Dumb But Constitutional

Roe on my mind.

By and
97

Sarah and David discuss a cert grant relating to homelessness in San Francisco and Massachusetts’s Eighth Amendment. But first, Sarah announces her pending litigation against Fairfax County.

The Agenda:

—Robinson v. California

—The different types of justice

—A no-fly list dispute

—The law of war: Houthis

—How do we beat pirates?

—Anti-straight discrimination

—DeSantis v. Warren

Show Notes:

—Niz-Chavez v. Garland, Attorney General

—Smith v. Arizona

—Sheetz v. County of El Dorado

—Briahna Joy Gray’s “nonviolent” tweet

—Ames v. Ohio Dep’t of Youth Servs

By and
Comments (97)
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  1. Kalo

    I love that every federal statute- like the one David quoted- that deals with anything on "the high seas" sounds like it was written by Gilbert and Sullivan. Piratical, indeed!

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  2. Bradgreenwald

    More feedback from the West Coast -- another commenter mentioned much the same but it bears repeating because I don't hear it often enough in analysis of these cases. There is a balancing of rights to public space in play here, and the Grant's Pass decision pushed it all the way in the favor of those abusing public space. I'm not sure the Founders would have considered "I prefer being drunk to working" as an indelible physical condition either.

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  3. General Darden

    I want to add some perspective to Fikre, the case involving the No Fly List. I think Kagan and Gorsuch have the right idea, namely that a return to a list should be accompanied by an evidentiary hearing wherein an affected individual can see/hear the evidence and offer a defense to a judge. I am frankly surprised Kavanaugh, who made the point in Dobbs that travel across a border surely was not in jeopardy there, now argue this is not an onerous standard.

    Our youngest child was born in May 2001. In the wake of 9/11, somehow his name came onto the No Fly List, presumably because some bad actor had adopted the name at some point (a very Anglo Saxon name, beginning with William). No matter the occasion for the next 2.5 years, he always required special screening, an obvious hassle when trying to ticket, check-in online, or go through TSA (prior to PreCheck). A toddler has no idea why he has to be inspected. No matter the effort we made - and we made much of it, up to senior DoJ officials at the time - he remained on. Fortunately for us, his name was eventually dropped and he experienced hassle-free movement through the airport. As my wife said, we always knew toddlers could be terrors on planes, but never terrorists.

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      Cthocas

      This might be the most Kafkaesque story about the no fly lists I've ever heard.

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  4. Luke Lawrence

    Howdy. I'm an American but currently study at the University of St Andrews in Scotland. As such, my university doesn't have much in the way of support for future American law school hopefuls. I've wandered across the great valleys and peaks of the internet and found much in the way of advice; however, one thing I haven't found as much on is reading. I know that in my applications I won't be (speaking generally) 'tested' on what I know about the law prior to law school because that's, you know, the thing I'm going to law school to learn (LSAT excluded). But I'd love to start reading anyway because it'd be fun. Would anyone have recommendations on what I could read as an introduction of sorts to legal scholarship, law school concepts generally, etc.? Textbooks, accessible scholarship, professional hot takes? Even cold takes will do, I just want to learn. Thanks!

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

      I know you’re going to hate this advice but… DONT READ LAW BEFORE LAW SCHOOL!!! Now, reading about good legal writing can be helpful. Scalia and Bryan Garner have some stuff on that you should check out. But don’t try to get into the law part…it’s actually better to start from a fresh slate. Dunning kruger effect and all that;)

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      1. General Darden

        @Luke Lawrence, the best preparation for Law School is to enjoy life before you get there because normal people do not leave Law School looking or acting normal/normally. I would encourage you to read great works with lucid prose, sound logic, and a requirement that the plotline not involve the law or legal proceedings. I always thought I wanted to go to Law School, but when I started my undergraduate program and observed 1Ls on Day 1 of Law School and then Day 200 of Law School, I knew that maybe the Law was not what I wanted to pursue after all.

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      2. Michael.Mcchesney

        Hi Sarah. On a completely different subject, was Thursday's episode delayed? Or was it canceled for some reason? One of the first things I do on Tuesdays and Thursdays mornings is to listen to the flagship podcast. It is just so disappointing when the new episode is missing. :-(

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

          Sorry! We had to push taping by a day. So it’ll come out tomorrow morning!

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          1. Michael.Mcchesney

            You are forgiven. Just don't let it happen again. ;-) Seriously though, it would be great if there was someplace we could check to find out the status of things like AO or some lesser podcasts.

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        2. General Darden

          I suspect we will hear from the Host and her frequent guest that they took a little longer due to listening to Prelogar and Clement argue in front of the bench on Chevron deference....And then their hot takes on whether Prelogar is one of the best advocates or not (quick in her heels!) given her ability to quickly respond to the assembled 9 on any topic, and then a swoon-fest about how Paul Clement is just the best.

