Transcript of Episode 192

These are unofficial transcripts prepared by volunteers and have not been vetted for accuracy or completeness. All material is copyright © Opening Arguments Media LLC.

Show Intro

FLETCH You guys want to read me my rights.
FIRST DETECTIVE You have the right to remain silent. You have the right to have your face kicked in by me. You have the right to have your balls stomped by him.
FLETCH I waive my rights. (Fletch (1985))

THE ATTORNEY They're pretty simple. The forms are all standard boiler plate.
CHARLIE KELLY Well, we're all pretty hungry, we gonna get to our hot plates soon enough. (It's Always Sunny in Philadelphia: "The Gang Exploits the Mortgage Crisis" (2009))

TOM INNOCENTI You'd be surprised how many doors a letter from a lawyer can open… or close.
BOB BELCHER It seems like you're talking slower since you started charging by the hour. (Bob's Burgers episode "Sexy Dance Healing": (2016))

MENTOK THE MINDTAKER What's the meaning of this. This is my quiet time.
HIRAM MIGHTOR We're going to have to take you into custody.
MENTOK THE MINDTAKER That's outrageous. What am I charged with?
HIRAM MIGHTOR Don't have to tell you anymore. Clearly you haven't been reading your Scalia. (Harvey Birdman: Attorney At Law: "Shazzan" (2006))

LYDIA Welcome to Opening Arguments, a podcast that pairs an inquisitive interviewer with a real life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC for entertainment purposes, is not intended as legal advice and does not form an attorney client relationship.
Don't take legal advice from a podcast.

THOMAS Hello and welcome to Opening Arguments! This is episode 192. This is your host, Thomas Smith, that over there is your belt-and-suspenders lawyer, Andrew Torrez! How you doing, Andrew?

ANDREW I am fantastic, Thomas, how are you?

THOMAS Good. Your pants are really staying up because the belt and suspenders thing!

ANDREW [laughs]

THOMAS They’re not – they are good to go! That’s what we wanna see! [chuckles] Alright, so we are gonna talk about – you touched on it last week, but the Flores settlement a little bit, a tiny bit of good news to, you know [chuckles] to kind of keep us going, I guess?

ANDREW We’re trying to do that every episode, give you avenues -

THOMAS We are? [laughs]

ANDREW [laughs] We’re trying! I didn’t say we would succeed, but -

THOMAS We gotta try harder!

ANDREW You know.

THOMAS So that’s good, we’re gonna go into more detail on that and see what – and then we’re gonna talk about Obergerfell and I know a lot of people – at least from my end of things because, obviously I really was distressed at the news that Obergerfell could possibly be overturned, and of course, same with Roe and same with a lot of these things, but I guess I really hadn’t been thinking in those terms prior to 186 and a lot of the response I’ve gotten, just from people I’ve talked to is “oh, no, once they grant a right then they never take it away” and “the public has kind of moved on, the approval rating has gone up for gay marriage, for same-sex marriage, so we’re fine.” That’s kind of what I’ve gotten, so I’m curious to hear more about this from Andrew and also you’re gonna talk about the 8th Amendment as it relates to that. So that’s our day today! Sounds cheerful and fun, right?

ANDREW [laughs]

THOMAS No.

ANDREW It’s gonna start cheerful?

THOMAS [chuckles] Well, alright! Then let’s, let’s do that. Let’s get the good news out of the way real quick! [chuckles]

SEGMENT INTRO – BREAKING DOWN THE LAW

ANDREW No, as we indicated on Friday’s show, this is unconditionally good news, right? So we discussed in episode 184, in talking about the reality of Donald Trump’s executive programs and how they have led to the crisis and the separation of families at the border, and how the Trump administrations’ wholly disingenuous response to this was to issue and executive order that said, “oh yeah, you don’t want families to be separated at the border? How about then we just detain all families indefinitely at the border?” [chuckles]

THOMAS Right, right.

ANDREW “How about we make this much, much worse!” And as we pointed out on that show, that runs afoul of a current settlement agreement between the United States that is with a Jenny L. Flores, so it’s called the Flores Settlement, and it is the result of litigation, and under the Flores Settlement, among other things, the government has five days to place minors in licensed programs. If they are apprehended in districts that do not have those programs or, “as expeditiously as possible” – that’s a quote – “there is an influx of minors into the United States,” which is what the administration is currently claiming, right? As the Court has previously determined in 2015 they found that a 20-day deadline was permissible during the so-called “influx times.” So they could go as long as 20 days, from five days to 20 days, that’s how long government could hold unaccompanied minors in detention. And as we pointed out, as the Flores Settlement was designed to transfer unaccompanied minors out of government custody as expeditiously as possible. As part of the executive order, the Trump administration petitioned the court – the United States District Court for the Central District of California – to re-open the Flores Settlement to allow the government, quote, “to hold minors in indefinite detention in unlicensed facilities,” end of quote. And, happily, that Court has rejected the administration’s request, this is Judge Gee in, as I said before, the U.S. District Court for the Central District of California, so this decision will get appealed to the 9th Circuit Court of Appeals [chuckles] whom Trump has famously derided.

THOMAS Mm-hmm.

ANDREW So the Flores Settlement is safe for a while, right? Is it -

THOMAS Until it gets -

ANDREW - from an activist perspective?

THOMAS -to the Supreme Court, right?

ANDREW Yeah, is it safe from an activist Supreme Court?

THOMAS You just said that this was gonna be unqualified good news, and I -

ANDREW Look -

THOMAS - will find some qualifications, sir!

ANDREW [laughs] Yeah, I can imagine! Yeah, the Court – and, again, I encourage our listeners to read this – the Court slapped the Trump administration down hard [chuckles] in this denial, okay? So, first, it excoriates the Trump administration through its attorneys for procedural violations. So this was filed as an ex parte Application for Limited Relief from the Settlement Agreement and the Court says, “although you did not petition us for hearing in the text of it, you request a hearing,” and really what this is, quote, “is a thinly veiled motion for reconsideration without any meaningful effort to comply with the requirement of the local rules.” So at the outset, there are, you know, procedural defects. And then the Court says, “look, even if we consider this, the relevant rule is Rule 60(b) of the Federal Rules of Civil Procedure, which allows a party to reopen a Settlement Order if they can show changed circumstances that the parties could not have foreseen at the time of their agreement. And so the specific language there is “ordinarily modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a Consent Decree. A party seeking modification of a Consent Decree bears the burden of establishing that a significant change in circumstances warrants revision of the Decree.” And that’s really significant, because, as we’ve discussed before, on appeal, an appellate court is required to defer to the factual findings of the lower court, of the trial court, and so here the question is, “is there a change in circumstance” and the Court says, as a factual matter, there is not a change in circumstance! And the Court – we lawyers sometimes call this “bulletproofing” the opinion -

THOMAS Hmm.

