Transcript of OA483: SCOTUS Grants Absurd Privilege to Churches in New Ruling

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments.  This is episode 483.  I’m Thomas, that’s Andrew, how’re you doing Andrew?

Andrew T.:    I’m fantastic, but I’m extra fantastic today.

Thomas:         Yeah, again, I think it evens out.  I’m exactly the same as I would otherwise be, Andrew, because-

Andrew T.:    [Laughs]  

Thomas:         -while it is delightful that we’re having Andrew Seidel on, who we love, we also love his butt.  It’s a long history of that joke if you don’t know what we’re talking about, sorry, we can’t catch up, it’s too much.  Too much to summarize.

Andrew T.:    [Laughs]  

Thomas:         But Andrew Seidel’s butt is here, which is great.

Andrew T.:    Is it really too much to summarize?

Thomas:         [Laughs] There’s somebody with an unreasonable-

Andrew T.:    He has an attractive butt.  That’s it.  [Laughs]  

Thomas:         Well, but there’s an unreasonable – a fan with an obsession with it, he’s made a Twitter account.  You know, there’s a lot to it.  But anyway, that’s all exactly cancelled out by the fact that whenever we have Andrew Seidel on, that means the Supreme Court just did a really dumb thing regarding religion.

Andrew T.:    [Sighs]

Thomas:         I feel like this was a really, really dumb thing regarding religion.

Andrew T.:    You know, we can really let Andrew go-

Thomas:         Yeah.

Andrew T.:    -and just call the episode here.  But I think folks would like to know exactly how and exactly why and is it as bad as you think?  And yes, it is. 

Thomas:         Let’s get him on the line and talk about [Sighs] the theocrats in the Supreme Court.

Interview with Andrew Seidel (Tandon v. Newsom)

[2:29.1] [Segment Intro]

Thomas:         And we are joined by Andrew Seidel.  I’m so happy to have you.

Andrew S.:     [Laughs]  

Thomas:         But as I said in the intro, Seidel, I’m exactly – it’s cancelled out by how bad this Supreme Court news is.  I hope you don’t take offense to this, but I’m exactly even now.  We’re cancelled out.  I’m excited you’re here, but the news sucks, so it’s even.

Andrew S.:     Yeah, I mean that’s where we always are when I come on. [Laughs]  

Andrew T.:    [Laughs]  

Thomas:         [Laughs]  

Andrew T.:    Let’s set up angry Andrew. 

Andrew S.:     [Laughs]  

Andrew T.:    Angry Andrews.  This is the Supreme Court’s four paragraph per curiam opinion.  Per curiam, but not hard to figure out that it’s 5 to 4 by counting up the dissents, in Tandon v. Newsom that just came out. 

Andrew S.:     [Laughs]  

Andrew T.:    Let’s start with the facts, then we can get into why this means the end of the world as we know it.

Andrew S.:     Sure, yeah.  Short, four-page opinion, nine paragraphs.  This involves a California rule, and this is one of these that we talked about with the Cuomo decision out of New York.

Andrew T.:    Mm-hmm.

Andrew S.:     It’s a responsive rule meant to adjust COVID restrictions to infection rates; so, to maximize freedom and to limit the transmission of this lethal virus.  Depending on the rates there are four different tiers to the rules that apply to your county and in home gatherings are either banned or they’re limited to a percentage of capacity, or for a private home, three household’s kind of gathering together.  One of the important facts is that this applied to all gatherings, whatever their purpose, secular or religions.  Secular gathering?  Three households.  Religious gathering, three households.  It’s a facially neutral rule.  Anything I missed on that one, Andrew?

Andrew T.:    Oh, well, other than that’s unrecognizable from the court’s opinion.

Andrew S.:     [Laughs] Yes.

Thomas:         Here, I’ll step into the rake.  Well, that sounds super reasonable, so the court must have said “that’s fine.”  [Laughs]  

Andrew S.:     Yeah, so you have a pastor in Santa Clara who challenges the rule because studying the bible-

Thomas:         Mm-hmm.

Andrew S.:     -is more important than other people’s lives.  He wanted to have a meeting with 8 to 12 people.  At the end of March after a bunch of these other Supreme Court decisions, some that we’ve talked about, undoing COVID rules, a three-judge panel, including a W. appointee and a Trump appointee, said “no, sorry pastor, you don’t get this.”  Okay, so this is a 2-1 decision with a W. and a Trump appointee in the majority against the pastor.

Thomas:         I just want to fill in for people who maybe aren’t familiar with this.  You can’t see the bible unless 8 to 12 people are there, it’s invisible until enough people come in to activate it, then you can study.  You know, it doesn’t make sense without that fact.

Andrew S.:     It’s true, it’s like the Captain Planet rings thing.

Thomas:         [Laughs] Exactly!

Andrew S.:     You have to all go put their hands on it.  Yeah.

Andrew T.:    Definitely unlike, say, recording this podcast, this is not the kind of thing where you could each maybe access it online and talk about it over Skype or Zencastr and then pay an editor to stitch it together afterwards.

Andrew S.:     Not possible, not possible.  One other thing, too, one other fact that I think’s really important and worth mentioning is before the Supreme Court decided this the State, California, had already announced new rules-

Andrew T.:    [Laughing] Yup.

Thomas:         Yeah.

Andrew S.:     -that were gonna come down a week after the Court decided the case.

Andrew T.:    [Sighs]

Andrew S.:     Because the State’s doing a great job, it’s improving, that would have allowed the very thing the pastor was seeking in this case.  Essentially the Court rushed to decide a case that it didn’t need to decide.  They allowed one extra bible study as a result.  Again, this is something that I’ve beaten, I think, to death on your show.  This Court wants to decide these cases in favor of religion.

