Reading the Founders’ Minds

Judges judging judging.

By and
31

Judge John K. Bush of the Sixth Circuit Court of Appeals joins Sarah to discuss the method and merits of the “history and tradition test.” But first, Sarah and David dive into some Supreme Court gossip.

The Agenda:

—Addressing Justice Sotomayor’s comments

—David’s gross speculation

—More immigration talk

—The problem with Remain in Mexico

—Why we have hate crimes

—Tiers of scrutiny

—The problems with “history and tradition”

—How to become a clerk for Judge Bush

—How Judge Bush judges judging

Show Notes:

—Judge Bush’s profile at the Federalist Society

—Turner v. United States

—R.A.V. v. City of St. Paul

By and
Comments (31)
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  1. Nickolas

    Solid and succinct roasting of text history and tradition https://youtu.be/AzYC9uadEwc

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  2. Jon

    Before Sarah and David make fools of themselves on the next podcast summarizing the new immigration bill I would like to highlight that both of them stated that the issue is and always has been "asylum" and once you say the magic words there is nothing anyone can do other than to put that person through the process.

    I would diplomatically note that this bill doesn't change that one bit. It merely says that once you say the magic words and are in the system the standard for being granted asylum in theory (but I highly doubt in practice) has been enhanced.

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  3. Alexis

    Can we talking about ethics again? Specifically, how the new guidelines should apply to Anderson v Griswold? Thomas' wife was involved in the activities in question. Shouldn't this be a textbook example of when a judge should recuse?

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  4. Affable Misanthrope

    David's point that we don't generally separate families for misdemeanors is the wrong way of looking at this. There is no family separation for a misdemeanor because there is no imprisonment for a misdemeanor; that is not a reflection of concern for keeping families together but a completely incidental consequence of no prison. Imprisonment for felonies illustrates that when there is cause to detain or imprison someone, the impact on their family is not considered. The rule is not to separate families for only felonies; rather, the rule is that whenever someone is justifiably detained the impact on their family is irrelevant.

    An illegal immigrant may be legitimately detained. Because there is a justifiable grounds for detention, the subsequent family separation is not relevant.

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  5. Joshua Foster

    Tears of scrutiny....

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    Larry

    The hate speech enhancement discussion reminded me of how Sarah called the felony/misdemeanor distinction phony. Maybe next time you have a crimlaw professor on you can ask about this.

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  7. Rodrubert

    For any of you legal beagles out there, how can there be a question that a lawyer is not required before indictment when the Miranda ruling (according to every TV procedural I have seen) requires a lawyer after arrest, well before charging? What am I missing?

    Thanks,
    Rod

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  8. Chipwatkins

    Justice Sotomayor, in her speech at Berkeley, said, “Change never happens on its own. Change happens because people care about moving the arc of the universe toward justice, and it can take time and it can take frustration.”

    Ironically, her words describe well the 49-year effort to overrule Roe v. Wade.

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  9. Patrick Windmoeller

    I noticed a couple things that were said on this episode that I would argue should be corrected.

    1. The Supreme Court does treat its original jurisdiction docket as discretionary. Only Justice Thomas and Justice Alito think that the Court cannot decline to hear cases that parties bring under the Court's original jurisdiction. https://www.supremecourt.gov/opinions/19pdf/150orig_3e04.pdf

    2. Justice Kagan dissented in the Andy Warhol case, while Justice Sotomayor wrote the majority opinion. https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf

    3. There has been reporting that Matthew Shepard may not have been targeted for being gay. He may in fact have been in a relationship with one of men that killed him. Instead it was likely just a drug deal that went wrong. https://www.theguardian.com/world/2013/oct/14/matthew-shepard-murder-wyoming-book

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    Jeff Walden

    One thing not mentioned about Sotomayor's comments: if she really wrote a memo to a fellow justice on the bench...that's going to in several decades show up in either her papers, or the papers of the justice who received the memo. Right? I'm really not sure I'm wild about hearing about a justice's so completely unvarnished opinion of a lawyer, to be honest.

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