Religious Liberty and the Execution Chamber

David and Sarah welcome a special guest, Seth Kretzer, the lawyer who argued and won ...

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David and Sarah welcome a special guest, Seth Kretzer, the lawyer who argued and won Ramirez v. Collier, the Supreme Court term’s biggest religious liberty case (so far). Sarah and David also talk about Ginni Thomas’s texts, vaccines at the Supreme Court (again), free speech, and Will Smith.

Show Notes:

–David in The Atlantic: “The Worst Ginni Thomas Text Wasn’t From Ginni Thomas”

–Houston Community College System v. Wilson

–Ramirez v. Collier

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Comments (126)
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  1. Avatar photo
    Tom Selman

    I disagree with David. The statutory standard, the reasonable questioning of a Justice's impartiality, isn't the same as the appearance of a conflict. We presume that Justices are impartial and it should be a heavy burden to overcome that presumption. Collapsing the standard into an appearance of a conflict would undermine the institution.

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    Bill Dyer (aka Beldar)

    I have a 𝗯𝗼𝗼𝗸 𝗿𝗲𝗰𝗼𝗺𝗺𝗲𝗻𝗱𝗮𝘁𝗶𝗼𝗻 for everyone interested in capital punishment, a comment which I originally wrote in responding to a comment from Dave. But then I decided, in an act of shameless self-promotion (but hopefully some utility to one or more of you, friends and neighbors), to self-promote it into its own new comment. #editbutton!

    ===

    David R. Dow is the Cullen Professor at the University of Houston Law Center, and one of the nation's preeminent death penalty appellate lawyers, working from Houston, the unrivaled death penalty capital of the United States. https://www.law.uh.edu/faculty/ddow2/dpage2/

    He & I clerked, years apart, for the same Fifth Circuit judge, and so we're acquainted as "judicial clerk cousins," as Ms. Isgur (aptly) describes that connection. And he also taught Constitutional Law to my oldest son (who, I'm proud to say, in a blind-graded exam got the highest grade in that class). Prof. Dow is just a crackerjack lawyer, writer, and thinker. And he makes no bones about being, proudly, a lawyer of and for the left. I am his reciprocal in this, and we disagree about very many things on the subject of the death penalty.

    And yet we actually AGREE on a TON of things about the death penalty!

    Both our clerkships included death penalty cases — a Fifth Circuit clerkship can't not include that. And I've done some pro bono work on "his" side, with no qualms or hesitations at all about the appropriateness of those representations. His personal experience, by volume, dwarfs mine, of course; but I will claim that it's fair to say we both know whereof HE speaks and writes.

    When advocates on different respective sides of an issue can recognize and acknowledge the long list of things upon which they agree, that turns down the temperature of the discussion to a level at which ideas may be constructively advanced and discussed. (This is, by the way, one of the "Secrets for Effective Mediation" that you have to pay $350 to stream for CLE credit. For you and my fellow Dispatch readers, no charge!)

    David Dow has a whole SERIES of books about capital punishment, each with wonderful short and evocative titles! Link: https://www.amazon.com/David-R.-Dow/e/B001H6O43U%3Fref=dbs_a_mng_rwt_scns_share

    I confess that I've only read one of them, but it was riveting. (When I went to fetch this link, I see that same word in many of the reviews, and am not a bit surprised.) It's "The Autobiography of an Execution," from 2010, and it's blurbed by John Grisham, Jeffrey Toobin, and Anthony Lewis among others. Link: https://www.amazon.com/gp/product/B0037VD12S/ref=dbs_a_def_rwt_hsch_vapi_tkin_p1_i1

    I recommend this book enthusiastically both to death penalty opponents AND to death penalty supporters, because Dow absolutely grasps both sides of every legal, ethical, and moral conundrum with capital punishment. He presents them all with complete intellectual integrity and no BS or gameplaying. Prof. Dow has the master educator's honed skills at simplifying and teaching complicated issues of constitutional and procedural law; if you're an AO fan, you are engaged enough to benefit from reading what he's written. And Dow appears to my practiced eye to have omitted NOTHING, which is to say, while reading I have never had occasion to ask myself, "But what about the ___, David?"

    He uses the gritty detail of real murder cases and appeals therefrom to illustrate how both sides of these issues play out in the real world. You may not want to read this book just before bedtime. It is, in words, a high-resolution portrait of the human condition, with extended closeups of the crooked timber of which it has been hewn.

    I wasn't convinced to switch my own views to his, ultimately. But with someone of this integrity and knowledgeability, my disagreements are as respectful as I'm capable of being.

