Alcoholic Originalism

[00:00:20] [Dan Epps] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

[00:00:25] [Will Baude] And I'm Will Baude. Welcome back, Dan.

[00:00:27] [Dan] So back from vacation, both of us, and I'm back for about a week and a half, which coincides with the final week or so of the Supreme Court term. It means that we will be able to get you some episodes about the biggest cases, assuming they're decided by the end of next week. Then we'll take a little hiatus again and then maybe come back and do some cleanup later in July and August, assuming, Will, that you're around. How's that sound?

[00:00:56] [Will] I'll be around. Sounds great. You think we're gonna get all the opinions out, or we're gonna have another like Callais situation where a major case gets held over?

[00:01:04] [Dan] I think everything's coming out. I think it's gonna be a normal term and, you know, we'll see. Maybe I'm wrong about that, but that's my prediction. So we have to be brisk and efficient today. I've got something at lunch.

[00:01:22] [Dan] We have a lot of things we could potentially talk about. We're finally in the part of the term where the court really starts giving us a lot of work product. I wish they'd given us a couple more of these cases maybe a week or two ago, we could space out our coverage today. There's probably five or six cases I'm interested in talking about today, but we're gonna only be able to do two. Yep.

[00:01:48] [Dan] And maybe we'll come back and, you know, do a little bit more on those later in the week. Although, you know, it's Wednesday that we're recording, you know, tomorrow's Thursday, the court is gonna release more opinions and things might get overtaken. So do you wanna just kind of quickly tell people what's been decided that we're not gonna talk about today?

[00:02:08] [Will] So we're not gonna talk about the Rooker-Feldman decision from last week, T.M. v. University of Maryland Medical System Corporation, a five-four. We're not gonna talk about.

[00:02:19] [Dan] That was a very interesting five-four. Right? Sotomayor, Thomas, Alito, Kavanaugh, Jackson, the majority.

[00:02:27] [Will] Indeed. And a great dissent with Justice Barrett, but we're not gonna talk about it. Don't get me started, Dan. A very interesting alien tort statute case from yesterday, Tuesday, Cisco Systems v. Doe, majority of Justice Barrett. Just compensation decision by Justice Alito, Pung v. Isabella County, several others.

[00:02:45] [Dan] Oh, you're just glossing right over Hunter v. United States.

[00:02:48] [Will] I was thinking about that one.

[00:02:49] [Dan] Yeah. Really interesting case about plea bargaining with a very, very interesting concurrence by Justice Gorsuch. Mhmm. So we will see if we can get to those. I'm very optimistic or at least hopeful that we can get to some of those later in the week, so we will have to see.

[00:03:03] [Dan] Yeah. One, you know, a couple shadow dockety things, there was a per curiam summary reversal in a case called McCarthy v. Hernandez, which has gotten some attention less because of the legal issues, but more because it relates to a very high profile murder that happened nearly forty years ago. This is the murder of six year old Etan Patz and the defendant in this case Pedro Hernandez has been tried and convicted for this crime multiple times. The Second Circuit had overturned the latest conviction under federal habeas and the Supreme Court came in and reversed that. No big legal issue, just kind of a your classic kind of fact bound error correction, summary reversal, having read the court's per curiam opinion, you know, I found it as a legal matter somewhat persuasive, and I might have more to say about that at a later time, but not today.

[00:04:03] [Will] Two more brief things. One, we recently got our first judicial citation to the podcast. I don't know if you saw this.

[00:04:10] [Dan] Is this from Judge Walker on the DC Circuit?

[00:04:12] [Will] Judge Walker, the DC Circuit. In Venezuela US SRL v. Bolivarian Republic of Venezuela. It's a dissenting opinion in which he says, you know, if the answer is no, no, a thousand times no to his various hypotheticals, you know, then what follows? And then he cites for that proposition, Learning Resources v. Trump, footnote six. See also Betty Boop, Shakespeare, and, as a first submission, the two episodes where we dive into the origins of the phrase.

[00:04:39] [Will] So I'm very grateful. The decision was issued on June 12, my birthday. So Wow. Thank you, Judge Walker. Hard to imagine a better birthday present you could have gotten us.

[00:04:49] [Dan] Are we sure that's the first one? I haven't gone and looked.

[00:04:53] [Will] I just searched.

