Story Time for Fed Court Nerds

Undoing the Warren court.

By and
90

Sarah and David return from their Thanksgiving feasts to serve up a very nerdy episode on fed court law. Enjoy:

-David giving a lowdown of the Voting Rights Act

-Hacking minority districts

-Laws created by court precedents versus laws created by statutes

-Any standing experts out there?

-Undoing the Warren Court

-Section Two Rights vindicated in civil court

-Reporters: Don’t go to activists for legal analysis

-Elon versus Media Matters

-Match maker Sarah, make me a match

Show Notes:

-Eight Circuit two to one opinion

-Section Two of the Voting Rights Act

-Elon v Media Matters

-Video: Hostage reunites with family

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Comments (90)
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  1. David Welker

    I feel like David and Sarah’s commentary in this episode goes against their “Congress, do your job” theme when David’s suggest this question could be “revolutionary.”

    Assume no private right of action under section 2 or 1983, this is easily correctable by Congress, isn’t it? How is that revolutionary??? Overturning Roe, which is a matter of constitutional law sounds more important than an issue of statutory interpretation.

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  2. McGoogles

    I was taken aback by David's comment that Dobbs was not a revolutionary decision. To remove a right that had existed for 50 years, to basically sentence thousands of women to death and tens of thousands to unnecessary suffering (see recent Texas court case on clarifying the exceptions), to claim there is no right to bodily autonomy which would allows states to force women to become pregnant under a rational basis review seems pretty revolutionary.

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      Tomjedrz

      Just a bit of demagoguery here ... did you cut and paste it from some pro-choice web site?

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      1. McGoogles

        No I did not. It was based on my reading the Dobbs decision multiple times, asking questions of a con law professor and another attorney, trying to understand the implications of the decision, and post Dobbs, looking at what is going on in the real world.

        A piece of the Dobbs decision that seemed to get much less attention was the part that said rational basis is the standard of review for challenges to state laws like the one in question in Dobbs. You can disagree with my analysis, but I believe if you reduce Dobbs to its core holdings, it's that:
        (1) there is no constitutional right to make your own health care decisions or other decisions about bodily autonomy,
        (2) there is no constitutional right to receive treatment for medical conditions, and
        (3) any law impacting those types of rights is subject to a rational basis review.

        As David and Sarah have repeatedly stated, rational basis means the government wins. So in my example of forcing women to become pregnant, a rationale basis for that could be "we need more babies available for adoption" (which both Alito and Barrett supported in the Dobbs arguments) or "our state is losing population and we know that when people have kids they tend to stay in the state and a good portion of those kids will remain in the state when they become adults".

        I'm not a lawyer, but as I understand rational basis, there is no balancing of interests. The reason for the law just has to reasonable or rational, consequences be damned.

        So please tell me what in my original comment is wrong. Do you think what those women in the Texas exceptions lawsuit suffered is appropriate or makes us a better society? What interest does requiring a woman to go into septic shock to receive treatment serve? What interest does Texas not more clearly outlining the exception standards serve?

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        1. MathewA

          "there is no constitutional right to make your own health care decisions or other decisions about bodily autonomy,"

          this has been apparent for quite a long time. For example, the government outlaws all types of drugs. Says you can't have sex for money, makes you wear a seatbelt in the car etc etc etc

          Given that I lean libertarian I think all of the above are really none of the government's business and especially the federal government. Where is the constitutional amendment authorizing the federal government to outlaw drugs? If they needed one to prohibit alcohol they should need one for drugs.


          Of course abortion would still be different than all of those because there is another life involved.

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        2. Cody Murphy

          From the Constitutional side of things, the question you have to ask is "Does the unborn child also have rights?" If the right of the unborn child is respected then it becomes a balance of interests. That does not mean that states don't get this question horrendously wrong. But a whole lot of law is restrictions to harmoniously balance the rights of individuals. (E.g. I have a right of free speech, I do not have a right to use a megaphone in a suburb at 3 am.)