ANDREW - goes through multiple ways and says, “look, they anticipated” – so the Trump administration is saying, you know, “there’s a surge of new families at the border,” we don’t need to delve into that, because that issue, even if true, was something that was anticipated between the parties in 2015. That’s why they have the “influx” language in there. And, moreover, we don’t think that there is this material change in circumstances between 2015 and today, and the appellate courts are going to be able to uphold this. Possibly even the Supreme Court? But I’m not – I don’t wanna make any predictions about the Supreme Court.

THOMAS [chuckles]

ANDREW But a fair appellate – if this were going to the most conservative Court of Appeals in the country, if this were going to the 11th Circuit, or the 5th Circuit, I would feel really confident in it. I would say, “look, you have a factual record,” and it would be naked activism for an appellate court to revisit the factual conclusions of a trial court, and that’s what they’re gonna have to do. So really, really good news! What this means is that the Trump administration’s, and Jeff Sessions’, top priority on immigration – when coming into office – eliminating the Flores Settlement, allowing indefinite detention of families together at the border – this Court has said, “no, ya can’t do that.” That, I think, is an unqualified good thing. That qualifies as good news.

THOMAS Sure! Yeah! Until the Supreme Court gets ahold of it, but okay, yeah, we’ll celebrate for now, great, awesome, yay. [chuckles] Until -

ANDREW chuckles Way to get in there, Buzz Killington!

THOMAS Yeah, just Buzz Killington, that’s me! Just to give us the scheduling, when will the Supreme Court overturn this?

ANDREW [chuckles]

THOMAS Would it be next – give me the calendar date when that would happen?

ANDREW It’s going to take at least – I would say it would take nine months for this case to be heard by the 9th Circuit, and the 9th Circuit can slow things down. There’s no injunction here, the Consent Decree is in place, so they can deny requests for Expeditious Consideration and, you know, so -

THOMAS Yeah.

ANDREW That’s where we’re going.

THOMAS Okay. Well that’s a little bit of good news, I guess. I’ll not – I’m not with you on the unqualified, definitely, good news.

ANDREW [chuckles]

THOMAS But it’s okay. That’s a little bit of good news. But let’s get to the bad news! [chuckles]

MUSIC INTRO

THOMAS Now that our serotonin is just absolutely out of this world from all of that good news, we can’t even – my synapses are just fried from all of the processing of that good news!

ANDREW [chuckles]

THOMAS So let’s transition over to [chuckles] some not-good news, just to balance it out.

ANDREW So let me start this with more optimism! And, again, feel free to Buzz Killington all over it!

THOMAS Well, I mean, I want to make clear that I very much hope that you’re wrong about this.

ANDREW Yeah, no I agree.

THOMAS I would love to have been called an alarmist! I would love nothing more than, you know, four or five, hopefully settle this whole thing, which will be never, but sometime from now, when we could say, “okay, Obergefell stood and wasn’t taken down, and was safe. I will be very happy!

ANDREW Yup!

THOMAS I want to have been alarmist, that would be great!

ANDREW Okay. So here is – as you know – so let’s start on the negative – I believe that the next Supreme Court, with Brett Kavanaugh as an associate justice, will, by a five-four vote, overturn Obergefell. I think that the groundwork for that was laid with the Supreme Court’s decision just two weeks ago in the Janus v. AFSCME case.

THOMAS Mm-hmm.

ANDREW I’ve been really clear about that, that as the Supreme Court saying, “yeah, we didn’t like this decision”

THOMAS Right.

ANDREW “And even though it’s 40 years old we’re getting rid of it in favor of the conservative outcome.”

THOMAS Yup.

ANDREW A lot of folks are very invested, I think emotionally, in the idea that John Roberts, as an institutionalist, as somebody who believes in the independence of the Supreme Court, judging – and, by the way, they’re drawing that mostly from the fact that he signed onto the majority with very, very narrow grounds, to uphold the individual mandate in Obamacare -

THOMAS Right, right.

ANDREW - in the Sebilius decision. That’s it! That’s your thin read of John Roberts as an institutionalist!

THOMAS [chuckles]

ANDREW I guess if you want a piece of evidence it is that he has tried to craft some narrower decisions to bring along – to avoid five-four decisions. So, you know, you might look at what the court did in Masterpiece, for example, instead of trying to get a full-throated compelled speech argument, they sort of crafted this weird language that nobody really understands what it means.

THOMAS [chuckles]

ANDREW So those are the evidences that John Roberts is an institutionalist, which we’re taking as a given. The other piece of evidence that I would offer, and I haven’t seen anybody make this point, but I wanna give the best case for hope, right? The other piece of evidence that Roberts will not overturn Obergefell is a 2017 per curium opinion that was issued by this Court in a case called Pavan v. Smith. I’m gonna link it in the show notes. You guys remember per curium means that it is unsigned, right? But when you dissent from a per curium you have to sign your dissent, and this was, therefore, six-three – though there was no six judge majority, you just figure it out by implication.

THOMAS Hmm.

ANDREW Gorsuch, Thomas, Alito in dissent. This is a case that should never have made it to the Supreme Court, and let me kind of give you the facts: In 2016 the Arkansas State Supreme Court ruled that birth certificates are a record of biology and not a benefit of marriage and, therefore, despite Obergefell the State of Arkansas could still say “we are not going to recognize same-sex couples for parenting purposes on birth certificates.” Blatantly discriminatory, obviously in violation of Obergefell’s mandate -

THOMAS Hmm.

ANDREW - of equal treatment, as between same-sex marriages and opposite-sex marriages. The Supreme Court took up the case, they reversed, they explained that birth certificates are indeed a benefit of marriage – not that they should have had to do that – and that married same-sex couples must therefore be listed on their children’s birth certificates. Gorsuch, Thomas, and Alito dissented, and their dissent included the language “nothing in Obergefell indicates that birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution. To the contrary, to the extent that they speak to the question at all, these Court’s precedents suggest just the opposite conclusion.” So you got three hard votes for “we’re gonna try and gut Obergefell by insuring that it does not apply to the basic aspects [chuckles] of marriage,” right?

THOMAS Yup.

ANDREW Like, you can get a same-sex marriage but it’s gonna be a “separate but equal” same sex marriage.

THOMAS Right. Yeah, yeah.

ANDREW So that’s a terrifying dissent. You can read some optimism in to the fact that Roberts did not join in that dissent.

THOMAS Right.

ANDREW I would temper that optimism, right? Roberts’ institutionalized hypothesis says, “yeah, look, it takes a lot to dissent from a per curium opinion as opposed to just a standard majority opinion” and that’s just true as a matter of Supreme Court behavior. And failure to dissent from a per curium opinion does not mean – right? That’s why they’re unsigned. That does not mean that the rhetoric in the majority opinion cannot be attributed to you in subsequent cases. So he could have disagreed, or he could have agreed with 85% of the Gorsuch, Thomas, Alito dissent, and just not signed onto it. Additionally, this is a 2017 case, right?

THOMAS Yeah.

