Solicitor General 9000

The perfect case of why everything is wrong with the political system.

By and
38

Two gun cases that aren’t gun cases take over today’s episode as Sarah and David analyze two cert grants from the Supreme Court. Sarah also breaks down new reporting on clerk hiring in the judicial world. Stay tuned for:

-nerd prom

-Campus culture around Israel and Palestine (PS Sarah’s DMs are open)

-Sarah’s bump stocks hobby horse

-The perfect case of why everything is wrong with the political system

-State actors having strong feelings about gun control

-Having conversations about word choice and tone

-HasTheSupremeCourtFixedQualifiedImmunityDoctrineYet.com

-Banning books never goes out of style

-Rahimi oral argument not looking good

-Solicitor General Elizabeth Prelogger as SGBot9000

Show Notes:

-Matthew Wright’s podcast interview

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Comments (38)
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  1. Ben

    Below is an article about Judge Ho's decisions regarding civil DV (domestic violence) hearings. He points out due process in civil DV hearings that do not rise to the level necessary to deprive a basic constitutional right.

    State tral judges across the country are required to attend courses in which they are taught how they should rule in a civil DV case. I have attended judicial training classes in which the speaker stated in a domestic violence case the victim should be believed because the victim is usually smaller in height and weight than the accused. This speaker travelled across the country to speak to judge in other states. There were over a hundred trial judges present at the meeting and no one spoke out.

    I have attended judicial classes in which the speaker used a straw man technique to tell judges how to rule in DV cases. He said "anyone who has seen a DV petition in which everything is a lie, raise your hand", to demonstrate that the petitions are reliable. One could write the correct names on the petition and pass this speaker's test. There were hundreds of trial judges present and no one spoke out.

    As a judge at the highest trial court level in my state, I have heard from scores of speakers like this, advising how to rule in favor of victims, but none about how a judge can or should be fair in these proceedings.

    Often the teachers in these numerous classes show news articles or video of domestic violence atrocities and warn this can happen to the judges in the class if they don't issue orders. Naturally, I have heard judges during these sessions volunteer that even if a victims story didn't sound right, they error on the side of caution and safety and they don't want to recieve bad publicity.

    I was curious about these professors and speakers from across the country and Canada were being funded to teach these precepts and learned some of the funding can come from federal legislative funding (VAWA) a worthy and fair sounding title for legislation but resulting in this kind of training of judges.

    Also remember a vast majority of litigants don't have an attorney at these hearings, and most don't have attorneys on either side.

    Also consider in these hearings the petitioner can have secondary gains regarding truth, because the judge can and is encouraged in these numerous trainings to remove the accused from their house and to award child custody, avoiding for the petioner an expensive and time consuming divorce and custody battle on those issues.

    Also consider in these classes judges may not allow parties to call witnesses to testify, and often base rulings on statements submitted without the benefit of cross examination. These hearings have analogs to the college hearings involving sexual violence.

    However in many states the definition of domestic violence is far more sweeping than in the college classes. Any level of acts can result in a DV protection order-regardless of gender. People who can petition include people in or having a previous dating relationship, or previously or currently resided together (think ex college roommate!) . If someone, man or woman, throws a dinner roll at the dinner table at the spouse or partner, the judge is required to make a finding of assault, and then obligated to issue a protection order. Likewise an univited shove at the heat of an argument requires the judge to find domestic violence and issue a protection order with all these consequences listed above.

    The petitioners will often have assistance from a victim advocate provided from at least in part federal funding. They will issue pamphlets in the courthouse or state in court that domestic violence includes behavior like insulting someone or controlling their thoughts or money. I've seen brochures at courthouses with this defintion of DV. I've had to remind them this is not the statutory defintion of domestic violence. I don't know if in other states the defintion of domestic violence justifying a restraining order is broader and includes controlling behavior or verbal abuse that is not physically threatening.

    I have seen on many occastions petitioners ask to vacate a protection order and recant testimony and admit they were not telling the truth. The instructors teaching these judicial classes know this happens often, but have a standard non-nuanced response to judges that in all cases it's because the respondent threatened the petitioner.

