Latest / Yaron Brook Show / Protecting Freedom in the Courts -- Conversation with Joshua Windham | Yaron Brook Show

Transcript

Protecting Freedom in the Courts -- Conversation with Joshua Windham | Yaron Brook Show · Yaron Brook Show

• 0:02
  Speaker 1: A lot of funds of widow lational interest and an
• 0:09
  Speaker 1: individual loss. This is the show, all right, everybody, welcome
• 0:21
  Speaker 1: to your own book show on this Monday, May eighteenth.
• 0:27
  Speaker 1: I am really pleased to have Josh Wyndham as a
• 0:34
  Speaker 1: guest today. We're just trying to figure out when we
• 0:36
  Speaker 1: first met, and we think it's like somewhere around twenty fourteen,
• 0:38
  Speaker 1: twenty thirteen, where I came to North Carolina State to
• 0:43
  Speaker 1: give a talk on morality of capitalism and then Josh
• 0:46
  Speaker 1: invited me. He was part of the Federal Society at
• 0:49
  Speaker 1: UNC Chapel Hill. We did debate there, right.
• 0:52
  Speaker 2: Oh, yeah, you debated a constitutional law professor.
• 0:55
  Speaker 1: Yeah, I can't on inequality maybe or something.
• 0:58
  Speaker 2: Yeah, that's what it was.
• 0:59
  Speaker 1: H Yeah. So I think that's even on video someways.
• 1:01
  Speaker 1: I think it's actually on my channel on video. So
• 1:05
  Speaker 1: it's mean a while. Josh is a senior attorney at
• 1:08
  Speaker 1: the Instry for Justice. He joined ij's Headquota office in
• 1:13
  Speaker 1: now which is in DC, in twenty sixteen. So i'd
• 1:16
  Speaker 1: out of law school, I take it. And he has
• 1:22
  Speaker 1: let's see so the tom Yeah, I mean that's the
• 1:25
  Speaker 1: mean stuff. You can read his bio in the description below.
• 1:30
  Speaker 1: So welcome, Josh. Thanks thanks for joining me.
• 1:33
  Speaker 2: Yeah, thanks a much for having me. It's fun to
• 1:35
  Speaker 2: join from the non listener side.
• 1:37
  Speaker 1: Good, I'm glad. I'm glad. So tell us I think
• 1:41
  Speaker 1: you're the first guests from IJ, although that seems to
• 1:46
  Speaker 1: be wrong. I've had a number of people from PLF,
• 1:49
  Speaker 1: but for some reason we're lagging on the IJ side.
• 1:52
  Speaker 1: So tell us a little bit about the Instry for Justice,
• 1:54
  Speaker 1: what you guys do. You're based in Washington, DC for
• 1:57
  Speaker 1: now at least, and so yeah, tell us a little
• 2:01
  Speaker 1: bit ig big picture kind of what you guys do.
• 2:04
  Speaker 2: Yeah, if folks remember Larry Salisman coming on the show,
• 2:09
  Speaker 2: you know, Larry's in public interest litigation at PLF, and
• 2:12
  Speaker 2: so that's the same type of litigation we do. Public
• 2:16
  Speaker 2: interest litigation is litigation that's designed to take the law
• 2:20
  Speaker 2: from a place that is in our view bad in
• 2:23
  Speaker 2: certain respects and push it into a better direction by
• 2:26
  Speaker 2: setting precedent in the courts or by changing the way
• 2:29
  Speaker 2: that courts think about different constitutional doctrines or parts of
• 2:32
  Speaker 2: the constitution. So it's impact litigation. It's designed for change
• 2:36
  Speaker 2: and for moving the law in a positive direction over time.
• 2:41
  Speaker 2: And so it's very strategic. You know, we select all
• 2:43
  Speaker 2: of our cases very carefully. We litigate in defense of
• 2:47
  Speaker 2: kind of four main constitutional rights, economic liberty, property rights,
• 2:51
  Speaker 2: freedom of speech, and educational choice. And we've been doing
• 2:55
  Speaker 2: that for over thirty five years now. IJ was founded
• 2:58
  Speaker 2: in nineteen ninety one, have had you know, thirteen plus
• 3:01
  Speaker 2: cases at the US Supreme Court, have another one coming
• 3:04
  Speaker 2: up this fall. Good track record, and litigate and state
• 3:08
  Speaker 2: and federal courts all over the country. So, you know,
• 3:11
  Speaker 2: individual rights oriented organization trying to you know, limit the
• 3:15
  Speaker 2: size and scope of government to its function right of
• 3:19
  Speaker 2: protecting individual rights and people's property and ability to pursue happiness.
• 3:23
  Speaker 2: And so that's what IJ is in a nutshell, and
• 3:26
  Speaker 2: I litigate with a focus on property rights and economic freedom.
• 3:31
  Speaker 1: So what's the case going in find a servie quote
• 3:33
  Speaker 1: in the fall?
• 3:34
  Speaker 2: Yeah, we have a case about basically whether it's a
• 3:38
  Speaker 2: separation of powers kind of case, a case about whether
• 3:42
  Speaker 2: you're entitled to a jury trial, a jury in a
• 3:47
  Speaker 2: proceeding before a federal administrative agency or whether you know,
• 3:51
  Speaker 2: administrative agencies can just have their own in house prosecutors
• 3:54
  Speaker 2: courts and all the rest of it, right, And so
• 3:57
  Speaker 2: that's that's something that I think a lot of groups
• 3:58
  Speaker 2: across the country have been getting in front of the
• 4:01
  Speaker 2: Supreme Court. This is a court that's interested in structural
• 4:04
  Speaker 2: protections for liberty, and our case in particular is about
• 4:07
  Speaker 2: a farm that was assessed, you know, hundreds of thousands
• 4:10
  Speaker 2: of dollars in fines by this agency's own in house
• 4:13
  Speaker 2: kind of a judicatory system, and so our ur arguments
• 4:16
  Speaker 2: are this is unconstitutional in several respects, and the Court's
• 4:19
  Speaker 2: going to take that up later this year.
• 4:21
  Speaker 1: So this is a quote that seems kind of friendly
• 4:24
  Speaker 1: to those those kind of issues.
• 4:26
  Speaker 2: Yeah, you know, this Supreme Court is an interesting one.
• 4:29
  Speaker 2: I think in some respects they're they're tough if you're
• 4:33
  Speaker 2: for individual rights and for for really pushing for particular
• 4:36
  Speaker 2: parts of the Bill of Rights right. In other respects
• 4:39
  Speaker 2: they're they're good on like structural limits on government abuse
• 4:43
  Speaker 2: and and the way that our checks and balances kind
• 4:45
  Speaker 2: of system works. So you know, double edged sword in
• 4:48
  Speaker 2: many ways. But you know, we're taking a case before
• 4:51
  Speaker 2: the Court that I think is where they're at their strongest.
• 4:54
  Speaker 1: YEP. So we talked a lot. I talked a lot
• 4:58
  Speaker 1: on the show about I s and what was going
• 5:01
  Speaker 1: on Minneapolis, but generally more broadly about ICE violating whites
• 5:05
  Speaker 1: and especially the rights often of America's citizens. And I
• 5:10
  Speaker 1: know you've worked on a court on a case that
• 5:14
  Speaker 1: has to do with ICE detaining an American citizen. What'd
• 5:20
  Speaker 1: you tell us a little bit about this case.
• 5:22
  Speaker 2: Yeah, So we represent Leo Garcia Venegas. He's an American citizen.
• 5:28
  Speaker 2: He is Hispanic. His family's from Mexico, but he was
• 5:30
  Speaker 2: born in Florida. He's a construction worker in his early
• 5:35
  Speaker 2: twenties down in southern Alabama. And over the last year
• 5:40
  Speaker 2: he has been unlawfully detained by ICE and other federal
• 5:44
  Speaker 2: immigration officers three separate times. So I'll tell you about
• 5:50
  Speaker 2: each of them briefly, and i'll tell you about the case.
• 5:52
  Speaker 2: So the first occurred in May of last year. He
• 5:56
  Speaker 2: was working on a privately owned construction site in concrete.
• 6:01
  Speaker 2: This property was fenced, it had no trespassing sign up,
• 6:05
  Speaker 2: so nobody would mistake this for a place that like
• 6:07
  Speaker 2: ordinary people could just wander around right much less government officials.
• 6:11
  Speaker 2: And while he was there with a crew of other
• 6:13
  Speaker 2: concrete workers, a team of you know, federal officers, including
• 6:17
  Speaker 2: ICE folks including FBI storm the site, chased down people,
• 6:22
  Speaker 2: ran right past black and white construction workers who were
• 6:26
  Speaker 2: working across the street, and just went for all the
• 6:28
  Speaker 2: Hispanic construction workers in a big kind of dragnet storming
• 6:32
  Speaker 2: of the site. Didn't have a warrant to our knowledge,
• 6:35
  Speaker 2: didn't have any individualized probable cause, any prior knowledge of
• 6:40
  Speaker 2: any specific individual on the site. Just saw a bunch
• 6:43
  Speaker 2: of Hispanic construction workers and stormed on in and started
• 6:46
  Speaker 2: detaining people. And our client was our client. Leo was
• 6:50
  Speaker 2: tackled to the ground. You know, there's a video of him,
• 6:53
  Speaker 2: you can look it up online saying I'm a citizen,
• 6:55
  Speaker 2: I have my papers, I'm a citizen. I'll show you
• 6:57
  Speaker 2: my papers. There's the white and black construction workers who
• 6:59
  Speaker 2: are taking a video from kind of the side. They're shouting,
• 7:02
  Speaker 2: sorry for my language, but they're shouting, what the fuck.
• 7:04
  Speaker 2: He didn't do anything wrong, He's a citizen. Why are
• 7:06
  Speaker 2: you doing this? I mean, it's a really tragic scene
• 7:09
  Speaker 2: to watch. But they eventually pull his wallet out of
• 7:12
  Speaker 2: his out of his pockets. They see his real ID,
• 7:15
  Speaker 2: which is, you know, the thing the government tells all
• 7:17
  Speaker 2: of us we're supposed to have because it's so important.
• 7:19
  Speaker 2: They tell him that's fake, you know, it's not real.
• 7:22
  Speaker 2: They detain him for another, you know, forty five minutes hour,
• 7:26
  Speaker 2: and he's begging them the whole time, you know, look
• 7:28
  Speaker 2: up my social Security number. I'm a citizen. I have
• 7:30
  Speaker 2: my papers, and they finally, you know, let him go
• 7:32
  Speaker 2: after realizing they have a citizen. Right all along, Leo
• 7:37
  Speaker 2: didn't do anything to provoke this. The only thing he
• 7:40
  Speaker 2: did was record them arresting his brother with a phone.
• 7:43
  Speaker 2: So I mean, if that's provocation or if that's obstructing
• 7:45
  Speaker 2: an arrest, I don't really know what is. He's just
• 7:48
  Speaker 2: observing them right on private property that they invaded. And
• 7:53
  Speaker 2: after this happened, you know, Ice did the thing that
• 7:55
  Speaker 2: they always do, or DHS did the thing they always do.
• 7:58
  Speaker 2: They say, you know, we never detain American citizens. This
• 8:02
  Speaker 2: was not wrongful. This was a targeted investigation. This is
• 8:04
  Speaker 2: a targeted raid. It's the same stock line they tried
• 8:07
  Speaker 2: out about all these incidents. So Leo was of course
• 8:11
  Speaker 2: traumatized by this and afraid to go back to work.
• 8:14
  Speaker 2: But he has to work, you know, he has to
• 8:16
  Speaker 2: earn a living. So he went back to work after
• 8:19
  Speaker 2: a few weeks, and then he's inside of a house,
• 8:22
  Speaker 2: almost fully built house on another private residential construction site,
• 8:27
  Speaker 2: and he sees an officer outside the window of the
• 8:31
  Speaker 2: house he's working on, and then there's somebody comes up
• 8:33
  Speaker 2: behind him in the bedroom he's working on, so he's
• 8:35
  Speaker 2: sort of cornered right from both directions. He's you know,
• 8:38
  Speaker 2: working with headphones on. He takes his headphones off. They
• 8:40
  Speaker 2: order him to come out of the house. He says,
• 8:42
  Speaker 2: I'm a citizen. I have my real ID. They said,
• 8:44
  Speaker 2: we have to check. Anyway, they pull him into a
• 8:46
  Speaker 2: lineup at the edge of the development. So they pull
• 8:48
  Speaker 2: him off his work site. They kind of frog march
• 8:51
  Speaker 2: him into this lineup of people and then detain him
• 8:53
  Speaker 2: for another you know, thirty minutes, and then they finally say, oh,
• 8:56
  Speaker 2: you guys are citizens, you can go, and other people
• 8:58
  Speaker 2: are not citizens. They have to stay right and get deported.
• 9:01
  Speaker 2: So again you have them not treating his real ID
• 9:04
  Speaker 2: as evidence of citizenship or lawful status, treating him as
• 9:08
  Speaker 2: suspicious as potentially an illegal immigrant, just because he's doing
• 9:11
  Speaker 2: a blue collar job on a construction site and he's
• 9:14
  Speaker 2: Hispanic and so Leo, you know, in the span of
• 9:17
  Speaker 2: two months, is detained twice by these guys on construction
• 9:22
  Speaker 2: sites he's working on. And then most recently, you know,
• 9:24
  Speaker 2: he went to Mexico for a couple months to visit family,
• 9:26
  Speaker 2: which he does every year. He got back about a
• 9:30
  Speaker 2: month ago. I don't have the exact date at hand,
• 9:32
  Speaker 2: but after he got back, within a dozen days, he
• 9:36
  Speaker 2: was driving home and parked on his front yard, on
• 9:40
  Speaker 2: his like driveway. Right gets out, officers storm his yard,
• 9:44
  Speaker 2: they tackle him. He says he has his real ID
• 9:48
  Speaker 2: in his hand while they're tackling him, because he knows
• 9:51
  Speaker 2: it's coming. He sees them coming when he's getting out
• 9:52
  Speaker 2: of his car. They tackle him. They put him in
• 9:55
  Speaker 2: leg shackles and handcuffs, so he has a photo of
• 9:58
  Speaker 2: him in their car with legs sh ales on and
• 10:01
  Speaker 2: they detain him for fifteen minutes and they realize they
• 10:03
  Speaker 2: have a citizen again. So they're just repeatedly, over and
• 10:06
  Speaker 2: over again detaining this guy the car thing recently that
• 10:09
  Speaker 2: tailing him home and tackling him on his front lawn.
• 10:11
  Speaker 2: It's because he was driving his brother's car and they
• 10:14
  Speaker 2: suspected his brother being a legal immigrant. So I mean,
• 10:17
  Speaker 2: this is just over and over and over again, this
• 10:19
  Speaker 2: guy is not safe at work, he's not safe at home,
• 10:22
  Speaker 2: and he's an American citizen who's just trying to work. Yeah,
• 10:24
  Speaker 2: I mean it's because it's completely wild. And that's for me.
• 10:27
  Speaker 2: I mean, just even saying all that, all those facts
• 10:29
  Speaker 2: out loud, you say to yourself, how could this be?
• 10:32
  Speaker 2: This seems completely crazy. But that's the world we're living
• 10:34
  Speaker 2: in right now. And so our lawsuit has a number
• 10:37
  Speaker 2: of goals. But we foiult a case last year basically
• 10:41
  Speaker 2: seeking to stop this right, basically seeking to stop DHS ICE,
• 10:46
  Speaker 2: you know, all the federal agencies that are involved in
• 10:48
  Speaker 2: these construction site rates from harassing American citizens at their jobs,
• 10:53
  Speaker 2: right just just because they happened to be working a
• 10:56
  Speaker 2: low income job or blue collar job. And look Hispanic.
• 10:58
  Speaker 2: And that's that's what the case is really about. So
• 11:01
  Speaker 2: we have, you know, Fourth Amendment arguments and other kinds
• 11:03
  Speaker 2: of arguments, but that's in a nutshell. We want this
• 11:06
  Speaker 2: to stop.
• 11:07
  Speaker 1: So run to some of the what would be some
• 11:08
  Speaker 1: of the arguments for this. I mean, ICE is going
• 11:11
  Speaker 1: to say, well, we're looking for legal immigrants, and you
• 11:14
  Speaker 1: know what choice do we have? We go where they
• 11:17
  Speaker 1: where they walk construction site. So where they wook is
• 11:22
  Speaker 1: there an argument to be made that federal agents should
• 11:25
  Speaker 1: not be allowed on private property enlists? There's what they have,
• 11:28
  Speaker 1: a walant, there's probable cause, and then so so run
• 11:34
  Speaker 1: through some of the arguments in terms of how, you know,
• 11:37
  Speaker 1: how you guys are hoping to stop this.
• 11:40
  Speaker 2: So we break this down into kind of three steps,
• 11:43
  Speaker 2: and we ask ourselves what would constitutional law enforcement look
• 11:47
  Speaker 2: like here? Right, because there are constitutional ways to enforce
• 11:50
  Speaker 2: immigration laws. You respect the Fourth Amendment, and the Fourth
• 11:52
  Speaker 2: Amendment has requirements for all the things that they're doing here,
• 11:55
  Speaker 2: for searches and for seizures. So for folks who don't remember,
• 11:58
  Speaker 2: the Fourth Amendment prohibits unreasonable searches and seizures, including of homes,
• 12:03
  Speaker 2: including of people, including of property.
• 12:04
  Speaker 1: Right.
• 12:05
  Speaker 2: So that's what this case is really about, is those
• 12:07
  Speaker 2: basic Fourth Amendment requirements and what makes a search reasonable.
• 12:11
  Speaker 2: At the starting point of that analysis is a warrant.
• 12:14
  Speaker 2: You know, it's a judge assessing your probable cause to
• 12:17
  Speaker 2: invade somebody's property, including property you're working on right where
• 12:21
  Speaker 2: you expect that you're the one in control of that property.
• 12:24
  Speaker 2: Strangers aren't going to come wandering in a warrant is
• 12:27
  Speaker 2: typically required to search property, and so that's you know,
• 12:30
  Speaker 2: we've had the government, for example, say publicly that, oh,
• 12:34
  Speaker 2: you know, we suspect certain builders, certain construction companies of
• 12:38
  Speaker 2: you know, having a higher percentage of I legal immigrants
• 12:40
  Speaker 2: working for them. Fine, if you suspect that, go show
• 12:44
  Speaker 2: that to a judge and get a warrant. Don't just
• 12:46
  Speaker 2: treat yourself as the law right, because that is lawless.
• 12:49
  Speaker 2: And so step one, get a warrant. Step two. You know,
• 12:53
  Speaker 2: once you are constitutionally on one of these sites, don't
• 12:56
  Speaker 2: just do a dragnet detention of everybody on the site.
