel like we can rely on it now.” No.
Andrew: That actually gets at – flash forward another 100 years. I’m a head in a jar-
Thomas: [Laughs]
Andrew: -and I’m on the Supreme Court à la Futurama. 2147, everybody’s got personal teleporters, we haven’t used busses in over a century, but there’s another principle and I’ve got to decide whether Everson was correct, and I can say oh, yeah, Everson, that was totally wrong, no one’s relying on it anymore, it’s a footnote in history, nobody even knows what a bus is.
Thomas: Yeah.
Andrew: It does not harm, so I can say my 55/45 is probably good enough.
Thomas: Hmm.
Andrew: You might recognize the test that I’m using here as being a colloquialized version of the Supreme Court’s discussion of stare decisis in Planned Parenthood v. Casey from 1992, in which a conservative Reagan-era Supreme Court nevertheless upheld Roe v. Wade, and they said “look, we’re gonna look back, this decision is now 20 years old, a lot of people are relying on it, it hasn’t proven unworkable, the facts have not changed on the ground decisively from 1972, so even though-” and the Kennedy and O’Connor opinion said yeah, if I’d have been on the Court in 1972 I’d have gone the other way, but that’s not where we are right now. We are at a position where I need to go back and use my principles of epistemic modesty to say am I so convinced that this is so wrong that I’m going to upend the entire system? Those principled, non-originalist, conservatives said no. The rule of law is more important. Look, Sandra Day O’Connor, way smarter than me! Anthony Kennedy, way smarter than me.
Thomas: Eh.
Andrew: Way smarter than 99.9% of the country, and part of that comes the humility to say “I could be getting this wrong.” If I could be getting it wrong, how do I weigh that into my jurisprudence? The key point of all of this, not all laws or Constitutional provisions are the same. Some are super easy to understand and do not endorse any underlying principles, like the 3rd Amendment or the 35 clause. But much of our law, and everything that causes hard cases, cannot be understood as wrote checklists. I’ll use, for the first time – I’m surprised, we’re, you know, a half hour into this segment – for me to say the 5th Amendment protects due process of law. What’s a process and how much of it are you due?
My argument is that non-originalist lawyers, the overwhelming majority of the legal profession – figure out, number one, what kind of text we’re dealing with? Number two, what that text likely means and at what level of abstraction? Number three, how to apply that principle, if there is a principle, to the current situation before the Court. Then, number four, how confident they are that they’re right. I think the principle of epistemic modesty is what differentiates originalists from everybody-else-ists.
I know you’re gonna say “alright, how do we steel bot that?” Doesn’t it sound like I’m just saying originalists are arrogant? Let me quote [Laughs] from Clarence Thomas. This is in his concurrence in Gamble v. U.S.
Thomas: I mean, read any Scalia and it’s hard to not think originalists are a little arrogant.
Andrew: It is hard, but here’s what Clarence Thomas says – and Gamble was a duel sovereigns doctrine case. Clarence Thomas voted with the majority, and then wrote separately to say “by the way, what’s all this stare decisis crap about, anyway?”
Thomas: [Laughs]
Andrew: He says, (quote) “In my view the Court’s typical formulation of stare decisis does not comport with our judicial duty under Article 3” (that is, their grant of authority in the Constitution) “because it elevates demonstrably erroneous decisions, decisions outside the realm of permissible interpretations, over the text of the Constitution. And the Court’s stare decisis doctrine exacerbates that temptation by giving the veneer of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text, as the Court is particularly prone to do when expanding federal power, or grafting new or individual rights, the Court exercise force and will, two attributes the people did not give it.”
Then he explains the stare decisis factor, quotes Casey, and concludes, “The Court has advanced the view of stare decisis that it (quote) ‘promotes the evenhanded, predictable, and consistent development of legal principles and contributes to the actual and perceived integrity of the judicial process.’ This approach might have made sense in a common law legal system, in which courts systematically develop the law through judicial decisions apart from written law, but our federal system is different. The constitution tasks the political branches, not the judiciary, with systematically developing the laws that govern our society. The Court’s role, by contrast, is to exercise the judicial power, faithfully interpreting the Constitution and the laws enacted by those branches.”
I think it is fair to summarize that as Clarence Thomas saying “if it’s wrong it’s not the law,” period. Because there is no application of “well, what if you’re wrong about thinking that it’s wrong.”
Thomas: Hmm.