ANDREW So who knew, you know, kind of where the Court was going? Gorsuch was on the Court by this time, so, you know, you have some idea, but again Gorsuch is replacing Scalia. You have no idea – Anthony Kennedy was in the majority on Obergefell and I could see a Roberts saying, “well, I’m not gonna reiterate my blistering dissent from Obergefell every single time something comes up.” You know, “people know where I stand and I don’t need to file or even sign onto a separate dissent here.” So, you want the optimism? The optimism is he didn’t join in that dissent. You want the pessimism, there are other plausible methods to believe that he failed to sign onto that dissent but will sign on to a case that overturns Obergefell, and like – that transitions into the deep dive topic that I wanted to talk about -

THOMAS Sure, but let me just add onto that -

ANDREW Yup!

THOMAS That certainly should tell us that the minute one more justice goes down, unless it’s Alito or one of those three, the minute that happens we’re beyond effed. Like, there’s no chance. We already got a guaranteed four justices who would sign onto that miserable dissent on that per curium opinion. The minute we get one more, it’s gotta be over, right? So even if, best case, you think “maybe we’re hanging on by a thread,” maybe, or Roberts’ institutionalism or whatever, one more justice and that’s all over.

ANDREW Yes. That is exactly right. And so, yeah I don’t want to downplay this in any way whatsoever. Ruth Bader Ginsburg is 85 and, as we’ve mentioned before, 37 pounds, right? Justice Breyer is 79, right?

THOMAS Wow.

ANDREW So, now he looks good, right? But he’s 79!

THOMAS You never know! You just never know.

ANDREW Yeah. So, yes, the case - I think that it’s good that you point this out, although it’s depressing. The case for Obergefell surviving is John Roberts will recant his dissent on the basis of stare decisis, even though he told stare decisis to go take a hike in the Janus case, right?

THOMAS Right.

ANDREW But he will to preserve a three year old opinion, rather than a 40 year old opinion -

THOMAS Right.

ANDREW - in which he bitterly dissented, because he’s “concerned about the Supreme Court’s legacy,” -

THOMAS Right.

ANDREW Even if you buy that, that argument doesn’t work if Ginsburg or Breyer go down. So, yeah. So that’s the thread. The thread is “John Roberts is gonna save us” and I just want to point out, that’s what you’re saying. John Roberts is gonna save us. Um. That’s not where I -

THOMAS And that’s why I was so blown away by that episode, is because you read his dissent!

ANDREW Yeah.

THOMAS - in Obergefell, and it’s not like it was, you know, just a mild “oh, well, you know, I don’t think” – it was vociferously argued, and I don’t know -

ANDREW Yeah, “From the Aztecs to the Medo-Persians to the,” like, yeah, “the Kalahari Bushmen, how dare we redefine marriage?” That is the core of the anti-gay right wing argument. And to see him parroting that was -

THOMAS And it might be that the public has, you know – I think public acceptance of same-sex marriage has gone up, I think that’s true, but we’re not talking about the public. We’re talking about an institution that’s been kinda hijacked by a minority of people, by hard-right wingers, who have hijacked the Supreme Court, and they’re not responsive to the public, I don’t think.

ANDREW Yeah, and that’s what I wanted to take a look at. And we -

THOMAS Okay.

ANDREW And so we’ve been kinda talking about the interplay between the Supreme Court and public opinion. So we talked about in 1937, the end of the Lochner Era and how Justice Owen Roberts possibly decided that, for political reasons, he switched his view and started allowing New Deal programs rather than taking the most hardline pro-capitalist approach, it, you know, again, that’s disputed as a historical matter but, you know, we talked about it in the last episode. Immediately what came to mind when I thought about overturning a three year old case on the basis of, really, the Court reversing itself, I thought back to the Supreme Court and the Death Penalty and the 8th Amendment. And let me tell you what I remembered, and I’m admitting – this is a pre-emptive Andrew Was Wrong – because my memory was a little faulty – I remembered the Supreme Court in 1972, in a case called Furman v. Georgia, holding that “capital punishment violates the 8th Amendment’s prohibition on cruel and unusual punishment” and then, four years later, in 1976 in a case called Gregg v. Georgia, reversing itself and saying, “nope, capital punishment is fine after all!” As it turns out, things are a little more complicated then that, and so I thought that this would be an interesting topic in its own right. We’ve talked about the 8th Amendment and how I think the 8th Amendment is the knockdown argument against Originalism, and squaring what the Supreme Court did in 1972 versus 1976, and what lessons that that has when thinking about going forward! So, let’s go! Let’s hop in the Limited Use Time Machine, go back to 1972.

THOMAS Alright!

ANDREW Parenthetically I want to point out, this is my favorite bit of trivia. As of 1986, I don’t know if subsequently, but I think it’s probably still true today, this case, Furman v. Georgia, was the longest case in Supreme Court history. It was, counting concurrences and dissents, over 230 pages in length -

THOMAS Wow!

ANDREW 50,000 words long. Now it’s possible that – that is taken from the words of Justice William Brennan, who wrote one of the concurrences. It’s possible that – he gave those in an address to Harvard in 1986, so it’s possible in the last 30 years something has surpassed it, but in any event, it is still an unbelievably lengthy opinion and yet, the opinion itself is one paragraph long.

THOMAS [chuckles]

ANDREW It is a per curium opinion, and I’m going to read it in its entirety here. So, after describing the procedural posture, how the case got there, it says, “Certiorari was granted limited to the following question: Does the imposition and carrying out of the death penalty in [these cases] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” And let me say, parenthetically, the reason that it is the Eighth and Fourteenth Amendments is because we’re talking about State punishment, so the Eighth Amendment’s prohibition on cruel and unusual punishment is incorporated to the States through the Fourteenth Amendment. So, anyway, back to the text. “The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.” That’s it. That’s the entirety of the opinion. And you might notice that that opinion is lacking one thing that Supreme Court opinions usually have, and that is a reason. [chuckles]

THOMAS [laughs]

ANDREW And as it turns out, that’s why the Court was divided. It was a five-four decision, so four justices joined in the dissent, Warren Burger, Blackmun, Powell, and William Rehnquist. The majority opinion produced five separate, one justice concurrences. And each justice had a different reason for believing that capital punishment was inappropriate under Georgia’s scheme, as applied in these cases. So the first – and I’m not gonna go through all five of the concurrences, that would require a six-hour long episode, but basically, you can think of it as falling under these grounds: Justices Stewart, White, and Douglas wanted narrow grounds for overturning Georgia’s use of the death penalty, they believed – to oversimplify things – that there was procedural and racial injustice in the application of the death penalty. The other two concurrences were from William Brennan, who is the most liberal member the Supreme Court has ever had, and Thurgood Marshall. And they wanted a blanket ruling that the Fifth and Fourteenth Amendment explicitly prohibited any State from imposing the death penalty, period. And at this point, I am going to link in the show notes, Justice Brennan’s lecture, Justice Brennan’t 1986 lecture. I alluded to it earlier, it was the Oliver Wendell Holmes Lecture given at Harvard to celebrate Harvard University’s 350th birthday, and in that lecture, Justice Brennan – far more eloquently than I could – lays out his jurisprudence for why he believes that the Eighth Amendment’s cruel and unusual clause prohibits capital punishment. I will tell you, this will break your heart when you read it. Because of Justice Brennan, who was then quite elderly, because of his relentless optimism, and his belief that one day the Supreme Court will come around to his position, and, you know, the only comfort is I’m glad that Justice Brennan is not alive to see what the Supreme Court is now.