• 13:00
  Speaker 2: Seizures have to be individualized. You have to have individual
• 13:03
  Speaker 2: assessments of people's culpability and behavior, and you have to
• 13:06
  Speaker 2: reasonably suspect each individual person that you physically detain of
• 13:11
  Speaker 2: some kind of crime or violation of the law. And
• 13:13
  Speaker 2: so we say, look, you can come onto a site
• 13:16
  Speaker 2: if you have a warrant, and once you're on that site,
• 13:18
  Speaker 2: you can ask questions of people. You know, you can
• 13:20
  Speaker 2: have like kind of conversations to develop suspicion. You can
• 13:23
  Speaker 2: come in with prior knowledge of them, but you can't
• 13:25
  Speaker 2: just round up all the Mexican people, right, And you
• 13:27
  Speaker 2: can't just round up all the people who look like
• 13:28
  Speaker 2: Mexican people, right, including citizens, because that's the thing is
• 13:32
  Speaker 2: you don't know if you don't come in with you know,
• 13:34
  Speaker 2: prior probable cause or prior knowledge to these people, and
• 13:37
  Speaker 2: you're just doing roundups. That's not a constitutional way to
• 13:40
  Speaker 2: enforce the law because that's really just search and sees
• 13:43
  Speaker 2: first and figure it out later. And the Constitution really
• 13:46
  Speaker 2: has the opposite presumption. You have to have knowledge of
• 13:49
  Speaker 2: culpability first before you start to enforce, right. And then finally,
• 13:53
  Speaker 2: and this is the last thing we're saying, is that
• 13:55
  Speaker 2: when somebody shows you the piece of paper that they
• 13:59
  Speaker 2: say you're supposed to carry to prove that you're a
• 14:01
  Speaker 2: citizen or here lawfully, you can't just ignore that, right.
• 14:05
  Speaker 2: And that's what they're doing over and over and over again.
• 14:07
  Speaker 1: So and are they ignoring the real ID because it
• 14:12
  Speaker 1: really is easy to fake or you know, what what
• 14:16
  Speaker 1: are they? What are they? What are they seeking by
• 14:18
  Speaker 1: ignoring it?
• 14:19
  Speaker 2: It's so it's it's actually not as easy to fake
• 14:22
  Speaker 2: as as you know. Their position on this is that
• 14:26
  Speaker 2: some states issue driver's licenses to people without having to
• 14:30
  Speaker 2: be citizens or here lawfully, right, and that that's true
• 14:32
  Speaker 2: in some states, but those aren't real IDs. Real IDs
• 14:36
  Speaker 2: are stamped with a star or some other kind of
• 14:38
  Speaker 2: insignia and then they're certified by DHS. So the very
• 14:43
  Speaker 2: agency doing all these raids is the agency that certifies
• 14:46
  Speaker 2: real IDs as real id's. And they all have a
• 14:48
  Speaker 2: barcode scanner on the back. And so if my client
• 14:51
  Speaker 2: Leo shows his real ID, they can just whip out
• 14:54
  Speaker 2: their barcode scanner and scan it and see in like
• 14:56
  Speaker 2: four seconds that he's a citizen or that he's here lawfully.
• 14:59
  Speaker 2: And they don't do that, right, they just say we
• 15:01
  Speaker 2: had I'll give you one example. There was a witness
• 15:03
  Speaker 2: who submitted a declaration in the case, you know, a
• 15:06
  Speaker 2: sworn statement, and she did it anonymously because she's afraid
• 15:08
  Speaker 2: of retaliation by the government. But she was detained on
• 15:11
  Speaker 2: a landscaping site in Florida, just over the border from Alabama.
• 15:16
  Speaker 2: And when they did that, she had papers, she had
• 15:20
  Speaker 2: documentation on her and she's like, what are you doing,
• 15:23
  Speaker 2: Why are you doing this to me? And the officer
• 15:25
  Speaker 2: said to her, Joe Biden made a lot of mistakes,
• 15:28
  Speaker 2: so we can't trust your papers, right. So that's like
• 15:30
  Speaker 2: kind of the mentality of these officials is that there's
• 15:33
  Speaker 2: just a new way of operating right now under this administration.
• 15:36
  Speaker 2: And it's not the old way, right yep.
• 15:39
  Speaker 1: And it's and it's not the constitutional way. So who
• 15:42
  Speaker 1: do you take? Who do you take? You take this
• 15:44
  Speaker 1: to federal court in the state of Miami, in the
• 15:46
  Speaker 1: state of Florida.
• 15:47
  Speaker 2: This is in Alabama, Yeah, Alabama, And yeah, so it's
• 15:51
  Speaker 2: in federal district court right now in Alabama. We sought
• 15:54
  Speaker 2: a preliminary injunction, which is, you know, halt this while
• 15:57
  Speaker 2: the case is going on to prevent the repor harm
• 16:00
  Speaker 2: to our client. The sad thing is we asked for
• 16:02
  Speaker 2: that seven months ago, and then we see what happens
• 16:05
  Speaker 2: if they don't. The court still act, right, I mean,
• 16:06
  Speaker 2: he got injured again, right in the constitutional sense of injured,
• 16:11
  Speaker 2: and so yeah, I mean, it's that's one thing we've
• 16:13
  Speaker 2: asked for. The government has moved to dismiss the case.
• 16:16
  Speaker 2: Their main argument in the case so far has been
• 16:18
  Speaker 2: that he doesn't have standing. In other words, he's not
• 16:21
  Speaker 2: injured and has no reason to fear it'll happen again,
• 16:23
  Speaker 2: which is a thing that's actually happened again since they
• 16:25
  Speaker 2: made that argument, so it's just kind of embarrassing for them.
• 16:29
  Speaker 2: And then we have other other claims in the case too,
• 16:31
  Speaker 2: But the big thing that's happening right now is in
• 16:34
  Speaker 2: let's see what's the date right now, Today's the eighteenth.
• 16:36
  Speaker 2: On the twenty seventh, there's going to be a preliminary
• 16:39
  Speaker 2: injunction hearing with live witness testimony. Our client's going to
• 16:42
  Speaker 2: take the stand, Other construction workers are going to take
• 16:44
  Speaker 2: the stand, and hopefully we'll be able to you know,
• 16:46
  Speaker 2: question somebody from DHS if they can find somebody to
• 16:50
  Speaker 2: put up there and defend the agency's actions. So hopefully
• 16:54
  Speaker 2: the judge will act after that and do the right
• 16:56
  Speaker 2: thing and protect you know, not just our client, but
• 16:59
  Speaker 2: we've asked for for the court to certify a class
• 17:02
  Speaker 2: of construction workers so that that you know, a broad
• 17:04
  Speaker 2: class of people have protected from these abuses.
• 17:06
  Speaker 1: So this would be this would be a national class.
• 17:10
  Speaker 2: It's a it's an Alabama based class because of some
• 17:13
  Speaker 2: recent Supreme Court you know, decisions that have limited the
• 17:16
  Speaker 2: scope of injunctions and that kind of thing. So we're
• 17:18
  Speaker 2: focusing on protecting folks in southern Alabama.
• 17:21
  Speaker 3: Yeah, okay, And so you know, what would it So
• 17:27
  Speaker 3: what would it? So a win would basically the quote
• 17:31
  Speaker 3: would provide some guidance to ice in terms of how
• 17:34
  Speaker 3: they can enter private property.
• 17:37
  Speaker 1: Yeah.
• 17:37
  Speaker 2: I mean, at the end of the day, I think
• 17:38
  Speaker 2: that the court needs to say a warrant is required
• 17:41
  Speaker 2: to enter properties that are closed to the public, right
• 17:44
  Speaker 2: if it's an open property, if it's a parking lot.
• 17:46
  Speaker 2: There are certain types of properties the government doesn't need
• 17:48
  Speaker 2: a warrant to enter, right if it's just sort of
• 17:50
  Speaker 2: open to everybody. You know, the parts of a store
• 17:53
  Speaker 2: that are open to the public, police don't need to
• 17:55
  Speaker 2: get a warrant to go in there. But if we're
• 17:56
  Speaker 2: talking about a fenced property with no trespassing signs and
• 17:59
  Speaker 2: people actively working in dangerous construction materials like that is
• 18:02
  Speaker 2: not a that is not an open site. So get
• 18:05
  Speaker 2: a warrant, you know, established individualized suspicion before you detain
• 18:09
  Speaker 2: people and stop ignoring real ideas. That's really what the
• 18:11
  Speaker 2: injunction would say.
• 18:13
  Speaker 1: And what is your sense about how often this happens?
• 18:16
  Speaker 1: That is that citizens or legal residents of being are
• 18:21
  Speaker 1: being detained like this Is this a one off? Is
• 18:23
  Speaker 1: this something that happens quite a bit.
• 18:25
  Speaker 2: No, I think it's happening all over the country. I
• 18:27
  Speaker 2: mean the stock line again from DHS is that they
• 18:30
  Speaker 2: just this doesn't happen. I mean they're they're literally they've
• 18:33
  Speaker 2: gone out there and claimed that it's just fake news.
• 18:35
  Speaker 2: In fact, they responded to our case by saying fake news,
• 18:38
  Speaker 2: which is, you know, we have videos. You can watch them.
• 18:40
  Speaker 2: It's it's not hard to see you with your own eyes.
• 18:43
  Speaker 1: Right.
• 18:43
  Speaker 2: But there was a pro publica article that came out
• 18:46
  Speaker 2: last year that said, you know, they looked at a
• 18:48
  Speaker 2: bunch of news stories and talked to people, and they
• 18:51
  Speaker 2: catalogued one hundred and seventy cases at least of US
• 18:55
  Speaker 2: citizens who have been wrongfully detained. And that's that's the
• 18:58
  Speaker 2: tip of the iceberg. I mean, we're talking about people
• 19:00
  Speaker 2: who are willing to have their stories shared, who are
• 19:02
  Speaker 2: willing to come out in public and make themselves known,
• 19:05
  Speaker 2: or whose stories get a lot of attention. There there
• 19:07
  Speaker 2: are countless people whose stories never make the news, who
• 19:10
  Speaker 2: don't want to raise a big fight about it, whose
• 19:13
  Speaker 2: stories go un told.
• 19:14
  Speaker 1: Right, Yeah, that's great. I mean it's good that you
• 19:18
  Speaker 1: guys are taking this up. I mean, the ice the
• 19:21
  Speaker 1: whole ice issue seems to be it seems to be
• 19:24
  Speaker 1: getting away with Murda and and and it's very difficult
• 19:28
  Speaker 1: to figure out because because most of they talk it
• 19:31
  Speaker 1: to illegal immigrants, it's it's difficult to figure out how
• 19:35
  Speaker 1: do how do how do you rein them in and
• 19:37
  Speaker 1: how do you so this is this is great to
• 19:39
  Speaker 1: find a way to try to restrict their actions and
• 19:42
  Speaker 1: to rein them in.
• 19:44
  Speaker 2: Yeah, and I just would say that, you know, this
• 19:47
  Speaker 2: is an issue that is very politically charged, and I
• 19:51
  Speaker 2: J we don't We're not partisan. We don't typically get
• 19:56
  Speaker 2: involved in those kinds of fights. But when there are
• 19:59
  Speaker 2: really great threats to individual rights, right, we see it
• 20:03
  Speaker 2: as our role to step in and say, look right
• 20:06
  Speaker 2: or left, Republican Democrats, I don't really care. But the
• 20:08
  Speaker 2: Constitution is the constitution, and if you're going to have
• 20:10
  Speaker 2: these laws on the books, you have to enforce them
• 20:13
  Speaker 2: in a constitutional manner to the extent possible, just like
• 20:15
  Speaker 2: drug laws.
• 20:16
  Speaker 1: Right.
• 20:16
  Speaker 2: I mean what everyone thinks of drug laws, and I
• 20:18
  Speaker 2: think they're terrible. Police have to be able to enforce
• 20:21
  Speaker 2: them consistent with the constitution. They can't just run rough
• 20:23
  Speaker 2: shot all over everybody, right, Yep.
• 20:27
  Speaker 1: So what kind of other cases do you do when
• 20:31
  Speaker 1: it comes to kind of search and sees your fullth
• 20:34
  Speaker 1: Amendment type of stuff.
• 20:37
  Speaker 2: Yeah, so right now, I think maybe the two most
• 20:41
  Speaker 2: interesting types of cases that I work on are cases
• 20:43
  Speaker 2: involving If you were at Ocon last year, you might
• 20:45
  Speaker 2: have heard me talk about the open fields doctrine. That's
• 20:48
  Speaker 2: just the kind of jargony way of saying the government
• 20:50
  Speaker 2: likes to trespass on people's land a lot. So I'll
• 20:53
  Speaker 2: get back to that in one second. And the other
• 20:55
  Speaker 2: issue that I'm working on are big public surveillance cases
• 20:58
  Speaker 2: where the government has sort of set up big camera
• 21:01
  Speaker 2: networks to just spy on people out in public as
• 21:03
  Speaker 2: they go about their daily lives. So I'll say a
• 21:06
  Speaker 2: little bit about each of those. So the open fields
• 21:08
  Speaker 2: doctrine is this idea that goes back to prohibition in
• 21:11
  Speaker 2: the nineteen twenties, is when the first case came down
• 21:14
  Speaker 2: on this issue, and the Supreme Court basically said that
• 21:18
  Speaker 2: when it comes to your land, any land you own
• 21:21
  Speaker 2: outside the yard right next to your house. So that's
• 21:24
  Speaker 2: you know, most land in the country. Right We're talking
• 21:28
  Speaker 2: ninety five, ninety six, ninety eight percent of all land
• 21:30
  Speaker 2: in the country. It's about one point two billion acres
• 21:32
  Speaker 2: by our count, that's completely constitution free zone. When it
• 21:37
  Speaker 2: comes to law enforcement, so search and seizure law, no
• 21:40
  Speaker 2: Fourth Minute protections apply. The government doesn't need a warrant,
• 21:44
  Speaker 2: they don't need probable cause, they don't need reasonable suspicion.
• 21:47
  Speaker 2: They can they can patrol on your land, they can
• 21:50
  Speaker 2: roam around as long as they want. They can spy
• 21:52
  Speaker 2: on you from behind bushes. And that is what the
• 21:55
  Speaker 2: US Supreme Court has said for over one hundred years. Now.
• 21:58
  Speaker 2: I just think that's a channel for that. It's textualism.
• 22:03
  Speaker 2: So if you look at the Fourth Amendment, it protects
• 22:05
  Speaker 2: it says the right of the people to be secure
• 22:07
  Speaker 2: in their person's houses, papers, and effects. The Court says, well,
• 22:11
  Speaker 2: land is not a person. Land is not a house,
• 22:14
  Speaker 2: Land is not a paper, land is not an effect.
• 22:16
  Speaker 2: Therefore land is not protected. And there's all sorts of
• 22:18
  Speaker 2: reasons why that's a silly way to read the Constitution
• 22:21
  Speaker 2: and to think about the Constitution, But that is what
• 22:23
  Speaker 2: the Court has said. And so you know, we're kind
• 22:27
  Speaker 2: of stuck with this idea that because land is not
• 22:29
  Speaker 2: expressly enumerated, it just sort of completely falls off the
• 22:32
  Speaker 2: constitutional map. And so we're talking about, you know, again,
• 22:35
  Speaker 2: one point two billion acres of land, over ninety six
• 22:37
  Speaker 2: percent of all land in the country. It doesn't matter
• 22:39
  Speaker 2: if you fence it, if you farm it, if you
• 22:41
  Speaker 2: put up no trespassing signs, if you put up a
• 22:43
  Speaker 2: brick wall around it. The Supreme Court's position is that's
• 22:46
  Speaker 2: just completely open to the government. And I'll tell you
• 22:49
  Speaker 2: how I learned about this. If you didn't haven't heard
• 22:51
  Speaker 2: me tell this story before. I was, honestly, I didn't
• 22:54
  Speaker 2: know anything about this. Like six years ago, and I
• 22:57
  Speaker 2: was just sitting at my desk, going about my day,
• 23:01
  Speaker 2: and I got a notification about a court decision that
• 23:03
  Speaker 2: had come down in Tennessee in a district court, and
• 23:06
  Speaker 2: I started reading it and my jaw just hit the floor.
• 23:09
  Speaker 2: And so it was a guy who owned a family
• 23:11
  Speaker 2: farm and he brought he brought a lawsuit against them
• 23:14
  Speaker 2: officials for coming onto his property. But the case is
• 23:17
  Speaker 2: really really crazy. So he's a farmer, he's a hunter.
• 23:21
  Speaker 2: It's his private property. It's got a gate, it's gotten
• 23:23
  Speaker 2: a trespassing sign, it passed down from his father. So
• 23:26
  Speaker 2: it's his family land. It's a really recreational kind of
• 23:29
  Speaker 2: sanctuary and I've been there before. It's really lovely. And
• 23:32
  Speaker 2: he was walking into his land one day and he
• 23:35
  Speaker 2: saw a camera hanging from a tree looking back at him,
• 23:38
  Speaker 2: and he was like, well, that's not my camera, but
• 23:41
  Speaker 2: I don't know how it got there, but it's not mine.
• 23:43
  Speaker 2: So he cut it down from a fishing line that
• 23:44
  Speaker 2: was hanging from and brought it home. And he's like
• 23:47
  Speaker 2: looking over the camera and trying to figure out who
• 23:49
  Speaker 2: owns it and where it came from. Can't figure it out.
• 23:51
  Speaker 2: And then a bit later the house gets raided by
• 23:54
  Speaker 2: a team of officials, including federal officials, who then accuse
• 23:57
  Speaker 2: him and charge him and prosecute him for steam government property.
• 24:01
  Speaker 2: It's a camera they had put on his own land
• 24:04
  Speaker 2: to spy on him to see if they could catch
• 24:06
  Speaker 2: him violating some hunting laws, because there were some rumors
• 24:08
  Speaker 2: around that he was a guy who liked to skirt
• 24:09
  Speaker 2: the law. And so yeah, I mean they put up
• 24:13
  Speaker 2: a camera to watch him on his own property without
• 24:14
  Speaker 2: a warrant, without real probable cause, because if they had it,
• 24:17
  Speaker 2: they could just go to a judge and get a warrant, right, So,
• 24:20
  Speaker 2: I mean anonymous tips and vague, vague rumors are not
• 24:22
  Speaker 2: really the stuff of probable cause and warrants, but apparently
• 24:25
  Speaker 2: they're the stuff of camera spying for weeks on end.
• 24:28
  Speaker 2: And so you know, I have all these physical copies
• 24:31
  Speaker 2: of photos from the camera of them coming and going
• 24:33
  Speaker 2: on his property, of them spying on him. It's really
• 24:36
  Speaker 2: really creepy stuff. But after we heard about this, we
• 24:39
  Speaker 2: went down there, we met some of his neighbors. It
• 24:41
  Speaker 2: had happened to other people on his street where they
• 24:43
  Speaker 2: had also found cameras on their properties. And so this
• 24:46
  Speaker 2: was a serious problem among these officials, these kind of
• 24:49
  Speaker 2: game boarding officials down there, And so we brought a
• 24:51
  Speaker 2: lawsuit after he lost his federal case. He lost his
• 24:55
  Speaker 2: federal case because the district court said, look, you can't
• 24:58
  Speaker 2: bring a Fourth Amendment lawsuit against officials because as far
• 25:01
  Speaker 2: as the government and the constitution are concerned, your land
• 25:04
  Speaker 2: is basically no different than a public park. And so
• 25:07
  Speaker 2: we went to Tennessee under the state constitution. And that's
• 25:10
  Speaker 2: a lot of what I do is I leverage state
• 25:12
  Speaker 2: constitutions in my work to pick up the slack where
• 25:15
  Speaker 2: the Supreme Court and the federal courts are not providing
• 25:18
  Speaker 2: the protection that I think the US Constitution does require.
