Supreme Court Countdown Continues

With a lot of big Supreme Court decisions on the horizon, David and Sarah discuss ...

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With a lot of big Supreme Court decisions on the horizon, David and Sarah discuss an unexpected concurrence from Justice Thomas in Borden v. United States, a case about how broadly the government can define “use of force.” Our hosts also review a decision from the 20th Judicial Circuit of Virginia about a school that suspended a professor for not using students’ preferred pronouns and an announcement that the Texas Bar Association will investigate Ken Paxton for his lawsuit to overturn the 2020 election.  Finally, they chat about a controversy at Yale Law School involving the infamous “tiger mom” law professor Amy Chua.

Show Notes:

–Borden v. United States

–20th Circuit of Virginia Ruling on preferred pronouns case

–Texas Bar Association investigating Ken Paxton

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Comments (11)
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  1. Avatar photo
    Bill Dyer (aka Beldar)

    Elizabeth Warren permitted her students to WALK HER DOG?!?

    I'm very much in favor of law schools encouraging outside-of-class discussions among students & faculty, including but not limited to those conducted over adult beverages. I spent time drinking beer in law school with Phil Bobbitt, who could regularly be found at the Posse-East drinking Lone Star by the pitcher, even with students who weren't in his Con Law class. Bobbitt is a famous Yalie himself (in addition to being LBJ's nephew), and he was following in a tradition dating back to his own student days. I wished then and now that MORE law professors were so engaged and engaging! (I suppose if I saw him these days, I'd have to call him "Sir PhilBobb": https://www.kxan.com/news/texas/ut-law-professor-awarded-honorary-knighthood-by-queen-elizabeth/ )

    But if I'd offered to walk Bobbitt's dog or pick up his dry cleaning, I'm reasonably sure he'd have given me a funny look and a polite "Naw, dog." Short of offering to launder and iron his boxer shorts, I can't imagine a more obsequious or obvious attempt to curry entirely undeserved favor.

    And for a professor to even permit that is shameful. On further reflection, I only wish I could claim to be surprised to learn this about Sen. Warren.

    PS: I applied specifically to be the book review editor of the Texas Law Review because it gave me an excellent excuse to seek out and talk with tenured faculty who otherwise weren't so available to their students, in order to get their recommendations about which books we ought to review and who we should solicit to review them. Were some of those professors "feeders" for particular federal clerkships? You betcha. Is a reference-by-permission from one such professor considered weighty? You betcha. Did it end up having anything to do with the clerkship I ended up in, which I am 100% convinced is the best job I've ever had? Nope, not in my particular case. But getting to know and be known by one's professors is a good thing in general. I viewed it as further training for my intended career as an advocate, with myself as my first client.

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  2. Avatar photo
    Bill Dyer (aka Beldar)

    I am in profound and hard disagreement with Mr. French's and Ms. Isgur's suggestion that unless the court where a lawyer is filing frivolous pleadings has sanctioned that lawyer, state bar associations can't or shouldn't consider their own punishments.

    This is an area of concurrent regulation. The state licensing authority's role is in fact superior to that of the federal courts in which lawyers practice: It's the STATE that licenses lawyers, and individual permissions-to-practice beyond that (e.g., before the SCOTUS, or a particular circuit's or district's federal bar) are predicated on a valid and continuing underlying license from a state bar.

    And this case, which was an original jurisdiction matter in which Paxton's conduct could not have been considered by any other judges, BRILLIANTLY illustrates why this NEEDS to be a matter of continuing jurisdiction! The notion that the SCOTUS, in particular, effectively regulates its continued membership in its particular bar is extremely questionable. Other than lawyers whose underlying state licenses have been revoked or suspended, has the SCOTUS ever actually ejected anyone from the SCOTUS bar? If there are more than one or two such every decade, I'd be astonished. Sanctions from the SCOTUS are and should be rare, but I they're so very rare as to be almost entirely hypothetical unless you're that non-lawyer guy in a state prison in Utah who's filed his seven hundredth pro se petition for certiorari; even then the sanction will be telling the clerk, "Stop accepting cert petitions from Leroy."

    Moreover: The most the SCOTUS could have done to Ken Paxton was to jerk his privileges as a member of the Bar of the SCOTUS. This would have been no hardship to old Kenny, since he has a very capable Texas Solicitor General to actually represent the State of Texas in the appellate courts including the SCOTUS. The SCOTUS could not have disbarred Paxton; his license from the State Bar of Texas is not theirs to superintend. But even to have issued a reprimand — especially against a sitting state attorney general — would have been a genuinely extraordinary act that would have been perceived as partisan. There ain't no way that our institutionalist Chief Justice is going to incline that way, ESPECIALLY in a case with the apex-level institutional interests of the federal government and its entire political process; there might have been DISSENTS, which you do not want to have in court disciplinary matters!

    The explanation for why Paxton's opponents didn't seek sanctions is NOT that this wasn't a sanctionable frivolous filing, but because they knew beyond peradventure that such a motion wouldn't be granted — no matter HOW justified it was. Don't expect those folks to be filing any amicus briefs in any Disciplinary Committee hearings supporting Paxton's good faith!