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          1. McGoogles

            I disagree with your analysis in terms of the Dobb's decision. If the standard is rational basis, no balancing of interests takes place. I also don't recall Dobbs addressing a fetal personhood issue or rights of an unborn child. Dobbs supported the states right to protect fetal life, even if that means the mother dies, but I didn't view that as Dobbs saying the unborn child has its own rights. That was one of things I found so horrendous about Dobbs - the total lack of any respect for the woman or rights of the woman, other than the right to vote, which Alito or Kavanaugh referenced.

            I appreciate that elective abortions are a complex, challenging issue. While I'm pro-choice, I respect that others have different viewpoints. I just find it really sad, disappointing and sadistic that when a pregnancy fails and Drs determine the fetus is no longer viable, that we can't allow women to get the healthcare they need immediately to address the medical issues. I fail to see the purpose of making those women suffer further and perhaps die.

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

      I don’t know that I disagree but then you’d have to acknowledge that Roe was a revolutionary decision—creating a constitutional right that had never been recognized before?

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      1. McGoogles

        Thanks for replying to my comment. I'm honored. I really enjoy your podcast.

        I don't know that I agree with you about Roe. It seems the court creates/refines constitutional rights all the time. I fully acknowledge that some of those creations/refinements are based on more concrete text than Roe worked with. I think Heller, McDonald and Bruen were abominations, but there was more concrete text in the Constitution to work with. I'm also deeply troubled by the Court's new interpretations of the religion clauses, but there too, there is some text in the constitution to work with.

        I was heavily influenced in my thinking about law and rights from an interview Pete Williams did with Scalia and Breyer a while ago. Scalia touted the originalist and THT approach. Breyer talked about looking for the value the founders were trying to achieve. Breyer argued that in many cases, his and Scalia's approaches get you to the same result. Breyer's approach resonated with me, especially since in many areas I think the Constitution was aspirational. It didn't offer much detail in a lot of areas.

        Here's the link to the You Tube video of the interview. https://www.youtube.com/watch?v=jmv5Tz7w5pk. Breyer starts talking about the values issue at the 8:10 mark.

        In the end, based on founding values and the independent/freedom ethos America has long honored. I don't know that saying you have a right to bodily autonomy and to make health decisions that are best for you is revolutionary.

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        1. MathewA

          So you have a problem with SCOTUS decisions that protect the rights explicitly protected in the constitution (gun rights) but are fine with them making up new ones (right to an abortion)?

          You're going to have to help me out here, I just can't understand that logic.

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          1. McGoogles

            There was/is a lot of controversary over what the 2nd amendment explicitly protected. If the 2nd amendment stated something to the affect of "individual citizens have a right own firearms for any purpose (or for these purposes...) and to possess and use those firearms in their property and in public" then I'd feel much better about SCOTUS decisions protecting that right. Based on the text of the 2nd amendment, it seems that SCOTUS is just making stuff up about that right. In fairness, SCOTUS makes stuff up all the time - levels of scrutiny, Purcell principal, major questions doctrine, originalism, THT test in Bruen, rights to privacy (including Roe and Casey, Lawrence, Obergefell, Griswold), Miranda. To function reasonably efficiently and provide guidance, they have to make stuff up. So I get it. And you are right, I don't like a lot of the stuff they are making up nor do I like the inconsistency with which they apply the stuff they make up.

            Most Americans would probably say we have all these rights guaranteed by the constitution. At the end of the day, we only have the rights that at least 5 SCOTUS Justices say we have.

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    Michael Berkowitz

    I'd like to hear more about "customary international law", please.

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    Ben Connelly

    I can’t believe this podcast is now a matchmaking service. That’s awesome.

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  5. William Hodes

    A Nerd Follows Up on Federal Common Law

    Sarah,

    Your recognition of the Erie Doctrine as one of the grand cornerstones of American law is sound--but seriously incomplete. The original text here is Judge Friendly's magnificent In Praise of Erie--and of the New Federal Common Law, 39 N.Y.U.Law Rev. 383 (1964), which was absolutely the rage for people like me who were both in law school around then AND destined to be become Federal Courts nerds. (How come we can't use italics in these Comments, even for case and article names?)