• 25:21
  Speaker 2: But we were able to get a really great victory
• 25:23
  Speaker 2: rejecting the open fields doctrine in Tennessee under Tennessee law
• 25:27
  Speaker 2: and protecting both my client's properties from that kind of
• 25:31
  Speaker 2: patrolling and camera spuying without a warrant. So it was
• 25:33
  Speaker 2: a really great result. And we now have cases in
• 25:36
  Speaker 2: five states on the same issue of government coming onto
• 25:40
  Speaker 2: people's land, roaming around, spying on them, putting cameras there,
• 25:43
  Speaker 2: taking their cameras and looking through them, all sorts of
• 25:45
  Speaker 2: really wild stuff, and the cases are going well, really,
• 25:50
  Speaker 2: really well. So it's we're encouraged by what the state
• 25:53
  Speaker 2: courts are willing to do to kind of step up
• 25:54
  Speaker 2: and say, look, this issue is the Supreme Court has
• 25:57
  Speaker 2: said this for one hundred years, but we don't have
• 25:59
  Speaker 2: to do that to our constitution. We can be better.
• 26:02
  Speaker 2: You know, maybe private property matters in our state, and
• 26:06
  Speaker 2: it's been really hardening to see that.
• 26:07
  Speaker 1: So how many other how many of the states have
• 26:11
  Speaker 1: you know, constitutions that that actually are going to be
• 26:15
  Speaker 1: strong provide stronger protection for property rights in this case
• 26:18
  Speaker 1: than the super quote.
• 26:20
  Speaker 2: So we were able to rely on a textual difference
• 26:23
  Speaker 2: in the Tennessee Constitution. Instead of persons, houses, papers, and effects,
• 26:28
  Speaker 2: they have the word possessions instead of effects. And you know,
• 26:31
  Speaker 2: land is the thing you can possess. Land is a possession, right.
• 26:34
  Speaker 2: It's all going all the way back to English common law,
• 26:36
  Speaker 2: like land is a classic possession. So we're able to
• 26:39
  Speaker 2: leverage that. Sixteen state constitutions or fifteen have that same word,
• 26:43
  Speaker 2: and so we're really trying to start there and make
• 26:46
  Speaker 2: a lot of hay there some states like Louisiana where
• 26:49
  Speaker 2: we have a lawsuit just protect quote property right and
• 26:53
  Speaker 2: so like, argument's pretty simple. Land is property. Ye not,
• 26:56
  Speaker 2: it's kind of dumb easy right. I would say it's
• 26:59
  Speaker 2: dumby proof. But you know here here we are litigating
• 27:01
  Speaker 2: about it, so maybe I'm the silly one. And so
• 27:04
  Speaker 2: those cases are going well. You know, not every state
• 27:07
  Speaker 2: state constitution has great language to leverage. Some of it
• 27:10
  Speaker 2: is just identical to the Fourth Amendment, and we kind
• 27:12
  Speaker 2: of have to have to work with that, and we'll
• 27:14
  Speaker 2: have to litigate those cases eventually, because really I plan
• 27:18
  Speaker 2: to go all over the country and just do this
• 27:19
  Speaker 2: until I can't anymore. So that's one of the issues
• 27:22
  Speaker 2: I work on and again it's it's really rewarding, but
• 27:25
  Speaker 2: the other one.
• 27:26
  Speaker 1: And what's the just to just finish on this. What's
• 27:28
  Speaker 1: the chance of ever bringing in front of the Supreme
• 27:31
  Speaker 1: Court and challenging them to overrule they passed decisions on it.
• 27:38
  Speaker 2: Yeah.
• 27:38
  Speaker 1: I think.
• 27:40
  Speaker 2: One thing about about public interest litigation is that you
• 27:43
  Speaker 2: kind of think about the decades long arc of the law.
• 27:48
  Speaker 1: Right.
• 27:48
  Speaker 2: So the way I would think about this is to
• 27:51
  Speaker 2: say to myself, even though I'm litigating in states whose
• 27:55
  Speaker 2: constitutions are slightly textually different than the Fourth Amendment, and
• 27:58
  Speaker 2: that's kind of the hook for a lot of these arguments,
• 28:01
  Speaker 2: the way that we argue them is not just the
• 28:03
  Speaker 2: text controls everything. You know, We're still making points about
• 28:06
  Speaker 2: property and individual rights and privacy and government power and
• 28:10
  Speaker 2: all that kind of stuff that I think matters under
• 28:12
  Speaker 2: the Fourth and thed meant too. And so when we
• 28:15
  Speaker 2: get victories right like this one in Tennessee is an
• 28:17
  Speaker 2: example of this, the courts will write things that are
• 28:21
  Speaker 2: much broader than just oh, the text says it's different,
• 28:23
  Speaker 2: that's all we have to say. For example, on Tennessee,
• 28:26
  Speaker 2: we got a decision that said, you know, this is
• 28:28
  Speaker 2: just like the abuses that inspire the American Revolution, And like,
• 28:32
  Speaker 2: if you get language like that, it's like, well, that's
• 28:33
  Speaker 2: pretty transitive, right, because now we're thinking about principles, right,
• 28:36
  Speaker 2: We're thinking about power and individual rights and kind of
• 28:39
  Speaker 2: the relationship between government and citizens, and like, that's the
• 28:42
  Speaker 2: space you want to be in, right where you can
• 28:44
  Speaker 2: abstract out from these smaller victories and try to build
• 28:47
  Speaker 2: you know, a series of cases where courts are all
• 28:49
  Speaker 2: kind of singing the same same song. And if you
• 28:52
  Speaker 2: can get them to do that, maybe one day you
• 28:55
  Speaker 2: can go to the US Supreme Court and say, look,
• 28:57
  Speaker 2: it's been one hundred years, it's been one hundred and
• 28:58
  Speaker 2: twenty years, but look at all these courts recently all
• 29:01
  Speaker 2: of the country that are saying, maybe you got it wrong, right,
• 29:04
  Speaker 2: and here's why, right where they're leveraging the founding principles
• 29:07
  Speaker 2: of this country to reach that conclusion. And I think
• 29:09
  Speaker 2: that's one way to think about the long arc of
• 29:11
  Speaker 2: the law and when the time would be right. Another
• 29:15
  Speaker 2: thing to say is that, you know, legal change is
• 29:17
  Speaker 2: often very marginal and very incremental, and so one thing
• 29:22
  Speaker 2: we might try, for example, rather than just going in
• 29:24
  Speaker 2: and saying, you know, protect all the land. Now we
• 29:27
  Speaker 2: might say, for example, well, even if they can go
• 29:30
  Speaker 2: onto the land, maybe they can't seize things from the land, right,
• 29:33
  Speaker 2: maybe they can't install things on the land. And so
• 29:36
  Speaker 2: begin with kind of does this doctrine apply to seizures
• 29:39
  Speaker 2: in the same way that does searches. So kind of
• 29:42
  Speaker 2: baby steps, and I think that's you know, when you
• 29:44
  Speaker 2: saw Brown versus Board of Education of Returning plus e
• 29:47
  Speaker 2: versus Ferguson, that was a twenty year series of cases
• 29:51
  Speaker 2: that you know, later Justice Thurgood Marshall himself had to
• 29:55
  Speaker 2: litigate and kind of build all these breadcrumbs over time
• 29:58
  Speaker 2: to win these marginal victories that added up to something
• 30:01
  Speaker 2: bigger in the end. So I would say that, you know,
• 30:04
  Speaker 2: that's certainly the goal, but it's going to take time
• 30:06
  Speaker 2: and a lot of strategy.
• 30:08
  Speaker 1: Excellent, So you were starting on a different on a
• 30:11
  Speaker 1: different issue.
• 30:12
  Speaker 2: Oh yeah. So the other kind of major issue that
• 30:16
  Speaker 2: I've been working on recently under our Fourth Amendment project,
• 30:19
  Speaker 2: which I helped run, is the issue of government surveillance
• 30:24
  Speaker 2: of innocent people, right, just sort of dragnet surveillance of
• 30:27
  Speaker 2: a population or of a city. And this is sectually
• 30:30
  Speaker 2: becoming worryingly common in a way. I felt a bit
• 30:34
  Speaker 2: like a tinfoil hat wearing guy when I first started
• 30:36
  Speaker 2: working on this, and now it's just everywhere, and I
• 30:39
  Speaker 2: feel like totally vindicated. But you know, and I think
• 30:42
  Speaker 2: AI has really increased the government's power to do this
• 30:45
  Speaker 2: sort of thing. But what I'm talking about, just to
• 30:47
  Speaker 2: give you a kind of concrete example, is a couple
• 30:50
  Speaker 2: a few years ago we saw a news story where
• 30:53
  Speaker 2: a company called Flock Safety, which is a it's a
• 30:57
  Speaker 2: surveillance technology company. They sell surveys technology to cities and
• 31:01
  Speaker 2: counties all over the country, and they boast what they
• 31:04
  Speaker 2: basically do is say, if we come into your city,
• 31:06
  Speaker 2: you know, we're gonna help you reach zero prime, right,
• 31:09
  Speaker 2: and all you got to do is watch everybody all
• 31:11
  Speaker 2: the time. So put you know, put cameras up on
• 31:13
  Speaker 2: street corners. These are license plate reader cameras. Initially they
• 31:16
  Speaker 2: were just taking photos. Now they can take video too,
• 31:19
  Speaker 2: And just put a bunch of cameras up, dozens hundreds
• 31:21
  Speaker 2: of cameras, right and put them everywhere. And if you
• 31:23
  Speaker 2: have eyes everywhere, you can see all the crime, right
• 31:27
  Speaker 2: you can you can catch all the stolen cars. You
• 31:28
  Speaker 2: can if you're always watching, then you won't miss things.
• 31:33
  Speaker 2: They have drones they sell to cities. They have microphones
• 31:36
  Speaker 2: that you can stall around town and listen to people
• 31:39
  Speaker 2: when they're walking around and talking out in public. So
• 31:41
  Speaker 2: it's it's really they sell these surveillance packages to cities
• 31:45
  Speaker 2: and counties. That's their whole business model. And then they
• 31:47
  Speaker 2: offer integration, so like, you know, cities in California can
• 31:51
  Speaker 2: integrate with cities in Virginia and share all their data
• 31:53
  Speaker 2: all over the country, right, and it's all AI powered,
• 31:55
  Speaker 2: so AI can then analyze and aggregate the data and
• 31:58
  Speaker 2: so very quickly. And they boast being in over five
• 32:01
  Speaker 2: thousand or six thousand cities. This is just one company.
• 32:04
  Speaker 2: So we're talking about, you know, one company that's really
• 32:06
  Speaker 2: making money off of people's privacy, right off of invading
• 32:10
  Speaker 2: people's privacy. And you might think, what privacy do you
• 32:13
  Speaker 2: have in public? And whether you want to call it
• 32:15
  Speaker 2: privacy or not isn't really the point to me. I
• 32:17
  Speaker 2: think that's a term that's often very loaded in the
• 32:20
  Speaker 2: law because we think of it as like, oh, well
• 32:22
  Speaker 2: Roe v. Wade, right to privacy. It's not really what
• 32:24
  Speaker 2: I mean, But I mean, it's just you know, we
• 32:27
  Speaker 2: have a right to pursue happiness. We have a right
• 32:29
  Speaker 2: to kind of live our lives to the best of
• 32:31
  Speaker 2: our abilities. And if the people who hold all the
• 32:34
  Speaker 2: guns are always watching you everywhere you go, that just
• 32:38
  Speaker 2: impacts necessarily the way you feel about yourself, the way
• 32:42
  Speaker 2: you feel about your daily routine. It's hard to think
• 32:45
  Speaker 2: at the point of a gun, but it's also hard
• 32:47
  Speaker 2: to think at the point of a camera every second, right,
• 32:50
  Speaker 2: but the camera is backed by a gun. So these
• 32:53
  Speaker 2: cases are really about can the government just spy on
• 32:56
  Speaker 2: a city without a warrant on everybody try and around
• 33:00
  Speaker 2: town going about their daily lives. And our clients are
• 33:02
  Speaker 2: just ordinary people who their home healthcare workers, their their fathers,
• 33:06
  Speaker 2: their military veterans. They're just one of our clients out
• 33:09
  Speaker 2: in San Jose right now. In the case we have
• 33:11
  Speaker 2: out there is a software engineer who works on tech
• 33:15
  Speaker 2: privacy and who also work out to like ice ice approach, right.
• 33:18
  Speaker 2: So I mean this is these are people who just
• 33:22
  Speaker 2: they're like you and me, right and in every respect,
• 33:24
  Speaker 2: and they just want to kind of be left alone,
• 33:26
  Speaker 2: and the government won't let them let them be left alone.
• 33:28
  Speaker 2: And so the argument that we're making these cases is
• 33:30
  Speaker 2: if you set up a dragnet system of just watching
• 33:33
  Speaker 2: everybody all the time without a warrant, that violates the
• 33:35
  Speaker 2: Fourth Amendment. Because the Fourth Amendment says you have a
• 33:37
  Speaker 2: right to be secure in your person from unreasonable searches.
• 33:41
  Speaker 2: And we think, if the government's just searching for you
• 33:43
  Speaker 2: all the time, how does the violation of your right
• 33:45
  Speaker 2: to be secure in a free society.
• 33:48
  Speaker 1: In any sense on how that is going?
• 33:51
  Speaker 2: So this is a very very new area of the law,
• 33:57
  Speaker 2: So we're building the law as we go there. There
• 34:01
  Speaker 2: was a case twenty eighteen that some people may know
• 34:04
  Speaker 2: about called Carpenter, and it was a big case about
• 34:08
  Speaker 2: cell site location data. You know, your cell phone pings
• 34:11
  Speaker 2: a tower every so often, right, and that you can
• 34:14
  Speaker 2: triangulate with someone's location based on those cell tower pings.
• 34:16
  Speaker 2: And so the government had accessed, you know, our criminal
• 34:19
  Speaker 2: suspects cell site location information. And the whole question in
• 34:23
  Speaker 2: the case was like, does this guy have any Fourth
• 34:26
  Speaker 2: Amendment rights when he's out in public? Right, because we
• 34:29
  Speaker 2: typically think of it as like it's either about property
• 34:32
  Speaker 2: or it's about privacy, and if you're just out in public,
• 34:34
  Speaker 2: it's kind of how can you have a right to
• 34:36
  Speaker 2: either of those things. Right, it feels like it kind
• 34:38
  Speaker 2: of falls through the cracks, And yet it seems kind
• 34:40
  Speaker 2: of weird the government can just spy on you everywhere
• 34:43
  Speaker 2: you go. So it's what do we do about this?
• 34:45
  Speaker 2: And the Supreme Court said, we're going to recognize I
• 34:49
  Speaker 2: don't know if this is the right way to think
• 34:51
  Speaker 2: about it, but we're going to recognize Fourth Amendment protections
• 34:54
  Speaker 2: in the whole of your public movements.
• 34:56
  Speaker 1: Right.
• 34:57
  Speaker 2: The idea is that if someone can just access or
• 34:59
  Speaker 2: a pository everywhere you've been, that's going to impact your
• 35:03
  Speaker 2: ability to live a free life right and to live
• 35:05
  Speaker 2: and to pursue your happiness and security. And so that
• 35:09
  Speaker 2: was a principle to court recognizing Carpenter when it came
• 35:11
  Speaker 2: to cell site data, right fell phone data and there's
• 35:14
  Speaker 2: this now this this whole new world of well, how
• 35:17
  Speaker 2: do we apply that to other cases? How can we
• 35:20
  Speaker 2: extend Carpenter's logic to other cases or can it be extended?
• 35:23
  Speaker 2: And so we are the ones trying to bring Carpenter
• 35:27
  Speaker 2: to the world of automated license plate readers and tracking
• 35:29
  Speaker 2: where people are driving and traveling. So it's a very
• 35:32
  Speaker 2: new area of the law. The District Court in the
• 35:35
  Speaker 2: Northfoot case that we filed that thought it was a
• 35:39
  Speaker 2: close call, but didn't think we were able to win.
• 35:41
  Speaker 2: We have appealed to the Fourth Circuit. I think we
• 35:43
  Speaker 2: feel very good about our chances. In the Fourth Circuit,
• 35:46
  Speaker 2: they decided a case in twenty twenty or twenty twenty one,
• 35:51
  Speaker 2: which is one of the first major federal appellate cases
• 35:54
  Speaker 2: in the country applying Carpenter to a new context. And
• 35:56
  Speaker 2: that case is about a drone that surveiled a city
• 36:00
  Speaker 2: without a warrant, and so we're arguing that if that's
• 36:02
  Speaker 2: a Fourth Amendment violation to survey a city from the
• 36:05
  Speaker 2: sky without a warrant, then doing it from the ground
• 36:08
  Speaker 2: is just as much a violation, right, And so that's
• 36:11
  Speaker 2: kind of the basic thrust of that case. And you know,
• 36:14
  Speaker 2: we're feeling good about it, and I think the record
• 36:16
  Speaker 2: we have is really really good, the factual record, and
• 36:18
  Speaker 2: got great League arguments. So we'll see how it goes.
• 36:21
  Speaker 2: But I think these cases are becoming increasingly important. You know,
• 36:25
  Speaker 2: we filed them a few years ago just thinking about
• 36:27
  Speaker 2: them through the lens of like automated license plate readers everywhere,
• 36:31
  Speaker 2: and now it's like the government has facial recognition.
• 36:33
  Speaker 1: We're going to ask Oh my gosh.
• 36:36
  Speaker 2: I mean, it's it's like it's almost like we can't
• 36:38
  Speaker 2: file these cases fast enough because just the world changes
• 36:41
  Speaker 2: so much every year, technology changes so much every year
• 36:44
  Speaker 2: that we it's like we're on the we're on the
• 36:46
  Speaker 2: cutting edge of the law, but we're also behind in
• 36:48
  Speaker 2: many ways. It's it's really quite crazy.
• 36:50
  Speaker 1: And if you go to London, there's a camera on
• 36:53
  Speaker 1: every street corner. This chemist we'll get used to it everywhere.
• 36:56
  Speaker 1: And you know, in London, everybody's like, okay, this is
• 36:59
  Speaker 1: just it's all facial recognition, and they can you know,
• 37:02
  Speaker 1: they know who you are, they know where you're going.
• 37:05
  Speaker 1: It's it's pretty spooky. And of course you expect it
• 37:08
  Speaker 1: in China, right, yes.
