Episode 12 | Judges Gone Wild

Our hosts, law professor Ilan Wurman and Kathryn Johnson, rave about the Supreme Court's shadow docket. The shadow docket allows the Court quickly to rein in rogue district judges and their crazy opinions. Our hosts in particular talk about Justice Kavanaugh's shadow docket decision involving "Kavanaugh Stops," Justice Sotomayor's personal attack on Kavanaugh, Judge Boasberg's TdA ruling, and the D.C. Circuit's benchslap of his recent attempt to hold Trump officials in contempt. They also talk about exit taxes, and their most academic topic to date: What is the object of legal interpretation? Does the intent of the legislature matter? Only the text? Something else?

Be sure to LIKE, SHARE, COMMENT, and SUBSCRIBE to rationally BASED!

Subscribe to our Substack!

New Podcast Episodes every Thursday morning, find us on Spotify, Apple Podcasts, or on YouTube!

Follow us on social media on Instagram, X, Facebook, and TikTok!

Transcript

SPEAKER_00 0:00

Welcome back to Rationally Based, a podcast about law and politics on the edge. Catherine, what's on deck for today?

SPEAKER_02 0:05

Well, first, Justice Sotomayor is in the news for attacking her colleagues and, of course, the Trump administration. Is this SCOTUS as usual? Second, a bench slap from the DC circuit to Judge Bosberg. Why are we still talking about Trump Naragua? Third, an exit tax. Can Democrat states impose an exit tax to keep in wealthy residents escaping their failed policies? We'll address the constitutionality of such proposals.

SPEAKER_00 0:29

Let's dive in.

SPEAKER_02 0:46

And I'm Catherine Johnson with Center of the American Experiment.

SPEAKER_00 0:49

Well, Catherine, where should we start today?

SPEAKER_02 0:52

Should we start with your voice?

SPEAKER_00 0:54

Oh, yes. I was ill a couple days ago. I promise uh Catherine, most of all, but also to the audience, despite how I sound, I feel great or mostly great.

SPEAKER_02 1:03

Um but hopefully I will be back for the next episode and won't be under the weather uh in a couple days.

SPEAKER_00 1:09

If Catherine gets sick, then you could all blame me. But I apologize uh for my voice uh in advance. Um but uh I I feel I feel good and I'm excited for the topics uh today. As always, though, I suppose I should also say please like and subscribe, rate us, especially on Apple and Spotify. As you know, we are often fighting against one-star reviews left by some uh haters. Uh but um you've all come uh um you've been a big support uh in that regard. So please continue to rate us uh if you can. Okay, where do we start today?

SPEAKER_02 1:37

Speaking of our subscribers, we actually got a really good question from one of our paid subscribers on Substack. You can find us on Substack, rationally based.substack.com, and we have a paid subscription option for people who want us to help get the word out there about the podcast. Um so this is kind of a doozy. Let's dive in. It's a really good question. Uh the listener says, Professor Berman, thank you for your deep dive into the history regarding birthright citizenship. I hope it'll help tip the scales in the right direction for the final decision. Yet I wonder if, from an originalist perspective, you think it should be necessary or sensible to have to do such a detailed investigation into English common law and the behavior of the king towards his subjects to answer a simple question. Does anyone really believe the intention of the ratifiers of the 14th Amendment would have would be to allow the children of illegal immigrants or of temporary sojourners to be citizens? The answer is obviously not. It easily fails the time machine test. What if I could go back and ask the citizenry of 1868, would they overwhelmingly assent to this, which should be the theoretical standard we are hoping to adopt to justify taking democratic rights away from the current populace? I wonder if it's philosophically prudent for originalists to spend so much time obsessing over history to answer a simple philosophical question. Everyone knows the population of 1868 would never agree to this scenario if posed to them.

SPEAKER_00 2:57

Wow. Um well, I probably would have taken up this question even if this person wasn't a paid subscriber. It is so good. Uh but um thank you for uh your support uh the podcast. That really is an incredible question. Let me just set it up a little bit more. For those of you who have been listening to our podcast and our birthright citizenship deep dive and the arguments I've been making, and I filed an amicus brief on behalf of the Trump administration on this issue. I focus on the meaning of subject to the jurisdiction and how it relates to the common law of birthright subjectship, and I've cast some doubt on the conventional wisdom in terms of what the common law was and what that means for subject to the jurisdiction. And what this questioner is basically saying is why do we care about all of that history? Doesn't this pass the some combination of the time machine test and I think the you know the laugh test? If you said this to somebody on the street, would they laugh at you? But you have to go back to 1868. If you had asked anybody, the lawgiver in 1868, the people, right, the the members of Congress who drafted the the amendment, the people who ratified it, if you would ask them in 1868, would you uh have wanted uh all you know would you have wanted this to mean that illegal aliens who have b who have children in the United States that their children are all citizens, would you have wanted this to mean, or you know, if you were confronted with an explosion of birth tourism, would you have included that uh in your rule?

SPEAKER_01 4:16

Yeah.

SPEAKER_00 4:17

And when the question is posed that way, it's almost like obviously not. I mean, would anybody in 1868 have said, oh sure, you know, you know, if we imagine they would first of all, it's an issue that they could never have thought about, which is why you need this time machine to Right.

SPEAKER_02 4:30

Or think of like the surrogacy example, too, of people using surrogacy to get birthright censorship. I mean, they would have never been able to comprehend that because it was just not even an option on the table. So that makes it even more of an interesting question, I think. And I think it would be like, from their perspective, obviously not. That's not what we intended.

SPEAKER_00 4:45

Trevor Burrus, Jr.: So that's a great example. So uh to use that example in the form uh uh that this questioner uh w would would take it, it would be like saying if you went back to 1868 and asked the people who ratified the Constitution, okay, if two Chinese Communist Party members, and they're like, wait, what is the Chinese Communist Party? But again, if two Chinese Communist Party members get a surrogate in the United States and have fifty babies from that surrogate, would those 50 babies be American citizens? And what if they whisk them back to China, you know, and raise them? Obviously, in 1868, they would say, no, that's preposterous. So this makes a lot of intuitive sense. But let me say a few things about this. This is a very profound question about the object of legal interpretation. When you're interpreting legal text, statutory text, constitutional text, what is the object at which you are aiming? And so the questioner, this time machine task, what would the legislator, you know, Congress if you're dealing with a statute, state legislature if it's a state statute, or we the people when it comes to the constitution, right? What would the legislator have thought about X if they had thought about X? But maybe they didn't think about, you know, like what would James Madison have said about video games? You know, I mean, it in a way, it's a caricature of the legal process, but it is the way people used to do interpretation. People and this is what it what some people call intentionalism versus textualism. The idea is the legislature's intent is the law, and so you have to ask them what would the legislature have thought about this situation? There's actually a famous case that I teach my students, Riggs v. Palmer, in New York. There was like a general statute about wills and how you can um revoke wills and rescind wills. Well, this uh grandson murdered his grandfather in order to recover on the will. And um the question was, do you have to let him recover? Because the grandfather's will was valid and the statute didn't say anything about the situation of a slayer or a murderer. And the courts were divided on this. And in Rigs v. Palmer, it was a divided decision in New York.

SPEAKER_02 6:48

That's kind of absurd, though. What would you do?

SPEAKER_00 6:50

Actually, what would you do?

SPEAKER_02 6:51

Trevor Burrus, Jr.: I would say obviously the the man who made the will did not in think or expect that his son would murder him. That's such an outside kind of chance that it's obvious that he shouldn't get the money, right? Trevor Burrus, Jr.

SPEAKER_00 7:05

So maybe the law, what we care about is the will of the willmaker, in this case, the person making the will. Yeah. But of course we really care about the legisl the legislative will and what the legislature provided for. But either way, you could reframe it in t in terms of the legislature. Like, would the legislature have, if presented with this question, would the legislature have said, oh, of course the murderer can recover? Right? And you your intuition is to say no. No legislature would have done it. So so you're like an old school intentionalist, where the will, the intention of the lawgiver is what matters.

SPEAKER_02 7:37

I get that it's like you can't know for sure, but it seems a little bit obvious. I mean, are we just gonna pretend that it's not obvious?

SPEAKER_00 7:44

No, you said something earlier. You were about to say something, you said it would be absurd.

SPEAKER_02 7:47

Uh-huh.