    Also consider that in many of these proceedings, the accused is just trying to be cooperative or not cause a problem and just agrees to the protection order or doesn't appear just to avoid a hassle. I have seen this hundreds of times. Also my experience is that most judges were not even aware that a person would be losing firearm rights if a protection order was entered. Judges don't warn people in court of the firearm consequences but I have noticed recently in some form orders there is boilerplate warning of firearm consequences.

    Most of the DV cases are done on busy dockets where the hurried judge is trying to get through many hearings.

    Domestic violence is wrong and depraved and we must protect those subjected to it. I was always honored to help victims. But these facts must be known before people jump from a protection order to concluding certain conseuences are always warranted.

    https://www.lawdork.com/p/fifth-circuit-james-ho-defends-rahimi-rulingShow less

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  3. Sean Smith

    Hey all:

    Been out in the wilds and now playing catch-up on my favorite podcast. Just a couple of observations:

    1. Bump stocks. While it's obviously outside the purview of the court to determine anything other than whether nor not ATF can summarily ban something in a manner that mostly skips over the APA checklist--e.g., whether or not bump stock bans make any sort of sense as public policy--I just thought I'd point out as someone proficient with firearms that the widespread misconception that being fully automatic or fully automatic-esque (as I'd describe a rifle equipped with a bump stock) somehow makes a weapon more menacing or dangerous is exactly that--a misconception. As David, our resident veteran (who I'll thank for his service a day late) is no doubt aware, most lightweight, hand-held, easily carried weapons are virtually impossible to control in sustained, fully automatic fire mode ("sustained" meaning something longer than very brief bursts). This is why, for instance, all M16 rifles and M4 carbines issued to various branches of the military since the early 1980s don't have a fully automatic option; they can only fire semiauto or 3-round bursts. Unless we're talking about a large, heavy, belt-fed weapon mounted to a bipod or tripod--a true "machinegun," rifles and carbines firing fully automatic tend to climb as each successive round goes off and waste a lot of ammunition by firing it over the heads of intended targets. Moreover, the rate of fire isn't as dramatically different as most people suppose between a fully automatic and semiautomatic weapon. Most shooters can empty a 30-round magazine through, say, an AR-15 or AK47 in 3-5 seconds. Firing fully automatic, it takes 1.5-2 seconds. Not a huge difference in terms of volume of fire. Frankly if I were in a situation involving a mass shooter, I'd be a lot more afraid of one taking aimed shots with a semiauto than one doing a lot of missing with a fully automatic bullet hose (though trust me, I'd be scared out of my wits in either case).

    2. Domestic violence vs. "text, history, tradition." I really think this is much ado about nothing. Yes, for far too long the government and courts were lamentably non-interventionist when it came to abusive spousal relations, and women suffered appallingly in these less enlightened times. However, the fact that courts and law enforcement typically didn't get involved in what were then viewed as private matters back then doesn't mean they never did, nor does it mean that they were legally prevented from doing so in extreme cases. It happened less often than now, and far less often than it should have, but it still happened. So what we're seeing is a change in societal awareness and cultural trends, not a change in the law, text, history, tradition, etc. I'm frustrated with THT too, and never quite understood why it was deemed necessary to abandon the tiers of scrutiny solely in the context of the 2A. The tiers were themselves imperfect, but at least evolved into something workable and reasonable over time. On the whole I think David's prediction is likely correct, and that we'll end up somewhere very close to the SG's interpretation as this sorts itself out.

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  4. Avatar photo
    Clove53

    Potential Future Mailbag question (I have no idea where else to post this! Sorry!):

    In the wake of the killing of George Floyd, there was a national conversation about the principle of qualified immunity (QI). This was the first that I had heard the term. At the time, David and others laid out what I believed to be a compelling case for removing a police officer’s qualified immunity. Shortly after Mr. Floyd’s death, several police reform proposals tried and failed to address QI. Perhaps it is for the best that these early efforts failed. While I am compelled by the arguments against QI, it seems best to make changes thoughtfully rather than as a reaction to a particular event (no matter how horrible).