• 37:11
  Speaker 2: I mean the crazy thing is that one of our
• 37:12
  Speaker 2: clients in the San Jose case we have about these
• 37:14
  Speaker 2: about these flat cameras. His name is Tony. His parents
• 37:18
  Speaker 2: are from China, and they fled China because they were
• 37:21
  Speaker 2: afraid of this exact kind of thing. And he made
• 37:23
  Speaker 2: it to the United States and and he's like, I
• 37:25
  Speaker 2: don't want to, you know, grow up in a world
• 37:26
  Speaker 2: like my parents grew up in, and here he is
• 37:28
  Speaker 2: in San Jose being watched everywhere he goes, and it's
• 37:31
  Speaker 2: it's just it's just astonishing. But you know, I think
• 37:37
  Speaker 2: one of the things that that to me is the
• 37:39
  Speaker 2: most scary is to see how many private companies have
• 37:42
  Speaker 2: decided that they can make money off this. Now, you know,
• 37:46
  Speaker 2: the more the merrier in terms of innovation, and and
• 37:49
  Speaker 2: in fact innovation in terms of crime fighting, that's great,
• 37:52
  Speaker 2: but I think I think these companies have to know
• 37:55
  Speaker 2: what they're doing. There's good ways and bad ways to
• 37:59
  Speaker 2: go about this, and I don't think that setting up
• 38:02
  Speaker 2: a business model where your goal is to just put
• 38:05
  Speaker 2: a camera on every street corner is really the most
• 38:08
  Speaker 2: savory way to go about, you know, helping the government
• 38:10
  Speaker 2: fight crime.
• 38:11
  Speaker 1: Do you think there's a way to do it without
• 38:14
  Speaker 1: violating rights so that crime said can be used for
• 38:18
  Speaker 1: crime fighting.
• 38:20
  Speaker 2: Yeah. I mean one thing that we've proposed, as we
• 38:24
  Speaker 2: have like legislation that we're pushing in certain states, and
• 38:26
  Speaker 2: I've worked on those bills, and one thing that we're
• 38:28
  Speaker 2: proposing is limiting the retention periods of some of the
• 38:31
  Speaker 2: data that's collected. Right, So maybe it's have you heard
• 38:34
  Speaker 2: of hot lists? Do you know what that is no.
• 38:37
  Speaker 2: So a hot list is like maybe a car is
• 38:40
  Speaker 2: flagged for being suspected of association with some kind of crime, right,
• 38:44
  Speaker 2: So like if that license plate passes one of these cameras,
• 38:48
  Speaker 2: it'll send a live alert to police of where they
• 38:50
  Speaker 2: can't where the car is, and like that's that's good
• 38:53
  Speaker 2: because it's like a momentary like a live shot of
• 38:55
  Speaker 2: this car in the moment it's suspected of a crime.
• 38:57
  Speaker 2: So there's prior individualized or probable and then the data
• 39:02
  Speaker 2: goes away, right, or at least ideally it would go away.
• 39:05
  Speaker 2: That's fine. I think that's fine. I think the problem
• 39:08
  Speaker 2: you run into is when you get to get these
• 39:09
  Speaker 2: systems that just kind of create troves and troves of
• 39:13
  Speaker 2: data on everybody, right without any kind of individualized suspicion.
• 39:16
  Speaker 2: So I think if you built a system that was targeted,
• 39:20
  Speaker 2: designed to be targeted, that would probably satisfy me. I
• 39:24
  Speaker 2: just worry as we get into a world like China,
• 39:27
  Speaker 2: like London where it's just sort of everybody's a suspect
• 39:30
  Speaker 2: all of a sudden, that just doesn't feel very free
• 39:33
  Speaker 2: at that point.
• 39:34
  Speaker 1: Yep. And so legislation, so you guys also work on
• 39:40
  Speaker 1: devising legislation. I remember after Kilo there was a lot
• 39:44
  Speaker 1: of anti quilo kind of legislation that you guys worked on.
• 39:49
  Speaker 2: Yeah, I mean that's a big part of public interest
• 39:52
  Speaker 2: law generally is thinking about you know, at the core
• 39:57
  Speaker 2: of the job is really looking out at the world,
• 40:00
  Speaker 2: looking at reality and saying to yourself, what can I
• 40:03
  Speaker 2: do about that? Right and there's something that you recognize
• 40:07
  Speaker 2: is wrong, something that is unjust, or that the legal
• 40:10
  Speaker 2: system isn't functioning the right way, the Constitution isn't being secured,
• 40:13
  Speaker 2: and the question is, you know, use your brain, what
• 40:15
  Speaker 2: can I do about that? And what tools to have
• 40:17
  Speaker 2: available to me to change that? And for me as
• 40:20
  Speaker 2: a litigator, it's often going into cord and suing about it.
• 40:22
  Speaker 2: But you know, often it's I draft a bill and
• 40:26
  Speaker 2: we work with our legislative team to get it past somewhere.
• 40:29
  Speaker 2: Or you know, we have a whole research department where
• 40:31
  Speaker 2: we'll do empirical studies of some of these issues, just
• 40:34
  Speaker 2: kind of see like civil asset forfeiture. You know, ten
• 40:37
  Speaker 2: fifteen years ago, nobody was talking about it, nobody knew
• 40:39
  Speaker 2: how big the problem was. And so we have policing
• 40:42
  Speaker 2: for profit, which is a report that we put out
• 40:44
  Speaker 2: every few years that really quantifies and measures and digs
• 40:47
  Speaker 2: deep into the you know, the empirical nature of the problem.
• 40:51
  Speaker 2: That helps in courts, it helps in legislatures. It helps
• 40:54
  Speaker 2: with public awareness of the problem, which is really where
• 40:56
  Speaker 2: a lot of legal changes start anyway, is just the
• 40:58
  Speaker 2: public getting pissed off about the rights being violated. So yeah,
• 41:02
  Speaker 2: a lot of tools at our disposal to really to
• 41:04
  Speaker 2: really make some hay. But again for me, it's spending
• 41:07
  Speaker 2: time in court mostly.
• 41:09
  Speaker 1: Yep. So IGS also does a lot of work on
• 41:15
  Speaker 1: economic freedom issues.
• 41:17
  Speaker 2: Yeah, yeah, and I do a lot of that have
• 41:20
  Speaker 2: have been since the very first day of my career.
• 41:23
  Speaker 2: I started out really in economic liberty as kind of
• 41:26
  Speaker 2: a focus of mine. I really drove me to come
• 41:29
  Speaker 2: to IJ because you know, for the last I don't know,
• 41:35
  Speaker 2: one hundred and fifty hundred years, courts all over the
• 41:39
  Speaker 2: country have thought with so much disdain about economic freedom.
• 41:43
  Speaker 2: I mean, the right turn of living, the right to
• 41:45
  Speaker 2: produce and innovate and support yourself and your family and
• 41:48
  Speaker 2: just ply your trade in a way that fulfills you
• 41:51
  Speaker 2: and makes you happy. Like courts just think of that
• 41:53
  Speaker 2: as like, oh, that's just money. That's just transactional. That's
• 41:56
  Speaker 2: not really the important stuff of the Constitution's about, you know,
• 41:59
  Speaker 2: it's about it's about privacy, or it's about speech, and
• 42:02
  Speaker 2: it's about religion, and it's like, these things are important.
• 42:04
  Speaker 2: I recognize that these rights are important, but the way
• 42:08
  Speaker 2: that courts for too long, I mean, I think on
• 42:11
  Speaker 2: the pod. On the pod, you've mentioned Lockner before, right,
• 42:14
  Speaker 2: ever since kind of the Lockner Age, courts have really
• 42:18
  Speaker 2: just turned their back and the New Deal just sort
• 42:19
  Speaker 2: of turned their back on economic freedom. And it's it's
• 42:24
  Speaker 2: really it's rough in many ways because I think you
• 42:28
  Speaker 2: see the human consequences of that and the consequences for
• 42:31
  Speaker 2: human flourishing all over the place. But the one thing
• 42:34
  Speaker 2: we get to do in this space to kind of
• 42:35
  Speaker 2: make a difference is try to try to change the
• 42:38
  Speaker 2: way courts think about the right and the protection it deserves.
• 42:41
  Speaker 2: And so to kind of approach you at a high level,
• 42:46
  Speaker 2: you can think of think about the First Amendment. You know,
• 42:49
  Speaker 2: if the government restricts somebody's speech, they're allowed to go
• 42:54
  Speaker 2: into court and say, look, that law or that action
• 42:57
  Speaker 2: violates my First Amendment rights and the bird and then
• 43:00
  Speaker 2: shifts to the government to justify its actions because the
• 43:04
  Speaker 2: citizen has said, this is a fundamental right of mind.
• 43:06
  Speaker 2: It's in the constitutions, it's guaranteed to me as a
• 43:10
  Speaker 2: member of this society, and the government has violated that,
• 43:13
  Speaker 2: or at least presumptively has, they have to justify their
• 43:15
  Speaker 2: actions right, and the court supply what's called strict scrutiny,
• 43:20
  Speaker 2: which is just the idea that the government has to
• 43:22
  Speaker 2: have a compelling government interest at play, and they have
• 43:26
  Speaker 2: to be furthering that interest in a way that is
• 43:28
  Speaker 2: like narrowly tailored, that is precisely measured to address the problem,
• 43:32
  Speaker 2: to solve the issue they're trying to solve. And so
• 43:35
  Speaker 2: it's not to say that the government can't act if
• 43:37
  Speaker 2: it's you know, if you're speaking. It's to say that
• 43:39
  Speaker 2: the government has to have really good reasons for what
• 43:41
  Speaker 2: it does, and it has to have evidence that when
• 43:43
  Speaker 2: it's taking action to restrict your speech, you know, it's
• 43:46
  Speaker 2: actually going to achieve that really important goal. Well, economic
• 43:50
  Speaker 2: freedom sees the opposite of that framework. If the government
• 43:53
  Speaker 2: restricts your right to economic freedom, whether through a regulation
• 43:56
  Speaker 2: or a law or even executive action like a COVID
• 43:58
  Speaker 2: order for example, the typical way that courts think about
• 44:01
  Speaker 2: that is, you bear the burden of justifying your freedom right.
• 44:06
  Speaker 2: The government gets every presumption in favor of it, Unlike
• 44:10
  Speaker 2: under strict scrutiny, where the facts really matter and the
• 44:12
  Speaker 2: government has to come forward with facts. Courts will often
• 44:15
  Speaker 2: ignore your factual evidence to prove that the law is
• 44:18
  Speaker 2: irrational and is not furthering any public spirited purpose. And
• 44:21
  Speaker 2: so this is called rational basis scrutiny, kind of in
• 44:24
  Speaker 2: the jargonny language for it, but really it just means,
• 44:27
  Speaker 2: you know, if you listen to advisory opinions, you know,
• 44:31
  Speaker 2: Sarah I isger her way of pithily putting, this is
• 44:34
  Speaker 2: just strict scrutiny. The plaintiff wins rational basis, the government wins.
• 44:38
  Speaker 2: I mean, that's really the kind of shorthand for it.
• 44:41
  Speaker 2: And so our role in this space is to say,
• 44:44
  Speaker 2: how do we file cases on behalf of sympathetic plaintiffs
• 44:48
  Speaker 2: whose work is definitely not threatening the public the laws
• 44:51
  Speaker 2: are preposterous right and get courts to apply something better
• 44:56
  Speaker 2: than the most deferential, tepid form of rational basis scrips
• 45:00
  Speaker 2: nature protect this fundamental right turn of living. And you know,
• 45:03
  Speaker 2: we've had some success at that. Over the years, in
• 45:05
  Speaker 2: federal courts and in state courts, I do a lot
• 45:07
  Speaker 2: of state court litigation designed to get courts to say,
• 45:11
  Speaker 2: just like in the open fields example, I gave whatever
• 45:13
  Speaker 2: the US Supreme Court wants to say about this issue,
• 45:16
  Speaker 2: we can do things differently in our state. And that's
• 45:19
  Speaker 2: been really rewarding.
• 45:19
  Speaker 1: You know.
• 45:20
  Speaker 2: We had a Just to give you one example, I
• 45:22
  Speaker 2: had a client, this is my second ever client. Her
• 45:25
  Speaker 2: name is Sally lad. She was a vacation property manager,
• 45:30
  Speaker 2: which basically just meant that she helped people put their
• 45:32
  Speaker 2: properties on Airbnb.
• 45:34
  Speaker 1: Okay, yep, she.
• 45:35
  Speaker 2: Had She had some cottages in the Poconos up in Pennsylvania.
• 45:38
  Speaker 2: She started putting them online and renting them out like
• 45:41
  Speaker 2: Verbo Airbnb, and her neighbors were like, man, you're like
• 45:44
  Speaker 2: pretty good at that. You're getting good rentals. Can you
• 45:46
  Speaker 2: help me do it too? And she said, okay, that
• 45:48
  Speaker 2: sounds good. You know, I'm like nearing my sixties and
• 45:50
  Speaker 2: kind of thinking about retirement and this would be a fun,
• 45:53
  Speaker 2: like Golden Years type of job where I'm just earning
• 45:56
  Speaker 2: some side income to support myself. And so she had
• 45:58
  Speaker 2: a few active property she was you know, helping coordinate
• 46:01
  Speaker 2: the rentals of and she got a call from the
• 46:05
  Speaker 2: Pennsylvania Secretary of State's office that said, you know you
• 46:09
  Speaker 2: are you are practicing real estate without a license. And
• 46:13
  Speaker 2: she said, I'm just helping people put their stuff on Airbnb.
• 46:16
  Speaker 2: How is that practicing real estate without a license. I'm
• 46:18
  Speaker 2: not selling a house, I'm not renting out a skyscraper.
• 46:21
  Speaker 2: You know, like I don't need the skill set to
• 46:23
  Speaker 2: do those things. I'm just like posting online. And the
• 46:26
  Speaker 2: government said, no, no, you know you have to get
• 46:28
  Speaker 2: a full on real estate broker's license. And she said, okay,
• 46:30
  Speaker 2: well maybe I can. You know, what are the requirements, right,
• 46:33
  Speaker 2: can't be that hard And she looks and it's Pennsylvania
• 46:36
  Speaker 2: has one of the most onerous laws in the country
• 46:39
  Speaker 2: on this. You have to spend three years in person
• 46:41
  Speaker 2: apprenticing with a broker in a physical office. And she
• 46:45
  Speaker 2: works on she works online, So she wants to go
• 46:48
  Speaker 2: to this office work for somebody else, learn about a
• 46:50
  Speaker 2: job she never wants to do, you know. Take I
• 46:53
  Speaker 2: think it was like three hundred and fifty hours of
• 46:55
  Speaker 2: courses on like buying and selling houses and property management
• 46:59
  Speaker 2: for like sky scrapers, an apartment complex is just completely
• 47:03
  Speaker 2: irrelevant things right to just post online. And so we said, no,
• 47:08
  Speaker 2: you know, we're not going to have Sally destroy her
• 47:11
  Speaker 2: life for three years and pay somebody else to cut
• 47:13
  Speaker 2: of her profits. And she's going to sue like she
• 47:15
  Speaker 2: has a right to do this now. The government has
• 47:18
  Speaker 2: no interest in forcing her to learn of a bunch
• 47:20
  Speaker 2: of irrelevant things and to spend you know, time and money.
• 47:23
  Speaker 2: She doesn't have to keep doing the things she's already doing.
• 47:27
  Speaker 2: And we went into court and we said, look, yep,
• 47:31
  Speaker 2: in federal court, the rational basis test might apply. Facts
• 47:34
  Speaker 2: might not matter, Irrationality might be totally fine. But here
• 47:38
  Speaker 2: in Pennsylvania, under our constitution, things are different. This right
• 47:42
  Speaker 2: is important. The government has a genuine burden has to meet.
• 47:46
  Speaker 2: The law can't be preposterous. Facts do matter. And we
• 47:48
  Speaker 2: went all the way up to the Pensylvana Supreme Court
• 47:50
  Speaker 2: and we won the case and Sally was vindicated, and
• 47:53
  Speaker 2: the court recognized that we're just not going to do
• 47:55
  Speaker 2: things the way the US Supreme Court does it when
• 47:57
  Speaker 2: it comes to the right turner living.
• 48:00
  Speaker 1: And is the reason the budden is is such because
• 48:04
  Speaker 1: there is no way to earn a living in the
• 48:06
  Speaker 1: in the Bill of Rights. I mean, is this the
• 48:08
  Speaker 1: fia Madison always had about the Bill of Eights.
• 48:11
  Speaker 2: Yeah, I think you're exactly right about that. I mean
• 48:13
  Speaker 2: the historically, you know, for for a very long time
• 48:17
  Speaker 2: the courts understood the due process clause, and I think,
• 48:23
  Speaker 2: properly speaking, probably the Privileges or Immunities clause in the
• 48:25
  Speaker 2: fourteenth Amendment is really the source of this this right.
• 48:28
  Speaker 2: But textually in the ninth Amendment, which protects unenumerated rights,
• 48:32
  Speaker 2: right I think which the court's all love to ignore.
• 48:34
  Speaker 2: But in fact, I'll just tell you a funny side note.
• 48:37
  Speaker 2: I was listening to. I was listening to, Uh. Nick
• 48:41
  Speaker 2: Gillespie from Reason was interviewing Justice Gorsicch yep, and Justice
• 48:45
  Speaker 2: Gorsicch is you know has the kid's book out? And
• 48:47
  Speaker 2: and Nickolespie asked something to the effect of, you know,
• 48:51
  Speaker 2: how do we identify unenumerated rights? Like how do we
• 48:54
  Speaker 2: know when the right's unenumerated? And if you watch the interview,
• 48:56
  Speaker 2: Justice Gorsicch, all the respect to him, does not answer
• 48:59
  Speaker 2: the question. He would not allow an advocate in front
• 49:02
  Speaker 2: of him to answer that question the way he answered
• 49:05
  Speaker 2: Nick Time I'm sure, and it's it's you know, this
• 49:07
  Speaker 2: is this is a problem that I think both conservative
• 49:10
  Speaker 2: and liberal justices really don't know how to figure out,
• 49:13
  Speaker 2: is to think in principle about what rights are and
• 49:15
  Speaker 2: about how to identify what a right he is at
• 49:17
  Speaker 2: the end of the day.
• 49:19
  Speaker 1: And it's scary. You we have a whole constitutional system
• 49:23
  Speaker 1: built in the concept of individual rights, and there's probably
• 49:27
  Speaker 1: not a member of the Supreme courte who can probably properly,
• 49:30
  Speaker 1: well even semi properly define what an individual right is
• 49:35
  Speaker 1: and and apply it in a principled kind of way.
• 49:38
  Speaker 2: I mean, I would say that, you know, at least
• 49:41
  Speaker 2: in Pennsylvania and some of these other states that have
• 49:43
  Speaker 2: really great constitutional language, they don't just say, you know,
• 49:46
  Speaker 2: you have right turn of living or recon i'm freedom
• 49:48
  Speaker 2: in their constitution. But what they will say is sort
• 49:51
  Speaker 2: of all you need to get there. So the Pennsylvania
• 49:53
  Speaker 2: Constitution has language that's really drawn almost directly from John Locke,
• 49:57
  Speaker 2: and the language says, you know, among the sen principles
• 50:00
  Speaker 2: of liberty or whatever it is. And then they'll say
• 50:02
  Speaker 2: a right to acquire and possess property and pursue and
• 50:06
  Speaker 2: obtain happiness. So like, what is how do you acquire property?
• 50:11
  Speaker 2: Do you steal it?
• 50:12
  Speaker 1: Yep?