SPEAKER_00 7:48

There is something called the absurdity doctrine, where even if what you do is follow the text, presumably the legislature would not have intended its text to lead to absurd results. And so the but is that consistent with textualism, which again I haven't really defined yet, but um so intentionalism, uh so by the way, the the your intuition is what the court did in the New York case. But it was dissent, there was a dissent, and most courts disagreed. I actually think, by the way, the court in Rigsby Palmer was right for kind of a different reason, because although there was a general statute of wills, which didn't address this particular situation about the murderers, there's other law out there. Law comes from other principles or other sources, not just statutes. So law can come from the common law, from custom, from customary practices. Some people make an argument for international law on this ground, customary practices. I know I'm if you've been with us for a while now, you know that Catherine thinks international law is fake. But there's a common law rule that one should not profit from his own wrong. And that's a specific rule. And so maybe the answer in Rigsby Palmer was that the statute itself was general. It was a general statute of wills. It didn't specifically address the situation, but there's this other law that's out there specifically on the point. And ordinarily we let the specific control the general. So there's there's all sorts of ways. So I actually tell my students I think Rigsby Palmer was right. But Rigsby Palmer is supposed to be this like anti-textualist decision. It's supposed to be this intentionalist decision.

SPEAKER_02 9:14

Aaron Powell And intentionalism is we don't like intentionalism because it's it could be anything we don't have for sure. We only know what's in the text.

SPEAKER_00 9:20

Is that yes, exactly.

SPEAKER_02 9:22

Even though to me it sounds like common sense to go with intentionalism. I see your point of anyone could interpret things differently because we don't actually know what James Madison would think about video games.

SPEAKER_00 9:32

Exactly. So I so I that's very astute. So um I think there are a few things uh to to put in mind here, uh to discuss here. The first is like, what is the question that we're asking? I think textualists today don't completely disregard intent. What they don't like is getting into the minds of the legislator and asking, what would you have thought about X if only you had thought about X? Right? We don't really ask what would you have thought about this particular circumstance? That doesn't mean we don't care about intent. We do care about intent. But usually what we're trying to figure out is what was the rule that the legislature was intending to effectuate, that the legislature was intending to operationalize. So we aren't asking specifically what would they have done in X situation. We're asking what did they int what rule of law did they intend to bring forth into the world? And the best evidence of that rule of law that they intended to accomplish or effect is the text that they wrote. But why do we care about the text? Why do we care about the text? Not because it's just a bunch of words on a piece of paper. We care about the text because the text conveys the intent of the authoritative lawgiver.

SPEAKER_01 10:40

Yeah.

SPEAKER_00 10:41

Because where does law come from? Law, I mean, law can come from other sources, of course, like custom and practice and so on. But when it comes to most law, certainly today, we think the law is made by someone with legitimate authority. And so their intent does matter. So what so I'm not trying to suggest intentionalism is incorrect. I you know the the issue most people have with Riggs v. Palmer is the question was, what would the legislature have thought about this particular situation? Whereas generally we ask, what is the rule um they wanted uh to enact? And usually the best evidence is the text, and we follow the text because it's evidence of intent, and that's important because they're the legitimate lawgiver, and they're the ones who have a right to change the legal state of the world. So their intent does matter, but usually we collect that intent through the text. Okay.

SPEAKER_02 11:32

So when it comes to birthright, the intent of the people who wrote the law does matter. Is that what you're arguing?

SPEAKER_00 11:39

Yeah, so the question isn't what would they have thought about birth tourism? The question is what is the rule they intended to operationalize, and the text is the best evidence of that rule, and maybe the rule they intended to operationalize was everybody born on U.S. soil is a citizen save for ambassadors. Like, if that's the rule they intended to operationalize, and we know that because of the text that they wrote, then maybe we're stuck with unanticipated and crazy applications in the future that they couldn't have foreseen, like the Chinese Communist Party and Surgacy. Now you're giving me this look.

SPEAKER_02 12:15

Well, I don't wait. That just seems like putting so much weight into this little little one or two sentences, doesn't it? I mean, you're assuming these crazy circumstances that they could have never happened can be solved by just a couple words.

unknown 12:30

Right?

SPEAKER_00 12:30

So so I th okay, there I think this listener and you, Catherine, are onto something here. So the so the general thing textualists care about is the rule they intended to operationalize, and the text is the best evidence about of that. But there is something very anomalous about this case. Birth tourism, the uh the uh huge amounts of illegal immigration are questions of major political, economic, and normative significance.

SPEAKER_02 13:00

The future of our country.

SPEAKER_00 13:02

Yeah, you could yeah, sure. The future of our country, uh the future of sovereignty, the nature of a republic. Yeah. These are significantly normatively laden issues. And has the lawgiver today at we'll call it time T2. Okay, time T1 is when the the law was enacted. Time T2 is the present day. Has the modern day legislature, the people, told us what they thought the law should be about illegal aliens or temporary visitors or or birth tourists? They haven't, right? It's a c it is super normatively significant. It's the kind of thing you'd expect the lawgiver to tell us something about, to answer that question. And the lawgiver today, we the we the people have never opined about this. But also because it was unanticipated in 1868, the lawgiver at time T1 also didn't opine on it. In other words, we have an issue of major normative, economic, political, existential perhaps implications, and the lawgiver at time T1 did not give us an answer to it, and the lawgiver at time T2 also didn't give us an answer to it. It does seem weird to let the accidental words on a page that they drafted in 1868 in a totally different context, totally unaware of this preposterous outcome today, to govern us today. It's like being governed by accident and force, in the words of Federalist Paper Number One, rather than reflection and choice. And so I consider myself a textualist, but I've been accused of not being a textualist before. And I look at this case and I'm sympathetic to the listener. These are majorly normative, existential questions. Surely the lawgiver should address itself to it, either at time T1 or at time T2. And the lawgiver didn't, right? Because illegal immigration was not a big issue in 1868. It's a big issue today, but we haven't passed an amendment. We haven't said anything about it. So it is weird to let us be governed by these accidental words. By the way, for the listeners who were with us for the major questions discussion and the tariff decision, isn't this the same intuition motivating the Supreme Court's major questions doctrine? So when they say the Clean Air Act, you know, in 1970, uh, did it allow the EPA to regulate greenhouse gases and carbon dioxide in order to combat climate change? Well, the Supreme Court uh has said no, because it is today a question of major political and economic significance. It seems to me that what the court in the major questions cases is saying, this is a major issue today. We would expect the legislature today to say something about it. We'd expect Congress today to say something about it. And the legislature 50 years ago in 1970, when it enacted the Clean Air Act, wasn't thinking about it. So the legislator, the legitimate lawgiver at time T1 didn't tell us what the answer to this was, and the legislator today at time T2 didn't say it. Isn't this a major questions case, in which case Chief Justice Roberts should rule against birthright citizenship?

SPEAKER_02 16:06

Well, wouldn't it be what am I wrong here? Wouldn't the outcome be that Congress is the one to decide this? Or I guess in this case, we the people are the ones to decide this and that it's just not on to the Supreme Court. But then we get into the situation where Congress doesn't do much. Are we ever gonna really be able to have another constitutional amendment? It seems really hard. So are we kind of just stuck here?

SPEAKER_00 16:30

Okay, so that that's a great uh intuition and a great question. So normally in the major questions doctrine, the question is Congress has to be the one to say something and the president can't do it alone or the agencies can't do it alone. So the agencies can't do it, we have to wait for Congress because Congress is the lawgiver. But here we the people are the lawgiver in a constitutional amendment. And so the question is whether we the people have disabled Congress or the president together, the political departments, from deciding about birthright citizenship. Whether the president on his own could do this is a separate question about whether the president is allowed to interpret the constitution for his purposes. It might depend on what Congress has actually done. But we the people here are the lawgiver. And the question is whether we've disabled the political branches from addressing it by fixing into the Constitution a rule that we the people today haven't debated and that the people back then didn't debate, right? And so anyway, let me just end this by saying, you know, I it's a great question, and this reminds me of something the Chief Justice said in the birthright role argument when they were talking about this problem, right? It's a it's it's a new problem. They weren't thinking about birth tourism. Do you remember what the chief said?

SPEAKER_02 17:33

Oh yes. I'm gonna say old, old, what is it, same constitution?

SPEAKER_00 17:36

New problems, that's it. Same constitution.

SPEAKER_02 17:39

And let me got a lot of heat for that.

SPEAKER_00 17:41

He well, a lot of people supported him for that. Yeah, I think. But let me suggest to Chief Justice Roberts, friend of the pod, are you listening, you know, if you listen uh to sorry, just Justice Salito, friend of the pod, but Chief Justice Roberts, too. If you're if if you're listening or if a clerk is listening, new problems, same constitution. Isn't that the exact same argument your opponents could make about all of your major questions decision? New problem, same, same Clean Air Act. New problem, same Heroes Act, you know, new problem, same Federal Drug Cosmetic Act, right? And so um new problem, same Occupational Safety and Health Act. All of these major questions have that same basic structure. So when he says, you know, kind of as a flippant attack on the Solicitor General and Trump, well, new problem, same Constitution. Well, that's exactly what the dissenters were saying in all of his major questions cases. New problem, same statutes.

SPEAKER_01 18:31

Yeah.

