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What's so important about legal precedent? · Stuff You Should Know

0:01
Speaker 1: Welcome to Stuff You Should Know, a production of I
0:04
Speaker 1: Heart Radio. Hey, and welcome to the podcast. I'm Josh,
0:13
Speaker 1: and there's Chuck and Jerry's here too, and this is
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Speaker 1: stuff you should know. And boy do we mean it.
0:20
Speaker 1: This is stuff you should know. Even though I have
0:23
Speaker 1: to admit, Chuck, I don't think I've ever gotten sleepier
0:26
Speaker 1: than I was when I was researching this this episode.
0:31
Speaker 1: You know, I've learned more about the law since we
0:34
Speaker 1: got this job than I ever wanted to or intended
0:38
Speaker 1: to write. Uh, some of like, you know, just because
0:42
Speaker 1: we have work contracts for the first time. So some
0:44
Speaker 1: of it's because of that, some of it because of
0:47
Speaker 1: all the trouble we get in, all the trouble we've
0:49
Speaker 1: gotten in over the years. And then we just kind
0:53
Speaker 1: of covered a lot of stuff legally speaking. And it's
0:57
Speaker 1: interesting the law it is it is. And this one
1:01
Speaker 1: was like it was kind of tough because Olivia helped
1:04
Speaker 1: us out with this, and it was like it's a
1:07
Speaker 1: really unless you're in the legal profession one way or another,
1:13
Speaker 1: Like it's really dry, like incredibly dry. But if you
1:17
Speaker 1: can just chip past that crusty dryness, and it takes
1:22
Speaker 1: a lot, Yeah, it gets a little moisture the further
1:25
Speaker 1: you get in, But finally you get to the rich
1:27
Speaker 1: new Gute center and there you realize, WHOA, this is
1:31
Speaker 1: actually super important because what we're talking about legal precedents
1:35
Speaker 1: um kind of guides our society and a lot of
1:39
Speaker 1: a lot of ways beyond just this is law. This
1:41
Speaker 1: is not law, UM, this is illegal. You can do
1:44
Speaker 1: this like that. We actually organize our lives in surprising
1:48
Speaker 1: ways according to what's legal and what's not. And as
1:52
Speaker 1: if the law is steady and stable, which is the
1:55
Speaker 1: point of you know, relying on legal precedence, as we'll find,
1:58
Speaker 1: then you know, society and he can kind of grow
2:00
Speaker 1: and experiment and try new things because the law part
2:03
Speaker 1: is covered. But if the law is going to change
2:05
Speaker 1: every couple of years, it makes it really hard to um,
2:09
Speaker 1: be in a gay marriage, or start a business or
2:13
Speaker 1: invest in a like kind of a risky new technology,
2:16
Speaker 1: because there's you can't rely on the law being stable.
2:19
Speaker 1: So it makes life for us unstable. And I didn't
2:22
Speaker 1: really realize just how much of a just an effect
2:26
Speaker 1: that that law has, like an unseen effect on just
2:29
Speaker 1: our day to day lives, because you don't think about
2:31
Speaker 1: that kind of thing. But until you start researching something
2:34
Speaker 1: like this, right, and or until you get slapped with
2:37
Speaker 1: that lawsuit, and all of a sudden you're like, what, uh,
2:41
Speaker 1: so much about the law too, is uh attorney's love words? Yes? Um,
2:48
Speaker 1: that the simple I mean, anyone who's ever even if
2:51
Speaker 1: you've never dealt with an attorney, great congratulations. I'm not
2:54
Speaker 1: saying attorneys are bad, but that means you, you know,
2:57
Speaker 1: you have a blissfully simplistic way of living that is
3:01
Speaker 1: to be admired. But uh, you've probably clicked on in
3:04
Speaker 1: terms of service or something, and you know that's all
3:07
Speaker 1: legal words. It's all legal wording, like those you know,
3:12
Speaker 1: nine hundred thousand words to sign up for a website
3:14
Speaker 1: or whatever, or to download an app. Those are words
3:18
Speaker 1: written by attorneys. And so much of law is so
3:23
Speaker 1: specific to it can hinge on the wrong couple of
3:29
Speaker 1: words that a well meaning jurists typed up in their decision.
3:34
Speaker 1: Just a couple of things can really change things. A
3:36
Speaker 1: couple of words, because it's all about those words and
3:40
Speaker 1: how those words are interpreted by others. And um, I
3:44
Speaker 1: just I don't know that part about it. I find
3:46
Speaker 1: pretty fascinating and I think every attorney I know really
3:49
Speaker 1: like UM values words. Let's just say that, and not like,
3:55
Speaker 1: oh because it could charge to it. I mean, you know,
3:57
Speaker 1: they value like boy, you better be careful about how
4:00
Speaker 1: you say something. You know. Yeah, it's true, which really
4:03
Speaker 1: doesn't jibe with me because I'm pretty hyperbolic, and I
4:06
Speaker 1: just assume everybody's going to understand that I'm being hyperbolic.
4:10
Speaker 1: But that's not always the case. Especially, I guess now
4:13
Speaker 1: that I think about it, it's when I'm talking to
4:15
Speaker 1: lawyers that it really gets lost. Uh. So I guess
4:19
Speaker 1: we should go back to the early eleven hundreds, uh,
4:24
Speaker 1: specifically eleven fifty four, when Henry the second Um kind
4:29
Speaker 1: of codified the fact that they were going to be
4:32
Speaker 1: in England was going to be working on something called
4:35
Speaker 1: common law, or at least towards something called common law,
4:38
Speaker 1: because you'll see, it takes precedent and common law and
4:41
Speaker 1: this kind of thing takes a long time to really
4:43
Speaker 1: take hold, uh for a lot of reasons we'll get to.
4:46
Speaker 1: But it was common law because they said, hey, right now,
4:49
Speaker 1: we're deciding these cases all over the land and everyone
4:54
Speaker 1: has their own opinion, and it's a bit of a mess.