• 50:12
  Speaker 2: I mean you earn it, right, you earn it and
• 50:14
  Speaker 2: you trade for it. Like that is economic freedom. What
• 50:17
  Speaker 2: is pursuing happiness? Well, it's not you know, stealing stuff
• 50:19
  Speaker 2: from my neighbors and defrauding everybody. Pursuing happiness is you know,
• 50:24
  Speaker 2: working and thriving and earning a living and producing and
• 50:26
  Speaker 2: innovating like that is what those things mean right in
• 50:29
  Speaker 2: a free society. And so it's it's not spelled out
• 50:31
  Speaker 2: there for you like kind of an idiot proof language,
• 50:34
  Speaker 2: but it is spelled out there enough in principled language.
• 50:38
  Speaker 2: And I think you know, we're lucky to have those
• 50:39
  Speaker 2: really seminal And that's a seventeen seventy six constitution, so
• 50:43
  Speaker 2: it predates the Federal Constitution. It's drafted at the same
• 50:46
  Speaker 2: time as the Declaration of Independence. So I mean they
• 50:49
  Speaker 2: got it, Yeah, they understood.
• 50:51
  Speaker 1: Yeah, I mean, and there was they were citing, as
• 50:53
  Speaker 1: you said, they were citing John Locke. So what bitter
• 50:56
  Speaker 1: sources there from that area? So maybe let's let's talk
• 51:03
  Speaker 1: about one more case of economic liberty that maybe you're
• 51:07
  Speaker 1: working on right now, and then and then we'll go
• 51:10
  Speaker 1: to some of the questions we have.
• 51:11
  Speaker 2: Yes, So I have a case that's it's been up
• 51:14
  Speaker 2: to the North Carolina Supreme Court once and it's knocking
• 51:16
  Speaker 2: on the door again. So it's a long running case
• 51:19
  Speaker 2: that's had some procedural ups and downs, but it's it's
• 51:23
  Speaker 2: a good case. So my client's doctor J. Singleton. He's
• 51:27
  Speaker 2: an eye surgeon. He owns a vision center, a vision
• 51:30
  Speaker 2: clinic in uh in North Carolina, in newbern and this
• 51:35
  Speaker 2: is a place where he'd love to offer like the
• 51:37
  Speaker 2: full suite of optimological care. Right, So he does, you know,
• 51:41
  Speaker 2: I checkups and and certain procedures. But he has an
• 51:44
  Speaker 2: operating room in his facility that he is not allowed
• 51:46
  Speaker 2: to use. And he's not allowed to use it because
• 51:49
  Speaker 2: North Carolina, like many states, has what's called a certificate
• 51:52
  Speaker 2: of need law, and a certificate of need law is
• 51:56
  Speaker 2: essentially like a I mean, I hate to say this,
• 51:58
  Speaker 2: but it's essentially like a Soviet style planning law. And
• 52:02
  Speaker 2: the way it works in North it's slightly different in
• 52:04
  Speaker 2: every state, but the way it works in North Carolina
• 52:06
  Speaker 2: is the government gets together a commission of people every year,
• 52:09
  Speaker 2: a bunch of like bureaucrats, and they get together and
• 52:12
  Speaker 2: they just say to themselves, Okay, there are certain healthcare
• 52:15
  Speaker 2: services that we're going to say you have to have
• 52:18
  Speaker 2: permission from us first before you can offer them. So
• 52:21
  Speaker 2: operating rooms are one example of this. MRI scanners are
• 52:24
  Speaker 2: one example of this. There's all sorts of things that
• 52:26
  Speaker 2: you have to have the government's permission first before you
• 52:28
  Speaker 2: can come into the market and offer services. And so
• 52:33
  Speaker 2: and so, sorry, my little white screen behind, uh, there
• 52:36
  Speaker 2: we go on. My face is bright again. So doctor
• 52:38
  Speaker 2: Singleton is like, look, I've been I've been in this
• 52:40
  Speaker 2: industry for twenty years. The government has never said anybody
• 52:46
  Speaker 2: in my geographical area is allowed to open up a
• 52:48
  Speaker 2: new operating room. And every year they will post a
• 52:51
  Speaker 2: plan on a website that says, you know, here are
• 52:54
  Speaker 2: our need determinations for the year. Here's what services we
• 52:57
  Speaker 2: think are needed for the coming year or the coming years,
• 52:59
  Speaker 2: and they say that there are new services needed for
• 53:01
  Speaker 2: operating rooms in his area. If they say there's no
• 53:04
  Speaker 2: services needed, nobody can enter the market. It is a
• 53:06
  Speaker 2: closed system. And funny enough, there's a single hospital with
• 53:11
  Speaker 2: one operating room down the street from him, two miles away.
• 53:13
  Speaker 2: It's the only entity that has ever held what's called
• 53:16
  Speaker 2: a certificate of need to offer services in that area.
• 53:19
  Speaker 2: And so doctor Singleton is just completely shut out of
• 53:22
  Speaker 2: the market. You know, the bureaucrats again, they get together
• 53:24
  Speaker 2: every year. Despite the fact that population is growing, despite
• 53:27
  Speaker 2: the fact that healthcare is always innovating and growing and
• 53:29
  Speaker 2: it's a market that's that's supposed to be dynamic, they
• 53:31
  Speaker 2: just say, look, there's one hospital here. You don't know anymore.
• 53:35
  Speaker 2: That's the end of it. And what is one entity
• 53:39
  Speaker 2: with a legal privilege to operate? It's a monopoly, right,
• 53:41
  Speaker 2: a monopoly granted by the government. And North Carolina has
• 53:45
  Speaker 2: in its constitution again this is a seventeen seventy six
• 53:47
  Speaker 2: constitution as well, they have an anti monopoly clause. Oh
• 53:50
  Speaker 2: w and the anti mindo. Yeah, it's right, And so
• 53:53
  Speaker 2: you would think that's kind of the answer to the question.
• 53:55
  Speaker 2: Right there, the anti monopoly clause in North Carolina says
• 53:58
  Speaker 2: that monopolies are contrary to the us of a free
• 54:00
  Speaker 2: state and shall not be allowed. Right So, right there
• 54:04
  Speaker 2: in the constitution, you have a prohibition on the government
• 54:06
  Speaker 2: granting exclusive economic privileges to favored businesses. And that is
• 54:11
  Speaker 2: exactly what the certificate of meads system does for healthcare
• 54:14
  Speaker 2: providers all over the state. And so we've been fighting
• 54:17
  Speaker 2: for many years about, you know, whether our lawsuit is viable,
• 54:21
  Speaker 2: whether doctor Singleton is allowed to bring it. We had
• 54:24
  Speaker 2: fights about, you know, whether he had to kind of
• 54:27
  Speaker 2: go through the con process first before he could challenge
• 54:30
  Speaker 2: the system, which the court ended up saying no, he didn't.
• 54:33
  Speaker 2: And so now we are knocking on the Supreme Court's
• 54:36
  Speaker 2: door again in North Carolina and asked them to take
• 54:38
  Speaker 2: this case and to recognize that if the government picks
• 54:41
  Speaker 2: winners and losers, if the government sets up one entity
• 54:44
  Speaker 2: as the sole provider of a service in a geographical region,
• 54:47
  Speaker 2: that is a monopoly. That is a classical monopoly, right,
• 54:50
  Speaker 2: and to strike down this whole system.
• 54:52
  Speaker 1: That's great.
• 54:54
  Speaker 2: Yeah, And you know it's it's just crazy because at
• 54:57
  Speaker 2: the end of the day, the clients that I have,
• 55:00
  Speaker 2: whether it's Sally or doctor Singleton or Leo and in
• 55:03
  Speaker 2: the Alabama raids case with ice, I mean, these are
• 55:06
  Speaker 2: all just like people who want to live. Like they're
• 55:09
  Speaker 2: people who just they want to work, they want to
• 55:11
  Speaker 2: go home and feel safe. I mean, there's nothing crazy
• 55:14
  Speaker 2: or bizarre or weird about any of this. It's just
• 55:16
  Speaker 2: they're Americans who want to be free, and the government
• 55:19
  Speaker 2: doesn't want to let them be free. Just it's preposterous
• 55:22
  Speaker 2: that these cases have to be litigated, but they do.
• 55:25
  Speaker 1: You know, now that's I mean, you guys are doing
• 55:28
  Speaker 1: amazing works. So congratulations. This is crucially important. It's I mean,
• 55:33
  Speaker 1: the courts are the last bastion of any form of
• 55:35
  Speaker 1: rationality in our political system, it seems to me, right,
• 55:38
  Speaker 1: I mean, the political parties are dysfunctional, Congress is dysfunctional,
• 55:44
  Speaker 1: so the executive is going nuts, and the courts are
• 55:48
  Speaker 1: the only seeming place where rationality is respected. And still
• 55:54
  Speaker 1: I agree.
• 55:54
  Speaker 2: I mean that, like, I think it's easy for in
• 55:57
  Speaker 2: my position, it's easy to get frustrated with courts, and
• 56:00
  Speaker 2: it's easy to think, well, here are all these problems
• 56:02
  Speaker 2: in the law that I'm trying to fix and to
• 56:04
  Speaker 2: kind of have that perspective on things. But if you
• 56:06
  Speaker 2: take a big step back and you just look at
• 56:08
  Speaker 2: the whole political system. I mean, I feel as an advocate,
• 56:11
  Speaker 2: then when I walk into a courtroom, things I say matter, yep,
• 56:15
  Speaker 2: and that there's the rational being listening to what I'm saying,
• 56:18
  Speaker 2: hearing my arguments. Maybe I win, maybe I lose, but
• 56:21
  Speaker 2: like that's a forum for me to air my logic
• 56:25
  Speaker 2: and reason and facts to a court, and the court
• 56:27
  Speaker 2: then decides. And like I'm not always right, I'm not
• 56:29
  Speaker 2: always going to win, but I think, you know, and
• 56:32
  Speaker 2: I just want to say about courts, judges really do
• 56:35
  Speaker 2: try to get things right. They might be misguided, they
• 56:38
  Speaker 2: might have the wrong priors, they might not quite understand
• 56:41
  Speaker 2: the concept of individual rights and the way that you
• 56:44
  Speaker 2: or might I might think of it. But you know,
• 56:46
  Speaker 2: I think there's just way too much casting aspersions at
• 56:51
  Speaker 2: courts these days as political actors, as just you know,
• 56:55
  Speaker 2: pure partisan players. And when you get in front of
• 56:57
  Speaker 2: a court and talk to a judge, they largely are
• 57:00
  Speaker 2: really not like that at all. They're just they're just
• 57:02
  Speaker 2: people trying to get the answer right. And and and
• 57:06
  Speaker 2: I have always felt, even in cases where the courts
• 57:09
  Speaker 2: were very skeptical all of my arguments, that they were
• 57:12
  Speaker 2: trying their best to get get things right.
• 57:15
  Speaker 1: I mean, that's great news, given given the state about
• 57:18
  Speaker 1: politics and our political culture, that that is really that
• 57:22
  Speaker 1: is really good. I do think the best in our
• 57:24
  Speaker 1: political system, the best people right now are the judges.
• 57:28
  Speaker 1: Uh In comparison. Yeah, try to have a rational discussion
• 57:33
  Speaker 1: with the congressman or senator. I mean being in front
• 57:36
  Speaker 1: of them. They just don't care.
• 57:39
  Speaker 2: No, And I've testified in front of legislative committees before,
• 57:42
  Speaker 2: and it's that it's a it's a kangaroo court, you know.
• 57:45
  Speaker 1: It's it's it's not about truth so or getting it right.
• 57:49
  Speaker 1: It's about scoring points I have.
• 57:51
  Speaker 2: I'll tell you something. I can't tell you who told
• 57:54
  Speaker 2: me this because I don't want to help them. But
• 57:55
  Speaker 2: when I was when I was first starting at this
• 57:57
  Speaker 2: job and I was preparing to do my first ever
• 58:00
  Speaker 2: legislative testimony, you know, it was like a small committee.
• 58:03
  Speaker 2: It wasn't like super big stakes or anything. But somebody
• 58:06
  Speaker 2: advised me on the process and they said, Josh, you're
• 58:09
  Speaker 2: gonna want to get in there and talk about the constitution,
• 58:11
  Speaker 2: but I need you to know something. Legislators don't care
• 58:14
  Speaker 2: about the Constitution.
• 58:15
  Speaker 1: Yep.
• 58:16
  Speaker 2: And like it wasn't him being cynical, it wasn't him,
• 58:19
  Speaker 2: Like he was just trying to help me, just effective
• 58:21
  Speaker 2: in the forum.
• 58:22
  Speaker 1: Right.
• 58:22
  Speaker 2: But I was like, man, that's that's a big wake
• 58:24
  Speaker 2: up call.
• 58:25
  Speaker 1: Yep. Sadly true. All right, this has been great, Thanks Josh.
• 58:31
  Speaker 1: So you guys can ask questions. We've already got quite
• 58:34
  Speaker 1: a few of them, so thank you guys for asking.
• 58:37
  Speaker 1: I know some of you have done some stickers to
• 58:40
  Speaker 1: support the show. I appreciate that. Erick, thank you, Wes,
• 58:44
  Speaker 1: thank you. And I think I thought I showed Jonathan
• 58:48
  Speaker 1: Honing and Stephen Kreisman and Mary Ellen. So thank you guys.
• 58:54
  Speaker 1: So let's jump to questions. Jackson, Thanks Jackson, Jackson said, great, wook, Josh.
• 59:00
  Speaker 1: Do you have thoughts on the proper method for constitutional interpretation?
• 59:05
  Speaker 1: Textualism is too limited, the living constitution concept is too arbitrary.
• 59:09
  Speaker 1: Are they justices or lawyers advocating a more principled method?
• 59:15
  Speaker 2: Yeah? So I think where that really starts to matter
• 59:21
  Speaker 2: a lot in the law and make a difference is
• 59:23
  Speaker 2: in the hard cases, right, Like, so a lot of
• 59:26
  Speaker 2: cases are actually not that difficult. They don't actually require
• 59:29
  Speaker 2: diving into judicial methodology so much. I mean, there are
• 59:33
  Speaker 2: certain parts of the constitution or even just statutes where
• 59:36
  Speaker 2: if you just apply like just principles of logic and grammar,
• 59:41
  Speaker 2: you can figure out the answer and you're being objective
• 59:43
  Speaker 2: and you're being impartial, and you're doing it the right way.
• 59:45
  Speaker 2: So that's I think judicial philosophy gets a lot of
• 59:48
  Speaker 2: I think important discussion, but really because the cases are
• 59:51
  Speaker 2: often hard at the highest levels, and those ones get
• 59:54
  Speaker 2: the highest degree of attention. So like things like abortion
• 59:57
  Speaker 2: right or some of the more recent Supreme Court cases,
• 1:00:01
  Speaker 2: pick your poison on that one. But in terms of
• 1:00:04
  Speaker 2: the right methodology, though, I you know, as you might expect,
• 1:00:08
  Speaker 2: I find Tis mithswork persuasive on judicial review. Tim Sanderfer
• 1:00:13
  Speaker 2: has written a pretty good law review article on why
• 1:00:17
  Speaker 2: originalism is maybe not actually that objective, and TERROR has
• 1:00:20
  Speaker 2: done some work on that too. I'm how you would
• 1:00:25
  Speaker 2: label the methodology that I find most persuasive is a
• 1:00:28
  Speaker 2: little bit of a question mark. I'm not sure if
• 1:00:29
  Speaker 2: it has the label, but I think that I think
• 1:00:34
  Speaker 2: there's too much context dropping in judicial philosophy. That's the
• 1:00:37
  Speaker 2: biggest problem that I see. And so I think, and
• 1:00:40
  Speaker 2: what I mean by that is, you know, the context
• 1:00:42
  Speaker 2: of our legal system is a system designed to protect
• 1:00:44
  Speaker 2: individual rights, yep, Like the Declaration of Independence is actually
• 1:00:47
  Speaker 2: a huge part of the context for the Constitution. And
• 1:00:50
  Speaker 2: if you don't grasp that, which I mean, the Supreme
• 1:00:52
  Speaker 2: Court has spoken with disdain at times about the Declaration,
• 1:00:55
  Speaker 2: Scalia famously talked about the fact that it wasn't the law,
• 1:00:58
  Speaker 2: it wasn't an articulation of the law. It was just
• 1:01:00
  Speaker 2: sort of aspirational principles. But I mean, if you think
• 1:01:03
  Speaker 2: of it as law, and if you think of it
• 1:01:05
  Speaker 2: as as articulating the purpose of our legal system, then
• 1:01:09
  Speaker 2: that that really is a driver of meaning. Right. I mean,
• 1:01:11
  Speaker 2: the any law or any part of the Constitution has
• 1:01:16
  Speaker 2: a purpose behind it, it has to be read in
• 1:01:18
  Speaker 2: context of that purpose. And so for me, I think
• 1:01:22
  Speaker 2: the most important to think about when courts are reaching
• 1:01:24
  Speaker 2: the kind of gray areas of the law where the
• 1:01:26
  Speaker 2: text isn't answer every question, is stepping back, keeping that
• 1:01:30
  Speaker 2: bigger picture context in mind, keeping the fact that we
• 1:01:32
  Speaker 2: have a liberty oriented, individual rights oriented constitution in mind,
• 1:01:37
  Speaker 2: and not dropping that context, because if you do right,
• 1:01:40
  Speaker 2: you're going to fall far down the depths of proper
• 1:01:44
  Speaker 2: judicial interpretation very fast. I guess the other thing I
• 1:01:50
  Speaker 2: would say is there's there's an article by Evan Burnick
• 1:01:57
  Speaker 2: and Randy Barnett that I've just started looking into called
• 1:02:02
  Speaker 2: I've been meaning to read it for a very long time,
• 1:02:03
  Speaker 2: but it's called The Letter and the Spirit and it's
• 1:02:06
  Speaker 2: a longer article. And I think Evan's a good thinker,
• 1:02:11
  Speaker 2: and he's very inspired by Terroristsmith's work as well, and
• 1:02:14
  Speaker 2: he tries to sort of integrate a lot of the
• 1:02:18
  Speaker 2: things that are good about originalism and good about terrorist's
• 1:02:21
  Speaker 2: perspective into a coherent theory of judicial review. And so
• 1:02:24
  Speaker 2: I would I would check that out if you're interested
• 1:02:26
  Speaker 2: in kind of somebody who has done a really good
• 1:02:29
  Speaker 2: faith attempt at kind of integrating both text and principle.
• 1:02:33
  Speaker 2: That's that's one suggestion I would make. But yeah, I'm
• 1:02:36
  Speaker 2: not I mean, as as you might imagine. I'm not
• 1:02:39
  Speaker 2: am not of Card Carring originalist, if originalism means the
• 1:02:41
  Speaker 2: kind of text, history, tradition stuff that we see today.
• 1:02:45
  Speaker 2: And I'm also not a living constitutionalist.
• 1:02:46
  Speaker 1: So good thanks Jackson. Let's see Eric, I am a
• 1:02:53
  Speaker 1: failure new attorney. I do civil appeals in a state
• 1:02:57
  Speaker 1: Solicited General's office. My first day a case, my first
• 1:03:02
  Speaker 1: day of auto argument, is next month in state Supreme Court.