SPEAKER_00 18:31

So I just suggest that I think the chief is being um a little inconsistent here. So anyway, we'll see what we're doing. That's a good point.

SPEAKER_02 18:38

Oh my gosh, I hope he's listening.

SPEAKER_00 18:40

I hope he's listening. If you are uh have an in, please forward it to uh the chief. But it's an excellent question. Long story short, it's not normally how we do interpretation, but it does seem to me uh to be the motivating uh impetus behind the major questions doctrine. And it would seem to apply normatively here. And I think it might be right. I think it might be right, even though it's not normally the kind of question we ask when we do textualism.

SPEAKER_02 19:04

Aaron Powell Well, and we love answering questions here. Uh if you want to send us a question, head over to our Substack. But we've been very intellectual so far this podcast.

SPEAKER_00 19:12

You are getting your CLE's worth uh for those who are. Well, by the way, one other thing if you're a law student in statutory interpretation or legislation or regulation, don't put anything I just said on the exam. Aaron Powell No, I don't want them to get a bad grade. Just to be clear, everything that I say is true, but it doesn't mean your professor's gonna think it's true. All right. So just be careful about everything I say. You can believe everything I say, but just don't put it on your exam. But okay, why is what uh is everyone really here for, Sotomayor?

SPEAKER_02 19:40

Aaron Ross Powell Maybe a little bit of a juicy gossip, sort of. I feel like we got a little drama on the Supreme Court. I mean, okay, so let's let's give the background here. Justice Kavanaugh is the one who uh really started this whole this whole uh back and forth. He suggested in a um Supreme Court decision that a person's race can be one factor in stopping them for law enforcement purposes. I believe in this case it was both basically all of the conservative justices sided with him on that. But he's the only one who wrote um an opinion.

SPEAKER_00 20:11

Right, and this had to do with the ice raids in Los Angeles at the Home Depots.

SPEAKER_02 20:15

Yes, yeah.

SPEAKER_00 20:16

And it was stopped by a federal judge, and then on like the shadow docket, the emergency docket. Yeah, on the shadow docket, it came up and they stop they allowed Trump to do it, and Kavanaugh was like, oh, of course race can be a factor, right? Do you remember that? Right.

SPEAKER_02 20:28

And then they started calling them Kavanaugh Stops, I believe.

SPEAKER_00 20:31

How rude is that, by the way.

SPEAKER_02 20:33

That is very rude. Although, I mean, uh kind of funny. I don't know.

SPEAKER_00 20:36

No, that's terrible. I mean, it's it's purely for the point of browbeating him into submission, right?

SPEAKER_02 20:40

Well, that's certainly true, yes. But he should be a little bit proud of that, I think. For taking a stand is what I mean. You know, yeah, put my name on it. Well, stand behind that.

SPEAKER_00 20:47

He's not on the rationally based podcast. He's a Supreme Court justice. He he's sensitive. You know, he's got an ego that he's got to worry about.

SPEAKER_02 20:54

So what do you think, Elon? Was he right about that decision that, you know, yes, the ICE agents should be able to take race into a factor when pulling someone over? If you ask me, it seems like yes, obviously, because we're looking for illegal immigrants. Is that so wrong to say?

SPEAKER_00 21:08

Aaron Powell Let's call them Catherine Stops. Uh so strict scrutiny, our opponents on other podcasts, progressives, start let's see what she's trying to do? She's trying to get me in trouble. Okay? I already give my dean at the University of Minnesota plenty of heartburn by creating plenty of controversy. You know this right.

SPEAKER_02 21:23

I want to know your opinion on the merits.

SPEAKER_00 21:25

So you're trying to get them to start calling them wormen stops. You know, I've not I So let me just say that I think uh Kavanaugh is probably right about this in the sense that like, you know, if if you're doing a criminal investigation and someone calls in and says, Oh yes, a African American male or an Asian male or a Hispanic female, like obviously then police officers can conduct searches and investigations, taking into account the person's race.

SPEAKER_02 21:52

And if you say we're looking for a Mexican man, well duh.

SPEAKER_00 21:58

And in this case, they were looking for a bunch. Of Mexican men. Why? Because they were illegal aliens from Mexico. Right? It's not to say there might not be illegal aliens from, I don't know, Lithuania, but they're looking in this case for uh immigrants who came illegally from a particular country. And therefore, presumably the ethnicity, the race associated with that particular country will be a factor in determining whether you're an illegal alien. In other words, if you're looking for an illegal alien from Mexico and you see an Asian person running going down the street, like you're not going to stop him thinking he's this illegal alien from Mexico, right? So it's not.

SPEAKER_02 22:34

By the way, we had a lot of illegal immigrants here in Minnesota that were Asians of Laos, you know, they're from Laos originally. And it's a little bit, I think, weird to say, you know, oh, you can never take race into account because they're all Hispanics. Like, obviously not. People weren't just pulling over Hispanics because when you look at the people who have been deported, it's all kinds of people. People come from all over the world to be.

SPEAKER_00 22:53

That's right. The Trump administration is an equal opportunity deporter. Exactly. Trevor Burrus, Jr.

SPEAKER_01 22:58

And that's what I support.

SPEAKER_00 22:59

So yeah, so so yeah, I mean, look, I he was probably right about that. And he kind of hemmed in ha and tried to like clarify in a later opinion, but like uh whatever. So so so people started calling it Kavanaugh Stops. And then Sudomoyor, right? She she calls him out recently. It was in Kansas or where was it?

SPEAKER_02 23:16

At the University of Kansas Law School. And here's what she said. She said, I had a colleague in that case who wrote, you know, these are only temporary stops. Now she didn't say his name, but obviously she's talking about Justice Kavanaugh. Um she went on, this is from a man whose parents were professionals and probably doesn't really know any person who works by the hour.

SPEAKER_01 23:34

Rude.

SPEAKER_02 23:35

Okay, that's a little rude. First of all, kind of an insane assumption that um Justice Kavanaugh doesn't know anyone who works by the hour, and also quite personal. I mean, I understand.

SPEAKER_00 23:45

Because what about all those people in the baseball games, you know, that he always used to like? You know, he would get all these baseball tickets? They made this mistake. Catherine was too young during the Kavanaugh confirmation hearings. What were you in elementary school? Yeah. He's like he likes baseball and he would buy his friends baseball tickets and things like that. And it's just like surely he knows hourly workers, you know, from the baseball field. But all right, I I don't know. He always seems like a down-to-earth type person, but maybe you remind me.

SPEAKER_02 24:09

And also, I don't know. Yes, he went to schools like Yale or whatever, all these Wade schools. So did she. I mean, they have similar backgrounds in some ways. And then that's not to say anything about if you look into his parents' background, that's very fascinating. I mean, and you just never know where people come from. You can't make those kind of assumptions. She clearly doesn't know. And to say that that makes him less qualified to rule on what the law says. That's pretty absurd, right?

SPEAKER_00 24:34

What was the point of the comment?

SPEAKER_02 24:36

I think the point is that, yeah, she for some reason has more insight into this law than he does because she knows hourly workers.

SPEAKER_00 24:43

Yeah. I mean, this whole thing is kind of crazy. And it reminds me, and when we were talking before, about uh the sort of myor um not exchange with Kavanaugh, but uh about uh Kavanaugh. There's a a saying that's pretty famous um from a French writer in the late 1800s, socialist sort of sympathies. And this was in a book in I in 1894, and the author is Anatole France. Anatoly France, I don't know, do we anglicize things here? Yes, absolutely. Anatoly France. Okay. Um anyway, Anatole France in a book, sorry, who um said, and this is the the most frequent translation of this language, he says the following The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread. Now, why what is this a why is this such a wonderful uh comment? Because it is a comment, it is a criticism of the content of the law based on the law and the lawgiver not taking into account societal differences, socioeconomic factors, the law should be more solicitous of the poor, and so on. But Anatoly France never made an argument that, you know, so so the sort of myor spin on this quote would be like, well, Kavanaugh doesn't know anybody who lives under bridges. And if he only knew somebody who lived under a bridge, then he would hold that sleeping under bridges is legal. It it totally doesn't make sense. In other words, Anatole France was making a criticism about the nature of law and what the content of the law was. Suramayor seems to be suggesting that something differently entirely, that somehow the content of the law should depend on the judge's personal perspective. I mean, that's clear. So as you said, Catherine, like what does Kavanaugh's background have to do with what the law actually says, right? Oh, he probably never knows anyone who lives under bridges. He probably never knows anybody who's been stopped. Again, why is that a relevant legal material here to figuring out what the law means to do?

SPEAKER_02 26:48

Well, and the France guy's trying to make a maybe kind of socialist point, but I would say you're exactly right. The law, you know, as we have it here in America, the law doesn't discriminate against against people, and that's a good thing.