4:56
Speaker 1: So maybe if we had one sort of common law
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Speaker 1: for all the kingdom and there were you know, we
5:02
Speaker 1: could refer to that law and these decisions to make
5:06
Speaker 1: decisions on down the line, that might be a pretty
5:09
Speaker 1: smart thing. And it was and it is yeah, because
5:12
Speaker 1: I mean the stuff that they were doing locally was like,
5:14
Speaker 1: if you couldn't tell the truth between you know, a
5:17
Speaker 1: plane iff and a defendant, you had them both snatch
5:20
Speaker 1: a rock out of a pot of boiling water. I'm
5:23
Speaker 1: not kidding, and then whoever whoever healed fastest was telling
5:27
Speaker 1: the truth, and then you would execute the one who
5:30
Speaker 1: healed slower. Like that was the kind of legal stuff
5:33
Speaker 1: you would face like at this time. So Henry the
5:35
Speaker 1: second the idea that he came up with common law
5:38
Speaker 1: and said, all this is nuts, We're just gonna have
5:39
Speaker 1: one law for all of England. Um. It was really
5:42
Speaker 1: forward thinking. And when you dig into it a little more,
5:45
Speaker 1: he established trial by jury um the concept of circuit
5:49
Speaker 1: courts um. That that comes from this time when judges
5:53
Speaker 1: would travel around and and go to like different localities
5:57
Speaker 1: to hear cases, and the fact that they weren't rooted
5:59
Speaker 1: to one specific locale meant that that was much more
6:04
Speaker 1: difficult to corrupt them. There's a lot of really forward
6:07
Speaker 1: thinking stuff and the basis of it, Chuck. The common
6:10
Speaker 1: law formed the foundation of not just England's law, but
6:14
Speaker 1: basically every country that was colonized by England, including the
6:18
Speaker 1: United States. We have a common law system, which is um,
6:24
Speaker 1: I don't want to see the opposite, but it's the
6:26
Speaker 1: It's one of two basic ways that you can conduct
6:30
Speaker 1: your society legally, and the other one is civil law. Right,
6:33
Speaker 1: even though Henry the Second was still like it's still
6:36
Speaker 1: like to bob for apples and bats of acid because
6:40
Speaker 1: that's just fun. Sure, Yes, civil law is not the
6:44
Speaker 1: way we went Um. That was you know, it was
6:47
Speaker 1: kind of developed around the same time and Europe back
6:50
Speaker 1: in the day. But that's uh. Common law was the
6:53
Speaker 1: smarter approach. And what we got out, what we realized
6:56
Speaker 1: early on with common laws was what we needed to
6:59
Speaker 1: adhereby was a principle that you've heard a lot kind
7:01
Speaker 1: of lately. It's a Latin term meaning let the decision stand,
7:05
Speaker 1: uh star a decisive right. And that's that big deal. Yeah,
7:10
Speaker 1: And that's I mean, it's not like Henry the Second
7:13
Speaker 1: came up with common law, and said and also it's
7:15
Speaker 1: it's going to be based on this concept of starry
7:17
Speaker 1: decisives that actually evolved over time. And the idea behind
7:21
Speaker 1: starry decisives is if there's a good decision made by
7:26
Speaker 1: a judge, um, then later judgments about cases that have
7:32
Speaker 1: some similarities are a lot in common with that case
7:36
Speaker 1: that the original decision was made on have to follow
7:39
Speaker 1: that same precedent. It's a legal kid necessarily say again,
7:44
Speaker 1: I don't even know that I would agree that it's
7:46
Speaker 1: based on a good decision, because originally it was like
7:50
Speaker 1: they even said it was as long as it wasn't
7:53
Speaker 1: flatly absurd or unjust. And they have said later on
7:57
Speaker 1: that like and well we'll get to it. But know,
8:00
Speaker 1: the decisions don't have to be perfect, right right, the
8:04
Speaker 1: I guess what I meant by good was good meaning
8:07
Speaker 1: like not like the judge wasn't wearing a tinfoil hat
8:11
Speaker 1: and sentenced the person to like eat their own poop.
8:13
Speaker 1: I mean good like they like, it was reasonable, it
8:17
Speaker 1: was thought out, it was you know, deliberative, like it
8:20
Speaker 1: was a sound judicial opinion, whether it actually was good
8:23
Speaker 1: or not. Right, Okay, I'll buy that. But here's the deal.
8:28
Speaker 1: Like I said earlier, like applying common law and applying
8:31
Speaker 1: precedent is something that takes a long long time because
8:35
Speaker 1: early on, I mean for a lot of reasons, but
8:37
Speaker 1: one of the main reasons is early on the courts
8:39
Speaker 1: were such a mess. They didn't even start recording, really,
8:43
Speaker 1: um their decisions in a really meaningful way until like
8:48
Speaker 1: the mid eighteen hundreds in England the early eighteen hundreds
8:51
Speaker 1: in the US, so they may not have even known
8:54
Speaker 1: there might have been precedent in any given case. But
8:57
Speaker 1: starting like I said, early eighteen hundreds, in mid eight
9:00
Speaker 1: hundreds in England, we started to have a real sort
9:03
Speaker 1: of president. Yes, I guess, yeah for sure. And we
9:08
Speaker 1: talked about that in our Unsung Heroes of the Court,
9:10
Speaker 1: with our I think our transcriptionist segment, right, I think so,
9:15
Speaker 1: I think so too. But the reason that, um, that
9:18
Speaker 1: you have this this emphasis on precedence is because in
9:21
Speaker 1: a common law system, law kind of builds on judgment
9:26
Speaker 1: after judgment, and the more judgments you have about like
9:28
Speaker 1: a particular um the topic or or you know, case
9:33
Speaker 1: or something, the more well rounded and in robust the
9:38
Speaker 1: idea of the law concerning that goes. Like in a
9:42
Speaker 1: civil or in a common law society, the legislature makes
9:46
Speaker 1: a law, but it's not you know, they don't try
9:49
Speaker 1: to lay out every single law with every single possible
9:52
Speaker 1: outcome that they can think of. That's what civil law
9:54
Speaker 1: is based on. In common law, it's like they lay
9:57
Speaker 1: it out, it kind of makes sense, it's open to
9:59
Speaker 1: interpret cation. And then people start suing each other, and
10:02
Speaker 1: then over the years the judges figure it out. But
10:04
Speaker 1: they figured it out by basing their assumptions on the
10:07
Speaker 1: previous rulings of other judges. Right, that sounds like a
10:13
Speaker 1: good breaking point. I think so too. I'm at my
10:15
Speaker 1: breaking point. No, not already. Ye, all right, Josh is
10:19
Speaker 1: out in the first third, but we'll press on and
10:22
Speaker 1: we'll talk about the U S system right after this
10:37
Speaker 1: stopt Alright, so Josh is gone, everybody, I'm gonna do
10:56
Speaker 1: the rest of this one solo. So we're just gonna
10:59
Speaker 1: talk talk about car tunes and breakfast cereals. Josh, I'm
11:05
Speaker 1: back up. I couldn't leave you, Chuck. Uh. So, if
11:08
Speaker 1: we're gonna talk about the the U S system, as
11:11
Speaker 1: far as legal precedent goes, we need to talk a
11:13
Speaker 1: little bit obviously about the constitution. Uh, the Constitution of
11:17
Speaker 1: the US doesn't really talk a lot about how the
11:20
Speaker 1: court system should operate. Uh, they don't talk about precedent.
11:24
Speaker 1: This is something that the United States. Uh you know,
11:28
Speaker 1: it goes from the top down here in the US,
11:30
Speaker 1: and we'll talk about it gets really confusing at some
11:33
Speaker 1: point as far as which courts bind with other courts
11:36
Speaker 1: so that that mess will follow. But it goes top down.
11:40
Speaker 1: So the Supreme Court is is really what ultimately matters
11:44
Speaker 1: and what they decide about the really important cases because
11:47
Speaker 1: everything binds upwards to them. But they didn't really like
11:52
Speaker 1: they kind of made it up as they went. And
11:54
Speaker 1: that's not to like knock the Supreme Court. It just
11:57
Speaker 1: is to say there weren't any real rules in place
12:00
Speaker 1: as far as this goes. But they realize early on,
12:03
Speaker 1: and I think in nineteen thirty two is when it
12:05
Speaker 1: really became serious when a justice named Lewis Brandeis of
12:10
Speaker 1: Brandeis University fame. Oh yeah, yeah, of course, I wrote
12:15
Speaker 1: in a descent in a case Burnett versus UH Coronado
12:19
Speaker 1: Oil and Gas Company, UM, basically laid out what started
12:25
Speaker 1: to decisive is all about for everyone to look back
12:28
Speaker 1: on from then on and they have when he wrote,
12:31
Speaker 1: in most matters, it is more important that the applicable
12:34
Speaker 1: rule of law be settled than it be settled, right,
12:39
Speaker 1: And that was what I was kind of referring to earlier.
12:41
Speaker 1: He's he's basically basically saying, listen, courts aren't perfect, laws
12:45
Speaker 1: aren't perfect. But what's really important, unless it's a really terrible,
12:49
Speaker 1: terrible decision, is that we kind of come together and
12:53
Speaker 1: agree that this is how it is. Uh. And then
12:56
Speaker 1: he went on to kind of say, ultimately, like it,
13:00
Speaker 1: you can't overturn precedent if it is really really bad. Yeah,
13:04
Speaker 1: because if you didn't, if you just blindly followed precedent,
13:07
Speaker 1: then you have the potential for a bad judgment, a
13:11
Speaker 1: bad decision, infecting your society and your legal system. And
13:16
Speaker 1: if you just have to follow it blindly even though
13:18
Speaker 1: it's a really bad ruling, that's not good. So you
13:21
Speaker 1: need to have an outlet to overturn those bad decisions.