Thomas:         Yeah.

Andrew T.:    Yeah, well they make up a brand-new test for standing that applies, as far as I can tell, only to free exercise clause cases.

Andrew S.:     Yes.

Andrew T.:    So, now, let me – Thomas walked into the rake, let me lob the ball over to you on our same side of the volleyball net-

Andrew S.:     [Laughs]  

Andrew T.:    -to mix some sports metaphors here.  Prior to this case coming down, and let’s be generous.  Prior to, say, 2017, how would you describe the Supreme Court’s test for whether a law violates the free exercise clause of the 1st Amendment?

Andrew S.:     Something like this, where you’re looking for – where somebody’s challenging, they want an exemption from a rule.

Andrew T.:    Yeah.

Andrew S.:     Essentially, the government’s gotta pass this strict scrutiny test, right?  That’s what the Court is saying now.

Andrew T.:    Yeah, yeah.  But I mean, just as recently as a couple of years ago-

Andrew S.:     You want to talk about Employment Division v. Smith.  Yeah, okay.

Andrew T.:    Exactly!  I want to start with that as the baseline.

Andrew S.:     So, I mean, essentially claimants that were asking for exemptions to laws targeting religion.  If the law specifically applied only to religion, they got strict scrutiny.  Essentially meaning that the law is unconstitutional, right?  And the believer gets the exemption.

Andrew T.:    Right.

Andrew S.:     But if you are a claimant and you are asking for an exemption to a law that was neutral and generally applicable that said, for instance, anybody meeting in any household for any reason you have to limit it to three different families-

Thomas:         Yup.

Andrew S.:     -that would get a much lower standard of review, rational basis review, usually meaning that the law is constitutional and that the believer doesn’t get the exemptions.  That comes from the Smith decision, this famously misinterpreted, misaligned decision.

Thomas:         Peyote, right?  Are we talking peyote?

Andrew S.:     Yeah, yeah. 

Andrew T.:    Written by crazy-

Thomas:         Liberal leftist-

Andrew T.:    -bong smoking liberal, Antonin Scalia. 

Andrew S.:     [Laughs]  

Andrew T.:    The reason I asked it to you in a setup is because I think you and I were on a panel together around that time period, and I basically would have said free exercise clause litigation against neutrally applicable laws is dead.  You have RIFRA litigation as a separate – I mean, RIFRA was passed in response to the Smith decision.  You could – you have a statutory arm of jurisprudence, but by and large the Court read out, for, again, one of the only things Antonin Scalia has ever gotten right in his miserable life.  The idea that to enable, and this is a pretty good rough paraphrase, the idea that if a person can subject neutrally applicable laws to his own religious beliefs, then he would become a law unto himself.

Andrew S.:     Yeah, and government can only exist in name in such circumstances.  That is total chaos.  If you can just say “nope, God says differently so this law doesn’t apply to me,” I mean, that is a recipe for chaos, not society.  Or law.  [Laughs]  

Andrew T.:    Yup.  We’ve had you on to discuss the Trinity Lutheran decision and to discuss Masterpiece Cake Shop and the like.  You have these kinds of cases that don’t fit neatly into the Smith box, but none of them – I don’t think any of them show up as a red flag on Westlaw when you shepardize Smith.  None of them, for the nonlawyers in the audience, none of those cases, to the best of my knowledge, case any doubt on the validity of Employment Division v. Smith as good law.

Andrew S.:     No, and we can say that a little bit differently, too.  This entire case is being decided in the shadow of the Fulton v. Philadelphia case, which is coming down any minute.

Andrew T.:    Yeah.

Andrew S.:     And that is specifically asking the Court to overturn Smith, which if Smith had been overturned, that wouldn’t have been a question that the Court accepted for certiorari. 

Andrew T.:    Beautiful, beautiful.

Thomas:         Does it matter if you overturn – so this doesn’t overturn Smith?  Or is that because it’s a per curiam?

Andrew T.:    [Laughs]  

Andrew S.:     [Laughs] I believe Andrew and I both are stating that this does overturn Smith, essentially. 

Thomas:         Okay.

Andrew S.:     This redefines religious – I mean, it didn’t explicitly do that, and I’m not even sure that it cites to Smith in the entire opinion.

Andrew T.:    Oh, oh it doesn’t, it cites to no case-

Thomas:         Wow.

Andrew T.:    Again, as you pointed out, four-page opinion, but it cites to no case before 2020.  Every piece of authority that is cited in this opinion as to the definition, this is guidance from the Supreme Court as to how to evaluate free exercise clause claims, is cobbled together out of the Roberts Court howler monkey edition, cases from the past year involving COVID, that’s it.

Thomas:         Well, then who’s the four dissents?  Because I would have assumed-

Andrew S.:     Roberts.

Thomas:         Yeah, okay, but I thought he was-

Andrew S.:     Then Kagan, Sotomayor and Breyer.

Thomas:         That’s what I would have guessed.

Andrew S.:     They signed a written dissent and then Roberts just had a one line “I dissent.”

Thomas:         Okay.

Andrew S.:     I mean, the decision basically says “here are things we’ve made clear in other emergency cases,” and this is what Andrew is talking about.  What they made clear is that they don’t live in our shared reality.

Thomas:         Yeah.

Andrew S.:     And they’re deciding cases in this imaginary Christian nationalist realm where every white American Christian is oppressed by the evil government that’s desperately trying to save lives and, and they’re rewriting the 1st Amendment on the basis of these fantasies.  That’s what Andrew is talking about, they are rewriting the 1st Amendment.

Andrew T.:    Let’s start out with the first paragraph-

Thomas:         Sorry, my question was just I thought that Roberts was pretty cool with the whole Christian nationalism, so why is even he dissenting on this?  Was what I was trying to get at.