THOMAS Wow.

ANDREW Because I would not take that bet, for the foreseeable future.

THOMAS [sighs]

ANDREW So, that’s 1972. Two votes for “capital punishment always violates the Eighth Amendment,” three votes for “Capital Punishment violates the Eighth Amendment in Georgia because it’s procedurally unfair.” Georgia goes back and revises their capital punishment statute to try and eliminate some of the procedural problems but, you know, not too many of them, and the case comes back before the Supreme Court in 1976. And so, from 1972 to 1976 what happened politically is that President Gerald Ford replaced Justice William O. Douglas, one of the five votes for the per curium opinion, again, one of the moderate votes, with Justice John Paul Stevens, and let me do a little bit of a sidebar here, you probably remember – a lot of our listeners probably remember – John Paul Stevens as firmly on the Court’s left wing, right? He dissented in Bush v. Gore, he dissented in Heller, he dissented in Citizens United. Up until recently, when he passed away, he was considered part of the Court’s hardcore left wing block. In 1975, that wasn’t the case.

THOMAS Hmm.

ANDREW And Stevens is, in fact, a Republican. He was appointed by a Republican President, he was the author of the Chevron decision that we have talked about at such length, which, again, not a liberal opinion.

THOMAS Yeah, I was gonna say, was it even considered partisan at the time?

ANDREW No. It definitely was not.

THOMAS Right.

ANDREW And so, I think this illustrates – sort of the first sidebar, is I think that this illustrates the overturn window on the Supreme Court. Justice Stevens lived to be 98, which -

THOMAS Wow!

ANDREW You know, yeah, I hope -

THOMAS Hear that, Ginsburg?!

ANDREW Yup! So, yeah, she’s got another 14 years still.

THOMAS Yeah, hopefully.

ANDREW Yeah, let’s hope! And he was considered to be firmly on the left wing of the Court, I think largely because, not only the Court shifted so far to the right, but because of the methodology. Because it went from the standard model of jurisprudence to the Scalia model of activist originalism. In any event, either the Court, or Stevens, or both moved and so, at the time, Stevens, replacing Douglas, joined with Justice Lewis Powell, Stewart was in the majority in Furman, Powell was one of the dissenters, and they revisited the decision in Furman in a case called Gregg v. Georgia in 1976. Oh! Let me do – sorry – let me do just one more little sidebar that just occurred to me, again, in the different times, Gerald Ford was never elected to anything, right?

THOMAS Yeah.

ANDREW He was the Speaker of the House of Representatives and with the resignation of Sprio Agnew he became Vice President, and then with the resignation of Richard Nixon he became president. In 1975 you’ve got an election coming up in 1976, no one thought that Gerald Ford couldn’t nominate a Supreme Court justice, right? Democrats -

THOMAS Yeah.

ANDREW - didn’t attempt to block that, they didn’t stall, they didn’t do the McConnell trick, they said, “yeah, look this – we have a system of the Rule of Law, and Ford, despite the fact that he hasn’t been elected followed the rules, it’s not his fault he’s President, and he’s the President! And he gets to pick the Supreme Court” -

THOMAS [laughs] “It’s not his fault he’s the President!”

ANDREW [[chuckles]] Right? And so, you know, that’s – I yearn for those simpler times.

THOMAS Times, yeah? Yeah we yearn for the Watergate Era, huh?

ANDREW Yeah!

THOMAS [sighs] Those were the days!

ANDREW Yeah! I do!

THOMAS [laughs]

COMMERCIAL THOMAS: Today’s episode is brought to you by Beach Body On Demand, which is an easy to use streaming service that gives you instant access to a wide variety of effective workouts you can do from the comfort of your living room, 24/7. Andrew, this is a really cool thing, this is awesome – Beach Body, by the way, is the same company that’s behind P90X and Insanity and 21 Day Fix and some of the other ones. I have been doing P90X and Insanity for years! I’m so excited that we get to advertise with these guys! ANDREW: Yeah, I am excited, as you know, as I think we’ve shared with our listeners, I’m in the process of trying to lose weight, so I’m really excited to have Beach Body as a sponsor. I have gone through – so, like, it’s pretty cool. What you do is, you get access to this online portal, right? THOMAS: Mm-hmm. ANDREW: It’s Beach Body On Demand, and then when you log in you get to pick your fitness level, you get to pick the time, the type, if you have, like, favorite trainers! THOMAS: Cool! ANDREW: I know you - THOMAS: See, I love Sean T., I love Tony Hornton! I’m sure they’re all great, but those are the ones I’ve used before! ANDREW: Well, I’m gonna do – I’m gonna give you my opinion on Tony Hornton, because I’m gonna do the Tony Hornton Program, what I like the best is, you know, I have a sedentary lifestyle and career, right? Lawyering and podcasting is – THOMAS: Yeah, not a lot of running involved in what we do! ANDREW: No, and doing the show twice a week means I don’t have a lot of time to do other stuff. So, like, the P90X is great, but that’s like if you have a spare hour a day! I do not have a spare hour a day! But, Tony Horton has the “Ten Minute Trainer” so I’m gonna do that! It’s a 60 day program! THOMAS: Oooh! ANDREW: We’re gonna check back in in 30 days and see how – THOMAS: Yeah, listeners should do that as well! And what I think you’re touching on that’s so great about this, rather than decide, “which is the best for me? Do I do this one? Do I buy this set of DVD’s or something else? It’s like, no! You can do Beach Body On Demand and then whatever’s gonna fit with your schedule, whatever’s gonna fit with your particular fitness goals, you can just get access to any and all of those videos whenever you need them. I think it’s a great idea! ANDREW: Oh yeah, and let’s be clear, right? This contains – when you log onto the portal – it contains videos that you can stream anywhere, on the computer, I’m gonna use it on my iPad, you can do it on a Smartphone, a web-enabled TV, a Roku box, all that sort of stuff, so you can put it on, you can watch the programs, you can also download – it’s got a little tab where you can download the written material so it tell you, you know, what you need. Each program has, like, dietary advice under it as well. It’s really cool! So I feel pretty good about this one, right! So I clicked on “fitness level,” and my fitness level is not great, you all know that, I first clicked on “beginner” and I was, like, “no, no, no, I need beginner / intermediate.” THOMAS: Oh, alright! ANDREW: The beginner was, I mean, I really feel like, you know, my grandma could probably handle some of the beginner stuff. THOMAS: So it gives you all the range you could need of where you’re at, it sounds like? ANDREW: Yeah, yeah! THOMAS: Awesome! ANDREW: Yeah, I was very excited about it. THOMAS: Yeah, so guys, try this out and it’s awesome. Right now you can get a special free trial membership if you text “OA” to 303030. That’s the phone number there that you text to is 303030 and just text “OA” and you get that free trial membership. I think it’s a great idea and one of the best things is I love Sean T because he’ll kick your butt in all these workouts, and there’s no equipment. There’s no doodads or bungees or anything, there’s so much different stuff you can do to get in shape. So if that’s something you’re interested in, make sure to text “OA” to 303030. ANDREW: And we’re gonna check in in a month, I will be able to tell you what I think of Tony Horton, and we’ll see how each of us are doing! THOMAS: Awesome, sounds great!