    If your case has gotten any traction at all, no bar committee is going to find your case frivolous. There is zero risk of inconsistent results. No committee is going to prejudge the lawyer's conduct in filing a case that's still pending; this is by definition going to be decided only AFTER the case has been resolved. And the failure of a court to have sanctioned a lawyer whose case was indeed frivolous and which indeed got no traction is by no means equivalent to an acquittal!

    Were I on the Disciplinary Rules board, I'd have voted to proceed with the investigation and in all likelihood, after due investigation and a hearing (the results of which are preordained precisely because this is so very obviously a frivolous case), I would support a decision jerking Mr. Paxton's bar card. If using your law license in bad faith to try to subvert a national presidential election ISN'T a good enough reason to lose it, I can't imagine what would be. And a state attorney general definitely should NOT get the benefit of any loosened standards of behavior.

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  3. Mathew A

    I think David raises valid concerns about the dangers of speech regulation of teachers and classrooms.

    At the same time, this is public education funded with tax dollars. Our education system is our chance to make sure the next generation has been taught properly and understands the benefits of the classical liberal order. And a proper appreciation for the "miracle" (as Jonah Goldberg puts it). Without that education, we will get generations of people that will look to tear down the classical liberal order, and there will be a very real danger in destroying the miracle.

    At the very least in k-12 education there should be a strong civics, economics, and constitutional law component weaved throughout the time there (grade dependent of course). Emphasizing the benefits we get from our system of government, economics and civil liberties.

    And while I agree that college professors should have more latitude, that still leaves a lot of room for the official college administration position, not to mention required classes to graduate.

    Finally, while I do think college level academic freedom is a an important good, that shouldn't mean carte blanche. An easy example then would be that a professor teaching that the holocaust was a good thing, or that we should re-institute slavery should not be employed by a public institution.

    I think some of the worst woke zealots positions are not far from that mark, and likewise should not be employed teaching our kids to hate America (on tax payer dime no less).








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  4. Joe Curtis

    Some Yale law students whining about a conservative professor and her disciples – I’m shocked.

    There was a time we called them “snowflakes” because they would melt at the slightest increase in temperature. Except now, it seems no one’s pushing back – turning up the heat, so to speak. For her own good, someone needs to tell little Charlene that “Star-Kist®doesn’t want lawyers that whine good, they want lawyers that are good at their jobs.”

    What’s dangerous is that these “snowflakes” are not frozen water, they’re crystalized vitriol. To use a medical metaphor, when this vitriol remains crystalized and accumulates it results in irritation, inflammation, and eventually cancer in the body it inhabits – i.e., the academy. Any academy that subsidizes it eventually becomes irrelevant – a mere legend in its own mind.

    IMO, it’s the academy’s job to push back, to educate the petulance out of the “snowflake.” We should direct our fire at the academy. To use a phrase David will understand, I want to “find ‘em, fix ‘em and finish ‘em” – but with reason and emotional intelligence, not broken bones.

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  5. Pogo

    A bit more context for the Amy Chua discussion https://twitter.com/leahlitman/status/1380947251489607680?s=21

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  6. Avatar photo
    Will

    The shownotes should include the video from that poor schmoe at the 9th Circuit...

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  7. Avatar photo
    Pastorfbt

    I totally did not follow that discussion about the Supreme Court decision. Wow.

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  8. Avatar photo
    Pat @ Tavi Hall

    Why I really came to comment was to say as a law student's wife I ate and drank with Yale Kamisar while my husband was a law student at Michigan. He had all the first year students over. I'm afraid I was more impressed with his wife's sterling table brush set.


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    Dennis Logue

    Could we do anything about the dli.pa.gov ad that’s playing on all the podcast lately? No problem with ads, you gotta pay the bills, but my tax dollars being spent on an ad for a government service to shield businesses from foreign competition on a podcast that I also pay for is a bit grating (I know, I know.. the podcasts are free, but I’m on a roll here)

    Keep up the great work, AO is must-listen even if a topic is dull on its face because David and Sarah bring so much joy and humanity to each episode.

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  10. Avatar photo
    Bryant Lash

    I listened to the conversation David mention with Christopher about CRT (found here https://bariweiss.substack.com/p/should-public-schools-ban-critical).

    Christopher seemed to discount what David was saying about the state to state legislation being a speech code or meaningfully infringing on first amendment rights primarily by citing an exception in many (all?) Of the laws for discussion in a classroom setting. David claimed that defense was not valid, but I didn't hear meaningful substantiation of his claim. I generally trust David on this but I'd love to hear why the exception for classroom settings isn't enough.

    To be clear, I'm not talking about anything with private institutions or grants. That seemed to be pretty straightforward. I'm more mean David's claim that a public university's (or k-12) academic/speech freedom is being infringed

    I'm not a lawyer or meaningfully knowledgeable in how speech codes are utilized, just interested and confused!

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    1. Avatar photo
      Pat @ Tavi Hall

      I also listened to the podcast. I was frustrated because it seemed to me David came without evidence to hand. I wanted to hear him read key sentences in laws being considered. Without that Christopher just waved that off.

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