New Supreme Court Frontrunner?

On today’s episode, David and Sarah dive into multiple issues. Is Ketanji Brown Jackson still ...

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On today’s episode, David and Sarah dive into multiple issues. Is Ketanji Brown Jackson still Biden’s frontrunner? Also, she wrote her first D.C. circuit opinion. What does it say about her jurisprudence? They also talk about an odd case about Yelp reviews before turning to more serious subjects–deadly no-knock raids and once more about NFL coaches, and how cultures can develop unfair systems.

Show Notes:

–Reason: “Judge Ketanji Brown Jackson’s First Circuit Court Opinion”

–Politico: “Former clerk rewrites SCOTUS contenders’ Wikipedia bios”

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  1. Avatar photo
    LeGrand Northcutt

    Hi David and Sarah-- long-time listener, first-time subscriber and commenter. As an attorney who works for a government agency, I found y'all's discussion about the beefing up of arbitrary and capricious review and the comparison to intermediate scrutiny fascinating. However, as I recall at the time (somewhere around summer of 2019), the Trump administration lost a staggering number of its arbitrary and capricious review cases not because the standard was being raised, but because they were truly incompetent (in a legal, not a political sense). I am thinking about Jeff Sessions trying to rescind DACA with a one page memo citing a 5th circuit case on DAPA that wasn't even on point. Nowhere close to what is required under State Farm, and I think I used the phrase "it may as well have been written in crayon" with some friends at the time. I was shocked that that case, and the citizenship case for that matter, was 5-4.

    All of that to say, interesting take, but I disagree. I am getting the sense that, post Trump, A and C review will stabilize itself again. If I am wrong about that, I still think it will be because whichever administration is trying to enact regulatory reform is incompetent, not because the bar is being raised.

    Secondary comment-- I am incredibly proud of Virginia for banning no knock warrants. I was working for Governor Northam at the time, and I can confirm that he viewed it as one of his signature accomplishments, which is saying something. Other states need to follow suit.

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

      We talked about the DACA case quite a bit when it came out. Two quick points: I think we disagree about whether the 5th cir dapa case is relevant…what’s your argument that the legal reasoning for DACA would be any different? But the real issue for a&c there is that there was a second memo that did meet the standard but scotus only ruled on the first memo basically saying go do the second memo again, which is formalism at its least helpful IMO. This standard has now been used against the Biden admin several times as well—so I don’t think it’s a “trump only” rule as progressives may have hoped/wanted. Just that both sides need to be prepared to have executive actions struck down more frequently.

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      1. Avatar photo
        LeGrand Northcutt

        I guess "longtime listener" is not long enough! I will have to go back and listen to those in my spare time. Also, up front, I apologize, as I realize now that I used the words "incompetent" and "crayon" flippantly about the justice department to a former justice department employee. Thank you for your gracious reply.

        As to your question, I do think the relevance is important, and I do think the legal reasoning would have been the same had DACA been litigated. However, I put more emphasis on the... slapdash(?) legal reasoning of the first letter (putting aside the second, since it was not litigated) because that is what A and C review is really looking at-- was the decision well-reasoned?

        What struck me at the time was the use of the 5th circuit opinion as seemingly self-sufficient authority when it was 1) an injunction, 2) affirmed, but by an equally divided court, and 3) not on the program at issue. On this third point, we do get to relevance. However, I think that if you argue that "program A is illegal because program B is illegal," and your citation is an injunction, and you give no further articulated explanation (a "trust me" answer as my property law professor would say), then, if you can find any difference between the programs (which there was some difference), you are going to have to do more of your own, independent legal analysis as an agency to back up your decision.

        While relevant, a circuit court injunction on a different program (regardless of how similar) is, in my opinion, by definition not enough to support the legal claims that were being made in the letter-- namely that DACA has "legal and constitutional defects"-- and pass any standard of review. This is my understanding of what A and C review has been since Overton Park/Hard Look. My beef is more about the sufficiency of the reasoning (using an injunction to support a broad claim of illegality) as opposed to the relevance.

        As to your comment about the Biden administration, yes! I completely agree, it is not a Trump only problem. I am making no claims that the Biden administration is suddenly perfectly competent, as seen by the eviction moratorium, which, while not struck down on A and C review, could very well have been had the issue been teed up properly.