Andrew S.:     So, he didn’t say.  I think it probably boils down more to procedure.  We’ll know where he stands on the merits of this-

Thomas:         Okay.

Andrew T.:    When the Fulton County

Thomas:         In the next one.

Andrew T.:    Yeah, exactly.

Andrew S.:     Yeah.

Andrew T.:    The opinion says ‘This Court’s decisions have made the following points clear.”

Thomas:         [Laughs]  

Andrew T.:    First – this is the first part of the test – “First, government regulations are not neutral and generally applicable,” i.e., that’s the key language for Smith, “and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat” and this is then italicized “any comparable secular activity more favorably than religious exercise.

Andrew S.:     Yeah.

Andrew T.:    Then the citation there is to the Cuomo opinion, which, by the way, we discussed with you on the air.  The Cuomo opinion does not say that.  [Laughs] That is a very liberal paraphrase of the Cuomo opinion.  It’s consistent with it because, if you recall, one of the things we scratched our head about in the Cuomo opinion was – and I believe Kavanaugh wrote the opinion, is that correct, Andrew?

Andrew S.:     He wrote one of the concurrences, I think that was per curiam and we were trying to guess-

Andrew T.:    Oh, right right right.

Andrew S.:     Yeah.  I think we both landed on Alito in the end on that one.

Andrew T.:    Thank you for refreshing my recollection on that one.  But I believe it was Kavanaugh’s opinion that explicitly started drawing the factual comparisons, the kind of thing that is obviously best left for the trial court, being like well I don’t understand why people can go to a liquor store but they can’t gather in a church, and the three of us were like “ooh, ooh.  Can I field this one?”  Because people don’t hang around in a liquor store for an hour spitting on you.  You know, precisely the kind of thing that as a first-year law student you learn.  These are not the kind of inquiries in which the Supreme Court engages. 

Well now, I mean I read this in connection with the citation to Cuomo as basically saying if you can’t prove that religion gets most favored nation status, unless religious groups are at the top of your list for everything, unless they’re better than every other thing regardless of how tenuous it is, then that’s going to be held to violate, to (quote) “treat any comparable secular activity more favorable than religion.”

Andrew S.:     Yeah.  No, I mean I think that’s right.  Look, there’s actually two lies in that paragraph.  I mean, you read the whole thing.  First, the decisions have not made clear [Laughs] the following points.  Then they go in-

Andrew T.:    [Laughing] Right, right.

Andrew S.:     That’s not true.  You can tell because they cite to per curiam opinions, then they cite to Kavanaugh’s opinion, they might cite to Gorsuch too.  Those are single opinions attached to per curiam.  None of this is made clear, this is all new, the Court is redefining and weaponizing religious freedom, so number one.  Second, the rules were neutral.  They applied to all gatherings, secular or religious, that was the rule.  I mean, this whole paragraph is a lie.  The most favored nation status, I think that’s Professor Oleske who came up with that line.

Andrew T.:    I thought I came up with it just now, but okay.

Andrew S.:     No, no.  I think Jim Oleske has written about it.

Thomas:         Yeah, along with elections have consequences.  It’s another one of your famous lines, Andrew.

Andrew T.:    [Laughs]  

Andrew S.:     [Laughs] I mean, if there’s any exception to the law for any reason, religion gets the same favored treatment.  I’ve gotta say, I actually – I’m not a fan of that language because how many people are familiar with the finer points of international trade?  Though if you made it up and that was an example of convergent evolution, maybe there are more people.

Andrew T.:    [Laughs]  

Andrew S.:     Second, favoring nations is fine.

Andrew T.:    Right.

Andrew S.:     But favoring people because of their religious belief is called discrimination!

Thomas:         [Laughs]  

Andrew S.:     I think it’s got a different name now, too.  Permanent normal trade relations, maybe?

Andrew T.:    Yes, indeed that is the-

Andrew S.:     But there’s nothing normal or pedestrian about the treatment of religion, here.  The idea that the Court is getting at is a singular, secular exception to the law triggers strict scrutiny.  Maybe you give an example – excuse me – an exemption to an education rule that aides students with disability, just something as an example.  Well now believers get an exemption from those educational rules too.  Maybe there’s an exemption for a pharmaceutical law that is, I don’t know, based on regional differences about a disease.  Oh, well, now pharmacists can deny women birth control.  Let’s say the Civil Rights Act, Title VII, exempts certain businesses from the law because of their size, which it does, Andrew.  Maybe you know, is it 15 employees, I think?

Andrew T.:    Yup.

Andrew S.:     Okay, so now any religious claimant, you are exempt from the Civil Rights Act.  Employment discrimination is now legal, and not just for churches, but Hobby Lobby, MyPillow; any business that says “god told me to.”  Because there’s one exemption in the law it’s gone.  The same would apply to exemptions for rules banning sex discrimination.  If they exist, suddenly the bank can refuse to open an account for a woman because the bible says that men are the head of the household and women need to be quiet.  This is insanity.  I have strong feelings about it. [Laughs]  

[18:09.3] [Commercial]


Andrew T.:    I agree, I want to test the scope of that, but this next paragraph, honestly, I have read it a dozen times.

Andrew S.:     Yeah.

Andrew T.:    And I don’t understand it, so I’m gonna throw it out there for you.  It says, “Second, whether two activities are comparable” so I should bracket, I interpret what you have just said as basically saying that the bar for comparability is very, very low.  In support of that we have the second paragraph, which says “whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.  Comparability is concerned with the risks various activities pose, not the reasons why people gather.”  I still – saying it out loud has not helped.

Andrew S.:     No.