• 1:03:06
  Speaker 1: I'm both excited and terrified. Do you have any advice
• 1:03:11
  Speaker 1: on how to do well?
• 1:03:12
  Speaker 2: Well? I wish you, I wish you would tell me
• 1:03:13
  Speaker 2: what state you're in. Maybe you'll maybe you'll follow up.
• 1:03:16
  Speaker 2: I do have some advice. So I don't know how
• 1:03:20
  Speaker 2: how new you are to the law, but I would
• 1:03:22
  Speaker 2: just say that like law is interesting because it's you
• 1:03:25
  Speaker 2: have to have a little bit of everything in terms
• 1:03:27
  Speaker 2: of skill sets to be good at this as a litigator.
• 1:03:30
  Speaker 2: And you'll find very quickly the things that you're bad at.
• 1:03:32
  Speaker 2: So like the things that you're naturally if you're a
• 1:03:34
  Speaker 2: good writer, right, you can just kind of keep doing that,
• 1:03:37
  Speaker 2: keep on keeping on right, you'll develop, you'll grow, but
• 1:03:39
  Speaker 2: you'll find very quickly, oh man, I'm really terrible at
• 1:03:41
  Speaker 2: this thing. And for me, the thing I was bad
• 1:03:45
  Speaker 2: at initially was world argument. And it wasn't It wasn't
• 1:03:49
  Speaker 2: that I was like, you couldn't put me in front
• 1:03:51
  Speaker 2: of a court with with you know, without being embarrassed.
• 1:03:54
  Speaker 2: It was more just it would didn't come naturally to
• 1:03:57
  Speaker 2: me to be under fire and have questions lobbed every second.
• 1:04:00
  Speaker 2: I like to think kind of slowly, you know, and
• 1:04:03
  Speaker 2: so it felt like I was being pop quiz at
• 1:04:06
  Speaker 2: rapid speed, right, And like if you have a hot bench,
• 1:04:09
  Speaker 2: that's what it's like. And it's hard to you know,
• 1:04:11
  Speaker 2: not trip over your words or to say the right
• 1:04:13
  Speaker 2: thing every time, and so for me, I found that
• 1:04:17
  Speaker 2: I had to just over prepare right. So you know,
• 1:04:19
  Speaker 2: I don't know if you have access to like colleagues
• 1:04:21
  Speaker 2: who can help moot you. I assume you do in
• 1:04:23
  Speaker 2: an sg's office, but over schedule your moots right, Schedule
• 1:04:27
  Speaker 2: more than you think you will. Your office might have
• 1:04:29
  Speaker 2: a protocol that you do two moods or three moods
• 1:04:32
  Speaker 2: before a big argument. Schedule what I call mini moods. Right,
• 1:04:35
  Speaker 2: Get one or two colleagues who know nothing about your case,
• 1:04:38
  Speaker 2: and I mean nothing, and have them play the part
• 1:04:40
  Speaker 2: of a judge who doesn't know anything about your case.
• 1:04:42
  Speaker 2: Because judges are humans, they read things fast. They sometimes
• 1:04:45
  Speaker 2: don't read the breeths because they're busy. Like, have somebody
• 1:04:47
  Speaker 2: play the judge who's going to ask you the question
• 1:04:49
  Speaker 2: you haven't thought of because you thought it was too
• 1:04:51
  Speaker 2: simple to be thinking about. And also, I just would
• 1:04:54
  Speaker 2: recommend one more thing. Talk to your spouse or friends
• 1:04:58
  Speaker 2: who are non lawyers about the about the case. Just
• 1:05:01
  Speaker 2: casually talk to them about it conversant. Right. You want
• 1:05:04
  Speaker 2: to be able to make the points you're making to somebody,
• 1:05:07
  Speaker 2: like in the course of an elevator ride in common
• 1:05:09
  Speaker 2: sense language that anybody can understand. And for me, like
• 1:05:14
  Speaker 2: the last cruise I went on, my wife was pregnant.
• 1:05:17
  Speaker 2: I was on this cruise to Mexico, but I had
• 1:05:18
  Speaker 2: a North Carolina Supreme Court argument coming up, and so
• 1:05:21
  Speaker 2: I couldn't be fully off. And so what I would
• 1:05:23
  Speaker 2: do is I had my note cards with like little
• 1:05:25
  Speaker 2: flash cards of questions that I was practicing answers to,
• 1:05:28
  Speaker 2: and I would walk around the pull deck every morning
• 1:05:30
  Speaker 2: just like practicing my answers out loud. I do a
• 1:05:32
  Speaker 2: lot of talking to myself out loud when I'm preparing,
• 1:05:36
  Speaker 2: and had people ask me, are you practicing for a play?
• 1:05:38
  Speaker 2: And I'd say, no, no, it's not a play. I'm I'm
• 1:05:40
  Speaker 2: just getting ready for an oral argument in the court.
• 1:05:42
  Speaker 2: And that is kind of what it's like. You know,
• 1:05:44
  Speaker 2: you have to just get very comfortable speaking easily and
• 1:05:47
  Speaker 2: casually about your issue on your feet, and it's hard
• 1:05:51
  Speaker 2: to do that unless you've just done it over and
• 1:05:53
  Speaker 2: over and over again. So I would just say, practice, practice, practice,
• 1:05:55
  Speaker 2: and you'll get there. I mean, it just takes some time,
• 1:06:00
  Speaker 2: some confident you can get there.
• 1:06:01
  Speaker 1: Sounds like great advice. Let's say Mary Ellen says license
• 1:06:06
  Speaker 1: plate recognition makes paid parking so much easier. How can
• 1:06:10
  Speaker 1: we have conveniences like that without having out privacy violated?
• 1:06:15
  Speaker 1: Is it a tech problem and ethical question something else? Well?
• 1:06:20
  Speaker 2: I mean I think it depends on where the where
• 1:06:22
  Speaker 2: those readers are. I mean a lot of private parking
• 1:06:24
  Speaker 2: lots have them, and that's private property and so you
• 1:06:26
  Speaker 2: know you're not running into constitutional problems there. But if
• 1:06:29
  Speaker 2: we're talking about like toll roads or public parking lots
• 1:06:32
  Speaker 2: that use license plate readers, I mean, my perspective on
• 1:06:35
  Speaker 2: that is it's actually fine as long as they're not
• 1:06:37
  Speaker 2: retaining the data, right, So I mean there might be
• 1:06:40
  Speaker 2: like a rational retention period of a certain number of
• 1:06:42
  Speaker 2: days or whatever. But I think the issue that I
• 1:06:46
  Speaker 2: have with these systems is not like an ad hoc
• 1:06:49
  Speaker 2: you know, one time administrative you left a parking deck
• 1:06:52
  Speaker 2: and now you get a thing in the mail and
• 1:06:53
  Speaker 2: they delete it. The issue I have is more with
• 1:06:55
  Speaker 2: these kind of dragnet systems where there's cameras on every
• 1:06:58
  Speaker 2: street corner. They're all connected to each other, and someone
• 1:07:01
  Speaker 2: can go into the system and query your name or
• 1:07:03
  Speaker 2: your license plate and just see everywhere you've driven like that.
• 1:07:06
  Speaker 2: To me, is the problem. Right, So I think there's
• 1:07:09
  Speaker 2: definitely there's definitely a way to do this sort of
• 1:07:12
  Speaker 2: thing constitutionally and to use this technology in ways that
• 1:07:14
  Speaker 2: are beneficial to the public without trampling on people's constitutional rights.
• 1:07:20
  Speaker 1: Great, all right, Michael says, other courts sufficiently standing up
• 1:07:24
  Speaker 1: to Trump.
• 1:07:30
  Speaker 2: So I think in a strict sense, courts are probably
• 1:07:36
  Speaker 2: not sufficiently standing up to any president. But I think
• 1:07:39
  Speaker 2: when it comes to Trump, they've been pretty good. You know,
• 1:07:43
  Speaker 2: the Supreme Court has had its moments of weakness, but
• 1:07:47
  Speaker 2: I think it's been pretty good in a lot of cases.
• 1:07:50
  Speaker 2: When it comes to Trump, there have been I think
• 1:07:52
  Speaker 2: the Court got a lot of flak early on for
• 1:07:54
  Speaker 2: some of its early decisions, sort of like you know,
• 1:07:58
  Speaker 2: overturning preliminary junctions and that kind of thing when things
• 1:08:02
  Speaker 2: were moving fast in the trial courts, and there may
• 1:08:05
  Speaker 2: be some credence to the idea that like they were
• 1:08:08
  Speaker 2: kind of doing that to build themselves up a bit
• 1:08:10
  Speaker 2: of credibility for the bigger decisions that were coming on
• 1:08:12
  Speaker 2: the merits of big, important substantive issues. So on some
• 1:08:16
  Speaker 2: of those they've really done a good job. The Tariff's
• 1:08:18
  Speaker 2: decision was quite good, obviously, and that was a huge
• 1:08:21
  Speaker 2: landmark decision on a signature Trump policy. You know, I
• 1:08:25
  Speaker 2: think the real kind of like champions for individual liberty
• 1:08:29
  Speaker 2: in this administration are the district courts, district courts, single
• 1:08:33
  Speaker 2: judges who are reviewing serious and important constitutional problems like
• 1:08:39
  Speaker 2: a lot of what ICE has been up to. There
• 1:08:40
  Speaker 2: have been a lot of courts across the country, whether
• 1:08:42
  Speaker 2: in DC or California or hopefully in my case, in Alabama.
• 1:08:46
  Speaker 2: We'll see what happens there, but all over the country
• 1:08:48
  Speaker 2: you're seeing courts. Minnesota, you've had some of this granting
• 1:08:51
  Speaker 2: preliminary injunctions or granting relief to people who have had
• 1:08:54
  Speaker 2: their rights violated by ICE and who are threatened with
• 1:08:57
  Speaker 2: future enforcement, lawless enforcement. And I'm really heartened by that
• 1:09:02
  Speaker 2: because if you read those decisions, they're not slap dash,
• 1:09:05
  Speaker 2: they're not political. They're very very well reasoned and thought
• 1:09:09
  Speaker 2: through and thorough and deep deep legal documents. So I
• 1:09:14
  Speaker 2: just think that when when the rubber comes, when the
• 1:09:16
  Speaker 2: rubber meets the road, with a lot of these cases,
• 1:09:18
  Speaker 2: I do see courts standing up and defiantly saying no
• 1:09:22
  Speaker 2: to pretty egregious abuses of power. It's not every court obviously.
• 1:09:25
  Speaker 2: I mean, you know, there's good and bad, but I
• 1:09:28
  Speaker 2: think I've been pretty heartened by a lot of it.
• 1:09:32
  Speaker 1: James, do you have knowledge of the court system in Ryema,
• 1:09:37
  Speaker 1: Germany and why they weren't able to stop turning from
• 1:09:40
  Speaker 1: the executive? Do you see any parallels with the present
• 1:09:43
  Speaker 1: judicial systems.
• 1:09:46
  Speaker 2: One of the things that I learned very early in
• 1:09:47
  Speaker 2: my career was to not pretend that I know things. Yep,
• 1:09:50
  Speaker 2: and I'm going to not pretend that I know the
• 1:09:52
  Speaker 2: answer to that. Yeah, But I appreciate the question. I mean,
• 1:09:55
  Speaker 2: that's probably the sort of thing you can get a
• 1:09:56
  Speaker 2: bit of information on in you know, Leonards book on them. Yeah,
• 1:10:02
  Speaker 2: I mean, I mean I remember reading that when I
• 1:10:03
  Speaker 2: first started working at IJ and being blown away by
• 1:10:06
  Speaker 2: how much I loved it. So I should probably revisit
• 1:10:08
  Speaker 2: that book. But I'm sure there's some good tickets in there.
• 1:10:11
  Speaker 1: Steven says, what do you think of woman's argument against
• 1:10:15
  Speaker 1: both right citizenship? Are the odds of Trump winning more
• 1:10:19
  Speaker 1: than ten percent? Well?
• 1:10:23
  Speaker 2: I don't know what his arguments are. Honestly, that's an
• 1:10:25
  Speaker 2: issue that I think one. Lawyers are like teachers in
• 1:10:30
  Speaker 2: many ways, So like if you ask a science teacher
• 1:10:33
  Speaker 2: about math or about English, They're not going to have
• 1:10:36
  Speaker 2: great answers for you. And like, law is very specialized, right,
• 1:10:38
  Speaker 2: So I know a lot about economic freedom and search
• 1:10:40
  Speaker 2: and seizure law. I know less about birthright citizenship. So
• 1:10:44
  Speaker 2: I won't pretend to know what his argument is or
• 1:10:46
  Speaker 2: whether I think he has the better of it. You know,
• 1:10:48
  Speaker 2: I have like loosely followed that that I listened to
• 1:10:51
  Speaker 2: the oral argument, you know, when it originally came up
• 1:10:55
  Speaker 2: and wasn't decided. I don't think he's going to win
• 1:10:58
  Speaker 2: that case. I just think the precedents against him. Some
• 1:11:03
  Speaker 2: of the historical arguments I've seen don't seem that compelling
• 1:11:07
  Speaker 2: for overturning birth threat citizenship. So I would be a
• 1:11:10
  Speaker 2: little surprised, if you know, if I were on a
• 1:11:12
  Speaker 2: betting market, I probably wouldn't bet on Trump to win
• 1:11:14
  Speaker 2: that case. But as I said, I'm not an expert
• 1:11:17
  Speaker 2: in that area of the law, and I could be
• 1:11:19
  Speaker 2: I could be wrong on my instincts there.
• 1:11:22
  Speaker 1: No, it definitely seemed like the quote was leaning in
• 1:11:28
  Speaker 1: the direction of moving against Trump. Steven says, what's your
• 1:11:35
  Speaker 1: view on party presentation principle?
• 1:11:39
  Speaker 2: Oh?
• 1:11:39
  Speaker 1: Yeah, I thought it was ridiculous a judge should be
• 1:11:42
  Speaker 1: praised for going above and beyond question mark.
• 1:11:47
  Speaker 2: So I didn't get the last part of your question,
• 1:11:49
  Speaker 2: but I just, I mean, I'll give some thoughts on it. So,
• 1:11:51
  Speaker 2: the party presentation principle is the idea that courts really
• 1:11:56
  Speaker 2: should just be considering arguments raised by the parties. Right.
• 1:12:01
  Speaker 2: It's a principle that I think properly understood. You know, one,
• 1:12:05
  Speaker 2: it applies to claims in like core legal arguments in cases.
• 1:12:09
  Speaker 2: It can apply less to like the specific nuances of arguments.
• 1:12:13
  Speaker 2: As you get more granular in things, I think courts
• 1:12:15
  Speaker 2: have a bit more leeway to say, well, you know,
• 1:12:18
  Speaker 2: maybe I don't buy council's argument on this point, but
• 1:12:20
  Speaker 2: here's another reason. I think he's right. So that happens.
• 1:12:23
  Speaker 2: But I mean, generally speaking, just at a high level,
• 1:12:26
  Speaker 2: I think the party presentation principle is a pretty good
• 1:12:28
  Speaker 2: thing that courts are not just sort of like free
• 1:12:31
  Speaker 2: wheelingly making up arguments all the time for the advocates.
• 1:12:35
  Speaker 2: I mean, I think, you know, people come into court
• 1:12:38
  Speaker 2: because they have disputes with each other that they want
• 1:12:40
  Speaker 2: the courts to resolve, and they have their own perspectives
• 1:12:43
  Speaker 2: on why they're right, and courts really do. I mean,
• 1:12:45
  Speaker 2: courts are entities with limited resources in bandwidth. They I mean,
• 1:12:50
  Speaker 2: they have way more cases than any of us would imagine.
• 1:12:53
  Speaker 2: I mean, judges are drinking through a fire hose all
• 1:12:55
  Speaker 2: the time, and they really do rely on the parties
• 1:12:58
  Speaker 2: and their attorneys to come up with their best to
• 1:13:00
  Speaker 2: arguments and then kind of decide who's right about this. Now,
• 1:13:02
  Speaker 2: when you get to the Supreme Court, for example, we're
• 1:13:05
  Speaker 2: talking about a court that doesn't take that many cases,
• 1:13:07
  Speaker 2: that has tons of resources to do deep research, like
• 1:13:10
  Speaker 2: they might go above and beyond sometimes and you know,
• 1:13:14
  Speaker 2: find arguments that the parties haven't made.
• 1:13:16
  Speaker 1: But people submit amicus briefs, make new arguments or different
• 1:13:22
  Speaker 1: arguments maybe what the lawyers are making.
• 1:13:25
  Speaker 2: Yeah, they'll put a different spin on things. You know.
• 1:13:27
  Speaker 2: Formerly speaking, courts are not supposed to consider, like facts
• 1:13:31
  Speaker 2: that are put into amicus briefs that the parties didn't present,
• 1:13:33
  Speaker 2: or certain ocical theories that are too far afield from
• 1:13:36
  Speaker 2: what the parties raised. But I'll just give you one
• 1:13:38
  Speaker 2: example of where I think in one of my cases,
• 1:13:41
  Speaker 2: the party presentation principle has really really mattered. So so
• 1:13:46
  Speaker 2: I'm litigating a case about open fields. This is in Pennsylvania.
• 1:13:49
  Speaker 2: It's another one of these, you know, patrolling on private
• 1:13:52
  Speaker 2: land without a warrant, putting cameras on the spy on people.
• 1:13:55
  Speaker 2: And the argument we had last year in front of
• 1:13:59
  Speaker 2: the Pennsylvania Supreme Court went really well. But it was
• 1:14:02
  Speaker 2: an ambitious argument for us to be making, so I
• 1:14:04
  Speaker 2: was surprised it went so well because we were asking
• 1:14:06
  Speaker 2: the court to overturn binding precedent from two thousand and seven.
• 1:14:09
  Speaker 2: It was a case from two thousand and seven that
• 1:14:11
  Speaker 2: said open fields is great under our state constitution. We
• 1:14:13
  Speaker 2: follow it. It's the law of our state. And we
• 1:14:15
  Speaker 2: asked the court to overrule that, like straight up overrule it.
• 1:14:18
  Speaker 2: And one of the things we said in the case
• 1:14:21
  Speaker 2: was that the person who litigated it last time in
• 1:14:23
  Speaker 2: two thousand and seven didn't make the arguments that were
• 1:14:26
  Speaker 2: the best for him, Like he just completely failed to
• 1:14:29
  Speaker 2: make all of his best points. And we said, look,
• 1:14:33
  Speaker 2: the party presentation principle matters, like courts actually do rely
• 1:14:36
  Speaker 2: on the parties to make their best arguments. And so
• 1:14:38
  Speaker 2: the fact that the guy who was asking you to
• 1:14:40
  Speaker 2: protect his own land didn't make his best arguments for
• 1:14:43
  Speaker 2: why his land deserved protection, Like I don't even blame
• 1:14:46
  Speaker 2: you for getting that wrong, right and so that, but
• 1:14:50
  Speaker 2: you shouldn't put that much weight in this old precedent
• 1:14:52
  Speaker 2: right because you didn't get a fair shot at it.
• 1:14:55
  Speaker 1: Right.