        Prior to Trump, agencies had a roughly 70% win rate on A and C review, so we should still expect to see a fair number of losses. However, Trump's win rate went to <10% almost overnight. Therefore, even with the losses handed down by Judge Brown Jackson, I think (and hope) that this is a return to normal, as the rule-making agencies under Trump were anything but.

        However, the one thing that gives me pause about my theory is the way you parsed the language of the opinion and pointed out what was not included in the citation. So, I am open to being wrong. I am just not entirely, with massive respect, convinced that y'all are right.

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

          Fwiw I’m rarely convinced I’m right. I hope I am. I try to be. But that’s about all I can offer on that front. You’ll like today’s podcast I hope. Lots more a&c discussion at the top.

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            LeGrand Northcutt

            I expect nothing less! Can’t wait to listen!

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    2. Avatar photo
      LeGrand Northcutt

      Here is an article that I remember reading at the time on the Trump Administration's track record that I thought was spot on: https://www.washingtonpost.com/world/national-security/the-real-reason-president-trump-is-constantly-losing-in-court/2019/03/19/f5ffb056-33a8-11e9-af5b-b51b7ff322e9_story.html

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  2. Avatar photo
    Susaiah

    Hi Sarah and David - interesting discussion on no-knock warrants. Would you be able to go into more detail about the various legal standards to get them in different states? I am curious what it is in Minnesota versus, New York, for example. Do you think that any states currently have laws on the books that either one of you would agree with, when it comes to the process and procedure to obtain a "no-knock" warrant? Would the only process that you would approve use the words "exigent circumstances" and if so, how would you define that - by previous case law? Or is that term defined somewhere (or does it depend on the state - maybe better to get your definition)? And then I am also curious about how this plays out further, in states where there is no duty to retreat - is Minnesota one? I know the purpose of your original discussion was to cover the topic more generally and suggest this is turning into an issue of right to have a gun and defend oneself in the home, versus, the right of law enforcement to lawfully obtain a no-knock search warrant. Very interesting and I had not thought of that before. However, the discussion makes me more curious and I would love to listen to you talk about more details if you have time and able. Thank you!

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  3. Avatar photo
    Maria Gordon

    My apologies if this is posted twice.

    Two of my favorites colliding: sports and AO!
    Couple things:
    1. I do generally agree with the nuance presented about the issues with the NFL and hiring practices of minorities. The issue of nepotism was one I had not thought of before and is compelling to David’s racist/non-racist conundrum.
    2. I will push back on Sarah’s stats regarding MLB managers. While she is absolutely correct citing a large number of managers do come from the player pool, I am not sure the accuracy of 12/127 since 1874/86 have not been players. The St. Louis Cardinals organization, alone, has had over 60 managers. Perhaps I was misunderstanding the origin of the statistic.
    3. Comparing the NFL player pool to the MLB player pool for future hiring of managers and coaches isn’t accurate regarding pure stars (the ability to -or not to- manage/coach from the aspect of being a former player is a better argument.). The difference in the number of players between the two is significant. The odds of becoming a MLB manager vs. a head coach in the NFL is greater when strictly looking at general talent pools and rosters. There are about about 40% more Div I college football players than minor league baseball players (71k vs 45k).
    The NFL roster is 53. MLB rosters are 25 players. There are 32 NFL teams and there are 30 MLB teams.

    Carry on! I love this podcast - I am not a lawyer or have any legal background, but the analysis is riveting and thought provoking.

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  4. Bob Simrak

    After Johnson signed the voting rights act, the old line Democrats became Republicans.

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  5. DocHeartless

    On the one hand, it surprises me that so many comments from your last podcasts questioned your rationale about the NFL coaching issue. It seems pretty clear from the numbers of what we're looking at that there is a substantive problem. On the other hand, it makes total sense to me as none of us like the idea that we could be complicit in a system that is substantially disadvantaging a minority group. This, of course, is the whole benefit of critical theory as originally defined and not our culture war silliness version. I really, really appreciate the parallel example of liberal versus conservative professors in universities. That is a wonderful way of explaining the issue. Many thanks!!