SPEAKER_00 26:59

And to be clear, like, you know, you're it's it's a common it's a common understanding. People accept that judges have backgrounds and biases and predispositions, and that that may lead them to rule in certain ways. But that's a much narrower argument, right? Sotomayor makes no claim to any sort of legal materials or legal sources. You know, it is it and and so really in principle, it shouldn't have anything to do with what the law actually requires here. And so it's uh it's a pretty, you know, not just kind of a rude dig, but also just like not legal.

SPEAKER_02 27:29

Yeah.

SPEAKER_00 27:29

Um, not particularly legal, not particularly judicial, not uh so that you know that that was um you know, but not the only controversial thing she said that week.

SPEAKER_02 27:37

No, and it was I guess she did another event. Um she criticized the court.

SPEAKER_00 27:42

You gotta give the Supreme Court more work to do. They need to stop going on vacation and giving talks about things. But okay, so what what is the next thing Sotomayor said?

SPEAKER_02 27:49

Well, at a different event, she criticized the court using the shadow docket, basically, in a high number of cases so far during Trump's second term. She said, There are members of my court who believe that when Congress passes a law, it causes Congress and the people irreparable harm to have that law ignored. It has changed the paradigm on the court. Well, let's start with this. I didn't I wasn't exactly sure what's the shadow docket she's referring to.

SPEAKER_00 28:13

Well, the shadow docket is the emergency docket. It's the docket where, you know, there are decisions in the lower courts, the government or somebody appeals to the Supreme Court and they ask for a stay of the lower court decision. And the Supreme Court will often grant the stay. It will grant the stay, so it will stop the lower court decision, but before it's even gone up on appeal, before it's even been briefed and argued on the merits. And often the Supreme Court won't explain itself. And so it's called the Shadow Docket, because the Supreme Court is being shadowy because it doesn't explain its reasoning. Now, I don't know if this was intended to be pejorative. It was actually coined by my friend Will Bode, who's a professor at the University of Chicago Law School. And then uh someone who definitely w wanted it to be pejorative, Professor Steve Laddock at Georgetown, wrote a book called The Shadow Docket, basically attacking the Supreme Court's conservative majority for deploying all these emergency posture cases to basically advance the Trump administration agenda and so on without explanation. Now, of course, the irony here is by the way, Kavanaugh, this was just a Shadow Docket case you mentioned. Yeah. Kavanaugh actually explained his reasoning. And then everybody attacked him for it.

SPEAKER_02 29:17

So he did, he kind of did it, did it did a nice thing. He was like, look, I'm gonna explain why I think this is the case and why the law says this, and then yeah, Sethemaier goes after him for it. So I don't know.

SPEAKER_00 29:25

But so it it it is a little it is a little funny, but like But hold on.

SPEAKER_02 29:29

I don't under I don't know if I quite understand that because uh isn't the reason all of these cases are going to the Supreme Court because of how the left has reacted to what Donald Trump is doing? I mean, everything that Trump does, they sue him over. So isn't that the reason that they're getting all these cases?

SPEAKER_00 29:45

Yes, I like the shadow docket.

SPEAKER_02 29:47

It sounds cool.

SPEAKER_00 29:48

The shadow docket is a friend of the pod uh here. No, we we like the shadow docket on the rationally based podcast. And you're absolutely right. The problem isn't the shadowy Supreme Court, it's the district judges gone wild and the progressive litigants gone wild. So here's the problem. You have 660 federal district judges throughout the country, many of whom are in blue jurisdictions. And so you get all of these lawsuits against Trump administration policies filed in Massachusetts, right? We've talked a lot about TPS cases, temporary protected status, and asylum cases. They're all brought in Washington. The birthright cases were brought in Massachusetts, and they were brought in Washington. No one brought a birthright citizenship case in Texas. I wonder why, right? Anyway, and so you have hundreds of judges issuing thousands of decisions about the administration's entire agenda, stopping them, usually in a preliminary emergency posture, in the district courts. So that's kind of a shadow docket, right? Emergency docket. They'll issue a TRO and a preliminary injunction, and then the administration won't have its policy in place for a year. Maybe a year later, the district judge will rule against the Trump administration finally on the merits. And what, three years later, it goes up to the Supreme Court, which it may or may not accept some of the thousands of cases in which this is happening. This is part of the democratic law fair against the Trump administration. The idea is the Supreme Court can't get them all. If you just have enough injunctions by enough judges about enough policies, before you know it, the Trump administration is gonna be over before you ever get it together.

SPEAKER_02 31:21

Yeah, and they've just stopped everything in its tracks.

SPEAKER_00 31:23

Exactly. And so why do we like the shadow docket then on the Rationally Based Podcast? Because at least in a few dozen of the more important ones, the government could go up to the Supreme Court and say, this is outrageous, put a stop to it right now. You don't even need to provide reasoning because it's so obvious, you know, to us. It's urgent.

SPEAKER_02 31:41

A lot of these are huge questions that what you're just the left just wants to put a stop to him doing anything at all. Well, it's we can't wait through the system will take way longer than Trump's four years in office to figure these things out, if not for the Shadow Docket, it seems to me.

SPEAKER_00 31:54

And it could take longer than his third term, you know, in office. That was a joke. Or JD Vance, you know, Marco Rio. I don't, I don't know. I know, right? No, it's okay. Um, so look, that's why we like the Shadow Docket, because the real problem isn't unreasoned orders. The problem is, you know, reasoned district court orders that are totally insane and are actually unreasonable. So they provide these decisions, they provide the reasoning, and they're insane. They're just insane. And so, like, we have to wait four years to get up to the Supreme Court, you know, to stop this. So we like the shadow docket, we like the emergency docket because it allows the Trump administration a quick way to put lower court judges in their place to maintain the status quo, to allow the administration policies to go in effect, and eventually can get up on the merits if the plaintiffs um uh insist on that.

SPEAKER_02 32:40

So speaking of insane district court judges, should we talk about this one? Judge Bosberg.

SPEAKER_00 32:46

Also related to the shadow docket, because the Trende Aragua case was a shadow docket case. So it all connects to shadowy Supreme Court justices.

SPEAKER_02 32:55

We put this episode together so well.

SPEAKER_00 32:57

We did, didn't we? Shadowy Supreme Court justices putting rogue district judges gone wild in their place, right? Exactly. So what's going on in the Bosberg situation? This is hot off the presses, right? This was yesterday. We're recording a day late.

SPEAKER_02 33:10

But this is all this has been kind of a wild ride, if you're me at least, because I have been this has gone on for a while. Going all the way back to when President Trump invoked the Alien Enemies Act, which we talked about here on the pod, um, and and tried to deport around a hundred gang members to El Salvador. Trevor Burrus, Jr.

SPEAKER_00 33:25

Especially TDA, right? The Tren de Aragua.

SPEAKER_02 33:28

Yeah, they were they were all related to Trendé Aragua. Trevor Burrus, Jr. So Judge Boseburg, who was appointed by Obama and he's the Chief Justice of the U.S. District Court for D.C. Excuse me, Chief Judge, um, ordered these planes to be turned around mid-flight. Um, in defiance of that order, the Trump administration didn't do that. They just let the detainees go and dropped them in El Salvador. Um they argued that they were out of American airspace by the point that he had said this. Um and so that plays into things later. But um the case wound its way to the Supreme Court. Right.

SPEAKER_00 33:58

So the plaintiff sued in in DC. And so that's how it got in front of Judge Bruce.

SPEAKER_02 34:02

The gang members.

SPEAKER_00 34:03

The gang members, right, and their lawyers.

SPEAKER_02 34:04

Yeah.

SPEAKER_00 34:05

Um because, you know, remember, Guatanamo Bay detainees, it's super easy to get them free legal counsel.

SPEAKER_01 34:11

What's going on with that?

SPEAKER_00 34:12

TDA, free legal counsel. But if you're someone, you know, praying outside an abortion clinic, good luck finding a free lawyer. No, I mean there are subconservatives who will take it, but you know, the big law firms uh certainly wouldn't do it. But there's a question as to whether the DC circuit even had jurisdiction. The DC district court had jurisdiction because they filed under the yeah.

SPEAKER_02 34:30

And they filed in DC because DC is going to be favorable to them. Right. So to the gang members.

SPEAKER_00 34:34

Correct.

SPEAKER_02 34:35

So now the question that the Supreme Court was did they did Judge Bosberg in D.C. even have jurisdiction to handle this case? And the Supreme Court said no, right?

SPEAKER_00 34:44

So the Supreme Court said no. So right, so the alternative was Texas. Are we ready to mention Texas? Why? Because if this is an Administrative Procedure Act or was an Administrative Procedure Act claim, which it obviously wasn't, but whatever. If it was an Administrative Procedure Act claim, then the plaintiffs, Trend Iraqwa, could sue in DC in the in the District of Columbia. Uh but if it was not an APA case, but was rather a habeas corpus case, because they're detained, you know, your favorite word.