13:25
Speaker 1: But what Brandis was saying is, for the most part,
13:28
Speaker 1: you want to just leave it alone. If it's even
13:30
Speaker 1: remotely good, leave it alone. Let it But yeah, and
13:34
Speaker 1: that's really to me. If you like middle of the
13:37
Speaker 1: road stuff, started to cease. This is exactly what you want,
13:41
Speaker 1: because it's like it's the it's the full crum between
13:45
Speaker 1: going one direction where you just have like a whiplash
13:48
Speaker 1: going on because law is changing all the time, and
13:51
Speaker 1: then the other direction on the other end of the spectrum,
13:53
Speaker 1: where the law just does not change, it is just
13:56
Speaker 1: set in stone. And that's that. This is like, Okay,
14:00
Speaker 1: you want to follow tradition, you want to observe custom
14:03
Speaker 1: to have some stability, but at the same time, you
14:05
Speaker 1: want to be able to let society evolve by having
14:08
Speaker 1: the laws evolve as new ideas and concepts come around. Yeah,
14:12
Speaker 1: it's it reminds me of one of my favorite I'm
14:15
Speaker 1: not a big axiom guy, but there's a handful that
14:17
Speaker 1: I really kind of informed my way of thinking, and
14:21
Speaker 1: one is don't let perfect be the enemy of good.
14:24
Speaker 1: That's that's always been as a sort of an underachiever
14:28
Speaker 1: in life. It's always been one I really stood on,
14:32
Speaker 1: And that's kind of what they're saying here. It's like, listen,
14:35
Speaker 1: if we go for perfect, you're just gonna because law
14:37
Speaker 1: is subjective to like, these justices are deciding things based
14:41
Speaker 1: on what they think, based on other things. But ultimately
14:44
Speaker 1: it's the subjective thing. So we can't just go back
14:47
Speaker 1: and forth forever trying to get a perfect ruling on something. Right,
14:51
Speaker 1: My favorite axiom is it has to be perfect or
14:54
Speaker 1: else I'm a completely useless human. Oh no, oh yes,
15:00
Speaker 1: So over time that concept of starry decisive when when
15:04
Speaker 1: was it? It was like the I guess ninety two
15:07
Speaker 1: with brand Ice. Yeah, that's when he kind of laid
15:10
Speaker 1: the gauntlet down, and think about how meta that is.
15:12
Speaker 1: He was establishing precedent about when to follow or overturned precedent.
15:18
Speaker 1: Pretty amazing stuff that guy deserves, like a sure university
15:24
Speaker 1: named after there's a statue there, but over there better
15:27
Speaker 1: be um. But over time, after brand Ice, you know,
15:31
Speaker 1: said that, they were like, okay, well you know exactly
15:34
Speaker 1: when is it okay to overturn the decision? And they've
15:37
Speaker 1: actually come up with a handful of kind of guiding
15:40
Speaker 1: bullet points that are appropriately laid out in bullet points
15:44
Speaker 1: for us UM that just kind of say like, okay,
15:47
Speaker 1: does it check this box? Is check that box? And
15:49
Speaker 1: it's not like a perfect Scantron sheet where everything every
15:53
Speaker 1: box is going to be filled out and you calculate
15:55
Speaker 1: them all and you say, yes, it should be overturned. Like,
15:57
Speaker 1: there's still a lot of subjectivity and weighing all of
16:00
Speaker 1: this stuff, but it's pretty good guideline if you ask me, no, absolutely. Um. Well,
16:05
Speaker 1: the first thing, and this is a little bit counterintuitive,
16:07
Speaker 1: but it's easier to overturn a decision based on the
16:13
Speaker 1: Constitution than it is a statutory law. And again that
16:18
Speaker 1: seems counterintuitive because the Constitution can feel so locked in.
16:23
Speaker 1: But basically what that means is is if it's just
16:25
Speaker 1: statutory law, then you can change the law pretty easily.
16:28
Speaker 1: Like the Constitution is very hard to get changed. So
16:31
Speaker 1: it's easier to change a decision based on the Constitution
16:34
Speaker 1: than the actual underlying constitution. Yeah, because Congress is going
16:39
Speaker 1: to say, oh, yeah, we we we miss that one.
16:42
Speaker 1: And then similarly to Congress can actually create laws to
16:46
Speaker 1: overturn unpopular judicial rulings. Um, So they can make a
16:52
Speaker 1: law that, you know, if everybody's really mad about, say
16:54
Speaker 1: some judicial ruling, and Congress says, you know, our constituents
16:58
Speaker 1: are really up in arms, let's make a law that
16:59
Speaker 1: says the opposite of what that was just ruled. That
17:02
Speaker 1: that law um takes precedence over every ruling, including that
17:06
Speaker 1: Supreme Court ruling. So now judges have to follow that
17:10
Speaker 1: law until new precedents are set that kind of adjust
17:13
Speaker 1: it and make it evolve. That's right. Uh. The next
17:17
Speaker 1: one is working something called workability, which is basically like,
17:21
Speaker 1: how difficult in practice is it really to implement this
17:25
Speaker 1: original decision? Uh? And if it's really difficult for lower
17:29
Speaker 1: courts to to follow whatever that original decision was in practice,
17:32
Speaker 1: then you may want to take another look at it. Yep.
17:36
Speaker 1: Another one is reliance, and this one makes a lot
17:38
Speaker 1: of sense to me too. It's um, really kind of um,
17:44
Speaker 1: what's that word that people use when it's just kind
17:46
Speaker 1: of like it lacks substance though it's it's not concrete.
17:50
Speaker 1: It's kind of poofy coofy sounds great. I've never heard it,
17:54
Speaker 1: but I like that word. If you're gonna go with
17:57
Speaker 1: that from now on, So reliant it makes sense. But
17:59
Speaker 1: it's a little fee I think legally speaking, because what
18:01
Speaker 1: it's saying is if if this judgment was not quite right,
18:06
Speaker 1: if the reasoning wasn't very good, if the deliberation wasn't perfect.
18:10
Speaker 1: But it's become so enshrined in society that overturning it
18:15
Speaker 1: would basically really mess society up, even temporarily. Um, then
18:21
Speaker 1: you would not want to overturn that. That's UM. There's
18:24
Speaker 1: a good example of the Miranda rights were under attack
18:27
Speaker 1: in two thousand I guess from a case and Um,
18:31
Speaker 1: the court I think, in a very narrow I think
18:33
Speaker 1: five to four ruling said no Miranda should stay. It's
18:36
Speaker 1: on it's based on a flawed interpretation of the Constitution.
18:40
Speaker 1: But we've become so reliant on it to protect legal
18:44
Speaker 1: rights of people accused of crimes that we're just gonna
18:46
Speaker 1: leave it, they said, But it's already in all the
18:48
Speaker 1: TV shows exactly. Lawn owner editors were just like, please don't,
18:53
Speaker 1: please don't. Yeah, I mean, reliance is kind of the
18:56
Speaker 1: it's too late to turn back now. Basically, Yeah, the
19:01
Speaker 1: bell has been wrong, the genie's out of the bottle,
19:04
Speaker 1: the smell is in your nose. That's my favorite. The
19:08
Speaker 1: basically the next one is abandonment, which is basically UM,
19:12
Speaker 1: when the court says this is old timey, Um, this
19:15
Speaker 1: is antiquated. When they looked at Lawrence v. Texas in
19:19
Speaker 1: two thousand three that overturned the previous ruling, UM about
19:24
Speaker 1: private same sex as sodomy laws things like that. Uh,
19:28
Speaker 1: the Supreme Court came along and said, oh, you know,
19:30
Speaker 1: things have kind of changed and maybe we shouldn't be
19:33
Speaker 1: in people's bedroom and forcing laws about how they want
19:36
Speaker 1: to have sex. Yeah, they're like, we all just saw
19:38
Speaker 1: Brokeback Mountain and really we really feel differently about such
19:43
Speaker 1: a great love story they wrestled. So there's also legitimacy
19:47
Speaker 1: to um, which is saying like, Okay, there's a really
19:51
Speaker 1: good chance that if we start overturning previous decisions that
19:55
Speaker 1: people have come to rely on that we're actually good decisions. Um,
19:59
Speaker 1: that going to to harm the legitimacy of the Supreme
20:03
Speaker 1: Court in the eyes of the public. I can't think
20:07
Speaker 1: of any example, um, but that is it is something
20:11
Speaker 1: that they take into account when they are considering overturning
20:15
Speaker 1: something or not. That's right. Um. The next one, I'm
20:18
Speaker 1: just going to call it the was it close. That's
20:21
Speaker 1: when they can look back at a previous case and say,
20:25
Speaker 1: you know, this was five four, there was a really
20:28
Speaker 1: spirited descent it wasn't you know, it was maybe a
20:33
Speaker 1: controversial case, but not necessarily but just really really close. Uh.