Andrew T.:    I cannot make heads nor tails of that.

Andrew S.:     Again, this is why I was screaming about them living in this fantasy world.  Literally, I do not think we are living in a shared reality with them.  This is what I think Kagan was talking about in her dissent when she said the law doesn’t require the State to equally treat apples and watermelons.  They are saying that those are the exact same thing and they’re not.  I mean, the thing that’s amazing about this is that the lower courts were clear on this point.  The trial court went over the differences between social gatherings in a home and gathering at a commercial location.  We talked about this same thing in Cuomo.  You duck into the store to grab cereal and a few bottles of Irish whiskey to cope with the state of the Supreme Court-

Thomas:         [Laughs]  

Andrew S.:     -and you’re out in ten minutes.  But if you’re in a bible study or worship you could be there for an hour or more, easily.  If you’re reading 1 Kings chapters 6 and 7, which is essentially an architectural blueprint in excruciating antiquated prose with soporific cubits in coma inducing detail-

Thomas:         Don’t I know.  Don’t I know it.

Andrew T.:    [Laughs]  

Andrew S.:     Yeah, then it’s not the same thing.  Residential homes are smaller and less well ventilated than commercial movie theaters.  People are worse about distancing and masks, which mitigate the spread, they don’t stop it, but they’re worse about it in private homes than they are in commercial settings.  We know because the data says so.  These are facts.  I mean, facts not just in the sense of reality, but in the sense the trial court found these to be facts, and the Supreme Court is in this emergency posture and required to accept them as true.  And, one more thing, the plaintiff didn’t challenge those facts.

Andrew T.:    [Laughs]  

Andrew S.:     They’re not – these are apples and those are watermelon, and the court’s like well, you know, they’re both things you put in your mouth, so religion wins.

Andrew T.:    Is there an argument based on the context of these paragraphs and the citations that this governs the free exercise clause in the context of a pandemic?  In other words, I’m trying to think of the way to marginalize this as much as possible.

Andrew S.:     Yeah.

Andrew T.:    And I may just be buying myself time until Fulton comes out.

Andrew S.:     Yeah, I mean, I didn’t see any good limiting language there.  I mean, I think that’s certainly the argument you’d make, but also, I mean if you’re just thinking about that it’s like oh, well if you’re willing to do this in the context of a pandemic where you’re literally talking about preventing the spread of a lethal contagion then maybe it cuts the other direction.

Andrew T.:    Yeah, then maybe regular, ordinary regulation, yeah.  Cuts the other way.

Andrew S.:     Yeah.

Andrew T.:    That’s a fair point.  I am trying to come up with reasons not to panic, and uh-

Thomas:         This is a perfect time to panic!

Andrew T.:    [Laughs]

Andrew S.:     [Laughs]

Thomas:         To quote Woody in the movies I watch over and over with my kids.

Andrew T.:    The third paragraph, and I guess this is maybe where I was thinking, because the justification looks to risk factors which seems like a weird way of explaining strict scrutiny.  That’s not typically the language that you use, but it says “the government has the burden to establish that the challenged law satisfies strict scrutiny.  To do so in this context, it must do more than assert that certain risk factors ‘are always present in worship, or always absent from the other secular activities’ the government may allow.”  It must do more than that!  “Instead, narrow tailoring requires the government to show that measures less restrictive of … could not address its interest in reducing the spread of COVID.”

I guess I was sort of hoping that there was some – you know, that that specificity of reasoning there, but it is, to your point, followed by the “Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.”  I just keep looking at this going what happened to the role of the trial court in all of this?

Andrew S.:     Yeah.  Yeah, no, it’s gone.  You know, this really is – it’s not most favored nation, this is religious supremacy.  I think I’m willing to, if others are not, you gents might join me, we should say what others aren’t willing to.  By religion we, and the Court, really mean “Christian.” 

Thomas:         Yeah.

Andrew S.:     Other religious minorities are going to get a win every now and then, sure, and I’m actually writing about this a little bit in my new book.  Look at the Muslim ban case, Trump v. Hawaii, or the pair of death penalty cases, the first one, Dunn v. Ray involving the Muslim death row prisoner in which-

Thomas:         Oh, yeah, we talked about that.

Andrew S.:     -the Court would not delay his death in the name of religious freedom.

Andrew T.:    [Sighs]

Andrew S.:     Just delay it for like a little while.  Nope.  This is Christian supremacy being written into the 1st Amendment of the United States Constitution.  That’s where we are right now.

Andrew T.:    Is there – let me – I’m still looking for the-

Andrew S.:     [Laughing] Sorry!

Andrew T.:    -Optimist Prime.  No no no no no.  No, that was a perfect point to make.  Let me give you my Optimist Prime angle here and let you shoot it down.  At least clarifying the law in favor of a preference of religion over secularism is at least likely to level the playing fields among religion.  How about the argument based – because the law is unsettled, we knew there was a tension between Smith and the Trinity Lutheran, Masterpiece Cake Shop, the Court’s recent religion decision having a codified – it’s bad, but having the accommodationist position, which is what Rehnquist used to call it.  [Laughs] Back in the days where I’m pining for William Rehnquist!

Andrew S.:     That is-

Andrew T.:    And the idea was it would be – this is wrong on every level, but nevertheless it was Rehnquist’s argument that it was constitutional under the 1st Amendment for the government to generally prefer religion to irreligion, so long as it did not discriminate and prefer amongst religions.  That was the accommodationist view.

Thomas:         Now it sounds like they can’t not do that, right?

Andrew S.:     [Laughs]

Andrew T.:    Yes.

Thomas:         It was like you are allowed to prefer religion over non-religion; now it’s like you absolutely must prefer religion over non-religion.  Doesn’t that seem like what this means?