    Judge Friendly's point was that once Swift v. Tyson was put to rest in diversity cases--not coincidentally the same year that the first iteration of the FRCP was promulgated--the table was set for the full flourishing of a true federal [imagine the italics] common law that would surely come to include most constitutional adjudication, most statutory interpretation (of federal statutes), and most federal administrative law and the federal law of claims--not causes of actions--and remedies.

    Simple example: Congress said what it said in Section 1983, but the Court took English common law and early American common law as an assumed baseline and created from there a vast set of detailed rules and subsidiary doctrines that Congress only rarely intervened to modify or negate. (Tiers of immunity, anyone?)

    On a related point: I agree with both of you that the Supreme Court will eventually agree that Section 2 of the Voting Rigths Act does support a private right of action. Moreover, the better rationale will be through Section 1983--to avoid embarrassing questions about how explicit Congress must be to create or negative such claims, and why nobody talked about it for 50 years!

    But it's actually not that embarrassing [italics again]. Most of the dicely "private right of action" cases involve federal defendants, where the "out" of Section 1983 is unavailable.

    P.S. I don't know how to pitch topics for AO or other podcasts, so I'm going to slip it in right here.

    I have been trying to get David's attention on the issue of the lack of federal power to enact nationwide anti-abortion laws like the 15-week gestational age ban. You are both honest brokers who will be able to put aside moral and political concerns to treat seriously the "high federalism" and "state inaction" issues.

    Bill Hodes

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  6. Jason S

    Sarah, I hope you get as much of a kick out of this as I did your bad date story, a story that made me wonder: did I go on a date with Sarah Isgur? I do not read books. I was a voracious reader as a kid, but as I got older, I started reading more articles. And especially once I started law school, I didn't have the time or desire to read books anymore. Now I read articles and Supreme Court cases!
    And the kicker is that I also get a lot of news from USAToday! My parents got USAToday when I was a kid (and still do), so I started reading it at a young age and then kept with it. As I got older, I started incorporating other news sources, like the NYT, Washington Post, and, of course, The Dispatch! I still do read a lot of USAToday, although I can now recognize what it is good for (easy reads, random stories from around the country, etc.) and what it most certainly is not - a lot of their legal coverage, for example, is just incorrect or misleading. But old habits die hard, I suppose?
    In any event, I flagged this part of the podcast for my husband, who, like you, is a voracious reader and despises USAToday. He responded: "Is Sarah reading the story I wrote in?!"

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  7. McGoogles

    On the "how long to stay on a date" topic, for me, it would depend on the circumstances. For example, if it was a date from a dating site app and the person looked nothing like their profile picture, I would leave right away. If the conversation turned very uncomfortable based on my values, I would end it there. As an example, and fortunately it was only a introductory call, but a person I'd corresponded with on Match and had the first call with turned out to be very racist. That doesn't work for me. If it was just a situation where we were not clicking, I'd stick it out through the end of the dinner. To each their own, though.

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    Pat @ Tavi Hall

    Question about last night's live. You told us fraud usually has to do with financial gain and that didn't exist in the January 6th case. Does the presidential salary go towards financial gain?

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

      I’m actually saving this for a future pod bc trump donates his salary, we actually have to distinguish between the motive (maybe he didn’t have one) and the statutory element of the crime (financial benefit). Super interesting!

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  9. Joe Fisher

    The audio on this episode could not be more hateful and abusive. Gen Z has a term for it that is not Dispatch Comments Section appropriate

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

      I sent this to producer Adaam hahahaha…we have a theory. It’s not happening for everyone. But hopefully we’ll have it fixed asap!

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      1. Joe Fisher

        Once it gets past the themesong, it seems better. Was very weird there for about a minute

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    MattA

    You nailed it. Not a lawyer here. I only listen as a nerd who enjoys listening to nerds be nerds!

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