20:37
Speaker 1: Then maybe you know, we could take another peek at it, right. Um,
20:41
Speaker 1: there's also quality of reasoning. I've kind of hit on
20:43
Speaker 1: that a couple of times that it's like, if you
20:45
Speaker 1: can look back and look at the judgment and the
20:48
Speaker 1: reasoning behind the judgment and it still makes sense, then
20:51
Speaker 1: maybe kind of leave that law alone. If it's just
20:54
Speaker 1: completely and equated, if it's um racist, if it just
20:58
Speaker 1: doesn't jibe with the most of you know, society today,
21:02
Speaker 1: then maybe it is ripe for being overturned or other laws,
21:05
Speaker 1: like of other laws have come along since then to
21:07
Speaker 1: kind of eroded or negated, or if facts have changed. Yeah,
21:12
Speaker 1: that's a big one, especially when it comes to scientific
21:15
Speaker 1: findings and stuff like like you find the moon is
21:18
Speaker 1: not made of cheese, so cheesemakers no longer have to
21:21
Speaker 1: pay a moon tax. That's a good example of real
21:25
Speaker 1: real life. Uh was that off the cuff? Very nice? No,
21:28
Speaker 1: I wrote it down. Let's still I could not think
21:31
Speaker 1: of an example, and that is the best I could
21:34
Speaker 1: come up with. Sad, that's really good. Uh. So here's
21:37
Speaker 1: where judicial philosophy kind of comes into play, because when
21:42
Speaker 1: it comes to being a jurist, as we've seen on
21:43
Speaker 1: the Supreme Court, especially lately. Uh. There are a couple
21:47
Speaker 1: of different ways you can go as far as looking
21:51
Speaker 1: at the Constitution. You can be what's called an originalist, which, um,
21:56
Speaker 1: you know, some originalists say, you know what, the only
21:58
Speaker 1: thing that matters is what these founding fathers meant when
22:01
Speaker 1: they wrote these laws hundreds of years ago. Yeah, so
22:04
Speaker 1: like whatever happens in society today, however it applies to
22:08
Speaker 1: the late eighteenth century, that is the law. That's what
22:12
Speaker 1: the originalists think. And there are actually justices on the
22:16
Speaker 1: Supreme Court who are fervent originalists, that's right. Uh. And
22:20
Speaker 1: there are originalists that say, you know, what's happened in
22:23
Speaker 1: the past two and thirty four years is uh some
22:28
Speaker 1: of these decisions, a lot of them have subverted the
22:30
Speaker 1: will of the and the intent of the founders. And
22:34
Speaker 1: pragmatists come along and then say, duh exactly, because what
22:39
Speaker 1: we would like to decide law based on is modern
22:44
Speaker 1: times and uh, the context in which we live and
22:48
Speaker 1: the impact on our society as it is today, and
22:51
Speaker 1: those two things pushing and pulling is uh, as we've
22:56
Speaker 1: you know, it's always been this way. But every I
22:59
Speaker 1: think gener ration when they see the big decisions coming
23:01
Speaker 1: down paid more attention to it. So right now, because
23:05
Speaker 1: of Row, obviously everyone is paying a lot of attention
23:07
Speaker 1: to this push and pull of originalists versus pragmatist but
23:12
Speaker 1: also pragmatizing, but also the tension between originalists and people
23:18
Speaker 1: who follow Starry Decisive too, there's a big tension between
23:22
Speaker 1: that as well. Um and I was reading about originalism
23:25
Speaker 1: Chuck and Clarence Thomas is like a hardcore died in
23:29
Speaker 1: the wool originalist, like literally what the Founders literally meant
23:34
Speaker 1: when they wrote the Constitution is law and anything beyond
23:38
Speaker 1: that should not be law. And he if you read it,
23:41
Speaker 1: he kind of makes a pretty good case. It makes
23:44
Speaker 1: sense to an extent, But then you stop and realize
23:47
Speaker 1: what he's talking about is a civil law society, a
23:50
Speaker 1: law where you have a founding document of laws and
23:53
Speaker 1: rules and regulations and it's super um specific and it
23:59
Speaker 1: covers as any basis that possibly can, and then the
24:02
Speaker 1: judiciary has a very limited role in in shaping those laws.
24:06
Speaker 1: You come before a judge and they say, uh, did
24:09
Speaker 1: you violate this this um article? Yes you did, Yes
24:12
Speaker 1: you're guilty, or no you didn't know, you're not guilty.
24:14
Speaker 1: That's the role of judges, and that sounds like Clarence
24:17
Speaker 1: Thomas is like dream job. But he's in the wrong
24:20
Speaker 1: kind of society because we have a civil law society
24:23
Speaker 1: where judges are dependent upon to interpret the law correctly
24:27
Speaker 1: and sensibly and in a way that applies to the
24:30
Speaker 1: society at large. And that that really is intention with
24:34
Speaker 1: originalism big time. Yeah. And I'm you know, no shock,
24:37
Speaker 1: I'm a pragmatist, and I don't think you should like
24:41
Speaker 1: just ditch the Constitution. But I think it's crazy to
24:43
Speaker 1: think about in a hundred and fifty years in the
24:47
Speaker 1: in the in the future where we're flying around and
24:51
Speaker 1: and we look like Buck Rogers in the twenty first century. Man,
24:55
Speaker 1: it'll be twenty second century. I can't wait. I'm gonna
24:57
Speaker 1: be first in line to get that haircut to once
24:59
Speaker 1: this over, jumpsuits come out. But it's crazy to me
25:03
Speaker 1: to think about going back to a time when they
25:06
Speaker 1: spelled the word time with a y, you know, and
25:10
Speaker 1: say like, no, we still have to go back, you know,
25:13
Speaker 1: four or five six years to what these uh, I mean,
25:17
Speaker 1: the world just changes so much. I just it's crazy
25:20
Speaker 1: to me that the law shouldn't change with it, and
25:22
Speaker 1: the law has changed with it. I'm not, you know,
25:24
Speaker 1: saying that it hasn't, But I don't know. It's a
25:26
Speaker 1: little frustrating sometimes I'm kind of in between. I'm a
25:29
Speaker 1: starry decisiveist, I guess you'd say, because I feel like
25:33
Speaker 1: pragmatism can be a little whiplash eat. The law can
25:36
Speaker 1: change a little too much, um, which we've seen, you know,
25:39
Speaker 1: where one administration comes in and makes a bunch of rules,
25:42
Speaker 1: and then the next administration comes in and and changes them,
25:45
Speaker 1: and it's it's really tough to say, like run a
25:49
Speaker 1: business like that or to live your life like that. Um.