ANDREW So there we have it. So those, by that realignment, that got Potter, Stewart, to flip from being in the majority in Furman to being in the majority in Gregg, which the holding of that case can be summarized by a single line. That line is, “we now hold that the punishment of death does not invariably violate the constitution.” In other words, rejecting the Brennan and Marshall concurrences, and I thought – and again, part of this is because William Brennan was a hero of mine in law school, in many ways still is, and so, you know, my recollection was that the Supreme Court – when you have a per curium decision, it just says what we did. It just says, “in these cases, Georgia’s use of the death penalty violates the Eighth Amendment,” right? That’s all that case stands for. And none of the individual concurrences gathered a majority, so none of it was controlled. I remember it as being more controlling than that. So, in other words, I wanna say that reversing that position, A) it’s not quite a reversal because no one’s exactly sure what Furman meant, and B) is less radical than what I think will happen to Obergefell.

THOMAS Hmm.

ANDREW So, in other words, it is less radical to go back, and the case, the Gregg decision, very clearly goes through the procedural history and says, “hey, look, we had a majority agreeing that in those four cases, Georgia’s use of the death penalty violated the Amendment, but they couldn’t agree as to why, Georgia has gone back and alleviated some of our procedural concerns, and so now we hold that it is not impermissible for a State to impose capital punishment.” And in my view, that’s part of what I think ought to continue to inform our discussions. Like last week we said that my view on the Kavinaugh confirmation hearings is focusing on the role of precedent. The precedent established by Furman was a lot weaker that the precedent established by Obergefell. So this, in my view, does not provide the same justification for, you know, kind of nakedly overturning a prior precedent. And, in fact, the Court in Gregg v. Georgia does not say that they are overruling Furman, right?

THOMAS Hmm.

ANDREW This is more in line of what I think an institutionalist Roberts might do with Roe. Say, we are reaffirming Roe on its face, but, you know, kind of gutting it in much the same way that the Planned Parenthood v. Casey case did. I don’t see how that option is available in Obergefell, right?

THOMAS Yeah.

ANDREW It – now look, there is one way. The way in which you could reaffirm Obergefell is to have a case like Pavan v. Smith come back up, that deals with a core benefit of marriage.

THOMAS Right.

ANDREW And essentially have the Court craft a, “well separate marriages are equal marriages.”

THOMAS Mm-hmm.

ANDREW They could do that. I think, there is a reason I am characterizing it that way, because if you are John Roberts, I think you are not tone deaf to history, right? [chuckles] You do not want to be authoring a decision that, if you are an institutionalist and you care about the Supreme Court’s legacy, that is going to be considered, you know, the Plessy v. Ferguson of the 21st Century. And so you may well say, “I would rather explicitly overrule a case as improvidently decided,” what the Court did in Janus, than try and craft a fig leaf of pretention of, “we’re going to imagine that we’re within the rule established by Obergefell, but really gut it.” And the difficulty in doing that is, you have Gorsuch, Alito, Thomas, and Kavinaugh on the Court who are, at least the first three of those, who are often intemperate in their language and who are going to want to gut it. So that’s my parenthetical on Obergefell. I thought it might also be worth talking a little bit about what the Eighth Amendment means, and the way in which this decision, the Gregg v. Georgia decision, the more conservative decision reversing, or at least limiting, Furman v. Georgia on capital punishment. I think it’s worth pointing out just how far conservative jurisprudence has moved since 1976. Justice Brennan’s argument in Furman v. Georgia is what is parodied today as the “Evolving Standards of Decency” argument. But it – that is language that Justice Brennan has said, and he’s said, “look, it’s obvious that when the Founding Fathers prohibited cruel and unusual punishments, they were not simply prohibiting punishments that were thought cruel and unusual at that time.”

THOMAS Hmm.

ANDREW Rather, they were enshrining a moral principle into the law that says, “the most heinous, the most shocking of the conscience, the worst kinds of punishments, are the kinds that we intend to prohibit.” And therefore, that standard must evolve over time. We cannot just be fixed with 1789, we must look to evolving standards of what is shocking to the conscience to figure out what violates the Eighth Amendment. In rejecting that capital punishment violates the Eighth Amendment, the majority in Gregg did not go for the argument that I believe the Supreme Court would go for today. And that argument would say this: “the Fifth Amendment and the Fourteenth Amendment both say that no person shall be put in danger of life or limb without due process of law,” and so, you combine that with an Originalist view that says, “cruel and unusual punishment means cruel and unusual circa 1789, it was obvious nobody thought that capital punishment was cruel and unusual circa 1789, and that’s it, our inquiry is over, we’re done.”

THOMAS Yeah

ANDREW That’s not what this Court held. This Court said, “in the earliest In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not an issue, and the criterion used to evaluate the mode of execution was its similarity to ‘torture’ and other ‘barbarous’ methods. But the Court has not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic matter. The Court early recognized that,” quote, “’a principle to be vital must be capable of wider application than the mischief which gave it birth.’” End quote, and that’s an internal citation to a 1910 case, Weems v. United States. So, this is a conservative majority, in 1976, writing, overturning the 1972 case, or effectively overturning it, and adopting precisely the same view of the Eighth Amendment that Justice Brennan urged them to adopt!

THOMAS Hmm.

ANDREW Which is to say that the Eighth Amendment was open, flexible, dynamic, not just confined to punishments that were prohibited -

THOMAS Interesting!

ANDREW - in the 18th century, and that that was true for a century! That that was true for longstanding precedent. Now, then they went on to say, however, “in assessing a punishment selected by a democratically elected legislature, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.” And that set up what remained good law up until the 21st Century, the notion of “Proportionality” as being the hallmark of the Eighth Amendment. But it is clear – I mean, I just wanted it to be on the record – the degree to which that was conservative jurisprudence 40 years ago. And -

THOMAS Yeah, so, interesting! So it wasn’t quite how you remembered it, necessarily?

ANDREW Yeah!

THOMAS It was that they do – the conservatives at that time did recognize changing standards and not just whatever was cruel and unusual in 17-whatever is locked in forever until we amend the Constitution or something? But they still just thought, “the death penalty is not quite there”?

ANDREW Yes, that’s exactly right.