    With specific examples to support them, he makes a TON of points that, at a minimum, regardless of your position on the death penalty, should make you pause and say to yourself, "Hmmm. That hadn't occurred to me, but bears thinking about." There is value to this exercise for everyone.

    PS to TheDIspatch.com: Prof. Dow would be a great guest on AO! And given your listeners' reactions to Mr. Kretzer on this thread, there's lots of interest in these issues. It's the proverbial evergreen topic.

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  3. Bruce Moyer

    Tell me Sarah was just playing Bad Cop on this podcast.

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  4. Avatar photo
    Ben Connelly

    Glad to hear you’re feeling better, Sarah. Thank you for the discussion of Ginni Thomas’s texts. This podcast consistently provides the most thoughtful and measured takes on SCOTUS in the news stuff unlike the hyperventilating seen elsewhere.

    I had a similar reaction to David about Will Smith. I don’t think Smith should have done it, but also completely understand the reaction of “man just insulted my wife - I’m going to hit him.” Also I have a lower threshold for violence than a lot of people so I feel no disgust at Smith even if he made the wrong choice. I disagree with Sarah’s suggestion that this comes from the same place as students saying, “words are violence - speech is hurting me,” (as some students at my alma mater are ingloriously claiming). Will Smith did something based on a very old impulse and David is right to bring up honor culture. Student snowflakes are reacting out of a very new impulse coming from victimhood culture, which is very different from honor culture in key ways, even if they both share a common low threshold for taking offense at perceived slights. I hope the Oscars doesn’t take away Smith’s Oscar. He actually deserved it for his acting and the award is unrelated to the moment in question. David articulated exactly my take on not watching the Oscars - “I knew Dune wasn’t going to win and the Oscars are boring so what’s the point.”

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  5. David Keating

    Sarah, glad you're on the mend. Best wishes for the rest of the recovery, no spread to others, and no long Covid.

    David and Sarah, I thought the discussion of Houston Community College v Wilson was too superficial. The fact is the Wilson censure came with financial penalties, which was troubling to say the least. Hopefully the Court will eventually clarify that such penalties are unconstitutional.

    I grant the Court nodded at that fact and said it wasn't before them due to a technicality. OK, but I think listeners should know it was part of the original case. I don't know if Wilson can raise that issue again below. I doubt it.

    Also, some listeners might have been left with the impression that the HCC Board is some kind of appointed or NGO Board. It's an elective office.

    I'm happy the case did no harm to the 1A. It did have that potential.

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

      Everything you're saying is of course correct---but since those issues werent before the court, the case itself was narrow and the opinion even narrower. Hence the short shrift.

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    Christian Townsend

    What a great episode, thank you both!

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  7. NotTheEditor

    First, I owe David French an apology. So, David: I’m sorry. I made a slightly snarky comment on another recent podcast, about your remarks about Justice Thomas in relation to the text messages issue and his judicial philosophy. But I really appreciated your more extensive clarifying remarks here. And I agree with you, 100%; it just looks so bad, even if the text messages is something we know only because they were leaked, that it is hard to see how he cannot recuse himself. I am still not at all a fan of Thomas’ judicial philosophy; consistent or not, it leans too much on executive power and too little towards individual liberty IMO. But I apologize for being snarky to you! I so appreciate your opinions and perspectives, even when I disagree with them.

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  8. Avatar photo
    Young Riprock

    1. Raffi Melkonian would be a great guest.

    2. I’m not sure I like Seth’s statement that he has no further arguments in support of his client. That doesn’t seem to jive with RPC 1.6. His comments (and hopefully with client permission to do the interview) need to be for the benefit of the client. Making that admission doesn’t seem to be in Ramirez’s benefit.

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  9. Avatar photo
    Bill Dyer (aka Beldar)

    Further (will he EVER stop? these unlimited bandwidth plans are causing real problems!) on the subject of Justice Thomas and recusals:

    Elsewhere on this thread, I've linked Chief Justice Roberts' 2011 Year-End Report on the Federal Judiciary, which the Chief Justice writes each year in his capacity as Chief Justice of the United States (not just the SCOTUS) and head of the Judicial Conference (which among many other duties, reviews and resolves, through Circuit-level panels, ethics complaints filed against federal judges other than the SCOTUS). Almost his entire report in 2011 focused on judicial ethics, and an entire section is devoted to recusals in the federal system. He's writing for a well-educated lay audience — exactly the kind of public-minded people who would be listening to AO and reading these comments.