25:52
Speaker 1: But with starry decisives, it's it's veneration and respect to
25:56
Speaker 1: tradition and custom and stability. But there's again, there's that
25:59
Speaker 1: ability to change, to be pragmatic when it's called for. Um,
26:03
Speaker 1: it's again it's really middle of the road, and it's
26:05
Speaker 1: it's right up my alley, right up your alley. UM.
26:08
Speaker 1: So let's get to the confusing part. I mentioned earlier
26:12
Speaker 1: that there would be an eventual breakdown of kind of
26:14
Speaker 1: how courts bind to one another. And when we're talking
26:18
Speaker 1: about binding authority, that basically means decisions that a lower
26:22
Speaker 1: court must follow from an upper court in its jurisdiction. Uh,
26:28
Speaker 1: and it and it goes a little something like this. Uh.
26:32
Speaker 1: State courts are only bound by higher state courts in
26:35
Speaker 1: their own state. They're not bound by federal courts except
26:38
Speaker 1: for the Supreme Court. Again the ultimate authority. Uh, they
26:42
Speaker 1: can strike down state court decisions is unconstitutional. And then
26:46
Speaker 1: you've got the whole and I want to say, mess.
26:48
Speaker 1: It's not a mess if you really understand it, but
26:50
Speaker 1: the whole sort of Plato spaghetti, which is the federal
26:54
Speaker 1: court system, which is take it away, man. I was
26:59
Speaker 1: hoping you're and take it all the way home. The
27:02
Speaker 1: federal court system is based on those circuits that was
27:05
Speaker 1: established all the way back in the twelfth century. Um.
27:08
Speaker 1: But rather than traveling around, I think judges kind of
27:11
Speaker 1: have home courts. But the point is these courts are
27:14
Speaker 1: related to one another. And there's ninety four districts. Um.
27:18
Speaker 1: You know, there's twelve districts with ninety four district courts.
27:22
Speaker 1: It's very confusing. Twelve regional circuits, okay, thank you, with
27:26
Speaker 1: nine district courts spread out among them, right. Yeah. Each
27:29
Speaker 1: each regional court has one appellate court. And then there's
27:33
Speaker 1: a court of appeals for the federal Circuit. It has
27:36
Speaker 1: nationwide jurisdiction over certain cases. It gets really confusing, Yeah,
27:41
Speaker 1: it really does, because you start out in district court,
27:44
Speaker 1: you end up in um, I guess circuit court maybe,
27:47
Speaker 1: and then you end up in appellate court. Um. I
27:49
Speaker 1: may have added a step there, you know, I like
27:52
Speaker 1: to do stuff like that. And then eventually you end
27:54
Speaker 1: up at the Supreme Court, which is the final arbiter
27:58
Speaker 1: of the law of the land. Um. But the Supreme
28:01
Speaker 1: Court tries not to overrule state law because the states
28:07
Speaker 1: have their own supreme courts and they tend to be respected.
28:10
Speaker 1: The point is in federal court in a district, if
28:13
Speaker 1: you have a ruling made in a district appellate court,
28:18
Speaker 1: it will apply to all the courts in that district,
28:21
Speaker 1: But in the next district over it will have no
28:24
Speaker 1: no impact whatsoever. Yeah, And you don't you know, as
28:29
Speaker 1: a regular citizen, if you ever are bouncing through the
28:32
Speaker 1: bouncing away up the court system, you don't have to
28:35
Speaker 1: really understand it because you're gonna have an attorney that says, well,
28:37
Speaker 1: now you go see this lady, all right, Well, now
28:39
Speaker 1: you go see this guy, and you just go okay, right,
28:44
Speaker 1: like and and they're like, and by the way, you
28:46
Speaker 1: owe us another check or you could just come listen
28:49
Speaker 1: to this on repeat several times. Yeah, good luck with that, right.
28:56
Speaker 1: So the other so the thing is is like they're
28:58
Speaker 1: there this This didn't land with me until like the
29:01
Speaker 1: second or third time I really kind of read over this.
29:04
Speaker 1: But you have to follow precedent if your state supreme
29:09
Speaker 1: court rules on something. If you're a lower court and
29:14
Speaker 1: that same similar case comes to you, um, you have
29:18
Speaker 1: to follow with the supreme court ruled on that other
29:21
Speaker 1: case that that established precedent, you have to. Um. That's
29:24
Speaker 1: that's binding. That's what that's called. But there are other
29:28
Speaker 1: times where, um, if you're a lawyer or if you're
29:30
Speaker 1: a judge and you're kind of examining case law, there's
29:34
Speaker 1: other kinds of non binding types of judgments or precedents
29:40
Speaker 1: that you can use to be persuaded one way or
29:42
Speaker 1: another to prove your case. Um. But it's it's not
29:46
Speaker 1: like incumbent upon you to actually follow those. Yeah, that's
29:50
Speaker 1: a good way to say it. One of those is
29:52
Speaker 1: what's called persuasive precedents. It is non binding, and that
29:56
Speaker 1: you know that means exactly what you said. There's no
29:58
Speaker 1: real precedent, but maybe the decision is very useful. Maybe
30:02
Speaker 1: it's a very similar kind of case, and maybe it's
30:05
Speaker 1: a principle that you can look at at least when
30:08
Speaker 1: you do make your decision. Um. Another one is called
30:11
Speaker 1: an unpublished when they say it's not for publication their opinion.
30:16
Speaker 1: And this is basically like, it doesn't mean it's literally
30:19
Speaker 1: not They just like wattered up and throw it away
30:21
Speaker 1: at the end. It just means, hey, this is a
30:25
Speaker 1: like you see this most times in state trial court,
30:27
Speaker 1: Like this is just some run of the mill state
30:30
Speaker 1: trial case. The judge doesn't like, Hey, this isn't gonna
30:34
Speaker 1: affect law or precedent moving forward. I don't want if
30:38
Speaker 1: I mess up one tiny little thing, I don't want
30:41
Speaker 1: people to refer back to this and say, oh, but
30:43
Speaker 1: this judge said that. It's kind of like it's sort
30:45
Speaker 1: of the let's go to lunch, let's get to lunch already, uh,
30:50
Speaker 1: and just get through this trial and it's not really
30:52
Speaker 1: that important. So they just say it's not for publication. Yeah,
30:56
Speaker 1: And I guess it's up to the judge to decide
30:58
Speaker 1: that or not. So I about Like you said, though,
31:01
Speaker 1: it's not like they just throw it away. It is
31:03
Speaker 1: actually published, it's just not it means that this is
31:07
Speaker 1: a non binding decision. It's like, don't come looking at me,
31:12
Speaker 1: right right, I'm just going to t G I Friday. Okay,
31:16
Speaker 1: you want to take a break and then come back
31:18
Speaker 1: and talk about some overruled precedents, sure, let's do it.
31:35
Speaker 1: Stop stop, okay, Chuck. It seems like they the Supreme
31:51
Speaker 1: Court over rules precedents every couple of days these days.
31:54
Speaker 1: But I guess they started out fairly slow. Um, in total,
32:00
Speaker 1: they have overruled their own judgment. So remember if you
32:03
Speaker 1: look at the Supreme Court as a single body made
32:05
Speaker 1: up of you know, rotating or incoming and outgoing members,
32:09
Speaker 1: but it's still it's the same things. I don't know how,
32:15
Speaker 1: I just like everyone knows that the Supreme Court is
32:18
Speaker 1: and I just managed to make it confusing. Anyway. The
32:20
Speaker 1: Supreme Court has overruled itself over two d and thirty
32:23
Speaker 1: times in in the it's lifetime, and it started in
32:28
Speaker 1: eighteen ten, right, But like you said, it didn't happen
32:32
Speaker 1: a lot. I think in with Pollock ve Farmers and
32:38
Speaker 1: Loan Trust Company, Uh, that is when things really got
32:42
Speaker 1: rolling and the Supreme Court started overturning itself more and
32:47
Speaker 1: more because it's happened. I mean, that wasn't that long ago,
32:50
Speaker 1: and it's happened, Uh, how many times since then? Well,
32:54
Speaker 1: it happen. Yeah, it only happened twenty six times in
32:58
Speaker 1: the entire nineteenth century from eighteen ten to eighteen nine nine.