SPEAKER_01 35:12

Yeah.

SPEAKER_00 35:12

Habeas corpus chaos. Still one of our best episodes. Um well, a lot of these TDA members are in Texas. They're in Texas, and or I think Louisiana. Either way, it's a fifth circuit, right? And so if it's a habeas case, it has to be brought.

SPEAKER_02 35:25

Isn't that our favorite circuit?

SPEAKER_00 35:26

Yes, that is your most favorite circuit, the most based circuit. And I'll say my most my favorite circuit uh as well. It is definitely the most based circuit, which is why they didn't want to sue there. But if it's habeas corpus, you have to sue where the body is physically located, right? And so the Supreme Court on the shadow docket said this is a habeas case, not an APA case. So, Judge Bosberg, you did not have jurisdiction. Okay. So it goes back to Judge Bosberg.

SPEAKER_02 35:53

No, no, no, I don't understand why it goes back to Judge Bosberg, okay?

SPEAKER_00 35:56

That's a great that's a okay, so one of my biggest questions. Okay, so maybe it didn't really go back to Judge Bosberg.

SPEAKER_02 36:01

But he thinks it does. He continues on. Now he he continues, he basically wants the end game for Judge Bosberg, he thinks is putting Christy Noam in jail. Like that is where he's at.

SPEAKER_00 36:10

Holding them in contempt for violating his original order, which was unsound because he didn't have jurisdiction. So basically it was it was, I guess the case itself would have gone to Texas and Louisiana, right? But then Judge Bosberg retained jurisdiction for the purpose of holding Trump and the government in contempt of court and holding Christy Nome in contempt of court for violating, intentionally violating his order. So now the first time uh this goes up to the DC Circuit, and the DC Circuit stops Judge Bosberg because they said no, like you have an unsound order. Like, how can you how can there be contempt of a court order if the court order was invalid? Now, this is a really important point because you could say, well, lying to judges is bad, disobeying judges is bad, even if they're ultimately reversed. Like that that's a that's a fair point to make. You're not just whatever. But it's different in this case. Why? Because it wasn't just that Bosberg was wrong on the merits, it was he didn't have jurisdiction. And if he didn't have jurisdiction, his order was not a judicial order. He could call it whatever he wants. If Judge Bosberg had posted uh a paper, an academic paper on the internet and ordered the Trump administration to abide by his academic paper, could he hold them in contempt for refusing to follow his academic paper? No, you'd say you need to have jurisdiction. You don't have power unless you are exercising judicial power. And you're not exercising judicial power unless you have parties before the case. It's a case or controversy. There's Article III jurisdiction. You actually have to have power to act, and that power is called jurisdiction.

SPEAKER_02 37:50

And in this case, it seemed very clear at that point that he did not have jurisdiction when this was all happening in Texas and he was up in DC.

SPEAKER_00 37:57

Well, so he thought he had jurisdiction, but the Supreme Court has since said no. And so the question the first time around for the contempt proceeding was if he thought he had jurisdiction and the administration ignored his court order, could he sue, could he uh charge them with contempt of violating an order that turned out to be made without jurisdiction? And the DC Circuit said no, it was an unsound. You can't sue them for contempt, or you can't you can't uh pursue contempt charges against them because your order didn't have jurisdiction. And and uh and therefore it's not a judicial order. I'm actually giving a better spin on what the D I'm telling what the DC Circuit should have said, more or less, but they said more or less the same thing in the first round. And then it came back to Boseburg again.

SPEAKER_02 38:38

Yeah, why okay? So it keeps coming back to him. Why does he keep having this power? Why did it come back to him this time? They said just try again.

SPEAKER_00 38:44

Uh I I think the first time, I mean it's a great question. I think the first time they said we were, you know, usually they try to be respectful uh to the court. So like when you remand to a state court, you will the the the custom is to say, you know, we remand to the court um uh for proceedings not inconsistent with this opinion. Uh uh in the federal courts we say we remand for proceedings consistent with this opinion, which is saying the same thing, but one sounds more solicitous. So the state court remarks I know it's it's weird. My guess is what they did here was we remand to Judge Bosberg for proceedings consistent with this opinion.

SPEAKER_01 39:16

Okay, so try again.

SPEAKER_00 39:17

So try again. And any fair reading of the opinion would be I think I have to dismiss this case because I don't think I have grounds to contend. But he was like, nope, I'm gonna keep going anyway.

SPEAKER_02 39:25

I kind of like his uh gusto or whatever. I don't know. It's your kind of judge.

SPEAKER_00 39:28

He just thinks the wrong thing. Right, exactly.

SPEAKER_02 39:30

If he was on my side, I would love him. I get it.

SPEAKER_00 39:33

Yeah, he's like left-based. Yeah, right. Except that means you're just like a judicial tyrant, you know, like uh so Which I'm okay with as long as you agree with me.

SPEAKER_02 39:40

Well, anyway.

SPEAKER_00 39:42

So finally it comes back again to the DC circuit. And the DC circuit could have just said, Judge Bosberg, we meant you didn't have jurisdiction, so you're done. But instead, what they said is you it's legally impossible to hold the Trump administration in contempt, not because you didn't have jurisdiction, but because your order wasn't clear. Yeah. Because your order actually didn't tell them to bring back Trandeo Aguro members that had been uh removed.

SPEAKER_02 40:09

Yeah, I guess criminal contempt is available only for the violation of an order that is clear and specific, is what they said. And then Bosberg's order did not clearly and specifically bar the government from transferring plaintiffs into Salvadorian custody.

SPEAKER_00 40:22

Exactly. They were already in airspace. And and the order said, do not remove anybody from the United States. They were already gone. They were already in international waters, they were had already been removed, so technically they didn't violate it. Maybe they violated the spirit of the order, but the spirit isn't the law. This kind of goes back to kind of isn't tent the law of the spirit. The spirit of a judicial order is not sufficient for contempt. Is that fair? Yeah. Uh and so this time it's not going back to Judge Bosberg. They terminated the proceedings. Well, finally. They just said we what we dismiss, we dismiss the proceedings, uh, which is rare. It is rare for a uh court of appeals to just outright do something like that. Uh and so um, yeah, is this another example of uh Judge Bosberg? Now, look, Judge Bosberg might be a perfectly competent and intelligent judge, but you know, there's no question that some judges, otherwise perfectly competent and intelligible, clearly are suffering a little bit from TDS, Trump derangement syndrome, right? And uh this is another example of why we have the Shadow Docket. And thank goodness for the DC circuit for acting so quickly um on this issue as well.

SPEAKER_02 41:26

Yeah, exactly. Well, and it's just crazy how many chances he got, in my opinion, to do something about this when he's obviously a little bit deranged. She's literally going after Christy Noam personally and talking about holding her in contempt. He he wanted to track down who was it that defied this order specifically, and he figured out it was Christy Noam herself who said, keep the planes going. I don't know, the whole thing seems clearly politically motivated. And so my question is at what point does a judge make so many bad decisions or do so many things that are seemingly politically motivated that he should be impeached, terminated? What do you do? What's the process?

SPEAKER_00 42:02

Okay, wow.

unknown 42:03

Wow.

SPEAKER_02 42:04

Is that a crazy question?

SPEAKER_00 42:05

No. Um it's so we've only impeached judges for committing like bribery for like taking kickbacks.

SPEAKER_02 42:13

Interesting. So we've never impeached a judge because they were clearly politically motivated.

SPEAKER_00 42:18

Um TDS'd out of their mind. We did in the year 1800. The Jeffersonians tried to impeach Justice Samuel Chase of the U. Supreme Court because they didn't like his opinions, and he was acquitted. And that has for a long time, you know, 226 years, I guess doing the math quickly in my head from 1860. 1800. Not so bad. You know, as a physics major. Have I told you that before? Yeah. But if I had been any good at physics, I you know would be a physicist. But here I am instead with podcasts.

SPEAKER_02 42:51

That happens with lawyers a lot, though. You know, they do some weird thing and then they have a book.

SPEAKER_00 42:54

Well, I am good enough at math to know that 1800 to today is uh 2 uh uh 26 years. It has it has stood for the proposition that you can't impeach judges for political disagreements with their rulings. Now, maybe what should happen here is should cases get reassigned more easily to judges who keep defying? Now, in this case, it wasn't reassigned, it was just our dismissed. So that's a solution. There's a judge in Massachusetts, Judge Brian Murphy, who keeps getting reversed even by the Fifths First Circuit, which is a very liberal circuit on various immigration decisions. Interesting temporary protective status, asylum decisions, parole decisions, because he he keeps just clearly uh trying to just thwart the Trump administration. And even the F First Circuit has multiple times said the Supreme Court has said that you're wrong. Please don't do this. And it's like three times now. And at what point does he you know get reassigned or uh you know, or is it outright dismissed? I don't know. It's a good question.