Andrew T.:    Yeah.  I mean, that’s what paragraph one says to me.

Andrew S.:     Yeah.  I mean – I don’t know, part of that is because I think the American religion is reorganizing not around sectarian lines, but around political lines, but that’s a whole other conversation that I’m not prepared to have.  If you’re looking for Optimist Prime, and again, the shadow of Fulton hangs over all of this, I think the procedure is what helps you here.  I mean, this is what, the seventh COVID religious freedom case that the Supreme Court has decided using the shadow docket?  Have you guys done a shadow docket dive?  Do your listeners know?

Andrew T.:    We have not, feel free to-

Andrew S.:     Okay.  Basically, it’s not as scary as it sounds, it’s actually like a normal part of court procedure, it’s just the way this Court is using it is alarming.  Shadow – it’s like the Court deciding cases without hearing full argument.  They’re using this shortened emergency procedure that is – it’s supposed to be rare and for extraordinary relief.

Thomas:         Yeah, it’s only when you want to take away rights from the X-Men, I think.

Andrew S.:     [Laughs]

Thomas:         Is what the shadow docket is for.

Andrew T.:    [Laughs]

Andrew S.:     I mean, it’s not like a big deal to stay in a case pending appeal, that happens all the time, but what the Court did here was they enjoined an order pending the appeal of the case, and that’s a pretty high bar to get across.  You’re supposed to have critical and exigent circumstances, and only then if the rights are indisputably clear.  You’re altering the status quo, essentially, because the rights are indisputably clear, and they’re not here.  That’s the scary thing.  They’re redefining religious freedom rights, and then saying hey, these are indisputably clear, look at the decisions we made in the last few months.

Thomas:         Yeah, you would think those would be like 9-0, but it was 5-4.  Doesn’t that kind of contradict-

Andrew S.:     Yeah, and they are themselves these truncated, incomplete, decisions made in this short process where they haven’t heard oral argument, they haven’t had a full vetting of everything, and they’re just going ahead and deciding.  I mean, they switched course on the church COVID rules.

Thomas:         This is so infuriating.

Andrew S.:     Yeah!

Thomas:         I know you already said this – so they rushed it through this process, this shadow docket process, to decide that they didn’t need to because the rules are already changed in California, just to privilege Christianity that much more and that much faster.

Andrew T.:    And the Court answers that.  [Laughs] When I said there were four paragraphs to analyze, we’re at paragraph four which says “Even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case.”  There’s no citation after that sentence, but that sentence standing alone is not wrong.  [Laughs] What is wrong is next.

Andrew S.:     [Laughs]

Andrew T.:    “And so long as a case is not moot, litigants otherwise entitled to emergency injunctive relief remain entitled to such relief where the applicants (quote) ‘remain under a constant threat’ (end quote) that government officials will use their power to reinstate the challenged restrictions.”  Again, the citations here are to 2020 and 2021 COVID restriction cases.

Andrew S.:     Yup.

Andrew T.:    It is mind boggl- we talked about this, we just talked about this in light of the Uzuegbunam decision, the 8-1 with John Roberts on the bottom saying “uh, yeah, no.  Once you can’t get relief anymore, I’d kind of like not for this Court to render advisory opinions.”  This paragraph says, essentially, that in the context of these shadow docket emergency relief cases I guess the burden of proof is on the government to establish indisputably that the case is moot.  What a bizarre transformation of a Court of limited jurisdiction.  I should just emphasize for our nonlawyer listeners, throughout our nation’s history – I’m about to articulate a very conservative principle.  It’s a “small c” conservative, but it also has mostly aligned with right wing politics over the last 230 years, and it is this: 

Your State courts are courts of original jurisdiction.  They’re entitled to hear all of the cases, and so therefore, bring your stuff there.  Federal courts are courts of limited jurisdiction.  They can only hear certain kinds of cases.  Therefore, the question of standing is always a valid question in federal court.  You can’t waive it, it can be raised at any time, it can be raised by the court even if the parties don’t waive it, and all of that is based on this fundamental idea of a limited, narrow, federal government.  Particularly an Article 3 judiciary that is confined only to live cases or controversies for which that court has been empowered to act and to blithely say with zero citation to any authority, oh but in these emergency cases as long as you can’t prove that it’s moot, we’re gonna go ahead and award relief.  Yeah.

Andrew S.:     I mean.

Andrew T.:    [Laughs] I hear you chomping at the bit.

Andrew S.:     The real difference though, Andrew, is the court.  Once upon a time that was fine because the howler monkey contingent was kept in their cage.  They were angry, but harmless.  They were throwing their excrementitious ideas around, but they were unable to accomplish anything, then McCon- that’s when you want to have limited jurisdiction, everybody agrees.  But now McConnell and The Federalist Society have convinced what appeared to be this tangerine hewed orangutan, but was really a demented gameshow host in charge of the zoo to open up all those cages and bring in some new howler monkeys.  Now they are running the zoo, they are wreaking havoc and they’re sewing chaos and it’s only gonna get worse.  I don’t think people really understand how bad the situation at the Supreme Court is.  However bad you think it is, it is worse. 

Andrew T.:    This is where you – I mean, not the Supreme Court, but this area of law is where you practice every single day.  Andrew, how does this change your approach?  How does this change – from the letters that you write to Thomas’ old high school-

Thomas:         [Laughs] Yeah.

Andrew T.:    Which, actually did, to future litigation.  How’s this gonna change the way you work?

Andrew S.:     I mean, over the last year I have done – a lot of my workload has shifted to trying to educate on what the problem with the courts is and to explain the need for reform.  That is a big chunk of what I am doing now.

Andrew T.:    Wow.

