Dipping Into the Mailbag

David and Sarah breeze past three boring Supreme Court cases before answering listener questions on ...

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David and Sarah breeze past three boring Supreme Court cases before answering listener questions on everything from the Ninth Amendment to hearsay rules and to a brutal discussion of their greatest disappointments. It’s a potpourri podcast as a prelude to the avalanche of Supreme Court cases that awaits us all.

Show Notes:

–Siegel v. Fitzgerald

–Gallardo v. Marstiller

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  1. Avatar photo
    Jordan Caruso

    Sarah,

    1. I was listening to Jimmy Dore and he did a segment on Democrats funding (numbers thrown out were $30K for one candidate and $2M for another) far-right “radical” candidates in election races so that their Democrat candidate will have a better chance at winning because they’ll seem more moderate and reasonable. Jimmy Dore, I’m sure you know, is associated with far-left.

    In your expertise on elections and political campaigns, can you speak to whether this really happens? If it does, how pervasive is this tactic among Republicans and Democrats?

    2. Jimmy Dore also interviewed Matthew Hoh from the Green Party about Democrats (and Republicans) acting in seemingly corrupt (“illegal” in his words) ways to keep third-party candidates off the ballots. The story as Matthew Hoh tells it is quite upsetting for the moderate American (I’ll share the link below). If it’s appropriate for the next time you and David dip into the mailbag, can you explain the ballot process nuances here? If he was being honest and not leaving out information, then the Board of Elections appears surely corrupt. But perhaps there is more reason for why the Green Party candidate was prohibited from the ballot.

    (I don’t agree with a lot of Jimmy Dore’s viewpoint, but I like to listen to all sides, and I think he often has some good points)

    https://podcasts.apple.com/us/podcast/the-jimmy-dore-show/id390071758?i=1000569230385
    -OR-
    https://youtu.be/sn1nQCEr5JU

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    Jordan Caruso

    On next mailbag dip:
    Can you guys talk about why and how the legal profession is 86% white? And some feasible solutions?

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      Sarah Isgur vertical-nib Author

      Law school graduate rates at the top 30 law schools at least look like the population as a whole. So what I think we’re seeing is a lag in the profession that—fingers crossed—will resolve itself as the generations above age out. That doesn’t mean there aren’t things we can do to hasten the process or that there aren’t barriers at the highest levels. But I’m optimistic!

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        Jordan Caruso

        Sarah, my professor, Charles Lemley, told me to ask you how Judge Marvin is doing?

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        1. Avatar photo
          Jordan Caruso

          Haha! I’ll give word to Prof. Lemley. Still hoping you and David find time to do a pod at Scalia Law sometime.

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        2. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          He’s great!! I’ll be seeing him Sunday in fact. Although I’m bringing his grandson with me which usually means I don’t see much of my dad or my son on these trips. They’re off on their adventures! Will tell him Prof Lemley said hello.

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    Rehm Maham

    Howdy all! Bit late to the party but wanted to add a question: why aren’t more state Supreme Court judges appointed to the SCOTUS and corollary to that why isn’t there a strong pipeline of state Supreme Court clerks becoming SCOTUS clerks?? I understand the federal judiciary is different but I’d think being in a position that similarly had to resolve circuit splits and set precedent across multiple different regional courts, like SCOTUS, would be more valuable than it seems to currently be.

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    CoLaura

    MAILBAG QUESTION: A key theme of this podcast is that that Congress isn't doing their job and looking to the Exec and Judicial branches to legislate. If David was Speaker of the House and Sarah was Senate Minority Leader, what would be your top 3 legislative agenda items to address issues that have been recently punted to the other branches?

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    Leo

    A mail bag question, do you think it would be good to get rid of the Administrative Procedures Act or at least the requirement to do notice and comment rulemaking? It seems like it mostly just causes the executive to have to mess around with judicial review all the time, rather than being elected to do a job and then being judged on whether they've done their job well.