Andrew: In other words, I do not see how originalism is consistent with a skeptic world view. That’s jurisprudence generally. Part two we’re going to learn very specifically what originalism is and isn’t, what the alternatives are and aren’t, and I will go through the arguments made on this podcast and show you why originalism is a terrible, terrible mode of jurisprudence.
Thomas: [Laughs]
Andrew: Hopefully this was a good intro.
[32:59.1] [Commercial]
Pop & Law with Morgan Stringer – Deshaun Watson Allegations
[34:18.9] [Segment Intro]
Thomas: Hey folks, quick content note. The following segment includes descriptions of the sexual assault allegations against quarterback Deshaun Watson. Giving you a heads up, we do get into a little bit of detail here, so content warning, sexual assault.
Thomas: And we are now joined by ace associate Morgan Stringer to talk some pop and law. So it’s pop law’s blob law blah’s blog.
Andrew: [Laughs]
Thomas: Anyway, we’re workshopping it, but how’s it going, Morgan?
Morgan: Well, I wish the segment would have started off with something more fun.
Thomas: No kidding.
Morgan: Like, I was hoping General Mills would sue the guy that found shrimp in the cereal or something.
Andrew: [Laughs]
Thomas: -to that, change all your research. No, that would have been great. But that’s okay, hopefully we’ll have you back many a time to talk future shrimp related cereal stuff. For now, not the most pleasant of topics as you alluded to. Deshaun Watson, people may have seen in the news, sounds disturbing. Give us your breakdown.
Morgan: There have been 16 lawsuits filed against Deshaun Watson, who is the quarterback of the Houston Texans. He is kind of a rising star in that he went in the first round, I believe, in the 2017 draft. Before that he played for Clemson, helped them get a national championship there in 2016. As somebody on Twitter who’s a sports reporter put it, they said either Deshaun Watson is a serial predator or this is one of the wildest character assassinations in history, and we know where we all kind of all on the side of that.
Thomas: Yeah. I’m gonna go ahead and say that, you know, when your victims are numbering in the double digits, for now, I’m gonna go ahead and say it might be a pattern of behavior more than anything else.
Morgan: Absolutely, and these suits do have a lot of civil – obviously there’s gonna be differences between each person’s account, but there are just so many similarities here. That’s sort of who Deshaun Watson is, and I’ll get into his attorney, the one who’s bringing forward these claims in a little bit, but for now I just wanted to highlight, I guess, what’s in these lawsuits. Tony Buzbee is the attorney who’s bringing all of these claims. All of these claims are being brought in the Harris County District Court. That is State court in Texas, in Houston. The clerk there has been, I imagine, quite busy with filing these because, again, it’s been very quickly and I would not be shocked if more were filed as I was speaking.
Andrew: So, Buzbee represents all 16 plaintiffs we know so far?
Morgan: Yes, he does.
Andrew: Okay.
Morgan: Along with – he has a team that I will get into in a little bit, but the claims he’s saying that it’s basically harm as a result of violations of the Texas penal code. All of these have this in common, it is Texas penal code § 22.01(a)(3) that is the Texas statute for assault. As listeners will know, that is physical contact that would be regarded as offensive. The penal code for indecent assault would be § 22.012, and that is essentially groping, that kind of behavior as well. Section 42.07 is the penal code for harassment, and I believe that what he is referring to there is subsection (a)(1). That is with the intent to harass, annoy, alarm, abuse, torment, or embarrass another person. The person initiates communication and the course of the communication makes a comment, request, suggestion, or proposal that is obscene. Based on a conject, I think that’s the first subsection. The rest of it deals a lot with, you know, what you think of when you think of somebody harassing you, particularly online.
Andrew: Is “obscene” sub-defined there?
Morgan: It’s not.
Andrew: Mm-hmm.
Morgan: But his behavior would definitely qualify, I believe-
Andrew: Yup, yeah.
Morgan: -as obscene based on what requests were made of these women, along with his communications with them.
Thomas: Is there a reason this isn’t a criminal thing, yet? Is this the normal way this would go?
Morgan: Actually, Tony Buzbee has said that he is in contact with the Houston police department, pretty much as we speak, and he says that he is turning over affidavits and evidence that he has-
Thomas: Oh, okay.
Morgan: -over to them to see if there’s any – he says his office is cooperating with any kind of criminal complaint that can arise from that. There could be – particularly there is one claim that is different from the rest, so Jane Doe 3 has claims that Deshaun Watson forced her to have oral sex. That one is for sexual assault.
Thomas: Hmm.