Andrew S.:     For instance, today representatives Mondaire Jones and Jerry Nadler and Senator Markey proposed-

Thomas:         Yeah.

Andrew S.:     The Judiciary Act of 2021, which is something we’ve been working on behind the scenes with those groups.  The Freedom From Religion Foundation copresident Laurie Gaylor was quoted in the press release that’s on Jerry Nadler’s website in support of this bill along with The Center for American Progress, all these other really great groups that are doing work on court reform.  We need to rebalance-

Thomas:         It feels like the only option now.

Andrew S.:     It is.

Thomas:         I mean, there’s no salvaging this court.

Andrew S.:     It is.

Thomas:         It’s insanity.  We got five fundamentalists, not even including-

Andrew S.:     Roberts, who’s a fundamentalist and terrible.  [Laughs]

Thomas:         Not even including Roberts overruling a Scalia opinion to do worse than Scalia even would have done!  Wow!

Andrew S.:     Yeah.  Yeah.

[35:02.4] [Commercial]


Andrew S.:     I mean our courts, and especially the Supreme Court, they have been captured by partisan and special interests.  They’ve been homogenized.  I mean, this isn’t just me spouting stuff off.  Two studies just recently confirmed this, New York Times ran a story about them.  When it comes to privileging religion, you’re asking me specifically how does this affect FFRF?  Under John Roberts religious claimants win 81% of the time compared to 50% of the time, which is about what you’d expect, for the rest of modern 1st Amendment history. 

When it comes to decisions about a lethal pandemic and your god given right to infect other people, the numbers are just as bad.  Zero percent of Democratic appointed judges sided with religious plaintiffs, 66% of Republican appointed judges did, and 82% of Trump appointed judges did.  However bad you think the situation is, it is worse.  I know a lot of people are hesitant about tinkering with the court, about changing its size.  I get that, and it made sense when the Court was not political, to the extent that – we’ve at least pretended that it was an apolitical party for a long time. 

But the Court has been packed by McConnell and the Federalist Society and Trump, who jammed in three justices, two through political theft.  This is not a fair Court; this is not an impartial Court.  This is a Republican Court.  Three of the justices on this Court were on the team that litigated Bush v. Gore, Barret, Kavanaugh and Roberts. 

Andrew T.:    [Laughs] Yup.

Andrew S.:     Alito is more conservative than all of them.  Thomas is more conservative than those three, and his wife is this crazy conservative lobbyist who posts Soros memes on her Facebook.  Kavanaugh, I think I’ve said this before on your program, is the median justice on the Supreme Court.  Really just let that sit in your mouth for a while.  Kavanaugh.  The guy who’s hostile – the devil’s triangle, the boofing Brett Kavanaugh, who worked in the Bush White House, is the median member of the Supreme Court.  This Court does not have a legitimacy problem, it is illegitimate.  That’s because it derives its legitimacy from the public trust.  Right now, it is a political body, and it is making decisions like that, and more importantly everybody knows it.

Andrew T.:    I think that’s really well said.  We have talked about the Sheldon Whitehouse amicus brief-

Andrew S.:     Yeah.

Andrew T.:    -that was filed in the New York Pistol and Rifle Association case.

Andrew S.:     Great brief.

Andrew T.:    Was squarely aimed at John Roberts back when that was the appropriate target.  As far as I can tell did its job, we have seen John Roberts exercise embarrassment at the more naked power grabs like this decision here.  But now that gets you from 6-3 to 5-4-

Andrew S.:     That’s not enough.

Andrew T.:    If the only solution is packing the Court, let’s spend a minute or two thinking about how do you mechanistically get to that point?

Andrew S.:     Sure.

Andrew T.:    H.R. introduced, companion Senate bill gets introduced, and then it gets filibustered 50/50, right?

Andrew S.:     Yeah.  I mean, it’s gonna take a lot of activism on our side to even start at that point.  Remember, the Supreme Court size so everybody knows is set by Congress.  It started at six, it’s been formally changed seven times, I believe.  We could say eight times if you want to count the full year that the Senate held open the seat after Scalia died, refused to confirm Merrick Garland, and promised, by the way, to continue holding open that seat if Clinton won.

Andrew T.:    Oh yeah.

Thomas:         Yeah, they would have never-

Andrew T.:    Ted Cruz on record-

Andrew S.:     Yeah.

Andrew T.:    The Supreme Court can function with eight justices.

Andrew S.:     Yeah, I want to focus a little less on procedure for a second and talk about stakes.  It really is up to us and people to call in and make this happen.  If democracy is to survive, we need this change.

Thomas:         Specifically, if you live in Arizona and West Virginia.

Andrew S.:     Yeah, I mean, anywhere.

Andrew T.:    Suppose – look, but no, let’s go down that line.  Suppose I live in West Virginia, I’m a West Virginia Democrat and Joe Manchin is my Senator and I’m getting ready to call – and call, do not email – his office.  What’s the 30 second pitch, what’s the minute long pitch?

Andrew S.:     This is not packing the courts; the courts have already been packed.  That is why you are seeing everything we just talked about in this episode.  That is why you are seeing the weaponization of religious freedom and it being redefined.  That is why you are going to see this massive assault on reproductive rights and reproductive justice coming any day now.  I mean, the court opportunistically using a lethal pandemic to tinker – well, to completely redefine our understanding of the 1st Amendment.

Can I give everyone, two minutes to give you a really clear example of this.  The law on creationism in public schools is as clear as it could be.  Andrew, Epperson v. Arkansas, 1968; Edwards v. Aguilar, 1987, which struck down Teach the Controversy; intelligent design was killed in a federal court in Pennsylvania in ’05 I believe, maybe ’04.  Another Arkansas federal court killed Teach the Controversy in 1981.  The law-

Thomas:         Boy, it’s like they have a bunch of names that, you know, mutate?  And then we have to kill it down again?

