Guess Who’s Back? (It’s Sarah, Sarah’s Back)

The notorious nine.

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Sarah’s back from her first maternity leave ever to for a live recording at Georgetown University Law School. Together with host emeritus David French, they preview the 9 most dramatic cases coming before the Supreme Court this term. Also: tips for law students and a live Q&A (at least as long as our batteries work). Here we go:-Kavanaugh didn’t flip his vote (surprising few)

–We called it (on Alabama)

-Welcome to the South Carolina case!

-Rahimi: The one we’ve been waiting for

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  1. Mark

    In answer to David's question, "Why do some people on the right suddenly hate Taylor Swift so much?"

    First off, this isn't limited to "people on the right," but I know you never miss a chance to sideswipe conservatives, so enjoy your cheap joke.

    The more substantive answer, which applies to non-Swifty football fans (most football fans are not Swifties) across the political spectrum is that there's something obnoxious about the amount of Taylor Swift that is already, involuntarily a part of our lives and we just want to watch football. She's coming off of her enormously successful Eras Tour and has been ubiquitous in the culture for the better part of a year at this point. We were already at the Taylor Swift overload point before she stated dating Travis Kelce. Now, you can't even enjoy the simple pleasure of watching a football game without having Taylor Swift shoved in your face.

    It's important to note that very little of this is actually Taylor Swift's fault. She's ubiquitous because she's enormously successful. Can't hate her for that. Call it the "Sweet Home Alabama effect." It's a great song, but I never want to hear it again because I've already heard it a bazillion times, more than enough for my lifetime.

    She's free to date whomever she wants and Travis Kelce's a good catch. And why wouldn't she go to the games and cheer on her man? Everything else aside, it's kind of a sweet, heartwarming story. Kelce shot his shot and it seems to have charmed her. But the broadcasters who air the games WILL NOT SHUT UP about it. They're constantly interrupting the game play, cutting away to her and her celeb friends. Most football fans have a low opinion of celebrities in general and zero interest in celebrity gossip. Football is our refuge from many things, work concerns, politics, and yes, celebrity gossip, and maybe especially, Swifty-mania.

    It's annoying.

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  2. Michael K Talhelm

    This has nothing to do with this current episode but it's a question about a past episode and the topic of kids and access to porn.

    Kids have no access to sports betting or any betting/gambling. Could the porn case use the same arguments?

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  3. Biglaw_Blues

    I thought the THT discussion was yikes. However, I'm nevertheless a stalwart fan!

    I've already been posting about it when David^2 were hosting, so I won't regurgitate it.

    But I will add that the pedigree analysis (HLA Hart) for the Alien and Sedition Acts is indeed a good example for the proposition that liquidation isn't dispositive. In fact, that's *why* lawyers and judges need to do originalism and not historians, because and independent analysis of the legal evidence's value is required at each stage, which historians are woefully incapable of doing. A&SA isn't a close call at being unconstitutional *at the time.* So, the *evidentiary value* of A&SA to help interpret the scope of the 1A *in the current case or controversy* is nill (unless used for the opposite)—which is the whole methodological exercise of originalism.

    All the critiques: "law office historians," "history is full of bad facts," "what if the history is unclear," "but the legislators are dumb/bad," etc are all routine critiques that originalism has answers for—that I find not only persuasive prudentially, but demanded by American (at least) constitutional law.

    As to liquidation's probity in originalism's analysis, I mean, it's called "Madisonian Liquidation" from Federalist 37, lol. See Baude, https://review.law.stanford.edu/wp-content/uploads/sites/3/2019/01/Baude-71-Stan.-L.-Rev.-1-2019.pdf

    "Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction”—a real or imputed popular ratification."

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    1. Biglaw_Blues

      "shall not be infringed" either means whatever the best-evidence of what the phrase means, or "is this reason good enough to infringe?"

      If one thinks that THT is even in the same ballpark as interest balancing respecting judicial activism i don't know what to tell you. Because Conservatives can just wax Classical Republicanism about "the People are not free if they are disarmed by the state" [insert zillion citations] and American liberty is the highest interest" = no gun laws. (Not to mention a President almost just coup'ed the government and seized power with plans to order the military into the streets. Hello revolution time.)

      Even if you assume that history is ambiguous and the Justices are right wing hacks, interest balancing is just gasoline on the fire. THT at least gravitates their alleged hackery around actual legal-evidentiary questions that does provide data points on questions that remain the bulk of gun issues today, even if they aren't necessarily litigated because the issues are settled.

      I strongly feel that the pod was assuming the premise of many progressive jurists that the Constitution is merely a principle that must be ruled on by current judges with their reason and in the interest of justice as opposed to an actual/formal binding provision.

      The *only* originalist answer to the 2A is "whatever the right to bear arms means, it shall not be infringed" and the question is what *exactly* is the scope of the right. Not "if the interest is good enough, it can be infringed" which is the totality of interest balancing.