33:02
Speaker 1: So everything since then, yeah, has been you know, they've
33:05
Speaker 1: been going gangbusters. Um. And that that Pollock versus Farmers
33:09
Speaker 1: Loan and trust had to do with the income tax.
33:11
Speaker 1: And that's actually a good example of Congress coming in
33:14
Speaker 1: and saying, oh, you overruled our ability to have an
33:16
Speaker 1: income tax. Here's the sixteenth Amendment down your throat. So Um,
33:23
Speaker 1: the thing is is like little by little, kind of
33:25
Speaker 1: like the little train that could going up the hill
33:27
Speaker 1: and starting to kind of gain steam and gain speed.
33:29
Speaker 1: If you look at the Supreme courts um over rulings
33:35
Speaker 1: or overturned precedents, um, if you like, graft him on
33:38
Speaker 1: like a spectrum of time, the few, the present, and
33:42
Speaker 1: you know, the recent past would have a lot of
33:45
Speaker 1: dots on it. And some people say that's evidence that
33:48
Speaker 1: the Supreme Court has become much more activist and politicized
33:51
Speaker 1: over the years. But then other people say, well, I mean,
33:54
Speaker 1: it just makes sense that further back in time they
33:57
Speaker 1: had much fewer rulings to return. They're basically starting from scratch.
34:03
Speaker 1: Now there's so many rulings to consider and deliberate on them. Yeah,
34:07
Speaker 1: of course there's going to be more overturned because there's
34:10
Speaker 1: more precedents to be overturned. Yeah, I think the middle
34:14
Speaker 1: of the road, like myself would say, it's probably a
34:16
Speaker 1: bit of both. Yeah, I agreed. Um, you know, a
34:20
Speaker 1: starry decisiveist like us. Um, here are some very famous
34:26
Speaker 1: examples and truly important, you know, because I mean I
34:30
Speaker 1: think overall, overturning precedent as a starry decisist isn't the
34:34
Speaker 1: greatest thing, but um boy that it sure has been
34:38
Speaker 1: the right thing in a lot of cases. Yea. And
34:41
Speaker 1: of course that's it's all subjective, but that's my opinion. Um,
34:44
Speaker 1: Brown v. Board is one of the big ones. Uh.
34:48
Speaker 1: Plus e v. Ferguson, the U. S. Supreme Court said,
34:51
Speaker 1: separate but equal is how we should go forward. We
34:54
Speaker 1: can segregate things. We can make black kids go to
34:57
Speaker 1: black schools and white kids go to white schools, and
35:01
Speaker 1: it doesn't protect or I'm sorry, it doesn't violate the
35:04
Speaker 1: equal protection clause of the fourteenth Amendment. As long as
35:08
Speaker 1: long at things are equal and these schools have the
35:10
Speaker 1: same uh, school supplies and they're all they're all the same,
35:14
Speaker 1: it's all good. And that was later overturned. Of course,
35:18
Speaker 1: the lower courts um sided with it, but the in
35:21
Speaker 1: the the double A CP would eventually appeal this to
35:24
Speaker 1: the Supreme Court with Brown v. Board And this is
35:29
Speaker 1: one of those situations where like new uh, new data
35:33
Speaker 1: and new studies kind of came into play. Then it
35:36
Speaker 1: happened since that original plus e versus Ferguson ruling, UH
35:40
Speaker 1: in Chief Justice or A. Warren said hey, look we're
35:43
Speaker 1: looking at these studies now that say, yeah, these schools
35:45
Speaker 1: may be equal on paper, but inherently they are not
35:49
Speaker 1: equal if they are segregated. And that will, um, that
35:53
Speaker 1: will really has a big psychological component to a young
35:57
Speaker 1: black student, even if they have the same textbooks and
36:02
Speaker 1: school supplies, just affects the fact that they have to
36:05
Speaker 1: go to a different schools harmful to them, right, And
36:08
Speaker 1: so that clearly violates the Fourteenth Amendment to equal protection
36:12
Speaker 1: under the law, and that made Brown versus. Board of
36:15
Speaker 1: Education one of the most celebrated not just court cases,
36:18
Speaker 1: but one of the most celebrated um overturnings of a
36:21
Speaker 1: legal precedent in American history. For sure, pretty much everybody
36:26
Speaker 1: can get behind Brown versus Board of Education. You know,
36:29
Speaker 1: there's probably a few holdouts there are. I was researching it,
36:32
Speaker 1: and it's surprising. It's not everybody you would think it's
36:35
Speaker 1: It's kind of like people on both sides are like,
36:37
Speaker 1: it was kind of better before, But for the most part,
36:40
Speaker 1: society is like now now, even if it was rough
36:43
Speaker 1: at first, like it was a step we needed to
36:45
Speaker 1: take as a society so we could evolve and stop
36:48
Speaker 1: living separately, because that's ridiculous. What about paying versus Tennessee?
36:52
Speaker 1: This one, I I thought was surprising. It kind of
36:55
Speaker 1: flies under the radar if you're not paying attention to
36:57
Speaker 1: low stuff. But there it used to be. The Supreme
37:00
Speaker 1: Court upheld this idea that you could not have a
37:03
Speaker 1: victim impact statement at sentencing because they said that it
37:07
Speaker 1: violated the Eighth Amendments protection against cruel and Unusual punishment
37:12
Speaker 1: because this emotionally charged you know, atmosphere right before a
37:16
Speaker 1: person's sentence really increases the risk that they're going to
37:19
Speaker 1: get the death penalty. And in uh nineteen late eighties case,
37:24
Speaker 1: a guy named Purvise Pain who had murdered a woman
37:26
Speaker 1: and her two year old daughter. UM, the woman's mother
37:31
Speaker 1: had given a victim impact statement, and apparently the Supreme
37:35
Speaker 1: Court at the time was made up with I think
37:39
Speaker 1: enough liberal justices that they were like, now you should
37:43
Speaker 1: be able to have victim impact statements. And third Good Marshal,
37:47
Speaker 1: who was one of the most liberal justices in Supreme
37:50
Speaker 1: Court history, wrote a descent and a critical descent saying like, hey,
37:54
Speaker 1: you're taking starry, decisive way too lightly, Like this is
37:58
Speaker 1: this is tradition, this is cus to minute, it's like
38:00
Speaker 1: reasonable that Yeah, it increases the risk that somebody's going
38:04
Speaker 1: to be put to death. Uh, and you guys really
38:06
Speaker 1: dropped the ball. But now, uh, the Supreme Court overturned it.
38:09
Speaker 1: So to this day you're allowed to have victim impact
38:12
Speaker 1: statements at sentencing in the US. Uh. Yeah, that's um.
38:16
Speaker 1: Ropert versus Simmons was another that was a case where
38:19
Speaker 1: they basically um where like kind of things had changed
38:23
Speaker 1: since the original decision. UH in nineteen eighty nine Stanford
38:27
Speaker 1: versus Kentucky. UM. That was they found that it was
38:30
Speaker 1: unconstitutional to sentence a minor. I'm sorry. In two thousand five,
38:34
Speaker 1: they found it was unconstitutional to sentence a minor to death,
38:38
Speaker 1: which overturned the nineteen eighty nine decisions Stanford versus Kentucky.
38:42
Speaker 1: And they basically said, you know, we've evolved since then.