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  5. Kalo

    Whenever the 8th amendment comes up, I always think "I get the cruel part, but what's wrong with unusual?" Then I picture thick-necked mafia bruisers in pink tutus, white tights and tiaras, made to sweep the sidewalk and introduce themselves to people "I've been a bad, bad boy"

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  6. MADaves

    My only question is: does a Navy SEAL count as a vessel?

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    1. MADaves

      Let’s hear that argued in the DC circuit. I would wait in line.

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  7. Tdcavenagh

    I always very much appreciate the podcast and profit from it each time I listen. I would welcome a conversation between you two on how, if you worry that he could, Trump might destroy democracy as we know it. I ask the question as one who regards him as utterly unfit for the office. His character is deeply flawed; his ability to exercise good judgment is, at best, questionable; and perhaps most important, he brings out the worst in people - his followers and his opponents. Having offered that caveat, I wonder if either of you think democracy is in peril were he to win in November, because the aforementioned flaws are ones from which other presidents have certainly suffered. The Union survived Harding, Buchanan and other terrible people who became terrible presidents. We are hearing the 'democracy is in peril' assertion from President Biden, much of the main stream op-ed press, and virtually everyone opposed to Trump's re-election. But, Trump has lost essentially every argument he has made in front of every court in which he was a party, including SCOTUS. So, the judicial branch seems to be holding the line very effectively. His use of the executive order, an exercise that is troubling and anti-democratic, is no more or less problematic or profligate than his predecessors or successor. So, is there any merit to the argument that he genuinely is a threat to our democracy?

    And, I can't resist a second question for David, a journalist I very much respect. When and why did journalists begin describing their work as "pieces?" For most of my life, a long one at this point, journalists produced columns, articles, stories, and op-eds. Relatively recently those words have all been discarded in favor of the grandiose sounding "piece." Journalism doth protest its importance too much, methinks.

    Thanks again for all you do.

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    1. Davidbenjaminlat

      I refer to most things I write as "pieces," and I actually think the term sounds casual rather than grandiose. "Column" sounds more self-important—e.g., "Did you read my latest column in The New York Times?" Anyone can toss off a "piece."

      I think the reason we like "piece" is because, in light of the rise of blogging and online journalism, plus the blurring of news and opinion, the old taxonomies aren't as clear. Is that an article, a column, a post, a story? Is it a news story, or is it an opinion piece?

      My own work at Original Jurisdiction doesn't fit squarely under either category. A lot of what I do I'd describe as "reported opinion" or "news analysis." So rather than decide whether it's a "news story" or an "op-ed," I just call everything "pieces" (or sometimes "posts").

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      1. Kalo

        I agree with you that "piece" sounds casual, and signals that it's suitable for many different venues.

        Plus, if you've ever read Jeffrey Frank's The Columnist, you might have the impulse to shy away from that terminology...

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  8. Avatar photo
    Retired Prosecutor

    As a Deputy Attorney General, I appeared several times in front of Ninth Circuit Judge Diarmuid O’Scannlain. This was 15-20 years ago when the Ninth Circuit (styled by prosecutors as the "Ninth Circus") was at its progressive worst and getting a draw with O'Scannlain was a real plus for the government. He was a voice of sanity crying in the wilderness, with folks like Pregerson, Reinhardt, and Kozinski not only generally adverse to your position, but often personally unpleasant.

    I'm absolutely no fan of Trump, but I have to say that his appointments have brought that Court back into balance, instead of being the most reversed Circuit out there. Yes, the Ninth is way too big, but breaking it up is so politicized that I don't think it will ever happen. Besides, I think those judges like doing some business in Hawaii and Alaska.

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    1. Davidbenjaminlat

      I agree with all your comments about Judge O’Scannlain; I’d just add that he is also a wonderful boss. Clerking for him was the highlight of my (admittedly short) legal career.

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      1. Avatar photo
        Retired Prosecutor

        Good for you! By the way, I'm a long time friend of Connie Callahan; I knew her way back in the days when she was a San Joaquin County Deputy DA.

        As a California Deputy Attorney General, I used to routinely take death penalty judgments being reviewed via habeas corpus by the Ninth, or Three Strikes cases, and it was often not a pleasant experience. One day I was in the courtroom in San Francisco waiting my turn, and in another capital case Kozinski (who I think is a detestable person) went out of his way to needlessly humiliate one of our young deputies. Kozinski made fun of him for not bringing the complete appellate record to court with him, even though it had little to do with the argument and in any event, the issue could have been resolved with supplemental briefing. I'm sure you know that in these cases, 20 or more banker's boxes is not usual, and this youngster apparently hadn't access to a forklift. Of course, his proud parents were in the courtroom to watch the spectacle. The incident was widely discussed in our office.

