Pressing the SCOTUS Panic Button

And: protecting free speech on college campuses.

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David returns after a brief food poisoning hiatus to discuss two oral arguments heard before the Supreme Court: Trump’s immunity case and Idaho’s case on abortion bans. But first, a request from The Dispatch’s resident Wilson-hater.

The Agenda:
—Are solo podcasters sociopaths?
—Proposals for changes on the Israeli Supreme Court
—Absolute immunity for presidents
—The role of the executive vesting clause
—Reviewing Idaho’s abortion ban
—Time, place, and manner restrictions on college campuses
—Answering questions and issuing corrections

Show Notes:
—Previous AO episode
—South Dakota v. Dole
—NFIB v. Sebelius
—Dr. Martin Luther King on “civil disobedience”
—Columbia University banned student protester over saying “Zionists don’t deserve to live”

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Comments (112)
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  1. Bcpille

    Many state abortion laws add the exceptions by how they define abortion, e.g., many specifically say that an act is not an abortion if it is in treatment of an ectopic pregnancy. Does the Idaho law define abortion? Is there an accepted legal definition?

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  2. Lholzhauer

    Correction for Sarah who stated that if you are leaking amniotic fluid, you don't have a viable pregnancy. I leaked fluid for 7 weeks before delivering my healthy, slightly premature daughter. I WAS on bed rest in the hospital all that time.

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  3. Drmjsslee

    A bit off topic but I just read David's column in the NYT on the Magic Constitutionalism of Donald Trump and thought it a good opportunity to pass on the following quote.
    Adam Smith, The Theory of Moral Sentiments VI.ii.3.4: 'When such imperial and royal reformers, therefore, condescend to contemplate the constitution of the country which is committed to their government, they seldom see any thing so wrong in it as the obstructions which it may sometimes oppose to the execution of their own will. They hold in contempt the divine maxim of Plato, and consider the state as made for themselves, not themselves for the state. The great object of their reformation, therefore, is to remove those obstructions—to reduce the authority of the nobility—to take away the privileges of cities and provinces, and to render both the greatest individuals and the greatest orders of the state as incapable of opposing their commands as the weakest and most insignificant.'

    It was great to hear Sarah's righteous indignation over the failures of the Left relating to the campus protests during the 'This Week' roundtable. (4/28). Well said!!!

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    Kimbaukusfitzgibbon

    Excellent pod! Thanks so very much for the legal information about what’s happening on college campuses. David, some proportion of the rural Polish population did murder Jews during WWII. It’s not well known because there were not many survivors. I learned about this from a rabbi friend whose grandmother and her sister survived such an incident. All of the Jews in a rural area moved into the forest because of incoming Nazis. My friend’s grandmother and her sister were charged with going to get food from a well known resistance group and when they returned to the forest almost everyone had been murdered. The survivors, I believe 2, told them that the townspeople had murdered everyone. They were able to escape by going to someone who their dad had told them to go to if anything happened to him, who managed to get those two girls out of Poland and into I believe Switzerland. My friend’s grandmother never said what happened to her to anyone in her family until my friend in the 8th grade was asked to interview a grandparent about their personal history. That’s when she told him and her family. She could not be registered as a Holocaust survivor because her story wasn’t verifiable. It’s my understanding that a few other survivors were found with similar stories.

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    Ethan Cordray

    Maybe I'm wrong, but I had a lot of objections to the hypotheticals you both used as "extreme examples" of presidential actions that definitely could not be prosecuted, particularly for Commander-In-Chief powers.

    For one example, I think that Congress absolutely could pass a law making it criminal for the President to launch cruise missiles in the Red Sea. They could pass a law making it illegal for him to order the launch of cruise missiles in general. They could pass a law making it illegal for the President to initiate any military action whatsoever in the absence of an official congressional declaration of war. (And they could restrict a President's command authority in other ways, of course, up to and including totally abolishing the US armed forces).

    Congress could pass any number of laws restricting in detail President's exercise of the Commander in Chief authority, and they could choose to specify whatever criminal penalties they see fit to a President who violates those laws. In fact, Congress has already passed such laws! Just have a look at the War Powers Resolution of 1973. The War Powers Resolution doesn't specify any criminal penalties for a President who violates its terms, but it absolutely could have.

    You're on better ground with examples of Congress criminalizing vetoes or criminalizing types of pardons. But of course, Congress always has the power to consider any specific action, no matter how clearly it falls within the enumerated presidential powers, to be an impeachable offense and remove the President from office.

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  6. Darrel Colson

    When I hear knowledgeable folks like y’all wade into the many issues surrounding recent legislation concerning abortion, I’m reminded of Hayek’s famous essay about markets and knowledge, the one in which he argues (convincingly) that central planners cannot even approximate the capacity to shape and adapt markets that is evident in the many personal decisions made by individuals who participate in economic relationships.

    Of course, there’s a world of difference between exchanging goods in free markets and coping with complications posed by pregnancy; but, it seems odd to me that conservatives—who typically embrace the wisdom of Hayek’s insight—don’t see that these matters, intensely personal and particular, are even less susceptible to policymakers’ ham-handed attempts to comprehend and shape human actions.

    Indeed, the clear proof that policymakers lack the wisdom to which they pretend is how quickly some of them will shift from passing laws to “protect the unborn” to passing laws to safeguard access to in vitro fertilization. It makes one’s head swim, doesn’t it?

    I wonder why the same insight that conservatives embrace in other contexts isn’t applicable here? Aren’t these decisions best made at the most fundamental, most basic level of society—that is, within the family?

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    1. Bcpille

      I agree that the haste for so-called pro-life politicians to safeguard access to IVF was possibly based on political considerations. If you believe that life begins at conception, then IVF per se isn't an issue, but the way they deal with "spare" embryos is potentially very problematic. However, there are varying beliefs of when personhood begins and many people don't consider an embryo a person.

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  7. Rabbim

    Can you take on the HR 6090 and whether there is a First Amendment issue with including the IHRA definition in Title VI claims? Thanks!

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  8. Gp0121junk

    I’m glad David is feeling better! But, Sarah, a few of us in the comments for your solo (Remnant-ish?) pod asked for more info about attorneys wearing morning suits for S.Ct. oral arguments. I was especially curious to know if women wear pants or skirts, which seems odd for a morning suit. If they do in fact wear skirts, long or short? Please throw us a bone and share some details.
    Also, wondering if you guys have seen this complaint yet. Will P’s be able to prevail over a 1st Amendment defense?
    https://www.gtlaw.com/en/-/media/files/news/press-releases/2024/national-jewish-advocacy-center-the-schoen-law-firm-and-the-holtzman-vogel-law-firm-vs.pdf?sc_lang=en&hash=B3D9D0E5C29A86D48411FFC49E7B2142

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  9. Hartzlk

    Combining the hypotheticals:
    What if a president orders a drone strike on a target that contains both terrorists planning attacks on America and his/her political opponent in the next election?

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    Ryan McKenzie

    Ok, I have an idea. I worry this idea is something you guys already do or have thought of or someone else already pitched it, but here goes: at the end of the SCOTUS hand-downs, I think it would be cool to do like an Oscars of the SCOTUS session: best Advocate performance, best solicitor general performance, best written decision, best concurrence, best dissent, best hypothetical… you get the idea. I just thought it’d be a fun way to wrap up the SCOTUS season. That is all. - you could always do a RAZZIES version with the worst… but I’ll leave artistic license with you.

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