    I've read lots of comments to the effect of, "Justice Thomas must be dirty, or he'd be out there denying all this stuff!" That is nonsense on stilts: If he were to do that, he'd not only be thrusting himself into politics, he'd run a huge risk of commenting on the merits of pending or impending litigation that might end up before the SCOTUS — in which case he WOULD perhaps end up violating one of the provisions in the Code of Conduct for Federal Judges, specifically, the same one that prompted Justice Scalia to recuse himself (without opinion) in the Newdow Pledge of Allegiance case. Supreme Court Justices generally don't call press conferences! They do speak in public, but within strict bounds that are restrict them to what's anodyne and impersonal; occasionally they stray, and occasionally they have to apologize for that. Almost everything federal judges have to say about the law and the cases before them, they say FROM THE BENCH, meaning not only what they say out loud in open court but also what they write in their opinions. But in these annual reports, the Chief is trying to connect with the public, and with Congress (he often gives the judiciary's input on proposed legislation this way).

    And in 2011, Chief Justice Roberts had this to say by way of reassurance to the public about the fact that SCOTUS Justices each police their own ethical compliance:

    ===begin quote===
    The Code of Conduct [for Federal Judges, which is the current version of the historic canons of judicial ethics, as modified over time] is not, of course, the only source of guidance for Justices or lower court judges. Because it is phrased in general terms, it cannot answer all questions. And because the Code was developed for the benefit of the lower federal courts, it does not adequately answer some of the ethical considerations unique to the Supreme Court. 𝗧𝗵𝗲 𝗝𝘂𝘀𝘁𝗶𝗰𝗲𝘀, 𝗹𝗶𝗸𝗲 𝗼𝘁𝗵𝗲𝗿 𝗳𝗲𝗱𝗲𝗿𝗮𝗹 𝗷𝘂𝗱𝗴𝗲𝘀, 𝗺𝗮𝘆 𝗰𝗼𝗻𝘀𝘂𝗹𝘁 𝗮 𝘄𝗶𝗱𝗲 𝘃𝗮𝗿𝗶𝗲𝘁𝘆 𝗼𝗳 𝗼𝘁𝗵𝗲𝗿 𝗮𝘂𝘁𝗵𝗼𝗿𝗶𝘁𝗶𝗲𝘀 𝘁𝗼 𝗿𝗲𝘀𝗼𝗹𝘃𝗲 𝘀𝗽𝗲𝗰𝗶𝗳𝗶𝗰 𝗲𝘁𝗵𝗶𝗰𝗮𝗹 𝗶𝘀𝘀𝘂𝗲𝘀. 𝗧𝗵𝗲𝘆 𝗺𝗮𝘆 𝘁𝘂𝗿𝗻 𝘁𝗼 𝗷𝘂𝗱𝗶𝗰𝗶𝗮𝗹 𝗼𝗽𝗶𝗻𝗶𝗼𝗻𝘀, 𝘁𝗿𝗲𝗮𝘁𝗶𝘀𝗲𝘀, 𝘀𝗰𝗵𝗼𝗹𝗮𝗿𝗹𝘆 𝗮𝗿𝘁𝗶𝗰𝗹𝗲𝘀, 𝗮𝗻𝗱 𝗱𝗶𝘀𝗰𝗶𝗽𝗹𝗶𝗻𝗮𝗿𝘆 𝗱𝗲𝗰𝗶𝘀𝗶𝗼𝗻𝘀. 𝗧𝗵𝗲𝘆 𝗺𝗮𝘆 𝗮𝗹𝘀𝗼 𝘀𝗲𝗲𝗸 𝗮𝗱𝘃𝗶𝗰𝗲 𝗳𝗿𝗼𝗺 𝘁𝗵𝗲 𝗖𝗼𝘂𝗿𝘁’𝘀 𝗟𝗲𝗴𝗮𝗹 𝗢𝗳𝗳𝗶𝗰𝗲, 𝗳𝗿𝗼𝗺 𝘁𝗵𝗲 𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹 𝗖𝗼𝗻𝗳𝗲𝗿𝗲𝗻𝗰𝗲’𝘀 𝗖𝗼𝗺𝗺𝗶𝘁𝘁𝗲𝗲 𝗼𝗻 𝗖𝗼𝗱𝗲𝘀 𝗼𝗳 𝗖𝗼𝗻𝗱𝘂𝗰𝘁, 𝙖𝙣𝙙 𝙛𝙧𝙤𝙢 𝙩𝙝𝙚𝙞𝙧 𝙘𝙤𝙡𝙡𝙚𝙖𝙜𝙪𝙚𝙨. For that reason, the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance. But as a practical matter, the Code remains the starting point and a key source of guidance for the Justices as well as their lower court colleagues.