        I spent 40 years practicing trial and appellate prosecution, arguing numerous cases in the California Supreme Court and the Ninth. When I had finished law school, I had this naive view of the majesty of the judicial branch. But over time, reality set in.

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        1. Davidbenjaminlat

          I'm a big fan of Judge Callahan! Please send her my best. I visited her chambers the last time I was in Sacramento, but she was away for a sitting.

          Judge O'Scannlain can write harsh opinions, especially dissentals. But I never saw or heard of him being personally unpleasant to counsel (or really anyone); he's a very gracious person.

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    Retired Prosecutor

    Regarding the discussion about the homeless, I was struck by the fact that the moderators did not discuss the collision of rights involved in this situation. It's reminiscent of the criminal justice system's almost complete focus on perpetrator rather than victim.

    Example: in Sacramento (I live in the exurbs), there are extensive tent encampments. The public transportation system, the city parks, and many other public areas are now off-limits for many of the "non-homeless." It - combined with remote work - is killing downtown business. The Sacramento region has an amazing dedicated paved two-lane bicycle trail along the American River (the Jedediah Smith Trail) that takes you from the eastern edge of the County to downtown -- about 25 miles. All of that distance you travel through riverside oak woodlands and do not have to deal with automobiles and motorcycles. But the trail is unusable several miles east of downtown because of homeless encampments where the residents harass you for being "on their turf."

    Is this policy problem something SCOTUS can address or at least take note of in the litigation of this case?

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    1. Hikingguy

      Same around Portland There's an abandoned rail line turned-at some expense-into a terrific bike/walking trail that runs from smack on the Willamette River in south Portland out to Boring. Call it 25 miles. The Portland segment is a disaster. Needles, junk, shit-you name it. Hoping the 9t Circuit gets spanked, and then I might use the trail I voted to build.

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        Retired Prosecutor

        I argued before the Ninth Circuit over a dozen times when I was working -- about 15 years ago. Progressive crazies dominated like Reinhardt, Pregerson, and the Fletchers (mother AND son) -- all of whom hated the death penalty -- but were too dishonest to come out an say it. Most of them were so old they had been appointed by Jimmy Carter! They also hated the Three Strikes recidivist law and looked for ways to evade it's consequences. A bunch of activist idiots who we used to call it the Ninth Circus and who were the most reversed Federal Circuit out there -- their crazy decisions were like a red flag for SCOTUS.

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      George.Skinner

      Homelessness advocates usually work from an assumption that because the homeless are disadvantaged and therefore have a greater claim to public spaces than all of the other citizens who manage to keep a roof over their heads and are otherwise functional. They're also sufficiently vocal that politicians and bureaucrats tend to fall in line until everybody else is angry enough to inflict a clear electoral punishment. Their rationalization needs to be challenged on at least 2 levels:

      First, the people who are most hurt by the loss of amenities are often lower income people themselves. These encampments are more common in poorer neighborhoods, and the parks and playgrounds being occupied are the outdoor recreational space for people who can't afford homes with their own private outdoor spaces like yards. They're further victimized by the crime and disorder that comes with those encampments, and they have far less economic capacity to absorb the losses.

      Second, I think there needs to be a broader consideration of what responsibilities people have as members of a community. If you're not contributing to the community somehow (being economically productive, paying taxes, making some contribution to community life), you should at least be expected to not infringe on the rights of others to quiet enjoyment of the community. If you want to live someplace, you need to be expected to follow the rules. We need to ensure that it's not impossible to comply with the rules as well, but the disorder, petty crime, vandalism, and harassment shouldn't be tolerated.

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      1. Nordic_man

        If you're not contributing to the community somehow (being economically productive, paying taxes, making some contribution to community life), you should at least be expected to not infringe on the rights of others to quiet enjoyment of the community.

        So what homeless people should just not exist?

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          George.Skinner

          Is your best argument here a reductive binary choice between "allowing homeless people to do whatever the hell they want, and the rest of us can just suck it up" and "homeless people should just not exist at all"?

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          1. Nordic_man

            Well can you some up with places homeless people can be that doesn’t involve the intervention of the government or those more fortunate and isn’t randomly in public?

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  10. Rex Black

    All this talk about Houthis, but nothing said about the blowfish... 😀

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    1. Davidbenjaminlat

      https://newsthump.com/2024/01/12/confused-joe-biden-starts-bombing-hootie-and-the-blowfish/

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      1. Rex Black

        Okay, that's pretty hilarious...

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      Retired Prosecutor

      I thought the same thing. One commenter said their name Houthi is correctly pronounced as "hootie," bringing to mind that group.

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      1. Rex Black

        Glad it wasn't just me. Every time I hear about these Houthis on the news, I get Darius Rucker's voice stuck in my head for half an hour.

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