Morgan: That’s Texas penal code 22.011(a)(1). That is a felony, 2nd degree felony. That is a very serious charge. I believe that is where, especially the Houston police department, probably stepped in and said “hey, if you evidence of these crimes being committed we need to look at these and investigate them fully.” There may be 5th Amendment issues that come up here, in the progress of this lawsuit. So, to get to the claims and the commonality. These women, essentially, the majority of them were massage therapists. Some of them did things like body conditioning, stretch exercises, there were a few that were estheticians that thought it was weird he reached out saying “hey, will you give me a massage,” but, you know, he’s such a known figure in Houston and the majority of these women were also small business owners, or they were starting up their own businesses. You know, you imagine a celebrity client wants to use your services and you get really excited because that’s huge for your small business. It would be like if Andrew and I had a celebrity client walk in, that would be amazing. You can see where this behavior does seem very targeted. He’s not going after these established business people, he’s going after these people that are just starting up.
Thomas: Hmm.
Morgan: Now he did have some, there were two different Jane Doe complaints where they had actually worked with professional athletes before. Again, to the people who are saying “oh, well, these women just want payout money,” you would burn your entire career down if you did something like this.
Thomas: Mm-hmm.
Morgan: It would literally be one of the things that abusers often say, is “you’ll never work in this town again,” if you just made this up for no reason. So, typically what he would do is he would message them on Instagram and he would show up. Sometimes he’d message them via text, and with a lot of these complaints they allege that he would message them and say hey, who’s all going to be there? Are we going to be alone? Typically for some people they said that was a little weird, but again, he’s a celebrity. He probably wanted to make sure, oh, your whole crew isn’t hanging out because Deshaun Watson’s coming over to my house. You know, they kind of brushed that off, but in hindsight you can definitely see where that was more calculated.
Thomas: Hmm.
Morgan: Typically what he would do is he would have them start a massage and he would sometimes try to either be naked or say “oh, I can’t use a blanket,” or bring his own very, very small towel, and he would use the excuse sometimes where they would say no, this is not how it’s done. If you’ve ever had a massage, you need to have a drape of some kind over you that actually covers you while doing the massage, and he would just say “oh, well I get hot.” And he would just say “oh, this isn’t how it’s done.” He would just be very aggressive, also, about asking them to particularly massage his glutes, inner thighs, groin, just really gross stuff. When they would start moving away, being like “okay, I’m going to massage your shoulders now,” he would say no, I want you to keep working on that; and his requests would get more explicit from there depending on the complaint. Then he would also manipulate his body in such a way as to get his genitals to basically touch their hands.
Thomas: Ew.
Morgan: Manipulate it to be like “oh, the towel fell off.” Sometimes he would say things like “oh, I know that you like this,” yeah, basically things to that effect to some of the women. You know, some of them they alleged that they immediately ended the massage service and he would leave angry, and then he would message them, sometimes weeks later acting like nothing happened. There was – this was in Jane Doe complaint 1, she actually alleged that she was scared and crying and asked him to leave and he responded with “I know you have a career and a reputation and I know you would hate for someone to mess with yours.”
Andrew: [Sighs]
Morgan: “Just like I don’t want anyone messing with mine.” Then a few – there’s also these things that corroborate what they’re saying. I can see where this evidence could come into play, because the same lawsuit, this is Jane Doe 1, this is the first one that was filed, and these complaints also are as recent as alleging events that happened in March, 2021. So, this month. They go all the way from March 2020 all the way up to this month.
Thomas: Jeez.
Morgan: Yeah. The majority of them happening in Houston, one in Georgia, and another one in Los Angeles. In Jane Doe complaint 1 he says Watson actually reached out to apologize via Messenger a few weeks later and then two other NFL players reached out saying hey, Big D recommended your massage services. She figured that was Watson, so that means he must have communicated something to those players, so that could definitely come in. Another really disturbing one was Jane Doe 14, she got a message from him saying “I’m flying from Georgia to Texas to California and my back is killing mer.” Messaged her on Instagram, and she routinely would provide massages to athletes, that’s her specialty, sports massage things. He then told her “hey, here’s an address to the house I’m staying,” she’s like “great.” She comes into a room that he leads her into and he shuts the doors and locks them.
Andrew: Uck.
Morgan: Then she got out her mace and he laughed, which is from a horror movie.
Thomas: Wow.