THOMAS Okay.

ANDREW And they criticized -

THOMAS But now, the difference is that the nutjob conservatives in the Court now are saying, “nope, whatever happened in 1789, well that’s locked in,” so that’s the difference?

ANDREW Yup.

THOMAS That’s what you’re saying.

ANDREW That is exactly right.

THOMAS Okay.

ANDREW And again, the reason that they did not adopt that position, I believe, in 1976 is because of William Brennan’s -

THOMAS Because it’s absurd?

ANDREW - concurrence in 1972, right?

THOMAS Oh.

ANDREW In which he points out that people – that it was legal in the States, that multiple States permitted breaking on the wheel, hanging people in public stocks, pillories, things that are undeniably torturous today. And the only way out of that dilemma, as we’ve mentioned on a previous episode, is the answer Antonin Scalia gave to Nina Totenberg, which asked if, “okay, under the Originalist view, you’re saying we can bring back the stocks, we can bring back breaking on the wheel,” and Scalia said, “well, I think that would be, you know, very unwise for a State to do,” so [chuckles] “but it would not be unconstitutional.” This would be a really really good question to ask Bret Kavanaugh. What do you think the Eighth Amendment means?

THOMAS Yeah.

ANDREW Does the Eighth Amendment’s prohibition on cruel and unusual punishment apply only to those punishments that the Founding Fathers thought cruel and unusual? So, right? What does that prohibit? I think that this is the -

THOMAS Yeah.

ANDREW - hardest position to defend publically.

THOMAS Do you believe that Kavanaugh would be right in line with Scalia on that question?

ANDREW I don’t know. So, do I believe that Justice Kavanaugh has a nuanced view of the Eighth – I do not.

THOMAS Right.

ANDREW So I think his vote would be that way. I think that Justice Kavanaugh is a very, very smart guy, but this is a really hard question to skirt around. You may recall that I encouraged the Senate Judiciary to ask this question of Neil Gorsuch, right? Gorsuch is also a smart guy and I don’t know of the smart Originalist way to answer the question. The smartest way is the way Scalia did, which, you know, you can safely do that when you’re on the Court with lifetime tenure, right? Because it made the news. The reason I remember that Nina Totenberg interview is because it made news! You had a sitting -

THOMAS Yeah.

ANDREW - Justice of the Supreme Court saying, “you know, if I had a case of, you know, Alabama brings back public flogging, I’m gonna say that’s okay” like, that was noteworthy.

THOMAS Because it’s what the Founders wanted.

ANDREW Yeah! Right! And that illustrates the silliness of that granularity of “What the Founders Wanted,” right?

THOMAS Yeah.

ANDREW Because again, remember, the issue on Originalism is not figuring out what the original authors meant. I mean, everyone believes that at some point you’ve got to go back to, “what did the people who passed this think they were doing,” but the argument from the mainstream theory of jurisprudence is, “when you use vague language, you are enshrining a principle rather than the specifics that you were – in your head – that were common use or in textual definitions at the time.” That’s the distinction.

THOMAS Right.

ANDREW Everybody wants to go back to what the Founding Fathers wanted, and then the questions is, did the Founding Fathers intend to prohibit cruel and unusual punishment, writ large, defined as punishment that’s cruel and unsu – you know, that shocks the conscience! That seems wrong, that seems barbarous, that seems miserable, which capital punishment clearly falls into that category, that we are one of only a handful of nations that still employs capital punishment, or did the Founding Father’s prohibition on cruel and unusual punishment mean “we intend to prohibit the things that we find shocking right now and only those things!”

THOMAS Yeah, specifically those things! Yeah.

ANDREW [chuckles] And when you break it down like that, it’s easy to see why the textualist, originalist position falls apart under any level of scrutiny. Or why – and look, I’m not suggesting that as an academic you couldn’t get on and come up with an internally consistent system. If be brought Seth Barrett Tillman back on this show, I have no doubt he could answer these questions, but he would answer these questions in a way that would – I think, in all likelihood – lose Susan Collins and Lisa Merkowski were he -

THOMAS [chuckles]

ANDREW Were they voting to confirm him to the Supreme Court.

THOMAS Yeah.

ANDREW And he’s not shy about that! He openly admitted in our interview, “yeah I hold a minority position, this is my view of jurisprudence and I’m happy to hold that and articulate it.” I’m reminded of the Sam Harris aside of, in philosophy we often ask questions like “when is it okay to eat babies,” and so you will find, when you look through philosophy, statements about baby-eating that you wouldn’t otherwise make as a public speaker, and, you know, I think that’s the case here. There is nothing wrong with engaging on an intellectual level with somebody who espouses even Scalia style Originalism if you’re honest about it, I think it would be revealed as disqualifying to a majority of the American public. Maybe I’m too optimistic! Maybe -

THOMAS Hmm.

ANDREW And I’ve been overly optimistic for [chuckles] a lot of things! But, there’s where -

THOMAS Yeah, so then bring this back around, though. Are you – does this sway you one way or the other in terms of what it means for Obergefell? It sounds like, ultimately, the Eighth Amendment, the capital punishment stuff, wasn’t as big as – quick and as stark a reversal as you had previously thought, so does that suggest anything about how Obergefell might be treated?

ANDREW Yeah. It gives me a tiny bit more optimism on the Roberts as institutionalist, but then I go back and I read Janus, and, again -

THOMAS Yeah.

ANDREW - let me say, as somebody with – who’s been urging respect for precedent as mainstream theory of jurisprudence, a three year old case has less stare decisis value than a 40 year old case, so at the end of the day I think it’s gonna be a challenge, but at least there is less of a history than I thought. I do want, while we’re bringing the segment to a close, I want to answer the question that you posed at the beginning, which we’ve both seen, which is folks who I think are way overly optimistic are saying, “once the Supreme Court grants a right they never take it away.”

THOMAS Yeah.

ANDREW And, look, this is a really strong illustration, right? [chuckles] After 1972, the belief was that it was certainly possible that the Supreme Court was going to strike down capital punishment, period. And yet, Georgia went back and tried again, and all of the criminal defendants between 1972 and 1976 that were relying upon the Supreme Court’s opinion in – that were relying on the Supreme Court’s opinion in Furman had those dreams dashed in 1976. With respect to criminal rights, the broad exclusionary rules that were created in the 1960’s have been steadily eroded away in the -

THOMAS Right.

ANDREW - 1980’s and 90’s. The writ of habeus corpus has been steadily whittled away in the 1980’s and 90’s. It – I do not think that the argument that there is a reliance interest – look, I think it’s a good argument for stare decisis but I do not share the confidence of those that say, “oh, well, you know, once you get a right the Court never takes that away” because we’ve seen things to the contrary, and let me give you an ironclad example of that, okay? And this example is one of the longtime cases to appear on this show, Employment Division v. Smith. Prior to Employment Division v. Smith the governing rule was a case called Wisconsin v. Yoder and a companion case called Sherbert v. Verner, Wisconsin v. Yoder was about the rights of the Amish to pull their kids out of public high schools at age 14 instead of age 16, and the majority said, “yeah, you know what? If you can accommodate religious belief, even in a neutrally applicable law, then you have an obligation as the State to make sure that you’re not infringing on the honest expression of a sincerely held religious belief if there is a less restrictive alternative available,” and there the Court said, “you’re already letting kids out at 16, let the Amish kids out at 14.”