SPEAKER_02 43:44

There's no there's no answer, is what you're telling me.

SPEAKER_00 43:46

Uh there's no answer uh to that. That's internal to the judiciary. As for impeachment, I don't know, maybe we should start impeaching more judges. What do you think?

SPEAKER_02 43:54

Well, I don't even know the process for impeaching judges, but same same for impeaching the president.

unknown 43:58

Oh, really?

SPEAKER_00 43:58

Yes, the impeachment clause. Applies to all civil officers of the United States.

SPEAKER_02 44:04

Okay. So that maybe we should.

SPEAKER_00 44:06

So the House could at least start an impeachment and then the Senate would have to hold the trial and at least, you know, discuss what is the threshold.

SPEAKER_02 44:15

Um I don't want to Congress is like has enough on their plates, you know, I feel like Oh please.

SPEAKER_00 44:20

Congress doesn't do anything.

SPEAKER_02 44:21

No, they don't do anything. But there's plenty of things.

SPEAKER_00 44:24

A little show trial with a judge, that's exactly the kind of thing that might get them back from Disney World.

SPEAKER_02 44:28

That's true. Well, they are. Okay, do you know this? That Lindsey Graham is back from Disney World, but now TMZ has opened a branch in DC. Have you heard this?

SPEAKER_01 44:37

No.

SPEAKER_02 44:38

Okay. No, like this is so funny and crazy. Like TMZ is opening a DC office and they are at the Capitol chasing people around. So they were following Lindsey Graham, asking him, you know, how was your time in Disney World? How was the bubble wand working well? He doesn't answer. He just ignores them. But it's a bubble wand. So funny. He's holding a bubble wand. It's like what you would kind of flip up.

SPEAKER_00 44:59

Oh, is that like from Harry Potter? Oh no. Okay, not the Harry Potter.

SPEAKER_02 45:01

No, it's just like a kid's toy. I mean, there must have, like, presumably he's with family, but they caught a picture of him where it's just him in the bubble wand, right? So it's not a great look. Um, and now TMZ is in DC doing some great work tracking down um the people on Capitol Hill. So I think some fun things will will come out of that. But all that to say, I don't need Congress maybe bogged down with anything more, but I do feel like something should happen when we have judges like this Boseburg guy.

SPEAKER_00 45:25

And yeah, I mean, I this is a good question. Like 226 years ago, it was a long time ago, should we have a little bit more impeachment of judges? But if we do that, I mean, I do think like there is a problem here uh with federal district judges, right? Again, it's all part of our theme today. Like why we have the shadow docket. Are there other solutions for reigning in federal district judges? You know, some possibilities include like appeals to three um in instead of have single district judges in these cases, you could have a panel of three Court of Appeals judges or something instead of single district judges decide certain cases about executive policies. Um but maybe impeachment is another option.

SPEAKER_02 46:02

But then also, uh I don't like this argument much, but you know, it does open the door to if this hasn't happened in 200 years, then when the other side takes power, of course the Democrats would use that against conservative um judges as well, I presume.

SPEAKER_00 46:14

But why maybe the rule is if you get bench slapped and reversed, you know, three times in the same case. Um three strikes, you're out.

SPEAKER_02 46:23

That's right. Something like that. I mean, I don't know. I don't know.

SPEAKER_00 46:24

It's just worth thinking more about.

SPEAKER_02 46:26

And uh the left is gonna do it anyway, as I always like to say, so we might as well beat the left.

SPEAKER_00 46:31

Ah, well, they start this one, huh?

SPEAKER_02 46:32

Mm-hmm.

SPEAKER_00 46:33

Maybe. Well, we've got one more Shadow Docket piece, right?

SPEAKER_02 46:37

Let's go. I think the Shadow Docket piece that's most interesting is actually a tweet you did. What is it yesterday?

SPEAKER_00 46:42

Uh it was this morning.

SPEAKER_02 46:43

Oh, this morning. It's already gotten some good traction. Why don't you break down your tweet that you did this morning? Because it brings in the Shadow Docket in a way that's very interesting, because you're actually talking about um homeless encampments, right?

SPEAKER_00 46:56

I am.

SPEAKER_02 46:56

Which is a passion project of yours.

SPEAKER_00 46:58

Yes. Homeless encampments are a passion project. Um I um uh sued the City of Phoenix over an 800-person outdoor homeless encampment a few years ago.

SPEAKER_02 47:10

800 person, that seems like a huge homeless encampment.

SPEAKER_00 47:12

Uh, under a public nuisance theory. Uh and we won. And we got uh the city of Phoenix to clean up its homeless encampments.

SPEAKER_02 47:19

You know what happens here in Minnesota? I don't know if this is a problem in Phoenix. We have many of these homeless encampments, but in the winter months, they don't disperse all the time, but a lot of times they bring in heaters that then start fires. And so homeless encampments in Minnesota are extremely dangerous, especially for this reason, because they bring in these portable um fires, and and they'll be popping up in just people's neighborhoods and things like that, um, normal areas of Minneapolis, and historically they haven't done anything about it.

SPEAKER_00 47:45

Well, I'll do you one better. There is a homeless encampment in Berkeley where I am involved. Uh I represent the business owners and homeowners in this multi-block encampment where recently leptospirosis has been detected. Okay, it's not leprosy. I know people who are like, oh, is that like the medieval disease, like the leprechaun? That's what you thought. Yeah, I was imagining like I'm hacking a cough because like I'm getting leptos. Yeah, leptospirosis, yeah. It is a disease that's fatal to dogs, it's transmitted through rats, and can be potentially fatal to humans as well. And so it's all over this encampment. They detected it when a few dogs died and they figured out that there was leptospirosis.

SPEAKER_02 48:24

No, like so it's like a spooky medieval disease that they've brought back through these encampments.

SPEAKER_00 48:28

Aaron Powell I would say it is a disease more common in the third world, if we're still allowed to say that, or the developing word world. Um and it's very rare in the United States, and part of what makes it dangerous to humans is that doctors don't know to test for it because it's so insanely rare.

SPEAKER_01 48:40

Yeah.

SPEAKER_00 48:41

Um but a federal district judge in San Francisco, I mean, kind of said, well, you could clean up the encampment because there's leptospirosis, but you must give them a place somewhere in the city to park a tent, right?

SPEAKER_02 48:53

They're like entitled to an encampment space.

SPEAKER_00 48:56

So what does this have to do? No, not with the shadow, you know, not the shadow docket as such, but again, it shows you how lower federal court judges are constantly trying to defy Supreme Court, what the Supreme Court has said about stuff. So this kind of starts uh eight years ago, there was a case called Boise uh that said cities uh in the Ninth Circuit, the Ninth Circuit held that cities cannot prohibit camping on public property, cannot prohibit camping on the streets and sidewalks unless there is a shelter for them to go to what under the Eighth Amendment.

SPEAKER_01 49:27

What?

SPEAKER_00 49:28

Even David French, as we know, who has a very loosey-goosey understanding of the Eighth Amendment, probably thinks that's crazy, right?

SPEAKER_02 49:34

I don't get it. What how does that possibly work? What did they say?

SPEAKER_00 49:37

Because it's cruel and unusual to punish someone for being homeless, and so you need to give them which of course that's not a punishment. They haven't been punished. Right. You know, the state hasn't imposed homelessness upon them, right? I mean, the whole thing is insane. But it took many years for that case to go up to the Supreme Court in a case called Grants Pass. Of course, the Supreme Court should have been doing more shadowy docket stuff and just like immediately reverse the Ninth Circuit, you know, on this. But it didn't. And so for years, cities couldn't do anything since 2018. And homeless encampments proliferated under this decision, especially in the Western um uh United States, in the more liberal jurisdictions and the Ninth Circuit that had originally decided um this Boise case. Well, in a case called Grants Pass, the Supreme Court finally put an end to it. The Supreme Court in Grants Pass said it is not a violation of the Eighth Amendment to enforce general prohibitions on camping and sleeping on sidewalks and roads and public property, even if there's no shelter available for them. Okay, it is not a violation of the Eighth Amendment. These are these laws, yeah, these laws have been long-standing. Those the the states in exercise the police power over homeless encampments and the rights of way and vagrancy for centuries, for centuries. And so, no, it is not a violation of the Eighth Amendment.

SPEAKER_02 50:49

So And the problem is never lack of spots in shelters, in case anyone was wondering that, at least here in Minnesota, there are more, way more spots than there are homeless people. However, often, yeah, you have to be clean and you don't understand.

SPEAKER_00 51:01

You don't understand, Catherine. The argument that they make is it's not enough to have a bed in a shelter. You get a motel room. You need a room that's non-congregate, where you get your own space, where you get privacy, where you can bring your property, where you can bring your pets, and you could bring your partners, the three P's. And unless you have a unless you have a room where you have pets, partners, and your property and your privacy, we'll call them the four Ps, then they believe it is a constitutional violation to Wait, wait, what?