38:45
Speaker 1: In in nineteen eighty nine, and most people thought it
38:48
Speaker 1: was okay to to put a sixteen year old to death,
38:50
Speaker 1: but now things have changed and we don't really feel
38:53
Speaker 1: that way. As the year graduated high school, Uh, I
39:00
Speaker 1: could have been put to death. And it's a good
39:03
Speaker 1: thing you didn't get in trouble, Chuck. That was a
39:05
Speaker 1: good kid. But they cited a state legislature UH, and
39:09
Speaker 1: the decisions there that outlawed it. UH. And they even
39:13
Speaker 1: looked at like sort of what was going on around
39:15
Speaker 1: the world as far as that kind of thing goes.
39:18
Speaker 1: There's another really consequential case that came before the Supreme
39:23
Speaker 1: Court and UM had to do with their emergency docket,
39:27
Speaker 1: which will we'll talk about a little bit about later.
39:30
Speaker 1: But UM, in some cases where the time is of
39:33
Speaker 1: the essence, the Supreme Court will hear really important emergency cases.
39:38
Speaker 1: I'm very short noticed, will deliberate on it over a
39:41
Speaker 1: very short period of time and issue a ruling um
39:45
Speaker 1: that does not have anything to do with anything else
39:48
Speaker 1: except for that one case. Ideally, but Bush versus Gore
39:52
Speaker 1: is a good example of how that's not the case,
39:55
Speaker 1: because this is a this is one of those emergency
39:57
Speaker 1: cases that they heard, and Chuck, I think we needed
40:00
Speaker 1: do an entire episode on the two thousand election because
40:03
Speaker 1: it was so consequential to the United States, and also
40:06
Speaker 1: it's just super interesting too. But the upshot of is
40:09
Speaker 1: that the there was a really important quote that came
40:13
Speaker 1: out of it that said, our consideration the Supreme Court
40:16
Speaker 1: is saying this, our consideration is limited to the present circumstances.
40:20
Speaker 1: Comma for the problem of equal protection and election processes
40:24
Speaker 1: generally presents many complexities. And some people say the fact
40:28
Speaker 1: that they said that their consideration is limited just to
40:31
Speaker 1: the present circumstances means that it's not precedents. Other people say, yeah,
40:35
Speaker 1: but that second part about how you know, all all
40:38
Speaker 1: election processes are different. They're actually saying, like, don't just
40:42
Speaker 1: apply this rotely to it. So it is a precedent,
40:45
Speaker 1: and it's been cited a bunch of times since then.
40:47
Speaker 1: But even though it's a big controversy about whether those
40:50
Speaker 1: kind of rulings should be included at all in precedence. Yeah,
40:53
Speaker 1: and that's sort of the it's not a slippery slope.
40:55
Speaker 1: It's just sort of the system we have when there
40:58
Speaker 1: there isn't a law about precedent. It's just sort of like,
41:02
Speaker 1: you know, we'll try and figure it out case by case.
41:05
Speaker 1: H I laughed because slippery slope came out of the
41:08
Speaker 1: Supreme Court too. I think it was suitor right, Oh really, yeah,
41:12
Speaker 1: I don't remember what cases. Yeah, the slippery slope came
41:16
Speaker 1: out of out of the Supreme Court. Did not know that.
41:20
Speaker 1: That's good fact. That's why I laughed, because I'm the
41:23
Speaker 1: biggest nerd on the BOK. That is pretty funny. Um,
41:28
Speaker 1: and now you know we should close with row. We
41:30
Speaker 1: did a full episode on just the ins and outs
41:34
Speaker 1: of Roe v. Wade not too long ago. But um,
41:38
Speaker 1: did that come out right after the decision had been rendered?
41:41
Speaker 1: I think did? Or right before our podcast episode? Right
41:47
Speaker 1: after after? Okay, we're very timely in topical Yeah, don't
41:53
Speaker 1: break your arm adding yourself on the back. I couldn't
41:58
Speaker 1: remember if it was before after, but at any UM rate,
42:01
Speaker 1: we should touch on it here at least because that
42:03
Speaker 1: is obviously the most recent really super impactful uh time,
42:10
Speaker 1: when a super impactful time when the some members of
42:14
Speaker 1: the Supreme Court said sorry, sorry decisive. But even though
42:18
Speaker 1: we might have even said in our confirmation that this
42:22
Speaker 1: was settled ball, we're gonna reverse on that now. Yeah.
42:25
Speaker 1: And the reason that Row was upheld for so long,
42:28
Speaker 1: and we talked about this in our episode that it
42:30
Speaker 1: was really roundly considered to be based on shaky legal foundation,
42:35
Speaker 1: but it was upheld time and time again because it
42:37
Speaker 1: had become reliant. People had come to rely on it.
42:41
Speaker 1: So that reliance factor kept it from being overturned even
42:44
Speaker 1: though a lot of justice is considered it like this
42:46
Speaker 1: is not the best ruling we've ever made. UM. But
42:49
Speaker 1: then with UM Dobbs versus Jackson Women's Health Organization, the
42:54
Speaker 1: ruling from was two. Yeah, that overturned. Man, it's been
42:58
Speaker 1: a heck of a year that overturned Row. UM. They
43:03
Speaker 1: they basically said like, no, we're we're just going to
43:06
Speaker 1: go ahead and say like this is not this argument
43:09
Speaker 1: was totally fallacious it was a bad, bad argument. But
43:13
Speaker 1: also we're gonna go one step further and apply our
43:16
Speaker 1: originalism to it and say, the Constitution doesn't say anything
43:20
Speaker 1: about abortions, and if you're going to apply the fourteenth
43:24
Speaker 1: Amendment to it, which is what that shaky legal reasoning
43:27
Speaker 1: was for Row that, um, you couldn't deprive a woman
43:32
Speaker 1: of her privacy a k. A liberty that was guaranteed
43:36
Speaker 1: through the fourteenth Amendment. If we're gonna apply the fourteenth Amendment,
43:39
Speaker 1: let's go back and talk about what things were like
43:40
Speaker 1: in eighteen sixty eight and how people understood the law
43:43
Speaker 1: in eighteen sixty eight, and they would not have been
43:45
Speaker 1: okay with abortion because three quarters of states already had
43:49
Speaker 1: abortion outlawed on the books ipso facto abortion has no
43:53
Speaker 1: constitutional protections. But again, they really went to the other extreme,
43:58
Speaker 1: which in this case was the far right, in saying like,
44:02
Speaker 1: there's nothing in the Constitution about abortion, and no one
44:06
Speaker 1: had ever said it was in the Constitution, or that
44:09
Speaker 1: the Constitution explicitly, you know, protected women's rights to choose
44:14
Speaker 1: about reproductive health. What they were saying is, you know,
44:17
Speaker 1: the judges kind of determined over time that this was, um,
44:23
Speaker 1: this was worthwhile and this was what society needed, um,
44:27
Speaker 1: and they ruled on it. So it was a case
44:29
Speaker 1: of pragmatism, frankly and originalism, which is where we're at now,
44:34
Speaker 1: and then eventually we may get to that middle of
44:38
Speaker 1: the roads storry, decisive, nous, who knows, I don't know,
44:42
Speaker 1: No one knows, right. And it was also a case though, where, uh,
44:46
Speaker 1: if you're going to open up that can of worms
44:48
Speaker 1: with the fourteenth Amendment, all of a sudden you're looking
44:51
Speaker 1: at other decisions decided on that same rationale, like same
44:55
Speaker 1: sex marriage and uh, interracial marriage and say sex sex
45:02
Speaker 1: um also called just sex. That's right, depending on who
45:06
Speaker 1: you are. Uh. Alito said, you know, but but you know,
45:10
Speaker 1: it doesn't apply to that stuff. It just applies to this,
45:14
Speaker 1: and that's UM. I think a lot of people worry, like, well, yeah,
45:17
Speaker 1: but the can of worms is now open. And I
45:21
Speaker 1: think immediately after Clarence Thomas even said like, maybe we
45:23
Speaker 1: should go back and look at these other cases. Yeah, totally.