• 1:14:55
  Speaker 2: So for us, that that was a context in which
• 1:14:58
  Speaker 2: we used the party presentation principle to our someone else's
• 1:15:01
  Speaker 2: failure to make their best arguments was sort of a
• 1:15:03
  Speaker 2: benefit to us.
• 1:15:03
  Speaker 1: Yep, As I say, Mark, what does what does Joshua
• 1:15:10
  Speaker 1: think about the Voting Right to Act and the Quote's
• 1:15:13
  Speaker 1: recent ruling.
• 1:15:16
  Speaker 2: I mean, it's a very very long opinion that I
• 1:15:18
  Speaker 2: have not read. And I'll be honest about that too.
• 1:15:20
  Speaker 2: I mean again again, I will just I'll just reiterate
• 1:15:23
  Speaker 2: like I spend all my day every day focusing on
• 1:15:26
  Speaker 2: the things that I'm an expert in, and that is
• 1:15:28
  Speaker 2: not one of those. I mean, you could you can
• 1:15:29
  Speaker 2: listen to Will Bode, who's an expert in the Voting
• 1:15:32
  Speaker 2: Rights Act acts, and he'll he'll talk for you know,
• 1:15:34
  Speaker 2: hours about all the intricacies of it and all the
• 1:15:36
  Speaker 2: case law that's been decided over the last hundred years.
• 1:15:39
  Speaker 2: And it's very, very, very complicated. So I can't begin
• 1:15:42
  Speaker 2: to pontificate about.
• 1:15:44
  Speaker 1: It, Steven says, how did the quote in Weeks come
• 1:15:49
  Speaker 1: up with the exclusionary rule? It was a bit cryptic
• 1:15:53
  Speaker 1: to me.
• 1:15:57
  Speaker 2: So I agree that it's cryptic, and I agree that
• 1:15:59
  Speaker 2: it is not a lot of support for it in
• 1:16:02
  Speaker 2: that case. In terms of I mean the way you
• 1:16:04
  Speaker 2: see Supreme Court decisions written now, they're very thorough. You
• 1:16:09
  Speaker 2: see a ton of historical evidence or textual evidence, or
• 1:16:12
  Speaker 2: precedent sided or common law sighted. So you know, older
• 1:16:16
  Speaker 2: Supreme Court cases, early twentieth century, even mid twentieth century,
• 1:16:19
  Speaker 2: you're not getting so.
• 1:16:21
  Speaker 1: Much of that.
• 1:16:21
  Speaker 2: It sort of just courts like this, this original open
• 1:16:24
  Speaker 2: fields case hester from Mentioning twenty four, it's like two
• 1:16:27
  Speaker 2: paragraphs long. Oh wow, I mean it's why then the
• 1:16:30
  Speaker 2: reasoning on the open field issue is like two sentences. So,
• 1:16:32
  Speaker 2: I mean it's really super threadbare. Now, I do, for
• 1:16:36
  Speaker 2: what it's worth, recognizing that Weeks is pretty it's pretty
• 1:16:40
  Speaker 2: weak on you know, it's explanation of the rule. I
• 1:16:44
  Speaker 2: will say that I think the exclusionary rule, and for
• 1:16:46
  Speaker 2: those who don't know, it's the idea that if the
• 1:16:48
  Speaker 2: government obtains evidence in violation of the Fourth Amendment through
• 1:16:52
  Speaker 2: means that are unconstitutional. It cannot be used against that
• 1:16:55
  Speaker 2: defendant in court. It has to be suppressed, is the
• 1:16:57
  Speaker 2: formal term for that. I think it's a valid rule
• 1:17:01
  Speaker 2: of law. I think a lot of judicial conservatives are
• 1:17:04
  Speaker 2: skeptical of it and think it's, you know, it lets
• 1:17:07
  Speaker 2: too many criminals off the hook, and it has no
• 1:17:08
  Speaker 2: basis in the text, and where are we getting this
• 1:17:11
  Speaker 2: judge made rule from. But I think really it's a
• 1:17:13
  Speaker 2: principled application of the idea that the government shouldn't be
• 1:17:17
  Speaker 2: able to benefit from its wrongs right and courts have Traditionally,
• 1:17:21
  Speaker 2: courts have equitable power, going back to the common law
• 1:17:24
  Speaker 2: to craft relief that is appropriate for the parties when
• 1:17:26
  Speaker 2: the rights are violated, and I think the exclusionary rule
• 1:17:28
  Speaker 2: is like a classic example of what that looks like.
• 1:17:34
  Speaker 1: Stephen Os asked, how can a lawyer get better at
• 1:17:36
  Speaker 1: legal writing any inexpensive ways?
• 1:17:40
  Speaker 2: Yeah, I mean there are inexpensive ways. So one of
• 1:17:44
  Speaker 2: the things that was most helpful for me was this
• 1:17:48
  Speaker 2: didn't come from law school. It came from a colleague
• 1:17:50
  Speaker 2: of mine. Really early on, they just challenged me whenever
• 1:17:53
  Speaker 2: I wrote something, to see if I could write the
• 1:17:55
  Speaker 2: same thing again with half the words and like just
• 1:17:59
  Speaker 2: to that lunch that I'm not even kidding. I think
• 1:18:01
  Speaker 2: it makes you ruthless about your writing, but it forces
• 1:18:05
  Speaker 2: you to realize when something you're saying is not essential
• 1:18:07
  Speaker 2: to the point.
• 1:18:08
  Speaker 1: Right.
• 1:18:10
  Speaker 2: I try to keep my writing pretty threadbare, pretty punchy,
• 1:18:14
  Speaker 2: pretty short, pretty precise and sharp, so that the courts
• 1:18:17
  Speaker 2: aren't getting distracted by needless verbiage, aren't getting distracted by
• 1:18:20
  Speaker 2: points that don't actually matter to the outcome of the case,
• 1:18:25
  Speaker 2: even if it's one that I if it's a point
• 1:18:26
  Speaker 2: that I sort of like emotionally, you got to kill
• 1:18:29
  Speaker 2: your baby. Sometimes, you know, you have to let go
• 1:18:31
  Speaker 2: of those things. And so for me, you can gain
• 1:18:33
  Speaker 2: a lot, as you can grow a lot as a
• 1:18:35
  Speaker 2: writer just with your own writing by yourself, you know,
• 1:18:38
  Speaker 2: at your computer, without anybody coaching. You just work on that.
• 1:18:42
  Speaker 2: I will say, this is not something that's expensive. I mean,
• 1:18:45
  Speaker 2: CHATCHYPT costs twenty dollars a month, so you know that's
• 1:18:48
  Speaker 2: that's one if you want the upgraded version of it.
• 1:18:50
  Speaker 2: But AI is so good at this, it's really an
• 1:18:54
  Speaker 2: incredible tool for this exact kind of thing. In fact,
• 1:18:57
  Speaker 2: to the question earlier about oral argument prep, I now
• 1:18:59
  Speaker 2: use AI for oral argument prep two. You know I
• 1:19:02
  Speaker 2: will do I will answer questions to it, and it
• 1:19:04
  Speaker 2: will ask me new questions, and I will ask it
• 1:19:06
  Speaker 2: to grade my answers. And you know, I feed my
• 1:19:09
  Speaker 2: briefs before I file them through AI, and I say, hey,
• 1:19:12
  Speaker 2: is there any part of this brief that's not clear?
• 1:19:14
  Speaker 2: And again, twenty dollars a month for a service like
• 1:19:16
  Speaker 2: that to have the world's best the world's best editor
• 1:19:18
  Speaker 2: right who doesn't doesn't really make mistakes when it comes
• 1:19:21
  Speaker 2: to finding typos, And it's there are so many things
• 1:19:24
  Speaker 2: that you can do just having a dialogue with AI
• 1:19:26
  Speaker 2: now to grow as a writer or to grow as
• 1:19:29
  Speaker 2: an oral advocate. So but aside from that, just one
• 1:19:32
  Speaker 2: more tip I would say is you should just go
• 1:19:35
  Speaker 2: on scotus, like the Supreme Court's website and any any
• 1:19:38
  Speaker 2: great Scotis advocate like Shannon cam Agan or you know,
• 1:19:42
  Speaker 2: Paul Clement or some of like the big hitters, Elizabeth Priligar.
• 1:19:46
  Speaker 2: Just read their briefs, read their briefs and like get
• 1:19:48
  Speaker 2: a sense of how they write and the turns of
• 1:19:50
  Speaker 2: phrase they use, and the way they do transitions and
• 1:19:52
  Speaker 2: the way they do topic sentences and headers. And just
• 1:19:56
  Speaker 2: kind of absorb their writing style and it will make
• 1:19:58
  Speaker 2: you a better writer.
• 1:20:00
  Speaker 1: Yeah, that's great advice. How would you rate Anthony Scalia
• 1:20:05
  Speaker 1: on the Fourth Amendment issues? Why?
• 1:20:08
  Speaker 2: Yeah, I mean he was he was pretty good on
• 1:20:11
  Speaker 2: the Fourth Amendment, and I think the on the and
• 1:20:15
  Speaker 2: the why the number one reason I would say he's
• 1:20:17
  Speaker 2: good is that he does he has a lot of
• 1:20:18
  Speaker 2: pro Fourth Amendment decisions where he's he's ruling, i think
• 1:20:22
  Speaker 2: properly for the defendant, suppressing evidence. And the reason I
• 1:20:26
  Speaker 2: say that's a good thing is that most of his
• 1:20:28
  Speaker 2: conservative colleagues in the court at the time were not
• 1:20:31
  Speaker 2: doing that. We're not willing to go along with him.
• 1:20:33
  Speaker 2: And I think he was sort of at the vanguard
• 1:20:35
  Speaker 2: of saying, look, the principles matter here more, the Constitution
• 1:20:39
  Speaker 2: matters here more maybe than my own preferences about what
• 1:20:41
  Speaker 2: should happen in this case. And I think he was
• 1:20:43
  Speaker 2: doing real judging objectively in those cases. It's kind of
• 1:20:47
  Speaker 2: part ways with maybe his conservative colleagues, and joined joined
• 1:20:49
  Speaker 2: his liberal colleagues in some of these civil rights type
• 1:20:52
  Speaker 2: of cases. So I thought he was good on the
• 1:20:55
  Speaker 2: Fourth Amendment. He was also, I mean, he had flaws,
• 1:20:58
  Speaker 2: but he was also somebody who was wrestling with the
• 1:21:03
  Speaker 2: fact that Fourth Amendment doctrine is sometimes and often is incoherent.
• 1:21:08
  Speaker 2: So just to give you a little sample of that,
• 1:21:11
  Speaker 2: you know, I mentioned the open fields thing earlier, with
• 1:21:13
  Speaker 2: the fact that land isn't listed in the Fourth Amendment,
• 1:21:16
  Speaker 2: And there's a lot of problems in Fourth Minent law
• 1:21:18
  Speaker 2: that come from the fact that early in the twentieth century,
• 1:21:21
  Speaker 2: the Supreme Court liked to read the Fourth Amendment as
• 1:21:24
  Speaker 2: just a list of protected rights, like a very narrow list,
• 1:21:27
  Speaker 2: and I just don't think that's how the Constitution is
• 1:21:29
  Speaker 2: supposed to work. But the Supreme Court then corrected for
• 1:21:32
  Speaker 2: that in the mid twentieth century with the case called
• 1:21:34
  Speaker 2: Cats that said, okay, it's probably not about lists and
• 1:21:38
  Speaker 2: specifically listed property. It's really more about a right to privacy,
• 1:21:42
  Speaker 2: which I think was an attempt by the court, however,
• 1:21:45
  Speaker 2: misguided to kind of correct course and afford more protection
• 1:21:50
  Speaker 2: from government searches and seizures than the court was willing
• 1:21:53
  Speaker 2: to do before as technology advanced. So there was a
• 1:21:56
  Speaker 2: lot that was good about that shift, even if it
• 1:21:58
  Speaker 2: didn't have the proper kind of principled more or that
• 1:22:00
  Speaker 2: we might want and Scalia picked up on that in
• 1:22:03
  Speaker 2: his career, that that there are problems in this doctrine
• 1:22:06
  Speaker 2: and we're trying to kind of make the best with
• 1:22:08
  Speaker 2: what we have in the precedent. And he was always
• 1:22:10
  Speaker 2: sort of aiming to to bring clarity to the law
• 1:22:15
  Speaker 2: when it really wasn't that clear. There was a case,
• 1:22:17
  Speaker 2: for example, called Kilo about thermal imaging, and you know,
• 1:22:22
  Speaker 2: he was sort of he was sort of stuck. He said, look,
• 1:22:25
  Speaker 2: the police stood outside this person's house. They pointed a
• 1:22:27
  Speaker 2: thermal imaging sensor at the house. They were able to,
• 1:22:30
  Speaker 2: you know, observe heat emanating from inside the house, and
• 1:22:33
  Speaker 2: under our traditional law, they never physically went into the property, right,
• 1:22:37
  Speaker 2: So that's not a search. And then and then what
• 1:22:39
  Speaker 2: do we do about privacy? Because at the end of
• 1:22:41
  Speaker 2: the day, they're just standing outside the house, right, and
• 1:22:43
  Speaker 2: so how can they be invading your privacy? He came
• 1:22:46
  Speaker 2: up with this idea that if the police are doing
• 1:22:50
  Speaker 2: something that ordinary people wouldn't be able to do, right,
• 1:22:52
  Speaker 2: using a new kind of technology to invade a space
• 1:22:55
  Speaker 2: that historically was protected in the same way as if
• 1:22:58
  Speaker 2: they had trespassed, that itself is tantamount to a search, right,
• 1:23:01
  Speaker 2: And that that deserves Fourth Amendment protection, and you know,
• 1:23:04
  Speaker 2: I think it takes a bit of innovative thinking to
• 1:23:06
  Speaker 2: get there and to think a little bit more in principle.
• 1:23:08
  Speaker 2: I don't think he was perfect, but I do think
• 1:23:10
  Speaker 2: he was always sort of striving to see if he
• 1:23:12
  Speaker 2: could clarify Fourth.
• 1:23:13
  Speaker 1: In the mid law, Stephen has a whole string of
• 1:23:19
  Speaker 1: these questions. Okay, which state has the best or most
• 1:23:23
  Speaker 1: interesting Supreme court? Whose opinion should I read?
• 1:23:27
  Speaker 2: Okay? So I mean I'm a little biased because I've
• 1:23:32
  Speaker 2: I've been in some of these courts, and then I'm
• 1:23:34
  Speaker 2: from one of these states. But I'll tell you that
• 1:23:36
  Speaker 2: my favorites right now are Pennsylvania and North Carolina. I've
• 1:23:40
  Speaker 2: been in some I mean I got, I got I
• 1:23:42
  Speaker 2: lost the case earlier this year or last year in
• 1:23:44
  Speaker 2: the South Carolina Supreme Court, and so I don't I
• 1:23:46
  Speaker 2: don't currently think for highly of that court. But but
• 1:23:49
  Speaker 2: I will tell I will say that the reason those
• 1:23:52
  Speaker 2: those courts are interesting is that they take their own
• 1:23:55
  Speaker 2: constitutions very seriously. They're they're very serious about the independence
• 1:24:01
  Speaker 2: of their constitutions. They're very serious about getting it right.
• 1:24:05
  Speaker 2: I would read Justice Deats on the North Carolina Supreme
• 1:24:08
  Speaker 2: Court d I. E. T Z. He's sort of an
• 1:24:10
  Speaker 2: innovative thinker. He's younger, he's more I think intellectually dynamic,
• 1:24:15
  Speaker 2: and he's just really driving the law forward in a
• 1:24:17
  Speaker 2: lot of ways. And his sort of foil on the
• 1:24:20
  Speaker 2: more liberal side of the court, who I would sort
• 1:24:22
  Speaker 2: of compare to Justice Justice s. Ginsburg is uh Justice
• 1:24:29
  Speaker 2: Why am I forgetting her name? Not Riggs? Gosh, I'm
• 1:24:34
  Speaker 2: forgetting her name right now. But there's a female justice
• 1:24:36
  Speaker 2: on the on the left side of the court who's
• 1:24:38
  Speaker 2: not Justice Riggs. You don't have to look her up.
• 1:24:40
  Speaker 2: But they have been getting into some wars of words recently,
• 1:24:44
  Speaker 2: but like in delightful ways, writing dozens and dozens of
• 1:24:46
  Speaker 2: pages going back and forth about constitutional interpretation and just
• 1:24:50
  Speaker 2: like really good points on both sides. Where oh, Justice Earls,
• 1:24:54
  Speaker 2: that are is Justice Earls, And I just thought, I
• 1:24:57
  Speaker 2: think it's like a great example of how should be
• 1:25:01
  Speaker 2: striving to get the law right right and like coming
• 1:25:03
  Speaker 2: up with like really great arguments on both sides and
• 1:25:05
  Speaker 2: just duking it out. So you know, read some of
• 1:25:07
  Speaker 2: the stuff between Justice Deats and Justice Earls that's been
• 1:25:10
  Speaker 2: really good in North Carolina and I would say in Pennsylvania,
• 1:25:14
  Speaker 2: you know, it's just a court that I think cares
• 1:25:17
  Speaker 2: about its constitution, takes a lot of pride in its constitution,
• 1:25:20
  Speaker 2: thinks of it as a special, precious document. And you
• 1:25:23
  Speaker 2: see that in their writing about their state constitution. When
• 1:25:26
  Speaker 2: they write about the Pennsylvania Constitution, they are in love
• 1:25:28
  Speaker 2: with it. And that's just great to see. You know,
• 1:25:31
  Speaker 2: a lot of state supreme courts are are just not
• 1:25:35
  Speaker 2: that interested in doing unique and interesting things under their
• 1:25:38
  Speaker 2: own constitution. They just like to follow whatever the US
• 1:25:40
  Speaker 2: Supreme Court does, and it just it's sort of tepid,
• 1:25:44
  Speaker 2: and it abdicates the judicial responsibility right to get the
• 1:25:47
  Speaker 2: law right. And I think it's great to see Pennsylvania
• 1:25:50
  Speaker 2: doing that. You know, Texas has a very interesting Supreme
• 1:25:53
  Speaker 2: Court with a lot of a lot of kind of
• 1:25:55
  Speaker 2: ambitious thinkers on it. I would say, if you're interested
• 1:25:58
  Speaker 2: in just reading somebody who likes the sound of his
• 1:26:00
  Speaker 2: own voice and who likes to write a lot. Justice
• 1:26:02
  Speaker 2: Weckt wec Ht on the Pennsylvania Supreme Court. I respect
• 1:26:07
  Speaker 2: him a lot as a jurist. He was a huge
• 1:26:10
  Speaker 2: dissenter in the case I won lad versus real Estate Commission,
• 1:26:14
  Speaker 2: so you can go read his He accused me of
• 1:26:16
  Speaker 2: trying to lock nor eze the Pennsylvania Supreme Constitution, which
• 1:26:20
  Speaker 2: I was, so.
• 1:26:22
  Speaker 1: He got it. Yep. And Mari Lean says, have you
• 1:26:30
  Speaker 1: read Last Branch Standing? If so, did you think?
