High Feminism and Lessons from Battlestar Galactica

Disruptions at the court.

By and
60

Live from the University of Virginia and before a strangely happy group of law students, Sarah and David cover a range of topics from a convicted rapper who blames AI, disruptions at the Supreme Court, the Fifth Circuit becoming the new Ninth Circuit, and ethics with Amy (Justice Barrett). The hosts then take a series of questions from UVA students. God blesses this podcast.

-Does Sarah know her husband’s phone number?

-AI briefs and ineffective counsel

-SC justices interrupting female attorneys

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  1. Avatar photo
    Kimbaukusfitzgibbon

    BTW David and Sarah, I’m a retired math teacher and now a weaver. I listen to your podcasts, often while weaving, and read SCOTUS transcripts just because it’s incredibly interesting, and I appreciate I like trying to figure out their logic.

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  2. Echack

    I worked for a long time as a contractor at a NASA site. We had very strict standards on what gifts/entertainment we could do for the civil servants. Food we provided had to be reimbursed by the civil servants, except for things like coffee/tea/donuts. At first, we simply put out a basket for them to put the $10 or so for a box lunch from a local sandwich shop. Later, we had to take down their name and money when they were given the food.

    Alcohol was verboten. Transportation and housing was verboten. Gifts were limited to $10 per item, $50 per year total, and the items had to be logo items.

    We gave out wall calendars with company products on them (I worked for Lockheed Martin and it had pictures of satellites, rockets, fighter planes, etc.) , logo pens, and logo coffee cups each Christmas. The most popular item was a small pocket calendar/datebook with the company logo on it. (This was pre-smartphone.)

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  3. Echack

    When using an AI (actually a Large Language Model - LLM, there are many forms of AI) to write something and getting a bad result is not from the field being too technical. It's having inadequate data in the training of the LLM. The LLM probably didn't have many examples of closing statements in the pool of data that it drew from. There are LLM tools for writing software that do a good job, despite the field being very technical, because they have been trained on a huge library of software. (For the technically inclined, some have been trained on all the public code in GitHub. That's a lot of software.)

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    Ethan Cordray

    Good to see David endorse the hard-line de minimis limit on hospitality gifts to Supreme Court justices. I think that's the correct way to defend the court's reputation.

    If that seems harsh, maybe we could couple the adoption of that ethics standard with a significant increase in the justices' salaries. So if Justice Jackson wants to eat wagyu steaks at Sarah's house, that's fine, she can just chip in for her share. :)

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  5. Avatar photo
    Hawks Law Office

    Hi David,

    Once again you have asserted in the podcast that there was no originalist argument for upholding Roe, and once again I must push back.

    First, I would point out that Dobbs itself was not an originalist opinion, but rather a modern-day substantive due process decision under the Glucksberg framework. Yes, I am familiar with the originalist argument by Prof. Finnis that the fetus was an unborn person under the 14th Amendment, but no Justice has ever endorsed this argument, and I would challenge you to make an alternative originalist argument for Dobbs.

    Second, if your argument is that there is no originalist argument that abortion is a *fundamental* right subject to strict scrutiny, then I would agree! But some of the Court’s most famous cases, e.g., Meyer v. Nebraska, Pierce v. Society of Sisters, Griswold, and Lawrence, protected unenumerated rights that were *not fundamental* or subject to strict scrutiny. Thus, Justice Alito was patently wrong when he said the Due Process of Law Clause “has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation’s history and tradition' and 'implicit in the concept of ordered liberty.'” (Dobbs at p. 5). Dobbs was flawed because it failed to address whether abortion qualifies as a protected non-fundamental right like the Meyer line of personal autonomy cases.

    Any originalist theory of unenumerated rights requires an originalist theory of the states’ police power, and the best one I’ve seen is Prof. Randy Barnett’s theory that (1) states can prohibit “wrongful” conduct but may only regulate “rightful” conduct; and (2) “wrongful” conduct is conduct that violates the rights of other persons. Under this theory, none of the activities in Meyer, Pierce, Griswold, or Lawrence could be banned because none were “wrongful” in this constitutional sense. Still the question remained whether a state could “regulate” the “rightful” activities in these cases, which means you need a theory of scrutiny so you can ask if the asserted state interest meets that level of scrutiny.