      Those questions can appear similar, because in the past, exceptions arose from British common law, which was in the context of unwritten constitutionalism. The Founders codified common-law rights. But the question of formal codification of rights with agreed-upon exceptions is fundamentally different from judges sua sponte (at best, ultra vires at worst) creating exceptions from the codified right.

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  4. Andrea.M.Posner

    About Rahimi and historical analogues: In colonial Virginia, a woman subject to domestic assault could swear out a warrant for her husband to appear and answer her complaint, and a Justice of the Peace could order that he and others appointed give monetary surety to keep the peace.

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  5. InadvertantObfuscation

    David French:
    Thank you for recommending the Band of Brothers series. I would not have heard of it otherwise. With the context of the previous episodes, it has the most effective, maybe I should say most Affective, presentation of the concentration camps that I have seen.
    And thank you for your military service.

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    Jordan Caruso

    First, congratulations Sarah and welcome back!

    Funny thing, I am also a philosophy major that went to law school, but I had no idea that was a common thing. Law wasn’t even on my radar until years later when judge advocates encouraged me to go to law school.

    David and Sarah, I think all the advice you gave on your hypothetical law student question was great. Sarah, I love your advice to think about which job you jump out of bed for.

    So David, Sarah, and David (if you’re still reading/commenting), in following up on your hypothetical law student question: how would your advice change for a law student who is not at the top of their class, or is even ranked at the bottom?

    The hypothetical seemed to presume that the student not only has choices, but has good choices. For the sake of the question, let’s just assume we are talking about a student whose GPA is low because they just aren’t good at school or law school exams. That is to say, the other variables of this student are on par with or better than your original hypothetical student: they’re graduating from a law school that’s ranked in the top 50 and their work experience, letters of recommendation, writing sample and references are all strong.

    How should this type of student seek mentorship and repetitious practice? How should they think about and prioritize their applications and overall job search to best begin their career?

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    Njh2005

    I’m sure I am not the first to share but Justice Barrett spoke about the problems of Text, History, and Tradition at Catholic University Law last week. https://youtu.be/fJUHuu2aoP4?si=2Rh3Y7-UUEs75G_R

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    1. Avatar photocircle-angle-nib
      David French vertical-nib Author

      I hadn't seen! Thank you!

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    Ben Connelly

    Congratulations, Sarah!

    I want to hear the Honorable Marvin Isgur as a guest on AO to give his opinion about the constitutionality of bankruptcy courts.

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    1. Davidbenjaminlat

      I love this idea of an Isgur v. Isgur showdown on the constitutionality of bankruptcy courts! Maybe Judge Isgur could come on the show after the SCOTUS arguments in the Purdue Pharma case, and they can discuss both the arguments and the constitutional issues raised by bankruptcy proceedings more generally.

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    Tomjedrz

    Regarding Social Media, Moderation, etc.

    I have long thought that the big media companies are having their cake and eating it too. The issue is not moderation (enforcing rules) .. it is amplification and promotion. Clearly, if I make a post to my miniscule number of followers, that is my speech. If the platform takes my post and presents it to a million people that they think will react to it, is that my speaking, their speaking, or both? They propose that they have the free speech right to do this, but that doing this is not free speech from the point of (say) facilitating criminal behavior or inciting civil unrest. It seems that these onerous terms actually undermine the idea that they are not engaging in speech, since the post that they promote, by their own terms, belongs to them.

    As an aside - am I the only one who saw a similarity between the social media platform's idea on our posts and Donald Trumps ideas on the documents presented to him? Mine ... mine ... mine ... 😁

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      Ben Connelly

      But the social media company spends its own capital and pays people to build the platform you post on. Sure, they make money off you by advertising, but that’s what you sign up for. When you join the platform, you sign a legal document agreeing to the terms they specify. So, yeah, the platform is legally their property and they’re letting you speak on it, and you also signed a document (even if you didn’t read it) which will be enforced by courts which says that it’s their property.

      It’s not a speech argument, but a property one. And it’s also not very similar to Donald Trump’s situation with the documents.

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  10. Aaron H Frank

    In defense of philosophy majors without law degrees...

    Back in the olden days philosophy majors made huge contributions to the tech world.

    The idea and design for the first self-service airline with online purchase and sale of tickets and seat assignments with self-service kiosks in airports came from a philosophy major.

    The Novell's directory service which created the first, modern, PC computer network, was designed and patented by a philosophy major.

    The fellow who figured out how to scale video on demand from a few hundred to several million instantly was a philosophy major running a news website on 9/11.

    And those are just three examples.

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    1. Kbirkett

      Very well acquainted with a philosophy major who is a highly skilled computer programmer doing demanding and original work in the financial services industry, in C++. Analytic philosophy specifically was a great foundation for the rigors of programming.

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      Kevin M. James

      Thank you for the examples.

      I've personally known philosophy majors who did very well indeed in tech businesses...

      ...and both business majors and computer science majors who didn't.

      (Not that the size of one's paycheck either validates or invalidates a person's education, or their life more generally...but if you're going to raise a family a decent income tends to help more than it hurts.)

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