SPEAKER_02 51:33

The government has to provide that. That has to provide all those.

SPEAKER_00 51:35

That is that is the position of the progressive advocates arguing on behalf.

SPEAKER_02 51:39

Um, and a lot of them here add clean needles to that, I will say. They say you have to have a place where they can have safe, yes, harm reduction, safe drug use centers, like the biggest WTF ever.

SPEAKER_00 51:51

And so this look, this was obviously crazy. And uh, shelter or not shelter, and again, there's always usually shelter available, certainly congregate shelter available. It doesn't matter. It's not a violation of the Eighth Amendment. So now, finally, after the grants pass case, oh, can the cities finally start cleaning up? No, they can't. Why? Because of the progressive advocates and their federal district judges in these jurisdictions. So here, this is Berkeley. Berkeley, as I say in the tweet, not a bastion of conservative conservatism, even Berkeley thinks, you know, we should probably clean up this encampment. There's leptospirosis. Okay, even Berkeley. But the federal district judge basically said no. Now, look, the judge actually said yes. The judge actually said, you can remove this encampment as long as you let people keep their tents and let them keep their RVs, and there's some other place for them to put their RVs in their tents and so on, right? What? That doesn't help. That doesn't make any sense.

SPEAKER_02 52:43

Well, you just have to move it around.

SPEAKER_00 52:45

Well, I guess until the leptospirosis is gone, and then they all come back.

SPEAKER_02 52:48

I mean, the whole thing is you're spreading the lepto.

SPEAKER_00 52:50

Well, that's the whole thing. It's crazy. After the grants passed case, how could it possibly be that cities still can't clean up, right? How is it possible that cities still can't enforce their camping bans? So what this judge relied on and what the plaintiffs relied on, guess. You're gonna have no idea. The American Well, actually, it was uh it was in my ex post, so you might know. I was gonna say I read the tweet. You read the tweet. Americans with Disabilities Act.

SPEAKER_02 53:11

That is so insane.

unknown 53:12

Yeah.

SPEAKER_02 53:14

So do all homeless people have disabilities?

SPEAKER_00 53:16

Well, here's the thing. Well, uh, is that the question? Actually, a lot of them, a lot of them do. But um, so normally you'd think that the ADA would help disabled individuals who want to use the sidewalks that are obstructed by the homeless encampments. Right. But no, what the judge basically said is um it effectively says that being disabled gives you an exemption from a generally applicable law prohibiting camping. That that is insane under the Americans with Disability Act. Okay.

SPEAKER_02 53:42

Wait, so uh disabled people have a specific special right to be camping anywhere they want.

SPEAKER_00 53:47

That's what that's what he said. Not anywhere necessarily. But the the the point I'm trying to make is the ADA is normally like if the government provides a service like a museum or access to sidewalks, it must make sure that disabled individuals can access those sidewalks, can access the public services, can access the museum. But a criminal prohibition, a law that's generally applicable that says you can't camp on the sidewalks or the street is not a service. Right. It's just a law. It's a prohibition. The judge's ruling is kind of like saying a disabled individual can get an accommodation from murder or theft. Like, no, you don't get an exemption from the murder laws or the theft laws because you're disabled.

SPEAKER_02 54:22

Oh my gosh, that guy with no legs who killed someone, he would love this. What was his name? Spector Pictoris. Have you seen that Netflix documentary?

SPEAKER_00 54:28

I have not. Oh my gosh. I thought you didn't watch movies.

SPEAKER_02 54:31

I watched some insane true crime like Netflix documentaries. That's an exception.

SPEAKER_00 54:35

But you can see they they they come up with these insane theories under the ADA. They also said that the there's a doctrine under the due process clause called the state created danger doctrine, which is again like the state can't deprive you of life, liberty, or property without due process of law. And so if the state somehow puts you at risk, um then there are some situations in which you can hold them liable for harm that subsequently happens to you. They say, well, the state taking away your tents puts you at more risk than when you had the tents. And so taking away tents is a violation of the state created danger doctrine.

SPEAKER_02 55:04

I don't know. This really makes me hate the law. Like I just feel like sometimes the answer is like I don't know what the answer is, but it's not whatever this is. It's not whatever kind of law this guy is talking about.

SPEAKER_00 55:14

So but that's the connection to the shadow docket, Catherine, isn't it? Right? Sometimes the answer to the legal question is obvious and easy. And this is so insane that like the Supreme Court should immediately take it up and immediately slap it down. And it doesn't have to provide any reasoning whatsoever because it's obvious to all of us. It goes unsaid. And so that was the thrust of my ex post this morning, which went totally viral.

SPEAKER_02 55:34

Um, that's a kind of a fundamental difference though between conservatives and liberals. I think about, you know, the the right and the wrong. Is there some kind of inherent truth? Like you could get really deep about this. And I think that clearly what we see from liberal judges is that they have made these absurd arguments that seem to play into that idea that there's no objective right and wrong in the world that really freaks me out on a base level. It scares me.

SPEAKER_00 55:56

This is that's super fascinating because my sense is that they actually have cognitive dissonance here. On the one hand, they're probably moral relativists, like the way that you've just described. But on the other hand, they have a feeling that they know what the just and right answer is to these situations and they're willing to totally ignore the law. So are they moral relativists or are they just, as I said in the tweet, philosopher king, legislator, you know, uh doing whatever it takes to get to. What did I say? I I said, um, how long do cities and the residents have to live like this? How long until we recognize that allowing several individual federal judges to play God King legislator, that's what I said. God king legislator is unsustainable. By the time this gets up to the Supreme Court, it will have been over a decade since the original Boise decision that disabled cities from enforcing camping bans under the Eighth Amendment. Over a decade where cities and the residents couldn't adopt reasonable policies. This is why the Shadow Docket exists, because federal judges keep doing crazy things, and it's only a matter of time before they get overturned. In the meantime, the public health and safety in our democracy suffer for years and years. Wow, I was really carried away. Thank you. Yeah, absolutely. Everyone go give that a retweet. Go give that a retweet. Maybe I'll s uh say a little bit more about the public nuisance litigation that I'm involved in on our Substack. Yeah. So please um support us. Uh subscribe, free or paid subscription, totally fine, but we would love to stay in touch with you about that. Okay, last topic before the hour is up. Democrats trying to keep people in by taxing them?

SPEAKER_02 57:16

Yeah, they're trying to trap people in their in their failing states. So, as we all know, Democrats in actually like 10 states, it's happening here in Minnesota, they've they've proposed bills or passed bills that um enact an exit tax or a wealth tax. So if you want to leave California, for example, they'll tax you on all of your wealth, not just your income. They'll tax you on everything you own and all of your assets, which I don't understand how that even works, but that's what they want to do in states like California. Well, you, once again, fire tweet. Oh, yeah, fire tweet.

SPEAKER_00 57:47

Well, someone someone posted uh about the story about the exit and wealth tax and said, how the f I mean this is a this is a family-friendly uh How the F. How the F? How the bleep, or do you watch have you ever seen Battlestar Galactica? Oh, that's a classic. That's before your time. That's before your time.

SPEAKER_02 58:02

But that's like me saying, have you ever seen Gossip Girl?

SPEAKER_00 58:05

Uh what is that?

SPEAKER_02 58:06

There you go.

SPEAKER_00 58:07

I've seen Mean Girls, is that similar?

SPEAKER_02 58:08

Oh, actually, that's pretty good. Yeah, I knew something.

SPEAKER_00 58:11

I knew something. Okay. How the frack is an exit tax even legal? They say frack in ghetto battlestar. Like in fracking. This was before fracking, by the way, which is kind of weird. But okay, so how the frack, how the F is an exit tax even legal? And I said it almost certainly isn't because of Article 4, Section 2 of the Constitution. Uh so can Democrats keep people in by threatening and plus why are they trying to keep people in?

SPEAKER_02 58:33

I mean, this is because people are flooding away. They're leaving blue states like crazy.

SPEAKER_00 58:37

Trevor Burrus, Jr.: And doesn't the Center of American Experiment who's uh producing this podcast have a bunch of data about this, by the way? Trevor Burrus, Jr.

SPEAKER_02 58:42

We talk about this quite a bit because here in Minnesota it's something we're we're seeing a lot. And so uh uh I I looked this up a little bit, I actually asked our economist, um, and he told me that if you look at states that had Democrat trifectas from 2019 to 2025, um, and red states with with Republican trifectas in that same time period. These numbers are huge. Blue states lost 3.5 million Americans for elsewhere in the United States, while red states gained 3.2 million residents from elsewhere. And he pointed out that we've talked about this before. But reapportionment in 2030, right now, predicts that blue states are going to lose 10 house seats, while red states will gain 11 as a result of these movements. And so while this is going on, the answer that Democrats have, because they're losing people, they're losing their tax base. Of course, wealthy people also pay the most in taxes. And so they need those wealthy people to subsidize the huge social programs that they have in place, but they're fleeing. Their answer in these blue states is to tax people even more, to trap them with more taxes.