Andrew S.:     [Laughs]

Andrew T.:    [Laughs]

Thomas:         Then it mutates slightly and then [Laughing] they call it something else until – and they’re trying to find the right mutation that will thrive in this environment.  That’s interesting.  Weird how that happens.

Andrew S.:     It is.  The point is the law is absolutely clear, okay?  In Arkansas this past week you have State representative Mary Bentley, who convinced her colleagues in the House to vote overwhelmingly, 72 to 21, for a bill that puts creationism back in public – not intelligent design or teach the – straight up, good old-fashioned creationism is going back into public schools.  One reason for that is this anti-trans bigotry that you’re seeing is rooted in biblical creationism.  They’re using it to help bolster their other anti-trans laws.  I wrote a piece about this link for Religion Dispatches.

The second reason is what I want to talk about here, and Bentley stated this clearly.  She first proposed a bill to put creationism and intelligent design in schools in March of 2017.  That was two weeks before Gorsuch’s confirmation hearings began.  But four years and three justices later the court has been packed, and Bentley is now so confident in proposing this clearly unconstitutional bill because she said (quote) “I believe we have a different Supreme Court and I think we have different members of the Supreme Court.”  This is a perfect example, this legal issue has been centered for more than half a century, the law is clear, but that doesn’t matter to their side.

Andrew T.:    Yeah.

Andrew S.:     It doesn’t matter, right?

Andrew T.:    When your stated method of constitutional interpretation is “the only thing that matters is what I can puppet into the words of the founding fathers from 1791,” it does not matter if we’ve had 200 consistent years of saying the Supreme Court never striking down a single gun control bill under the 2nd Amendment?  Nope.  You can wipe that away.  You can wipe away a 50-year statute in the District of Columbia that everybody knew and followed and relied upon.  Stare decisis means nothing, and I would say – have not done the mathematical analysis, but the sheer number of cert petitions that are filed in which the first question presented is “the Supreme Court should overrule X.” 

Andrew S.:     Somebody should do that.

Andrew T.:    In topics – right – ranging from, in the Harvard case, for example, “The Supreme Court should overrule its 2016 decision in Fisher v. University of Texas that;” as we talk about Janus v. AFSCME that the Supreme Court should explicitly overrule its 1973 in Abud; the soon to be teed up cases that the Supreme Court should explicitly overrule Roe v. Wade.

Andrew S.:     Yup.

Andrew T.:    It is just – there’s no need to hide it in the background.

Thomas:         Are they even doing the originalist founding father thing?  Because it sounded earlier like you said they just referenced a few 2018, 2020 cases and said “yup, this is established.”

Andrew S.:     Yeah, they didn’t do that in this case, no. 

Thomas:         Oh.

Andrew S.:     I’m not using this to indict originalism, though I think-

Andrew T.:    [Laughs] Sorry, that’s my hobby!

Andrew S.:     No no, it’s always a good time to indict originalism.  I’m using this to show the courts have already been packed.  That is the thing that people need to be – this is how you need to be framing it, this is how you need to be talking about it.  If you are calling your Senators, and I hope everybody listening to this does, and your representatives, that is how you frame it.  This is not court packing; this is court correcting and rebalancing.  Unless we can fix the court, unless we can expand and correct the Supreme Court, they are not just coming for the separation of state and church and science.  They are coming for contraception, reproductive choice, democracy, and our ability to fight climate change and civil rights act.  This is an emergency and people need to start acting like it.

Andrew T.:    Here, here.  I like the rhetoric of the court has been packed.  When I sit and look at it – and again, you know, my hobbyhorse is jurisprudence, but I’m well aware that that’s a tough sell on the evening news.  [Laughs] One of the things we’ve done badly in comparison to the originalists is we don’t have a bumper sticker.

Andrew S.:     Yeah.

Andrew T.:    That’s like [Laughing] You know?  Yes, the law is fine, deal with it.

Thomas:         Oh, did you not get “Un [Bleep] the Court.”  [Laughs]

Andrew T.:    [Laughs]

Andrew S.:     [Laughs] That’s the one thing FFRF won’t sign off on.  Yeah.

Thomas:         Yeah.

Andrew T.:    Oh really?

Andrew S.:     I mean, really, our courts are broken. 

Andrew T.:    Yeah.

Andrew S.:     That is the thing that everybody needs to understand.

Andrew T.:    And to say this is the step towards restoring that, and I think it is not – I think you can make the argument that there is a difference in the way that everybody except Bush and Trump appointed folks to the courts versus the way that Bush and Trump appointed folks to the court.

Andrew S.:     I mean, Andrew, this is why you and I have had a hard time trying to synthesize these cases for listeners lately.

Andrew T.:    Yeah.

Andrew S.:     They are not-

Andrew T.:    They’re not consistent.

Andrew S.:     -being guided by legal principles.  They’re [Laughs] being guided by what do the Christian nationalists want?  Because that’s what we’re gonna give them.

Andrew T.:    [Sighs]

Thomas:         Yeah, honestly, that’s how you would have to teach it nowadays.  Ah.  There were these principles but who knows?

Andrew S.:     They’re broken.

Thomas:         If you’re Christian you’re probably gonna win.

Andrew S.:     Yup.

Thomas:         That’s basically … end of law course. [Laughs]

Andrew S.:     I mean, that would be a very simple guiding principle if you’re betting, at least, on the Supreme Court.  That’s what I would do.

Andrew T.:    [Sighs] Alright, well, you can’t depress me anymore than you already have. 

Thomas:         But you looked good doing it, so…  [Sighs]

Andrew T.:    From the front and the back!