    Since then, I’ve thought and learned a bit more about QI. I was surprised to discover that other professions/roles are protected under qualified immunity as well. I’m a public school teacher [see footnote 1] and it is my understanding that teachers are also protected under qualified immunity.

    This leads me to a pair of questions, but first, let me affirm the following common sense principles:
    - Government agents (including the police, teachers, and anyone currently protected under qualified immunity) should not be able to violate the constitutional rights of citizens. It is just and right to provide consequences to enforce this [see footnote 2].
    - Government agents (including the police, teachers, and anyone currently protected under qualified immunity) should not need to be constitutional scholars. Instead, they should be held accountable under the training and guidelines of their employer and be bound by common sense and a common understanding of the law.

    Here are my two questions:
    1. What might the unintended consequences be of getting rid of qualified immunity (given that it seems to cover roles outside of law enforcement)?
    2. If we get rid of qualified immunity, what additional protections might need to be in place (again, considering all of the roles that QI currently seems to protect)?

    [footnotes]
    [1] I have no background in the law. I’m a veteran science teacher who loves to learn and has greatly enjoyed AO. Still, three years of faithful listening leaves me more ignorant than the average L1 (but I know what an L1 is now!).
    [2] If we get rid of qualified immunity, what additional protections might need to be in place (again, considering all of the roles that QI currently seems to protect)?

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  5. Nicneufeld

    First there was David referring to "Reesies" candy...now Sarah...who I grant being Texan, may have the correct, albeit weird, pronunciation...calls it "Wottaburger", as in electrical watts, vs, the expected pronunciation, whut-a-burger, as in What-a-Burger! This also poses possible confusion as it sounds vaguely like Lotaburger, as in Blakes Lotaburger in NM which wins out handily over Whataburger for the green chile alone.

    (obviously I zero in on the important issues)

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    1. SRHuckaby

      David is wrong.
      Sarah is correct (fellow Texan).

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    Tammydd

    The Washington school district that Sarah mentioned was not trying to remove To Kill a Mockingbird from the library. Some teachers wanted to stop teaching it in their curriculum. That's really quite different from parents trying to get books banned from a school or a library based on snippets of text or a title. Teachers on both sides of the question were/are offering deeply reasoned arguments for their preferences. And the outcome is that the book CAN be taught but is no longer REQUIRED to be taught to freshmen in that district.

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  7. RH

    Speaking of To Kill a Mockingbird, would the Book Club ever consider doing a classic, like that one? I re-read it a couple years ago and thought at that time how much I would enjoy hearing Sarah’s takes on it.

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  8. Chris

    If you think that the way Justice Jackson votes depends on whether or not her vote is decisive, isn't that a massive problem? In past podcasts you've said that the justices just have different philosophies that they are trying to faithfully apply, but I don't see how you can reconcile that with your prediction that she will side with the losing party here precisely because her vote won't cant change the outcome. Unfortunately I think there have been a number of justices who pretty clearly aren't acting in good faith.

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      Aylene Wright

      I don't know if "bad faith" is the right term. I think Gorsuch, Thomas and Alito (in that order) are pretty much in the "we're going to decide the case based on the Constitutional merits, we don't care about the real world repercussions, that's not our job" bucket.

      But I think it's unfair to the majority of Justices who don't have that approach, per Sarah's buckets theory, to say that they're acting in bad faith.

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      1. Chris

        Well I think its bad faith if a judge isn't even applying their own judicial philosophy consistently. If whether or not a judge votes in favor of a party turns on whether or not that vote would be decisive, I don't know what else to call that

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  9. This Guy Says

    General Prelogger’s oral argument skills are over 9000!

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    J. Eric

    Thank you for this podcast. It was clarifying, to say the least. Not to disparage David’s new digs, but if I only read the NYT, like I used to for many years, I would have thought: Will Gun Loving Supreme Court Protect Domestic Violence Victims.
    I’m grateful for this podcast. You have changed my world and that is not hyperbolic. Not even a little

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