    I’m happy to concede that levels of scrutiny are “constitutional constructions” rather than matters of “constitutional interpretation,” and reasonable people can disagree over whether “constitutional constructions” are ever “originalist” in nature. Again, however, I follow Prof. Barnett’s “unified” theory of originalism that encompasses “good faith construction” which accurately identifies a constitutional provision’s spirit or “original function” when it was enacted and then devises implementing rules to give effect to both the letter and spirit of the text.

    So what happened in the Meyer line of cases? They don’t discuss levels of scrutiny per se (understandable in Meyer, Pierce, and Griswold, but surprising in Lawrence), but all of them applied some form of heightened scrutiny (and arguably strict scrutiny in Griswold). These rulings makes sense as “good faith constructions” in that the plaintiffs in those cases would all have likely lost under today’s rational basis (i.e., conceivable basis) standard. Instead their holdings were all correct because they all involved “rightful” conduct which could only be regulated, not banned; and even if the government restrictions in those cases were considered mere regulations rather than bans, their justifications failed to meet heightened scrutiny. (Note: I think “heightened scrutiny” is best viewed as the rational basis standard pre-Williamson v. Lee Optical, where the burden of proof is on the Government based on actual evidence, not theoretical or after-the-fact justifications.)

    Now you have the elements needed for an originalist argument that abortion is a non-fundamental liberty right subject to heightened scrutiny: Given that the fetus was not a legal person in Texas or Georgia in 1973, or in Pennsylvania in 1992, or in Mississippi in 2022, abortion does not infringe anyone else’s rights, and therefore qualifies as “rightful” conduct which cannot be banned but only regulated. Prior to viability, Roe/Casey only regulated the abortion right, subject to the heightened scrutiny standard of “undue burden,” which I think is as much a “good faith construction” as the heightened scrutiny standards in Meyer et al.

    After viability, Roe/Casey effectively treated the fetus as a legal person so that abortion after viability was deemed “wrongful” conduct that could be banned absent serious threat to the woman’s life and health (where an outright ban would likely have not even passed rational or conceivable basis scrutiny). What I believe was wrong about Roe/Casey was not the cases themselves but the widespread belief on both sides of the abortion debate that they precluded the states from declaring abortion to be “wrongful” by amending their state constitutions to establish some form of fetal personhood via the 10th Amendment.

    That’s the issue that should have been litigated after Casey, which properly reconstrued Roe to clarify that abortion is a (non-fundamental) liberty interest governed by a heightened scrutiny standard, but which should also have limited Roe to its facts, i.e., abortion can be regulated but not banned in states that lack fetal personhood, but states can still grant fetal personhood status if they choose. Dobbs should have done the same.

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  6. Avatar photo
    John.Rogers

    The only Battlestar Galactica worth learning anything from is the original 1978 Battlestar Galactica.

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  7. Batica

    You don’t need to look to the Supreme Court for interesting interruption data. Just count how often David interrupts Sarah, vs vice versa, particularly when it results in the interruptee abandoning their thread. Not easy to distinguish an editing bias from a behavioral one here, though either would be interesting.

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  8. Austin from Atlanta

    Not controlling for independent variables means the study has no explanatory value. I find it very hard to believe that a capable research team just happened to not control for the data. It takes mere seconds to run a regression analysis, even in software as simple as excel.

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    Lesherman

    Completely unrelated to the podcast, but I figure there are some legal experts that haunt the comments section: A friend of mine in NY state is getting kicked out of their apartment with three days notice because the landlord wants them out and ducked every attempt my friend made to get together with them and sign a new lease, forcing them to go month to month, which (as far as I can tell from my very inexperienced legal sleuthing) meant that the landlord didn't have to give them the 90 days they would have since they have lived there for 3 years. Does anyone know if they have any legal recourse in this situation whatsoever?

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  10. Tom S

    @DavidFrench You mentioned your desire to see Smith overturned. Alito's Fulton concurrence seemed to advocate for a peace or public safety threshold. I (perhaps mistakenly) read that to mean that if the exemption request is not related to a peace or public safety issue, then the religious person is granted the exemption. But that would create so many exemptions that it seems unworkable (e.g. probate law, contract law, most zoning laws unrelated to safety, family/divorce law, ERISA, etc.). You and Sarah often talk about strict scrutiny meaning the government loses. So wouldn't a strict scrutiny standard also create too many exemptions for it to be workable? What set of workable rules do you advocate as a replacement for Smith?

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