45:26
Speaker 1: And that's the scary thing about it because it established
45:29
Speaker 1: a precedent, and a big one too because of that reasoning.
45:32
Speaker 1: But then again, a Supreme Court can come with new
45:36
Speaker 1: sitting judges down the line and be like, this was
45:38
Speaker 1: terrible reasoning. We don't agree with originalism. We're gonna overturn dobbs.
45:42
Speaker 1: Who knows. I suspect that it's going to kind of
45:44
Speaker 1: ping pong back and forth for a while. Who knows. Uh.
45:49
Speaker 1: There's also a bit here that I move your honor,
45:54
Speaker 1: that we uh, that we cover this in a short stuff.
45:57
Speaker 1: Overruled this whole Oh oh uh. There's a whole matter
46:01
Speaker 1: of the shadow docket, which I think it would make
46:04
Speaker 1: for a good short stuff. Yeah, that was that had
46:06
Speaker 1: to do with that Bush versus Gore two thousand election thing.
46:09
Speaker 1: It's like an emergency thing that they probably are using
46:12
Speaker 1: a little flagrantly these days. But I agree, I think
46:15
Speaker 1: that's a good short So sustained after all, thank you?
46:19
Speaker 1: You got anything else about um legal precedents? Now? I
46:23
Speaker 1: don't want to talk about the law for a while,
46:24
Speaker 1: so maybe bump shadow ducket out to summer twenty three. Okay,
46:29
Speaker 1: that sounds good. We did it, Chuck. We made it
46:31
Speaker 1: through legal precedents. If you want to know more about
46:36
Speaker 1: legal precedents, you can research starry, decisive originalism, pragmatism, all
46:43
Speaker 1: that stuff. On your favorite search engine. And since I
46:46
Speaker 1: said that and Chuck said, woo who, it's time for
46:49
Speaker 1: listener mail. I'm gonna call this just one email about
46:54
Speaker 1: our sitcom's two parter m. You got a lot of
46:57
Speaker 1: great feedback. People really enjoyed those episodes, I think, which
47:01
Speaker 1: is always fun. We did miss a couple of things
47:04
Speaker 1: before I read this. Um, I don't know why. I
47:07
Speaker 1: guess I said that Rhoda was a spinoff of All
47:10
Speaker 1: in the Family. No, I did, Oh you did? Okay,
47:14
Speaker 1: I thought it might have been me. I knew it
47:15
Speaker 1: was Mary Tyler Moore. I don't know why I didn't
47:17
Speaker 1: speak up. Then, if I could take one thing back
47:20
Speaker 1: in this entire podcast history, it would be that so
47:24
Speaker 1: many people wrote in to say that, and some also,
47:28
Speaker 1: most of were very nice. But I want to give
47:31
Speaker 1: you a piece of guidance, just as a friend here everybody,
47:33
Speaker 1: if you send an email and the subject lind contains
47:38
Speaker 1: more than one question mark, it made you're being hostile
47:41
Speaker 1: and you may want to second guest sending that email
47:44
Speaker 1: because it makes you look like a huge jerk. You
47:46
Speaker 1: mean that the subject line is who does your research
47:49
Speaker 1: for a four question marks? Maybe? Also, UM, the Simpsons
47:56
Speaker 1: has a little Maggie. They're not for Simpsons. Yeah, I
48:00
Speaker 1: really goof that one. I forget about Maggie. I I
48:03
Speaker 1: love babies, but Maggie didn't do a lot on the show,
48:06
Speaker 1: so I forgot all about her. Big apologies to Maggie Simpson. Yeah,
48:10
Speaker 1: same here. I didn't catch that either. Um. And then
48:13
Speaker 1: also a lot of people, at least as many who
48:16
Speaker 1: wrote in about Rhoda being a spin off of Mary
48:19
Speaker 1: Tyler Moore UM wrote in about um Roseanne and the
48:23
Speaker 1: two Becky's pulling a Darren switch, Um, which I just
48:27
Speaker 1: walked right past. I was never a big Roseanne fan.
48:29
Speaker 1: I never watched it, but there were a lot of
48:32
Speaker 1: Roseanne watchers. I'm assuming the original one right, But that
48:36
Speaker 1: one falls under not so much a correction as how
48:39
Speaker 1: could you not include this? And we get a lot
48:43
Speaker 1: of those, especially with stuff like this like how could
48:46
Speaker 1: you not talk about everybody loves Raymond? How could you
48:48
Speaker 1: not talk about my favorite shoe? Yeah, it's kind of
48:52
Speaker 1: like we put together, um a list of the one
48:55
Speaker 1: hundred top sitcoms of all time in a two episode
48:58
Speaker 1: format and just let her rip because it was inevitable.
49:01
Speaker 1: I'm actually surprised we didn't get more stuff. And it's
49:03
Speaker 1: really interesting that almost everybody wrote in to talk about
49:07
Speaker 1: Roseanne Us leaving out Roseanne. I know I didn't watch
49:10
Speaker 1: that show. Yeah, I just didn't do Sorry everybody, hopefully
49:13
Speaker 1: we didn't taint your experience. But here's a fun email
49:17
Speaker 1: from Laura Lampert that summed up her admiration of this episode. Hey, guys,
49:22
Speaker 1: this is a complaint that these two episodes were too
49:25
Speaker 1: engaging and entertaining. I really needed to sleep, but it
49:28
Speaker 1: wasn't happening. So I put my podcast Q onto play
49:31
Speaker 1: starting with these two episodes because I really didn't find
49:34
Speaker 1: the subject that interesting. Uh. The thought was that listening
49:38
Speaker 1: to you guys drone on about a dull topic to
49:40
Speaker 1: me would send me off to the land of nod.
49:43
Speaker 1: But that didn't happen. Here I am at three am
49:46
Speaker 1: sit in front of my computer to find out about
49:48
Speaker 1: the universe that was mentioned. I guess the Tommy what's
49:51
Speaker 1: it called universe, Tommy Westfall, Tommy west Fall universe as
49:56
Speaker 1: wide awake as I was two hours ago. Maybe you
49:58
Speaker 1: consider some dull or less interesting to topics, guys, and
50:01
Speaker 1: then just leave them that way. No jokes, no side notes,
50:04
Speaker 1: no tangents, just drone on. You can label its stuff
50:07
Speaker 1: you should sleep by, and that is Laura Lampert. That's
50:11
Speaker 1: a good idea. That's a really good idea. We could
50:14
Speaker 1: just kind of talk like that's the whole time. That's
50:18
Speaker 1: right about Varya boring things? Yeah, like a legal precedence
50:22
Speaker 1: we should have would that could have been our debut episode.
50:26
Speaker 1: We have to rerecord it, Chuck, we have to go
50:27
Speaker 1: back and give it another shot. Just play it at
50:30
Speaker 1: half speed. There you there you go. That's great advice
50:33
Speaker 1: to Laura Lampert. Great name. You can tell it's a
50:35
Speaker 1: great name because I remembered it and didn't have to ask,
50:38
Speaker 1: Chuck Um. Which is not to say that when I
50:40
Speaker 1: don't remember your name, it means you don't have a
50:42
Speaker 1: great name. It's just not quite as memorable. How about that? Sure? Well,
50:46
Speaker 1: since I just dug myself out of that hole, everybody, Um,
50:49
Speaker 1: that's the end of listener mail. And if you want
50:51
Speaker 1: to get in touch with this, like Laura Lampert did,
50:53
Speaker 1: you can send us an email to to Stuff podcast
50:56
Speaker 1: at iHeart radio dot com. Stuff you Should Know is
51:02
Speaker 1: a production of I Heart Radio. For more podcasts, my
51:05
Speaker 1: Heart Radio visit the I heart Radio app, Apple podcasts,
51:08
Speaker 1: or wherever you listen to your favorite shows. H