THOMAS Hmm.

ANDREW And that is a right! That’s a right the Amish had, and then along came Employment Divison v. Smith in 1990 which said, “nope! We are reversing this case, we are reversing Wisconsin v. Yoder, we are reversing Sherbert v. Verner, which, again, doesn’t use the language “reversed,” what it says is, “to the extent that these cases are inconsistent with these opinions, they are overruled.”

THOMAS Yeah.

ANDREW And they are taking away the right to a religious exemption under the law from a generally applicable law of neutral – that is, you know, of neutral applicability. So, there’s your example, that’s from Scalia, and so if anybody says to you, you know, “once the Court gives a right they never take it back,” say “[clears throat] Employment Division v. Smith” because they – you know, they might quibble with, you know, “they’ll scale it back to almost nothingness but they’re not gonna take it away. We still do have the Exclusionary Rule even though it’s almost never applied. The exceptions have broadly swallowed it up, but, you know, they could distinguish the earlier cases that I’ve talked about. You can’t distinguish Smith. That took the right to a religious exemption and said, “no, you don’t have it anymore.” And that’s where I think, at the end of the day, that’s still where I think we’re going with Obergefell.

THOMAS And I still just think, you know, even if that were the case that they never took away a right, we live in very outrageous times.

ANDREW Yup.

THOMAS And I’m not [chuckles] you know? I don’t know that that’s gonna protect us from people like Alito, Gorsuch, Kavanaugh, Thomas – I don’t think that that’s gonna protect us necessarily. And I would hope it does, but once again everybody here wants it to be true that Roberts’ – however thin it may be – dedication to institutionalism will make it so that he wouldn’t preside over the court that does this, and hopefully that’s true, but boy, I just don’t – I don’t have that much faith in that. But, you know, that’s where we are.

ANDREW Yeah, and you, I think, kinda took the words out of my mouth with that second point, which is – that was the other kind of profound feeling of loss that I came away from in reading the Gregg decision, it’s why I wanted to read what counted as a conservative majority back then. So, you know, trying to generalize from prior Supreme Court to the behavior of this upcoming Supreme Court is gonna be a challenge because we’ve never had a Supreme Court with a critical mass of right wing activists on it before.

THOMAS Yeah.

ANDREW And we’re gonna have that! So -

THOMAS Yeah.

ANDREW Boy, this took a darker turn than I thought!

THOMAS Yup.

ANDREW Go back and listen to the “A Segment” again, everybody!

THOMAS Yeah, I was just gonna say! But in good news, everybody, a decision that will be overturned by the Supreme Court in, you know, a year or something, happened! So that’s good news, as Andrew said. It’s really… really… good. [chuckles]

ANDREW Thanks, thanks! We are trying -

THOMAS No, but -

ANDREW - I’ve gotta have people not refusing to listen to the show because it’s too depressing!

THOMAS [laughs] Well you’ve got – no, hold on, we’ve gotta brighten this up – you’ve got a really cute dog staying at your house!

ANDREW I do! And if you were in the -

THOMAS That’s good news!

ANDREW - OA Facebook community you would see the picture of the delightful 10-week old Bernese Yodel Mountain Dog! [chuckles]

THOMAS [laughs] How did I not think of that until you said it?

ANDREW That dog is just -

THOMAS Bernese Yodel Mountain Dog is the official dog of Yodel Mountain!

ANDREW [laughs] The official dog of Yodel Mountain, there we go!

THOMAS [chuckles]

ANDREW So, yeah! That’s made me happy! It’s made Thomas unhappy because we’ve had to pause several times in this recording, but he is delightful! He is Blasto and you will maybe get a chance to see him in the -

THOMAS Blasto!

ANDREW - next Q&A segment.

THOMAS [chuckles] That’s such a good dog name, too! I gotta hand it to you, or whoever, I guess. Blasto is a great dog name, it’s a cute dog, and that’s all the good news we have for you!

ANDREW No, that’s not true! I have good news because we have new Patrons to thank! You can’t get better news than that!

THOMAS That’s true, that’s very good news! And not only that, I gotta mention again, Opening Arguments has a wiki page now! So like, I mean -

ANDREW Yeah.

THOMAS - that’s pretty good news! We got that!

ANDREW [chuckles]

THOMAS But who are our new Patrons over at patreon.com/law?

[SEGMENT NEW PATRON TUESDAY]

THOMAS Thank you so much, new patrons! I hope you enjoy it, and you are making this show happen, and you are our good news, that and the wiki page, and Andrew’s dog -

ANDREW [chuckles]

THOMAS And that’s about it. Oh, and I still have Phoebe, that’s always good news!

ANDREW Aw yeah -

THOMAS At least for me, doesn’t do much for you guys, but, uh … unless you follow my Phoebe Instagram. Alright, well now it’s time to find out how much narrower my chances of getting to 60% are!

Thomas Takes the bar exam

RANDALL DUNBAR Oh, no associate of this firm has ever failed the bar exam.
MITCH McDEERE No kidding.

THOMAS Right, yeah and I should have said, I mean, I could imagine, you know, if me and Lydia had a fight or something [chuckles] right?

ANDREW That would never happen!

THOMAS Lydia probably has the option to – yeah, she probably has the option to testi – like, your spouse probably could testify against you, you know. It’s not like if you did something horrible and your spouse wanted to testify against you they would be prevented from doing so because of you, right?

ANDREW That’s exactly right. And the rational – again, remember these privileges go back to 13th century Saxony, right?

THOMAS Yeah.

ANDREW So, the privilege at common law is that we do not want the government fostering marital disharmony. [chuckles] And so, right? You can imagine!

THOMAS [chuckles]

ANDREW You get – in a world in which Lydia does not want to testify against you and the prosecution puts her on the stand and then she gets on the stand and, you know, what she says is kind of confusing and is potentially used to incriminate you, you’re probably gonna go home and be a little mad at your wife that night, and the law doesn’t want you to go home and be mad at your wife! But, if -

THOMAS How oldtimey!

ANDREW - you’re already mad at your wife [chuckles] then the law says, “great!” Well, then, that’s fine. So, yes. The right to refuse to testify rests with the witness -

THOMAS ‘kay.

ANDREW - with the spouse, he or she can waive that privilege if they decide to do so. So then in the “yes” answers, you eliminated “yes, because the wife’s viewing of the defendant’s clothing was not confidential communication”, that was answer “D”, that’s also a really, really good elimination! And I think – again, we’re – we have to top in the time machine to see this – I think this is gonna trip up a couple of folks, because this is really the attractive distractor here, I think.