• 1:26:34
  Speaker 2: No, I haven't read it, although it's on my list,
• 1:26:37
  Speaker 2: it's I have. Right now, I'm working my way through
• 1:26:39
  Speaker 2: Tim Sanderfer's new book, Proclaiming Liberty the Declaration of Independence,
• 1:26:44
  Speaker 2: So I just got a copy of that. Tim came
• 1:26:46
  Speaker 2: by and did a little book talk at CATO, and
• 1:26:48
  Speaker 2: I bought his book, So I need to read that.
• 1:26:51
  Speaker 2: But Last Branch Standing is on my list and I
• 1:26:52
  Speaker 2: look forward to reading it. And you know, Sarah's fun.
• 1:26:55
  Speaker 2: She's a fun public intellectual, and she's a fun commentator
• 1:26:57
  Speaker 2: on the Court, and I really enjoy her podcast. So
• 1:27:00
  Speaker 2: I'll get to it eventually. But I mean, back to
• 1:27:02
  Speaker 2: your point, your own just about I mean, that's the
• 1:27:06
  Speaker 2: thrust of the book. I take it that she's really
• 1:27:07
  Speaker 2: talking about how the Court is sort of the last
• 1:27:10
  Speaker 2: paragon of integrity in our in our governmental system right now.
• 1:27:13
  Speaker 2: And if that's sort of the big takeaway, I mean
• 1:27:16
  Speaker 2: I already agree with that.
• 1:27:17
  Speaker 1: Yeah, yeah, I haven't. It's not on my reading list.
• 1:27:21
  Speaker 1: It maybe it should be. It probably should be. Uh,
• 1:27:24
  Speaker 1: let's see, Steven, is it possible to have the best
• 1:27:27
  Speaker 1: Supreme court? Is it possible we have the best Supreme
• 1:27:31
  Speaker 1: court in history? The justices reason very clearly in the
• 1:27:36
  Speaker 1: very pro First Amendment.
• 1:27:39
  Speaker 2: That's a great question. I yeah, I don't know how
• 1:27:45
  Speaker 2: I would stack it up to other Supreme courts historically.
• 1:27:47
  Speaker 2: I mean there were I was a huge fan of
• 1:27:53
  Speaker 2: what they now call the Four Horsemen during the kind
• 1:27:56
  Speaker 2: of Lochner era, who were very very pro economic liberty
• 1:27:59
  Speaker 2: and willing to stay end up to kind of over
• 1:28:02
  Speaker 2: excessive progressive economic like regulation back then. Now that those
• 1:28:06
  Speaker 2: folks have a bad reputation, they were accused of judicial
• 1:28:09
  Speaker 2: policy making and activism, and I think that's a misread
• 1:28:11
  Speaker 2: of what they were doing, and they had They had
• 1:28:14
  Speaker 2: plenty of flaws. So like there's no court anywhere at anytime,
• 1:28:16
  Speaker 2: it doesn't have terrible decisions, right, I mean, there's good
• 1:28:19
  Speaker 2: and bad, But there was a lot to like about
• 1:28:21
  Speaker 2: that court. I think that you know, some of the
• 1:28:26
  Speaker 2: some of the civil rights era, like mid twentieth century
• 1:28:28
  Speaker 2: courts get a bad rap sometimes. I think that, you know,
• 1:28:31
  Speaker 2: just to give you one example, like Miranda, the Miranda
• 1:28:35
  Speaker 2: decision about Miranda warnings like that gets a ton of
• 1:28:38
  Speaker 2: flak for being a complete judicial invention, but like I
• 1:28:41
  Speaker 2: have a different read on that. I think the Court
• 1:28:42
  Speaker 2: was sort of thinking in principle about how do we
• 1:28:45
  Speaker 2: protect rights from like slow degregations and deprivations, and they
• 1:28:50
  Speaker 2: came up with a with a way of doing that
• 1:28:51
  Speaker 2: that I think was like pretty effective and important in
• 1:28:54
  Speaker 2: our in our criminal justice system. So you know, I
• 1:28:57
  Speaker 2: just have different takes on that than a lot of
• 1:28:59
  Speaker 2: kind of maybe more right leaning legal thinkers do. But
• 1:29:04
  Speaker 2: I think our current court is its greatest virtue is
• 1:29:07
  Speaker 2: it's very serious, right They're all show your work court
• 1:29:11
  Speaker 2: and prior courts were not like that. They were not
• 1:29:13
  Speaker 2: show your work courts. They were very terse. They often
• 1:29:17
  Speaker 2: didn't like explain the reasoning or do it in satisfactory way.
• 1:29:20
  Speaker 2: Sometimes they reach the right result, and I cheer that.
• 1:29:23
  Speaker 2: But the one thing I'll say about this court that
• 1:29:26
  Speaker 2: I that I sort of don't like is I don't
• 1:29:29
  Speaker 2: like that every single justice feels the need to write
• 1:29:31
  Speaker 2: like a thirty page opinion of their own in every case.
• 1:29:34
  Speaker 2: Now it's a bit of an exaggeration. There's plenty of
• 1:29:36
  Speaker 2: cases that are just unanimous or like one dissenter, and
• 1:29:39
  Speaker 2: that's that's fine. But in some of the bigger constitutional cases,
• 1:29:42
  Speaker 2: like I don't really want to read two hundred and
• 1:29:44
  Speaker 2: fifty pages of like everyone's opinions. You know, the Court
• 1:29:46
  Speaker 2: is supposed to speak as an institution, right, and I'm
• 1:29:50
  Speaker 2: fine with like one majority, one descent, But once you
• 1:29:54
  Speaker 2: start getting into like five different opinions, I'm like, what
• 1:29:56
  Speaker 2: are we doing here? So but to the th rest
• 1:29:59
  Speaker 2: of your question, we have a good court in the
• 1:30:01
  Speaker 2: sense that they take their jobs very seriously, they try
• 1:30:03
  Speaker 2: to get it right, and they show their work for
• 1:30:05
  Speaker 2: the American people to judge.
• 1:30:07
  Speaker 1: Yep. What do you think of the state of asylum law?
• 1:30:12
  Speaker 1: It's hard to win these days.
• 1:30:14
  Speaker 2: Yeah, I don't have a ton of thoughts on that. Honestly,
• 1:30:16
  Speaker 2: I can tell you just from having worked on this
• 1:30:18
  Speaker 2: Ice case, that we get a lot of asylum attorneys
• 1:30:21
  Speaker 2: reaching out to us asking for our firm's help, and
• 1:30:26
  Speaker 2: we don't do asylum law. So I have to, you know,
• 1:30:28
  Speaker 2: politely and sort of tragically tell them that we can't
• 1:30:30
  Speaker 2: help them. And you know, we're just working on this case,
• 1:30:33
  Speaker 2: and we know, we know the Fourth Amendment, and we
• 1:30:35
  Speaker 2: know some of the regulatory issues that we're raising. But yeah,
• 1:30:38
  Speaker 2: asylum law, just like a lot of immigration law, is
• 1:30:40
  Speaker 2: very specialized and very fast moving and very intense. And
• 1:30:46
  Speaker 2: I feel I feel a lot of heart for those
• 1:30:48
  Speaker 2: people who are just kind of struggling and drinking through
• 1:30:50
  Speaker 2: a fire hose to you know, I work in the
• 1:30:52
  Speaker 2: nonprofit space. There's just a lot of folks who there's
• 1:30:55
  Speaker 2: thousands of people more than they can help every day
• 1:30:57
  Speaker 2: who reach out to that. It's just it's tough to see.
• 1:31:02
  Speaker 1: Do you think the Eighth Amendment should have more teeth?
• 1:31:09
  Speaker 2: I think yeah, I mean if I mean, I know
• 1:31:11
  Speaker 2: more about the excessive fines clause in other parts of
• 1:31:14
  Speaker 2: the Eighth Amendment because that's what our firm has litigated.
• 1:31:17
  Speaker 2: You know, we litigated Tims versus Indiana, which incorporate the
• 1:31:20
  Speaker 2: Supreme Court incorporated the excessive fines clause against the states,
• 1:31:24
  Speaker 2: so it formally now applies to all the states, which
• 1:31:26
  Speaker 2: is amazing. So I mean, I think should it have
• 1:31:29
  Speaker 2: more teeth? Yeah, I think there's a lot of room
• 1:31:33
  Speaker 2: for improvement on it. I mean, I think one of
• 1:31:36
  Speaker 2: the things that we are trying to do with ij
• 1:31:37
  Speaker 2: with the excessive fines clause specifically, is to get courts
• 1:31:40
  Speaker 2: to recognize more things as fines, more government actions as fines,
• 1:31:46
  Speaker 2: as punitive and therefore as as a kind of fine,
• 1:31:50
  Speaker 2: and to kind of, you know, get the courts to
• 1:31:53
  Speaker 2: pay more attention to people's culpability when assessing whether a
• 1:31:57
  Speaker 2: fine is excessive. So, for example, the civil forfeiture context,
• 1:32:01
  Speaker 2: if the government you know, seizes an asset of yours
• 1:32:05
  Speaker 2: without ever charging you with or proving that you've been
• 1:32:08
  Speaker 2: committing a crime, and just takes the property right, we
• 1:32:13
  Speaker 2: would say that's a fine. You're being penalized, which is
• 1:32:16
  Speaker 2: a kind of fine in real property terms, for some
• 1:32:21
  Speaker 2: kind of conduct the government thinks is wrong. And we
• 1:32:24
  Speaker 2: think that if someone's innocent of a crime, then the
• 1:32:27
  Speaker 2: fine is per se excessive, right, like penalizing somebody for nothing,
• 1:32:32
  Speaker 2: It is like definitionally. So like, those are the kinds
• 1:32:34
  Speaker 2: of things where I think courts can do a lot
• 1:32:36
  Speaker 2: better on excessive fines. There's just a lot of things
• 1:32:39
  Speaker 2: that you know, we could do to kind of expand
• 1:32:41
  Speaker 2: the reach of a lot of these parts of the
• 1:32:42
  Speaker 2: Bill of Rights to more and more things and get
• 1:32:45
  Speaker 2: more government conduct and more government exercises of power under
• 1:32:49
  Speaker 2: judicial scrutiny.
• 1:32:50
  Speaker 1: Yep, let's see Eric Stoic from before he says, thanks
• 1:32:55
  Speaker 1: for the advice. I work for the Kentucky SG as
• 1:33:00
  Speaker 1: an objectivist. I never thought i'd work for the government.
• 1:33:03
  Speaker 1: But it's a ton of fun. Yeah. I Mean.
• 1:33:05
  Speaker 2: The thing that's fun about being in a Solicitor General's office,
• 1:33:08
  Speaker 2: I would think, is just that you get to work
• 1:33:11
  Speaker 2: on appellate cases, and you get to appear before the
• 1:33:14
  Speaker 2: highest court in your state or the appellate courts in
• 1:33:16
  Speaker 2: your state, and to develop like a real relationship with
• 1:33:19
  Speaker 2: the justices, and they'll start to know you and know
• 1:33:21
  Speaker 2: your face, and they'll see briefs written by you and
• 1:33:24
  Speaker 2: they'll say, oh, that's this guy, you know, and we
• 1:33:26
  Speaker 2: respect his work, and you build a reputation with the
• 1:33:29
  Speaker 2: court and you try to cultivate that, and that's really important,
• 1:33:33
  Speaker 2: I guess. Also, you know, one of the things that
• 1:33:36
  Speaker 2: I think is fun about being in these offices is
• 1:33:38
  Speaker 2: that they I don't know a ton about Kentucky's SG office,
• 1:33:41
  Speaker 2: but a lot of them really do take the quality
• 1:33:44
  Speaker 2: of their work very seriously. Like when you're in sg's
• 1:33:47
  Speaker 2: office they want their briefs to be very readable, they
• 1:33:51
  Speaker 2: want them to be persuasive. They're not lazy, you know,
• 1:33:53
  Speaker 2: they're just high quality. Advocacy is all over the place
• 1:33:57
  Speaker 2: in these sg's offices. So you're in good spot for
• 1:34:00
  Speaker 2: that and for growing as an attorney. And like I,
• 1:34:03
  Speaker 2: you know, I have nothing but really great things to
• 1:34:05
  Speaker 2: say about my opposing counsel in the in the Singleton case,
• 1:34:08
  Speaker 2: in the North Carolina sg's office. I mean, they're just
• 1:34:10
  Speaker 2: wonderful people. They're great advocates. They make me better, and
• 1:34:14
  Speaker 2: so I think, yeah.
• 1:34:15
  Speaker 1: Yeah, what's the most entertaining Scalia decision? I'm fond of
• 1:34:22
  Speaker 1: pg pg A two of versus Martin.
• 1:34:28
  Speaker 2: Oh Man.
• 1:34:28
  Speaker 1: I don't know. I don't know.
• 1:34:32
  Speaker 2: I don't know that I think of his decisions for
• 1:34:34
  Speaker 2: their entertainment value. So I'm not coming up with like
• 1:34:37
  Speaker 2: an answer for I mean, the one that I like
• 1:34:39
  Speaker 2: the most is it's probably I have a really mixed
• 1:34:45
  Speaker 2: perspective on this case, but I think the Jones decision
• 1:34:48
  Speaker 2: about GPS tracking is a Fourth Amendment case. But for
• 1:34:52
  Speaker 2: those who don't know it, for a long time, as
• 1:34:55
  Speaker 2: I was saying earlier, the court was sort of really
• 1:34:58
  Speaker 2: struggling to figure out what to searches under the Fourth Amendment,
• 1:35:01
  Speaker 2: and sometimes it was about is there a listed piece
• 1:35:05
  Speaker 2: of property involved? Other times it was about privacy. And
• 1:35:08
  Speaker 2: for about seventy five eighty nine years, the privacy perspective
• 1:35:11
  Speaker 2: really dominated, and it was just so squishy, you know.
• 1:35:14
  Speaker 2: It was did the government invade a privacy expectation of
• 1:35:18
  Speaker 2: yours that society would call reasonable? It's just a test.
• 1:35:20
  Speaker 2: That's like a mouthful to say. Courts were all over
• 1:35:23
  Speaker 2: the place and how they applied it. And in this case,
• 1:35:26
  Speaker 2: the government put a GPS tracker onto a car and
• 1:35:29
  Speaker 2: use the tracker to kind of follow it around without
• 1:35:30
  Speaker 2: a warrant. And the question in the case was was
• 1:35:33
  Speaker 2: the placement of the GPS tracker a search? And five
• 1:35:37
  Speaker 2: justices wrote in the case, not the majority, but five
• 1:35:39
  Speaker 2: separately wrote to say it is a search because it
• 1:35:42
  Speaker 2: invades the reasonable expectation of privacy. And Scalia wrote for
• 1:35:45
  Speaker 2: the majority, and he wrote, well, we don't have to
• 1:35:48
  Speaker 2: get there, we don't have to talk about the squishy
• 1:35:49
  Speaker 2: privacy being. Because they physically trespassed on a car to
• 1:35:55
  Speaker 2: learn stuff about where it was, like, that's just definitionally
• 1:35:58
  Speaker 2: a search, ye, And so he did the thing that
• 1:36:00
  Speaker 2: I like, which is try to simplify and clarify the
• 1:36:04
  Speaker 2: law a little bit and say, look, we're playing all
• 1:36:06
  Speaker 2: these mind games about like what's do I have a
• 1:36:08
  Speaker 2: privacy expectation that like your own would think is a
• 1:36:10
  Speaker 2: reasonable privacy expectation? And can I call it reasonable? And
• 1:36:13
  Speaker 2: let's just let's just strip it down a little bit
• 1:36:16
  Speaker 2: and say the government is investigating you by physically trespassing
• 1:36:19
  Speaker 2: on your property. That's certain, and it was good. It
• 1:36:22
  Speaker 2: was a great decision. Has some flaws, but you know,
• 1:36:26
  Speaker 2: nothing's You're never gonna get everything you want.
• 1:36:31
  Speaker 1: Steven says, thanks for taking all my questions. Thank you
• 1:36:34
  Speaker 1: Steven for asking them. And finally, let's see this will
• 1:36:38
  Speaker 1: be the last question. Mark says, should the number of
• 1:36:41
  Speaker 1: seats in the Supreme Court be increased?
• 1:36:46
  Speaker 2: I don't think so. I mean, I could come up
• 1:36:50
  Speaker 2: with a few reasons off hand. I'm I'm sure there's
• 1:36:52
  Speaker 2: like a more principled but I could put this, but one,
• 1:36:55
  Speaker 2: I just think it's working fine. I think there's so
• 1:36:59
  Speaker 2: much potential or manipulation by political actors in that process.
• 1:37:04
  Speaker 2: So I'm really I'm really wary of allowing the other
• 1:37:06
  Speaker 2: branches to tinker with the current structure of the Supreme
• 1:37:09
  Speaker 2: Court or going down that avenue right now, because I
• 1:37:12
  Speaker 2: worry about kind of slippery slopes and what kind of
• 1:37:15
  Speaker 2: precedent does that set. Again, I think the Court is
• 1:37:19
  Speaker 2: functioning well. I also think that you know, right now,
• 1:37:22
  Speaker 2: just if just as a kind of esthetic matter or
• 1:37:24
  Speaker 2: as a listener of the arguments, then they're very long.
• 1:37:28
  Speaker 2: I think they're getting a little bit unruly. They go
• 1:37:31
  Speaker 2: far over time now. I think the Chief Justice actually
• 1:37:34
  Speaker 2: recently said he's going to try to rein that in
• 1:37:36
  Speaker 2: so we'll see. But I think just adding more justices,
• 1:37:38
  Speaker 2: would you know it, just it would get out of control.
• 1:37:41
  Speaker 2: So I think we're in a good place right now.
• 1:37:44
  Speaker 2: I don't personally enjoy being before courts with nine. So
• 1:37:48
  Speaker 2: I mean like, I've been in front of five, and
• 1:37:50
  Speaker 2: I've been in front of seven, and that's like perfectly
• 1:37:52
  Speaker 2: fine with me. So I don't want anymore.
• 1:37:59
  Speaker 1: This has been great. Thank you, Josh. For those of
• 1:38:03
  Speaker 1: you who are coming to okon, Josh, you'll be at ocon.
• 1:38:06
  Speaker 1: Are you giving you a talk on.
• 1:38:07
  Speaker 2: It's on non objective law enforcement?
• 1:38:11
  Speaker 1: Oh excellent, Right, you're gonna talk about the Ice case.
• 1:38:15
  Speaker 2: Yeah, I'll be using sort of examples throughout American history,
• 1:38:18
  Speaker 2: from the founding to the Ice case that I'm working
• 1:38:21
  Speaker 2: on in recent ice stuff to just talk about sort
• 1:38:23
  Speaker 2: of how passing non objective laws on the legislative side
• 1:38:28
  Speaker 2: of things creates a kind of cycle of non objective
• 1:38:32
  Speaker 2: law enforcement and kind of the relationship between those things.
• 1:38:35
  Speaker 1: Excellent, good well, thank you, good luck, and again congratulations
• 1:38:41
  Speaker 1: and all the great work you've done, and look forward
• 1:38:44
  Speaker 1: to seeing you in your own lanes.
• 1:38:46
  Speaker 2: Yep, thanks a bunch.
• 1:38:47
  Speaker 1: Thanks such