    ===end quote; boldface & italics added by Beldar===
    link: https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf

    An overwhelming majority of the ethics complaints filed against federal judges are transparently bogus — utterly frivolous arguments made by folks who certainly don't know any law or legal ethics, and often people who've lost or have some other ax to grind, or who believe that Justice Thomas transforms into a bat every night and flies to the top of the Washington Monument, from which he radiates mind-controlling rays across the nation to sap our vital fluids. They don't require much research, consultation, or even deep thinking.

    Another category of issues are open and shut — or should be, anyway. Owning stock in a publicly traded corporation who's a named party in litigation coming before that judge is the most obvious example. (Most of the screw-ups come from judges holding shares in pension funds or mutual funds that may include equity in companies they never selected and didn't know they indirectly owned a piece of, so this problem has gotten worse as the types of financial investments have broadened over the years.)

    But again, to use Justice Scalia as a specific target for my inferences: I'd bet at least a wooden nickel or two that Justice Scalia didn't need to seek any input or do any research when he realized, as it appeared on his desk, that he'd made some way-too-specific remarks about the Newdow Pledge of Allegiance case when it was still in the lower courts, and that it took him the proverbial New York minute (which he would know, because he attended high school there) to decide: Oops. I can't participate in this case. In any event, his recusal was prompt, albeit without written opinion (which is the rule, opinions regarding recusals being by far the exception). It wasn't until the Judicial Watch/Sierra Club/FOIA case a few months later that Scalia confirmed that yes, indeed, he'd recused in Newdow because of his public comments (a Code prohibition which technically doesn't even bind SCOTUS members), rather than because his impartiality might be reasonably questioned (the standard under 28 U.S.C. § 455(a), which does).

    But I would also bet a whole truckload of wooden nickels that before he wrote his opinion explaining why he was denying the Sierra Club's motion that he recuse himself (effectively a motion to disqualify), he did indeed spend a lot of time, did a lot of research, and consulted lots of other resources. In fact, do you know who I think he would have asked to read a draft version of his opinion, before finalizing and releasing it?

    I'd bet three truckloads of wooden nickels that he consulted with his dear friend and career-long intellectual sparring partner, RBG. He might well have also consulted with the Chief, or indeed, have run his draft past the entire SCOTUS. That's how, in my personal experience (which I believe former clerks who comment here will confirm, if any are reading), these judges backstop each other.

    To be Rumsfeldian about this (I just checked and was pleased to find that word is now in dictionaries, as it should be!), we have a known known, which is that Thomas didn't write a written decision from the emergency calendar ruling refusing to stay the National Archives' production of documents to the January 6th Committee. And we have a known unknown: Why he dissented. And by definition, we might also have unknown unknowns, meaning there may be things going on that none of us know or would even guess right now. I'm reluctant to base any important conclusions on a known unknown, especially when the likelihood of unknown unknowns is so high, which when you're talking about those Chatty Cathy SCOTUS members is always the case.

    But friends and neighbors, consider this: If an actual case regarding the stolen election claims or the January 6th Committee turns up in which the facts — including the identities of the named parties and other directly affected people and entities — and the nature of the dispute bring into question the propriety of Justice Thomas participating in it, he'll be the one to make that call. But that emphatically does NOT mean he'll do it without input from others besides himself. That would be an objectively stupid thing to do, and I do not believe Clarence Thomas is stupid. To the contrary, the objectively smart thing for him to do would be to solicit input from all the sources referenced by Chief Justice in his 2011 Report, as quoted above.

    And I would especially expect him to consult privately — we'll never know whether this has happened or not, except by inference — with every other member of the Court. He might not follow their advice, and with this herd of cats, their advice might not all be consistent with each other. But his best-case scenario — which I think is a likely one, unless some extremely powerful presently-unknown connection of that future litigation to Ginni Thomas turns up — would be to gather the nonpublic votes of confidence, as it were, from everyone else on the SCOTUS. If all of them, or maybe even all but one of them, agrees that he ought not recuse, that would be his best protection against some future tell-all book from one of the usual muckrakers who's relying on clerks and ex-clerks dishing dirt against him.

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  10. Bob.Culwell

    At some point, I’s really be interested in the two of you explaining the legal doctrine of fighting words.

    I’ve heard from a bunch of people with Twitter law degrees opining on it, but I’d love to hear from people who can actually explain what it is and what it is not.

    Glad you’re feeling better, Sarah.

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