    Another possible question is do you think it would be good if there were mechanisms for other actors in government can force courts to issue advisory opinions? for example in this case in the UK https://www.bristolpost.co.uk/news/bristol-news/colston-4-case-go-court-7173775 we are having an appeal about the standards used in a criminal case where people were found not guilty, and even if the government wins the acquittal stands. To me this seems like a good balance between not making people spend decades with criminal charges hanging over people and actually getting round to resolving legal questions. Does article 3 section 2 actually prohibit congress from making this possible?

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  6. Dave Thatcher

    May have been raised already, didn’t have time to get through the comments yet, but never an all nighter? Can’t even relate to that. When I practiced in japan I had two in a row. The guy I was working with, who before he was a lawyer was an army ranger, took to sleeping under his desk every couple hours, for exactly 15 minutes and then waking up without the benefit of an alarm clock. I don’t have that skill, if I went to sleep I’d wake up in a couple days and the deal wouldn’t close.

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    Onefear

    Mailbag Question: Given that so much of the harm accomplished by shooting incidents results from wound cavitation by high caliber / high power ammunition, does any law (2d Amendment or otherwise) prevent ammunition regulation by local, state, or federal governments - potentially with reference to specific classes of weapons (e.g., the general public with AR-15s has access only to less lethal ammunition)? I think there are some older hollow point / intermediate scrutiny cases out there, but I'm not sure whether there is much precedent on this. Sorry if this has been addressed here before and would be pleased with a link, if so.

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  8. Andrew Z

    Mailbag question: What can I do to ensure the greatest chance of being selected to serve on a jury? I recently received my first-ever jury summons and totally want to serve. (I love the idea of serving in some small capacity in this constitutional process.) Would my enthusiasm be disqualifying? Are there certain responses that are shibboleths that automatically guarantee I can't serve? Should I stop reading local news stories in case it makes me familiar with the relevant case?

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      Onefear

      Agree on enthusiasm bad. I would also say do your best to answer the questions of the judge and counsel accurately, succinctly, and completely but without elaborating. "What do you do for a living Mr. Smith?" should be met with "I'm an assistant manager at Applebee's" without the "occasionally I dabble in x but I hope to do y in the future." Answer the question that they are asking and stop.

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    2. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Ugh such a good question! I’ve tried and failed twice. I think they could sense my eagerness. The truth is that you don’t know what the lawyers are looking for so there’s almost no way to game it. But enthusiasm is usually bad.

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    Ben Connelly

    Sarah is absolutely, completely, one hundred percent right on the sleep/study question. There is a point of diminishing returns when studying begins to cut into sleep. Then there’s another point at which more studying/working will actually produce WORSE results than if you just stopped. Moreover, the time to study the material in a college class was during the semester. If you have to pull an all-nighter during finals, that indicates you didn’t study enough in the preceding months.

    This was essentially my philosophy throughout school and it served me very well. Many of the tests I did the best on in my life were the ones I studied the least for. I studied a bunch for the SAT, took it and did decently well. Then I literally didn’t crack an SAT book or do any other studying for nine months, took it again and increased my score over 150 points (and there wasn’t a whole lot more that it could have gone up).

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  10. Tngraham

    Mailbag question:

    I live in California. We have a jungle primary, which I hate. I am just curious about past judicial decisions and reasoning as to the legitimacy of letting non-party-members vote on who the party candidate is and on limiting the general election contest to only the top two candidates. Naively, it seems to me that letting non-party-members vote on who a party's candidate will be violates the First Amendment freedom of association and expression rights of the party members? Isn't a jungle primary really a party primary in name only? I.e., in establishing a non-partisan primary hasn't the state effectively done away with the right of party voters to determine who their candidate is? I am well aware that the courts are unlikely to see things the way I do, but I am curious as to the legal reasoning to date that has allowed jungle primaries.

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