THOMAS Oooh!

ANDREW It confuses together testimonial privileges with communications privileges. So, we’ve talked about how -

THOMAS I see.

ANDREW - attorney-client communications, right? They don’t cover everything that you say to me, right?

THOMAS Right.

ANDREW They only cover when you, in confidence, seek legal advice from me and I render it to you. So this is designed to get you if you’re a poor law student who’s cramming for the bar exam as a lot of our listeners are doing right now [chuckles]

THOMAS Mm-hmm.

ANDREW Then you’re like, “oh yeah, that’s right! Uh, uh, privilege means … uh, must be confidential. No, it wasn’t confidential, therefore” – right? So it’s designed to trigger that section of your brain trying to memorize things. The spousal privilege is a testimonial privilege. It is a privilege not to have to testify at all, and it doesn’t matter whether it’s a confidential -

THOMAS You know, that’s what I figured! I wasn’t 100% sure, but that’s actually what I figured, so -

ANDREW Yeah!

THOMAS - good elimination, now [hoo!] does it apply in criminal cases, I guess -

ANDREW That’s!

THOMAS - is the last question.

ANDREW That’s exactly right! And so, the final answer that you eliminated was “C”, “yes, because the spousal testimonial privilege does not apply in criminal cases” and, good elimination!

THOMAS Ah, yes!

ANDREW It is in fact -

THOMAS It was the straightforward answer, okay.

ANDREW It was the straightforward answer, this was another potentially attractive distractor, we’ll see if anyone guessed it wrong, and guessed “C”. Under federal common law, the spousal testimonial privilege only applies in criminal cases.

THOMAS Only, yeah!

ANDREW Not in civil cases.

THOMAS Yeah, you know, I was actually thinking that! I was like, yeah, I feel like I’ve heard you say that before. So, I should have mentioned it, but I didn’t. But anyways, I still got it right! [chuckles]

ANDREW Yup! So, “B” was the correct answer, “wife has the privilege not to testify against her husband in a criminal case,” you got it right! We are on our way, right? It’s still a long shot, but everybody needs to – we gotta hashtag, #getthomasto60, there we go!

THOMAS Yeah, what do I have to do? I have to – Ah, I forget the math, but – maybe like 12 out of the next 15 or something like that? Where are we at? What’s my score?

ANDREW You are now 47 for 84, so you need to go 13 -

THOMAS Oh 13 -

ANDREW - out of the next 16. I think you can do it!

THOMAS Gotcha! I thought that’s -

ANDREW Yeah!

THOMAS - what it was last week. I don’t - [woo] that’s pretty tough, but, hey! How ‘bout you lay off the jokes about how bad Thomas is doing at the bar exam!

ANDREW [chuckles]

THOMAS Like, what? I mean, I’m not doing that bad. I mean, I guess if you treat it like a basic test that you’d have in school, then, okay, yeah, 50, 55% or whatever I’m at is not stellar for that. But it’s the bar exam! Come on! Cut me a break!

ANDREW I – absolutely! I mean, I – it’s -

THOMAS I mean, I got some joker on Twitter, like “oh someone said they were taking the bar and, like, whatever you do, don’t study with Thomas!” and I was like, “What?!” Come – I’m not – I’m doin’ pretty well, right?” Like, gimme some credit, right?

ANDREW I wanna – I say this in all seriousness. So, this morning I was at a speech event that was attended by about 250 members of the business community, and so, as I always do in these, I talked about the podcast, and I talked about my weird legal career, and I was describing the show and I was describing you and I was talking about the TTTBE segment, and I said, “yeah, so my co-host, with zero legal training, has been answering bar exam questions for over a year now, we’re almost 90 questions in –“

THOMAS Wow.

ANDREW “How do you think he’s doing?” And every lawyer I talked to was, like, “well, probably a little bit – so random chance would be 25%, so, you know, 40? 30? 40%?” Well, one person said, “well probably worse than 25%” right?

THOMAS Worse than 25%? [laughs]

ANDREW And I said, “yeah, he’s at 55%” and every lawyer I said was, like, “yeah, he’s pretty much almost there! He should take the bar exam!”

THOMAS [laughs]

ANDREW And I was like, “yeah! No, we’re gonna do that!”

THOMAS [laughs]

ANDREW So -

THOMAS Take that, everyone!

ANDREW So absolutely! You are kid tested and lawyer approved! [chuckles] So -

THOMAS [laughs] I don’t wanna know what that means, but we’ll move on. Thank you so much, Andrew! I got it right! And 13 out of 16, that’s – I don’t know if that’s happening, but I do agree that it’s a better chance of that than that we somehow stop Kavanaugh, way better – but still good.

ANDREW Hashtag! #getthomastosixty

THOMAS Get Thomas to 60! And with that said, hop in that limited use time machine that really isn’t pulling its weight around here!

ANDREW [chuckles]

THOMAS I feel like there’s a lot it could do to stop the worst possible timeline, but no! It can only travel meaningless directions in spaces of time, within the worst possible timeline that we’re in. So hop in that time machine and tell us who won this week’s TTTBE.

*Hall of Justice sound effect*
NARRATOR Meanwhile, at the Hall of Justice.

ANDREW Alright, Thomas! This week a lot of people were split between the correct answer and the best attractive distractor, “D”, and we’re gonna pick an incorrect answer that was pretty funny and pretty well reasoned, this is from Action Toast @action_toast, on Twitter, who writes, “the answer is D much the same as attorney-client privilege, there must be private communication between the husband and wife asking the wife about the husband’s likely-suspect fashion choice doesn’t breach spousal privacy because everyone can see it!” Good thought process, but the husband-wife privilege, as we’ve discussed, is actually a testimonial privilege, not a confidential privilege! So, right thought process, wrong result, and that’s why you’re gonna be this week’s winner. Everyone give Action Toast a follow on Twitter, and congratulations, enjoy your never ending fame and fortune!

*Transformers transistion*

THOMAS Alright, thank you so much for listening! Thank you for TTTBE-ing and Patronizing and all the good stuff you do! And just remember, even though this is the darkest possible timeline, Andrew still has a cute dog, I’ve got a cute baby, and I’m sure everyone out there has some sort of cute thing in your life, and if you don’t, then you can always adopt a pet or something.

ANDREW And fight those holding actions! The only thing worse than fighting holding actions is losing!

THOMAS Yeah. Yeah, and I will say, don’t let, for a second, my pessimism be mistaken for any sort of, you know, desire to not do everything – we absolutely should do everything we can, apologies that I’m jaded and pessimistic in this timeline that we’re in, but I in no way want to suggest that we shouldn’t fight these battles with everything we’ve got! We absolutely should, and there are a lot of people doing great work and volunteering and doing all that. Thank you so much, you are doing the work that we need to be doing. So, I just wanted to add that on.

ANDREW Yeah, I think that’s a great ad.

THOMAS Alrighty! We’ll see you for another Rapid Response Friday very soon!

Outro