Morgan: Then I guess it continued and he again made the same excuse, oh I’ll just use a top sheet, I can’t use blankets because I get hot too easily, and then he manipulated her into touching him and immediately said afterwards “I will not have you sign an NDA, but don’t ever talk about this.” It’s clear this isn’t some kind of accidental thing, and this isn’t something that accidentally happens 15 times. There’s also a woman who, immediately after it happened, she called both her mother and her best friend and told them that day what happened, so that’s going to come into play. There is a woman who actually did work for a spa, so the owner’s testimony could come into play there. There is also a woman who, she worked in body work and stretch therapy, in one of the sessions he apparently kissed her and then she freaked out, understandably, and ran out there and told her friend who operated a store right next door to her, basically telling her what happened and saw the state she was in and then came back to her office. That’s a contemporaneous account, essentially, that this witness has.
Andrew: Mm-hmm.
Morgan: There are these – you know, there is indicated in these complaints that there is evidence out there, and especially that evidence of him messaging one of the women saying “hey, I’m sorry about this.” That’s pretty damning if that comes out. The complaints are pretty well written, I would say, from a legal writing standpoint. They do a good job of – it was hard to read, obviously. I’ve read all of them, all 16, but they all claim in the initial that the plaintiffs only want minimal compensatory damages, which seems to be a way of couching it as Tony Buzbee saying “oh, they’re in this for the money.” Then towards the end of the complaint he throws the kitchen sink, which obviously if you’re going after somebody, as he alleges, is a serial predator, you know, I’m doing the same thing and I’m doing that for any of my clients. I’m getting you whatever remedies that I can get. But I just thought that was kind of interesting how he did that.
Andrew: What other relief is he asking for?
Morgan: He is asking for punitive damages, which he claims are not subject to capping, but Texas statute, they do have guidelines on that.
Andrew: Yeah.
Morgan: Obviously. It is Texas. Tort reform. Claims conscious, physical, and mental pain and suffering and anguish for past and future. Physical impairment past and future, loss of enjoyment of life and peace of mind, past and future. Reasonable and necessary medical counseling, psychiatric, therapeutic and related expenses past and future, loss of earnings and earning capacity. He makes it a point to say in one of the complaints that one of the women says she doesn’t think she can do massage therapy again, so that will definitely come into play. Also, such other damages to be shown at trial. There is, though, going back to Jane Doe number 3, I did find in the Texas statute he asked, also, for exemplary damages so that an example can be made out of him, specifically.
Andrew: Yeah.
Morgan: He asked for those punitive damages, as anybody would. So, exemplary damages awarded against a defendant in Texas cannot go over an amount that’s equal to the greater of two times the amount of the economic damages you get, plus an amount that is equal to any other noneconomic damages that are found to the jury. That can’t exceed $700,000 dollars.
Andrew: Yeah.
Morgan: But that section does not apply to a cause of action against a defendant for exemplary damages for, and they list certain violations of the Texas penal code. One of those is sexual assault.
Thomas: Ah.
Morgan: Jane Doe 3 possibly could get by with no cap on those punitive damages.
Thomas: Plus, I have to imagine with 16 or however many plaintiffs we’re up to, that would apply each time to each of them?
Morgan: It is a separate lawsuit.
Thomas: Yeah.
Morgan: He does call Deshaun Watson in this lawsuit, he says “he is a serial predator.” I know somebody on Stereo did ask about character evidence, and I did want to talk about that a little bit. Where could it come into play that he has a certain character trait that can, you know, be proved up in once case and can that come into another? Texas models their rules after the federal rules, that’s Rule 404, character evidence, crimes, or other acts. Usually it’s prohibited, so it says “evidence of a person’s character or character trait is not admissible to prove that, on a particular occasion, that the person acted in accordance with the character or trait.” I think the example you guys used was, you know, Bill the carjacker. You can’t say “oh, well he carjacked once so he probably did it this time.” There is some exception to that, particularly for a civil case in Texas. A party accused of conduct that involves moral turpitude may offer evidence of a party’s trait, and if that evidence is admitted then the accusing party may offer evidence to rebut it. In other words, if Rusty Hardin, who is Deshaun Watson’s attorney, offers in evidence – which has said this in the media – “oh, well I’ve talked to all these other massage therapists in Houston and they said he’s a model client” and he parades them into the courtroom to say he’s a great guy, that leaves Tony Buzbee free to then parade in witnesses to say “no, he’s a creep.”
Andrew: Yup.
Morgan: Then it becomes sort of a battle of that. Defense attorneys do have to be very careful about how they do that, because you could potentially open the door to something that you do not want to open the door up to.