SPEAKER_00 59:43

It's like the Berlin Wall. How do you keep people in eastern Berlin? How do you keep people in North Korea? You build borders. Wait, are these like build a wall, except it's a wall of taxation?

SPEAKER_02 59:55

A wall of taxation. Yes, it is. I mean, it's really absolutely nutty. And fundamentally, by the way, I don't even get how it happens because how are people going to pay on these assets that they don't have in cash? We have in Minnesota here, for example, many farmers who have land that will value at a large amount of money, enough that it would, you know, qualify for the wealth tax that they're proposing right now in in Minnesota. Except they don't have nearly that much in cash. They're farmers. They're great hardworking farmers who want to pass the land down for generations, but they've never made as much money as the land is technically worth.

SPEAKER_00 1:00:28

Well, Elon Musk will have to sell SpaceX, you know, or sell his shares, you know, to pay it. So the Trevor Burrus, Jr.

SPEAKER_02 1:00:33

So is it constitutional? You say no.

SPEAKER_00 1:00:35

Okay, so I said no, and there are really two reasons. The one reason that I mentioned here in this tweet was Article 4, Section 2, Clause 2 of the Constitution, uh it's called the Privileges and Immunities Clause, not to be confused with the privileges or immunities clause of the 14th Amendment. I told you you're getting your continuing legal education uh today. Um so the that clause provides the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. What does this mean? There was a precursor to this in the Articles of Confederation. What it means is that a citizen of Massachusetts can travel to Georgia, and Georgia is required to treat the citizen of Massachusetts as a citizen of Georgia. In other words, Georgia can't treat someone from Massachusetts as an alien, as a foreigner. This is really what makes us a union. It makes us one mass of people. In other words, Massachusetts and Georgia might have different laws about contract or property or whatever, but whatever laws it has on those topics, whatever privileges and immunities it gives its own citizens, it must also give to other citizens of other states when they are in Georgia. If they choose to transact business in Georgia, to reside in Georgia, you must, you can't discriminate against out-of-state citizens. Now, why is this important? Because it was long thought to imply the right to travel to those other states to enjoy those privileges and immunities, right? The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. So if you have a right to enjoy privileges and immunities in Georgia, if you're traveling in Georgia or to Georgia, doesn't that imply the right to travel to Georgia, to enjoy the privileges and immunities there? So were this Yeah, I think so. So historically, this came up over uh the debate over free uh black citizens in the North. So the Missouri compromise, I think we might have talked about it before in this podcast in 1820, the 36-30 parallel, you know, everything north is free except Missouri itself, everything south is slave. But uh in 1821, there was another Missouri controversy called it's called the second Missouri controversy. The question was whether Congress should admit Missouri into the Union with a constitutional provision in its state constitution that prohibited free black persons from migrating to the state. And the Northerners unanimously or overwhelmingly um maintained that that's a violation of the privileges and immunities clause. Because a free black citizen of Massachusetts has a right to travel to Missouri and enjoy the privileges and immunities of citizens.

SPEAKER_02 1:03:01

Yeah, I don't know if I'd recommend it based on the circumstances.

SPEAKER_00 1:03:03

No, in that case, well, Missouri was better than other alternatives uh at the at the time. Um but yeah, so uh it implies this uh right to travel. There's one more potential argument, which is the dormant commerce clause. It's just uh well, it's not a clause, but it's the commerce clause um of the constitution. Congress has the power to regulate commerce among the states, and one of the big objectives of the Constitution was to take away the power of commerce from the states because the states, you know, there's like almost a war broken out between was it New Jersey and New York or something in like before the um just after the American Revolution um because of commercial rivalries. I mean, so like and the idea was we got to stop this. Congress has to regulate commerce. We need a uniform commercial policy in the United States. So originalists disagree over whether the commerce power belonging to Congress means the states can't regulate commerce. But I actually think it that's correct. I think the commerce power is exclusive to Congress, and the states do not have a power to regulate interstate commerce. Well, if you try to keep your citizens in, isn't that kind of a regulation of interstate commerce? And so that's a you know, because free travel, you're restricting travel to other states, which is transportation of people, movement of people is understood to be commerce.

SPEAKER_02 1:04:11

Well, but states do have different tax laws all over. That doesn't play into this at all. They can't have different tax laws, they just can't.

SPEAKER_00 1:04:19

I think if the if the purpose that's a great question, if the purpose of the tax is to keep people in and to prevent them from traveling, then it's a regulation of commerce.

SPEAKER_01 1:04:26

Okay.

SPEAKER_00 1:04:27

Rather than just a tax for the purpose of raising money. A wealth tax is different, right? The exit tax would be a regulation on commerce, right? It would be a tax for the purpose of burdening commerce. Right. And so probably violates the commerce clause. Uh again, the i the idea that the Congress exclusively has a wealth tax would be different, right? Um so wealth tax, you know, uh it wouldn't have the Article IV problem. It wouldn't have the commerce problem, but I don't know, wealth taxes are those unconstitutional too.

SPEAKER_02 1:04:54

You know, they said something funny in here uh in this article I was reading. Oh yeah. Okay, so Washington uh just passed a 9.9% tax on incomes over $1 million. The bill's passage came around the same time Starbucks CEO Howard Schultz, who has an estimated net worth of over $3 billion, announced his move to Florida. So they see these things happening and they're like, oh God, we gotta stop this. Everyone's going to Florida. That's what happens here in Minnesota, too.

SPEAKER_00 1:05:17

But that's was that a wealth tax or an exit tax?

SPEAKER_02 1:05:19

It's actually I don't know. Uh passed a 9.9% tax on incomes over 1 million. It's just a income tax.

SPEAKER_00 1:05:26

That's a tax on income. I don't know about the wealth tax, by the way. Um I know we're coming up on our hour, but one fun thing about wealth tax, it would definitely be unconstitutional for Congress to do a wealth tax. Um why? Because it's a direct tax. Direct taxes, you know, indirect taxes are like taxes on transaction, consumption, a sales tax, an income tax, you know, like a tax on work. But direct taxes, like a tax on land, is a direct tax, a tax on persons is a direct tax. So like a wealth tax is probably a direct tax. It has to be apportioned among the states according to their population. That's what the Constitution says. So if Congress wanted to pass a wealth a wealth tax. And California has 20% of the U.S. population. That means 20% of the tax revenue would have to be raised in California. Well, what happens if more wealthy people live in one state than another? Right. You'd have to have different rates in different states. So it's basically impossible for Congress to do a wealth tax, which Elizabeth Warren has tried to do.

SPEAKER_02 1:06:18

Seriously.

SPEAKER_00 1:06:19

It's probably unconstitutional for violation of the apportionment clause. I told you you're getting your CLE's worth today for audience. Now could a state do it? Hard to know. Hard to know. I mean, you know, could could a state pass a law that says Elon Musk, give $10 million to Catherine? Well, in that case, you know. How about okay, Elon Musk give $10 million to Elon Orman?

SPEAKER_02 1:06:41

Uh no, no, no, no. Now you want to. Illegal.

SPEAKER_00 1:06:43

So they would often say, you know, around the founding, like, oh, a uh an act, because I cannot call it a law, an act that took from A and gave to B would not be due process of law. You'd be depriving someone of property for not violating law. Well, that's kind of like taking from Elon Musk and giving to Elon Warman, right? It's exactly what I'm saying. Okay, so now if they just interpose the state in the middle and said, Elon Musk, give $10 million to the state, and then the state will distribute it to Elon Musk.

SPEAKER_02 1:07:08

But you know what they're doing. They're they're, at least in Minnesota, they're narrowing this down to a not so large amount of people. I saw one of the ones proposing California. It's a group of like 200 people. So it's really like they're targeting a very small group of people and redistributing that money. Uh we made a point on our American Experiment podcast, like they should, you know, bring in the rich person and bring in the people who are getting the money and be like, hey, you guys should meet and like get to know each other, you know. I bet the rich person would be like, yeah, I probably not. Uh because here in Minnesota, most of the money goes towards um fraud, fraudsters and scammers.

SPEAKER_00 1:07:40

So and that's why people are leaving blue states and why the apportionment in 2030 will be fun to watch.

SPEAKER_02 1:07:45

I can't wait.

SPEAKER_00 1:07:46

Well, thanks everybody for listening. This was a very technical um podcast today, um, but I hope uh you all enjoyed it. Please remember to hit that like and subscribe and follow button. Please remember to rate us, and we will be back next week.