Andrew S.:     [Laughs]

Thomas:         [Laughs] Thanks so much, as always, Andrew Seidel.  Of course, everybody should become a member of FFRF like Andrew and I are.  We encourage everybody to do that.

Andrew S.:     Thomas, was I angry enough for you today?

Thomas:         Eh.  I mean…  Pretty good.  Pretty good.

Andrew S.:     [Laughs] Alright, okay.

Thomas:         Not terrible.

Andrew S.:     Okay, alright.

Thomas:         I’m gonna have to check your audio file to see how much it peaks.  I’ll use that as a measure.

Andrew S.:     [Laughs] Alright, fair enough.

Thomas:         [Laughs] Thank you so much for giving us the breakdown.  Let’s unbleep the courts, everybody.

Andrew S.:     Unbleep the courts, love it.

Andrew T.:    Alright.

[48:36.2] [Commercial]

[51:19.7] [Patron Shout Outs]

T3BE Answer

[1:05:00.9] [Segment Intro]

Thomas:         Okay, and now it’s time for T3BE, answer time.  Let’s see.  Improbable streak of two, do I continue it?

Andrew T.:    [Laughs]

Thomas:         Or do I instantly pork my one question streak.

Andrew T.:    So, Thomas, this was a guardianship question.  It was a daughter appointed guardian of her elderly father following an adjudication of his mental incompetence.  He was adjudicated mentally incompetent because he had experienced periods of dementia during which he did not fully understand what he was doing.  However, during one of his lucid periods, he contracted to purchase an automobile at a fair price from a seller who didn’t know that he had a guardian. So, at the time of the purchase, the father was lucid, fully understood the nature and purpose of the transaction.  What’s the status of the transaction?

You narrowed it down to one enforceable answer and one non-enforceable answer.  You picked the two best of those.

Thomas:         Hmm.

Andrew T.:    Those were B and C.  You got rid of the contract is enforceable because a reasonable person in the situation of the seller would have thought that the father had the capacity to make the contract.  That’s nonsense.  And you got rid of the contract is voidable at the option of the father, because uhh, that’s also nonsense.

Thomas:         Okay.

Andrew T.:    The only question is, is this a case where the formal requirements trump the justice of the situation-

Thomas:         Huh.

Andrew T.:    In which case it would be C, the contract is void, because the father was under guardianship at the time it was made; or whether you look beyond the guardianship in the individual case and say, as you picked, answer B, the contract is enforceable, because it was made on fair terms (not taking advantage of him) and the seller didn’t know that he was negotiating with somebody who was subject to a guardianship.  Sadly…

Thomas:         Come on.

Andrew T.:    Yeah, it’s C.  Here’s a good way to think about these things.  The general rule of guardianship – so here, they’re playing with you by having the father be adjudicated-

Thomas:         Uh-huh.

Andrew T.:    -incompetent subject to a guardianship and then have periods of lucidity, but think about it – let’s go the other end.  Suppose the father’s 13-

Thomas:         I know.  [Sighs] But the thing is if the father – this is why I didn’t go with that.  I almost brought that up, but if the father were 13 there wouldn’t possibly be the seller having no knowledge of the father’s guardianship.  It didn’t feel like it was-

Andrew T.:    Okay, okay.  So, 17 and a half and the kids got full on mustache and a beard.

Thomas:         Well, okay.  Honestly that’s fine.  I don’t know why that would be unenforceable.

Andrew T.:    [Laughs] The law says if you’re not 18 your signature matters not.

Thomas:         Yeah.

Andrew T.:    And similarly, once you have been adjudicated incompetent the fact that you have periods of lucidity does not mean that you are free to bind yourself during that.  It means that overall, you are not competent to manage your own affairs, so the guardian has been appointed to administer them for you.  Now, most guardians, as we learned from our Free Brittany episode, most guardianship is temporary, is not permanent.  You could enlist a lawyer to have a guardianship removed, but no, if that person has been adjudicated mentally incompetent, they may not sign contracts and that’s just the way it goes.

Thomas:         Well, that’s just the way it goes.  Yup.  I mean, that’s – I have nothing to say.

Andrew T.:    Fair question.

Thomas:         I feel like I analyzed it perfectly and didn’t know the specific law.

Andrew T.:    Yeah, you did.

Thomas:         So, there you go.

[T3BE Defeat]

Thomas:         Well, streak porked everybody! [Laughs]

Andrew T.:    Ahh.

Thomas:         RIP the streak, 2021-2021.

Andrew T.:    [Laughs]

Thomas:         Several streaks.

Andrew T.:    It’s not quite Cal Ripken-esque.

Thomas:         Yeah, no.  It was a quick one.  But there’s always time to start another streak. 

Andrew T.:    There you go.

Thomas:         Well, let’s find out which lucky winner starts their streak, or continues it.  [Laughs] Who’s our listener who won T3BE this week?

Andrew T.:    Well, Thomas, a lot of folks actually made the same analogy I did in explaining things, so how about this week’s winner is Aidan Devlon, who says “I’m going with C.  If you enter into a contract with someone who turns out to be 17, their parent/guardian gets to say ‘Sorry, they can’t legally enter this relationship with you; here’s the car back, too bad.’  What’s the point otherwise, if you can say ‘I didn’t know?’  Chaos.” 

Well, congratulations, everyone give them a follow.  That is @chaotik_lord on Twitter, and Aidan, congratulations on being this week’s winner for exactly the explanation that I decided was correct.  You’re the big winner this week and everyone should give them a follow.

Thomas:         And that’s our show!  We love you so much, thanks for listening.  Patrons, look out for that Law’d Awful Movies, it should be out now, and we will see you for rapid response Friday!

[Show Outro]

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