Thomas: I’m seeing stuff like “oh, one of the victims might’ve tried to blackmail him.” When you have enough victims maybe one of them won’t be the perfect model victim, but that doesn’t mean that you aren’t an abuser. I just would like to say-
Morgan: Exactly.
Thomas: Yeah.
Morgan: It’s extremely heavy stuff, here.
Andrew: Yeah.
Morgan: And, yeah, I am hoping that everybody gets their claims heard for sure. You know, Tony Buzbee seems to know what he’s doing. We’ll see what happens here, but yeah, I would not be surprised if more victims have come forward. Right now all of the victims coming forward under these lawsuits are anonymous. We will see, I mean this is definitely not going to be the end of this. We’re going to find out more before this all comes to a head, but I’m just hoping something gets done for these victims and everybody gets heard.
Thomas: Yeah, alright Morgan Stringer, ace associate! Thanks for the breakdown, we really appreciate it. Not a fun topic, but yeah. Jeez.
Morgan: Yeah, not a fun one, but it is important.
Thomas: My verdict is what an asshole! He shouldn’t be an NFL quarterback anymore, that’s my verdict, but we’ll see how this goes.
Morgan: Yeah, and like you were saying about the $300,000 blackmail, it’s like well, aren’t you kind of admitting that you did something wrong to be blackmailed over?
Andrew: [Laughs]
Morgan: Yeah, so it’s a lot. We’ll see where it goes.
[52:02.0] [Patron Shout Outs]
T3BE Answer
[1:02:32.2] [Segment Intro]
Thomas: Now it’s time for T3BE answer time. If I get it wrong I’m just gonna go ahead and say that I am using a different jurisprudence that Andrew is applying incorrectly and I’m right and he’s wrong.
Andrew: Could be the case. [Laughs] Alright this is a UCC question, breach of contract question. Sporting good shop buys 1200 posters featuring a professional golfer. The product that is delivered inverts the golfer so that instead of being right handed you get leftie. The posters are delivered, the sporting good shops noticed the problem. [Laughs] They’re like “uh, Tiger Woods appears to be favoring his left hand in this.” You were told two things, number one, had no provable significant impact on the effectiveness of the poster. Number two, that in the opinion of shop management they didn’t look as good as the ones that they wanted. So, can the sporting good shop legally reject the posters? Walk through your analysis, Thomas, because you did something that was, um, inadvertently brilliant, or perhaps partially advertently brilliant that I love, and that is Thomas’ Second Chance Law Firm continues its amazing streak.
Thomas: Mm-hmm.
Andrew: You correctly rejected both B and D. You rejected D as making no sense, which was correct. Yes, because the publisher has breached an implied warranty of fitness for a particular – that’s just nonsense words. There is an implied warranty, but it has nothing to do with this. Then you worked through B, which I thought was the most attractive distractor.
Thomas: Hmm.
Andrew: No, because the publisher must be given an opportunity to cure the nonconformity before the sporting good shop can reject the posters. Cure meaning get rid of the defect, but you were like “wait, wait, wait, how would that work?”
Thomas: Yeah.
Andrew: In the UCC that is, in fact, correct. What you have is the buyer first rejects the tender of delivery and then there are conditions, this is UCC 2-508 that says where any tender or delivery by the seller is rejected because of nonconformity, and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and my then within the contract time make a conforming delivery.
Thomas: Yeah.
Andrew: So, yeah, you get there, you’re like hey man, this is left handed instead of right handed, they’re like okay, you reject it, and then the seller can say “but I’m gonna come back and I’m gonna fix this and I’m gonna make it all right.” Then the only question is is the answer no, you’re not entitled to reject because it does not materially alter the value of the posters? Or C, can you reject because they don’t conform to the contract? You went with A, it’s C.
Thomas: [Laughs]
Andrew: And the reason for that is, I just want to sear this principle in your brain, under the UCC for a sale of goods the tender must be perfect.
Thomas: Ah.
Andrew: If there’s any discrepancy between what you’ve ordered and what they ship, the buyer gets the right to reject. Again, I read you that does not mean we’re at the end of the road, sometimes the seller has the opportunity to cure-
Thomas: Unless, by the way, you deliver just a hunk of broken crap and then somehow you can’t reject it and the delivery company’s gotta do something. I dunno.
Andrew: [Laughs]
Thomas: It’s really weird. So, they just need to say “in delivery somehow they got inverted” then they can’t reject them.
