A Nerdy Amuse Bouche

Chip, chip, chippin' away at executive authority.

By and

Justice Alito stays the Texas abortion pill ruling, leading to Sarah and David going full law nerds as they push back on bad reporting and evaluate the legal versus real world consequences. Also:

-A snarky(?) Gorsuch

-Sarah’s favorite recent opinion

-Updated takes on Alvin Bragg and Jim Jordan

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Comments (55)
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  1. Avatar photo
    WALL-E

    I wish the discussion of the DC Circuit Court opinion explained more of the background of the law the January 6 defendants are being charged under. This is Sarbanes-Oxley, passed after the Enron accounting scandal, and the particular sections in question have been interpreted extremely broadly. I know that in at least one episode a long time ago, Sarah and David discussed the Yates case, where one of the "objects" "destroyed" was a fish, and I believe a SCOTUS majority, in an opinion written by Justice Kagan, found that the offender violated the law in that case.
    It seems odd to me that a law with this type of background is being used for these sorts of cases. Sarah in particular was very persuasive regarding Bragg's prosecution of Trump; Bragg appears to be using/contorting NY state law to go after Trump in any way he can. Does she think this Sarbanes-Oxley law should be used to go after J6 defendants when clearly they violated other statutes (e.g., assaulting police officers)? David did not seem to challenge the use of Sarbanes-Oxley at all in this episode, though there was no discussion of the law itself.
    Obviously, Congress deserves much of the blame in writing such a broad statute, but I would like to hear more about the responsibilities of the executive branch and prosecutors when they have such power at their disposal. In my opinion, Sarbanes-Oxley is being abused to go after defendants the government doesn't like, and I would like to hear Sarah and David talk more about these issues at some point.

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  2. Gsb

    Please send me David French's email address. Mine is gsb@xmission.com

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    Catfishcatlin

    I feel like the disclosure issue on the Court could be both a Justice Thomas problem AND a system problem, rather than one or the other. It seems like Justice Thomas has been especially (insert word here: careless, casual, dishonest - depending on one's inclination) with his disclosures. At the same time, it also seems true that the system needs reform.

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  4. Avatar photo
    Ben Connelly

    Have either of you read Cosmic Constitutional Theory by J. Harvey Wilkinson? I read it recently and think it would make for a fascinating discussion. Sarah, you in particular might like it given your seeming openness to critiques of originalism and your preference for judicial restraint. Sadly, I doubt Judge Wilkinson would be willing to do a podcast. Still, it would be an interesting discussion.

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  5. Gsb

    What is David's email address?

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  6. Avatar photo
    Phil H

    If a NY Times subscriber could be so kind as to unlock the NYT editorial on Supreme Court ethics and post the link here, it would be greatly appreciated!

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    1. Avatar photo
      Klw.Howard

      https://www.nytimes.com/2023/04/14/opinion/editorials/clarence-thomas-trips-supreme-court.html?unlocked_article_code=wqaKtAKekLxqPBFX3jCxIEWcnb_bUyUgJ0iKkm4aMPqmn1St32uj3OYyFkDy-rP2EmK2Uxn2l8ELNgbJPwFKq88DG1j32sq5myn8JG-qADZwrZy9rRg9iBnraG1-rwBJ_GJjCAYvnUhG2UIv05fb2KKDtrcc9zTuidLTdPZLGxfzN5_sLMFWpAJF1vOdov0F2ObwJbN0BDS94uYDWdaCbq1AbTggVA_M4CZWBLCwGH2W2dGKc17-QD0226S1F2QSLHmUU6n2lNuFEXWU6GK5KOCmZ1w7mTnRN43plycySdrhp6_IPPuyYbLkjShwMTomkA-QNxECWHu81ABkP4EKZC8UUNABUHnbJZyAFc_VqOb64-AKOXahTw&giftCopy=1_CurrentCopy&smid=url-share

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      1. Avatar photo
        Phil H

        Thank you very much!

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  7. Sean Smith

    Future pod topic? https://apple.news/A_T-oh7OQThC1YTdZLI4qRw

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  8. Brendan Bossard

    On the leak:
    I understood how to handle highly sensitive information when I was eighteen years old. My father, who handled highly sensitive military matters as a private consultant, had the equivalent of a SCIF in his own office in our own house. (This was the late '70s and early '80s.) We had a friend who participated in communist activities who visited us on occasion. Dad told us, "Do not tell him about my office!" And guess what? Nobody--NOBODY--in our family of two parents and seven siblings ranging from six to sixteen with friends and college student room renters and many other interlopers--"leaked" anything!
    This problem started at the top. A good commander knows his troops. (If this means maintaining a file of annual psychological profiles for each person in his unit, so be it!) He disciplines his unit. He does not pawn "menial" duties off on enlisted people he does not know. He entrusts highly sensitive stuff only to those he trusts with his own life. He expects his subordinates to do the same.

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  9. Avatar photo
    Michael Berkowitz

    I love the nerdy stuff! Please give us more of that, gladly at the expense of politics.

    The "otherwise" discussion was especially piquant for me, as it corresponds directly to principles of Biblical exegesis used for phrases like "In all charges of misappropriation—pertaining to an ox, an ass, a sheep, a garment, 𝘰𝘳 𝘢𝘯𝘺 𝘰𝘵𝘩𝘦𝘳 𝘭𝘰𝘴𝘴..." There are discussions in the Talmud that sound a lot like the argument these judges were having.

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    1. Avatar photo
      Ben Connelly

      I enjoyed that, too, simply from a standpoint of language and writing. I’m not in the legal field, but I am a writer and I find that lawyers and judges tend to have a much firmer grasp of the nuances of language than many other professionals.

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        Michael Berkowitz

        I wouldn't want to downplay their command and appreciation of language, but I think what's going on here is more than simply a search for 𝘭𝘦 𝘮𝘰𝘵 𝘫𝘶𝘴𝘵𝘦. It's an attempt to match the words to an understanding of the law that makes sense (whether inherently or as the intent of its authors).

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    2. Brendan Bossard

      I was thinking, "Yet another rabbinic debate!"

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  10. Avatar photo
    TheKingPrawn

    Thanks, David, for setting straight why young servicemembers have security clearances and access to their work product. I swear some officers wouldn't know how to wipe their butts if junior enlisted persons didn't explain to them how toilet paper works.

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