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    Nathan

    Your comments on defamation in this podcast were timely. Starting this week, the electronic billboards on my commute into Minneapolis started running a message that reads "John Doe gave me crabs" (except it has an actual person's name). It's literally just giant white text on a black background. A few questions in no particular order: while the name isn't John Doe, it is another seemingly very common name; could other people with the same name sue for defamation? How does it work when the statement doesn't specify exactly to whom it is referring? Also, I understand that the plaintiff has the burden of proof (preponderance of the evidence) in such a case. But if it is a case of one person's word against another's - i.e. there is no clear preponderance of evidence - then can you anonymously post such things about someone on a billboard without repercussion? Though I suppose attorney's fees for your defense is a deterrent. Finally, what if the John Doe in question is an innocent purveyor of crustaceans and did indeed give you crabs...but not that type?

    Anyway, as a non-lawyer, this billboard had me thinking. It doesn't pass my gut check for "things that seem weird at first but actually end up being legal." I'm curious under what circumstances it is legal vs not.

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  7. Kevin H

    Regarding tye legacy of discrimination I think we need to maybe coin a term or something to explain the period after racism/sexism etc because it really isn’t that but acknowledge legacy costs. Societal changes take generations and a we know just passing a law doesn’t change society it is more reflective of society.

    With that we need to be patient with that interim step. For those of us who didn’t face those headwinds it is incumbent upon us to look for ways to help them progress.

    I am also an optimist and think that tye market will also help out. If a person with real talent exists somewhere and they work hard there will be some team that will see that potential and take a chance and if they really have the skills it will show. In the end football is a business like others and the best will work their way to the top of their is opportunity for a disruptor.

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  8. Avatar photo
    Ben Connelly

    If there really are an infinite number of universes, you know that somewhere in the multiverse, there’s a universe where Joe Biden just nominated Whoopi Goldberg to replace Justice Breyer…

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    PaulH

    I seem to recall that AO once teased us with a possible discussion of Madison Cawthorn but then sadly ran out of time (sarcasm). But I see that there is a move afoot to disqualify him from running for office based on Section 3 of the 14th amendment. As much as I would like to see Mr. Cawthorn banished to an small ice floe off the coast of Patagonia, I am dubious about the legitimacy of such an action (the disqualification not the banishment). Perhaps it could be discussed in an pod.

    https://www.msn.com/en-us/news/politics/north-carolina-elections-board-says-it-has-power-to-disqualify-rep-cawthorn-from-running-over-january-6/ar-AATCVry

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  10. Thomas Irwin

    Re: The Supreme Court, I think people have generally underrated how integral Clyburn is in the backstory here. According to some reporting, Clyburn literally confronted Biden halfway through the SC Democratic debate, and made him explicitly promise to nominate a Black woman to get his endorsement: https://news.yahoo.com/the-inside-story-of-how-biden-promised-to-appoint-a-black-woman-to-the-supreme-court-192146779.html

    While I wouldn't expect that to mean Clyburn gets to pick the nominee, I think it means you have to give his support for Michelle Childs even more weight than Sarah and David did in this episode

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    1. Avatar photo
      Ms. SSM

      Biden was always ahead in SC. Always. He always had the support of the majority of black voters. I don’t think Clyburn was important other then at the margins. Biden always needed to wait for a state with minority voters to seem viable. SC just happened to be first.

      Endorsements don’t mean that much. In fact I doubt more then a quarter of SC voters would even recognize Clyburn. I don’t understand why people think what Clyburn wants matters more then anything else.

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      1. Thomas Irwin

        Its been 2 years, but I think Bernie was actually ahead in SC going into the last week, because Biden had been so shaky in Iowa/NH. Clyburn's role may be overstated, but it definitely gave some reassurance that Biden was not a dead man walking

        And either way, I think what matters in the SC pick is whether Biden BELIEVES Clyburn saved him, and thus has a large sense of deference to him

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          Ms. SSM

          Bernie was never ahead in SC. Ever. As someone who didn’t want Bernie to win I remember. I was patiently waiting for SC. I couldn’t understand why everyone was so sure Bernie had it in the bag when Biden had ALWAYS been ahead in the majority minority primary states and you can’t win a Dem primary without black support.

          I can’t imagine Biden didn’t follow the polls closely. I think Biden feels beholden to black female voters. And he should! Because of them he won. But that’s not the same thing as beholden to Clyburn and I often feel like people conflate the two. Clyburn was a nice endorsement but it was an endorsement of what was already the status quo. If Biden feels like he owes Clyburn it’s a sign he is from the old school of politics when endorsing mattered more.

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