Andrew: [Laughs] You can shift the risk of loss by contract, and people do, but in the absence of any supervening principle, 2-601 of the UCC says that unless otherwise agreed if the goods or tender of delivery fail in any respect to conform to the contract the buyer may reject the whole, accept the whole, or accept any commercial unit or units or reject the rest.
Thomas: I’m curious how this works out in the contract. Would the contract have like a picture of the guy and be like “it has to look like this?” [Laughing] I mean, it’s still the guy.
Andrew: Yeah, usually. Yeah, what you would do is you would say we have ordered a thousand posters of the image attached hereto as Exhibit A.
Thomas: Wow. Okay.
Andrew: Yeah. Now think about this back, go to kind of common sense application and say alright.
Thomas: Yeah, I think I had that and then that delivery one messed me up and I kind of got mixed up in the process, here.
Andrew: Understood, understood. Yeah, you ordered right handed Tiger Woods to sell these posters, it’s not up to the other side to be like “oh, come on, it’s good enough.”
Thomas: [Laughs]
Andrew: You know, if you think it’s good enough, great, but if you don’t then you shouldn’t have to pay for it.
Thomas: Yeah, alright. Sure.
Andrew: [Laughs]
Thomas: Yeah, that’s fair. Appropriate porkage, this one’s on me. Should’ve gotten this one, no porkage here.
Andrew: Alright.
Thomas: I messed up. Yeah, I don’t know what’s going on, I can’t get a question right anymore. It’s too long, it’s like I went long enough to where I’ve messed up every assumption I have by some other random question, so now I have nothing. I no longer know anything about the law. [Laughs]
Andrew: Aww, I don’t think that’s true in any way!
Thomas: Well, my second chance law firm is just really where it’s at. [Laughs] That’s gonna be how I make my money as a lawyer.
Andrew: Nothing wrong with that. [Laughs] You would have a better career than many lawyers I know.
Thomas: Alright, well, let’s find out which lucky listener got this pretty basic straightforward question that I should have gotten right correct.
It’s actually my turn to hop in the time machine, as Andrew is taking a much needed little vacation. So, Andrew, I hope you’re having a good time. Well, some people had the common decency to get this question wrong on Twitter, thank you for that because you made me feel better, but I’ve got a few people. I wanted to give two shout outs and Andrew’s not here to stop me, so I’m going to. First quick shout out to Erin Still Wears a Mask in Public on Twitter who said “For this week’s T3BE I’m gonna disagree with Thomas and say it’s C. If I order posters of Lyndon Johnson but receive posters of Lyndon’s Johnson, I’m gonna be mad [Laughs] and tell that publishing company they’ve got the wrong recipient and reject the posters. Nobody wants to see that!”
Good answer, but here’s an even better one because this is what I should have been able to figure out. Paul Robertson, @PaulRobertson18 says “Answer is C. You don’t need to prove financial harm to reject a delivery for noncompliance. Imagine a wedding planner insisting a bride accept napkins of the wrong color, simply because there is no provable financial harm.”
Yes, yeah. I should’ve got it, this one was 100% on me, I feel bad but you know, I’m gonna turn it around, I’m gonna start getting them right. I feel confident that this exam is not porked. I think it’s challenging but not impossible. Thank you listeners so much for playing, and give our two winners a follow on Twitter, that’s Erin Still Wears a Mask in Public, @februerin, [Laughs] and @PaulRobertson18, spelled just how you would think. Congrats on being this week’s winner, and because I’m here again, I’m in charge, I’m by myself, I’m doubling the infinite fame and fortune that you normally get. Enjoy that double never ending fame and fortune.
And that’s our show! Thanks so much for listening. Reminder, catch us on that Stereo app. Download that Stereo app, go to, you know, @Torrez, @SeriousPod, follow us. You can listen to all the Q&As at any time.
Andrew: Yup.
Thomas: Even if, say, Andrew can’t do one in a given week for scheduling purposes, go back and check out the other ones.
Andrew: Yeah.
Thomas: #justsaying. But it’s a lot of fun.
Andrew: #Justsaying.
Thomas: Each week that Andrew is available [Laughs] we do a Q&A on Stereo.
Andrew: [Laughs]
Thomas: But this Wednesday we will not be doing one, but maybe I’ll go on there, I don’t know. We’ll see.
Andrew: That would be awesome and I might dial in.
Thomas: Oooh! Okay. Alright, that’s our show! Thanks so much for listening, we’ll see you on Friday!
[Show Outro]