[00:04:54] [Dan] Okay. Didn't find anything.

[00:04:55] [Will] I found twenty-three citations in law review articles to various episodes of the podcast.

[00:05:00] [Dan] Mhmm.

[00:05:01] [Will] I searched for Divided Argument, which of course produces too many false positives. And so I searched for Divided Argument in the same sentence as Baude or Epps, which ought to get any citations to our podcast.

[00:05:13] [Dan] Hope so. Okay. Well, I might take a deeper dive on that later, but no time.

[00:05:19] [Will] Okay. And last thing, I read the book Free Fire by CJ Box. We talked about the last episode.

[00:05:25] [Dan] I can't believe you did that.

[00:05:26] [Will] I did. I got on vacation.

[00:05:28] [Dan] I believe you. No, I'm saying, I mean, I believe you. I just can't believe you in the sense that why would you do that?

[00:05:34] [Will] So two things briefly. One, disappointingly, while the Free Fire Zone really does not occupy that much of the plot, I mean, that is where the murder takes place and, like, there's a it comes up a couple times, but it's I was hoping for that was gonna be more central to the book than it was. But to the author's credit, he actually does also deal with several of the loopholes, like so you can't prosecute a crime that takes place in the park, but any inchoate crime that might have been a conspiracy, you know, on your way to the free fire zone, you might be able to prosecute. You can still do misdemeanors. So the one of the main characters because those don't require jury trial.

[00:06:06] [Will] So one of them are petty offenses, I guess. So the person is actually held for a short period of time on, like, a weapons violation. And he notes that there would still be civil suits that could be quite ruinous. And so then the possibility of wrongful death suits by the people who are murdered in the free fire zone also does come up. Again, none of those are especially central to plot, which are a little disappointing, but it's pretty good.

[00:06:28] [Dan] Okay. I think there's many things to read in the world, and I have limited time, so

[00:06:35] [Will] I think we should get CJ Box on the show.

[00:06:38] [Dan] Anything's possible. Alright. So Okay. Anything you wanna talk about before we get to substance as we sometimes do? Sometimes get to substance.

[00:06:51] [Will] Let's dive in.

[00:06:52] [Dan] Okay. Seven minutes into our recording session. We're getting to substance. Yeah. So for people that complain about the chitchat, you know, we are getting there more quickly.

[00:07:04] [Dan] Okay. So two cases we are gonna talk about. United States v. Hemani, which is a Second Amendment case, and Landor v. Louisiana Department of Corrections and Public Safety, which is a case about religious liberty and the spending clause. Which one do you wanna do first?

[00:07:25] [Will] Both by Justice Gorsuch.

[00:07:26] [Dan] Yeah. Both by Justice Gorsuch, for better or for worse.

[00:07:30] [Will] Why don't we start with Landor?

[00:07:32] [Dan] Okay. And, you know, maybe this one is the higher profile one. They're both pretty high profile. They're both I would describe these as in terms of profile, like a tier, but not s tier. Does that seem about right?

[00:07:47] [Will] I think descriptively, yes. Well, I do think Landor might be even more important than it seems.

[00:07:52] [Dan] Yeah. For the bigger legal issues and what it says about Congress's power going forward. Yeah. That seems right.

[00:08:01] [Will] Yeah.

[00:08:02] [Dan] Okay. Well, and I think we noted last episode that this one had been outstanding for a very long time. Yeah. This took the court seven months.

[00:08:13] [Will] Alright. So let's first do the just the basic facts. Yep. Okay. The main character, the petitioner, Damon Landor, is a Rastafarian prisoner whose dreadlocks were forcibly shaved off in prison, who arrived in prison, you know, worried this might happen, with a copy of Ware v. LDOC, specifically addressing the Louisiana Department of Corrections' grooming policies and specifically saying that they couldn't cut Rastafarians' hair, but they threw his opinion in the trash and then, you know, forced to shave his head anyway.

[00:08:47] [Dan] He and he had, you know, been growing his hair for basically his entire adult life.

[00:08:54] [Will] Yes. And he sued, and the Fifth Circuit held, and the Supreme Court agreed that he cannot sue the prison officials who wronged him under the Religious Land Use and Institutionalized Persons Act, even assuming that the statute lets him, that it's not constitutional for the statute to let him. So we said in the last episode, this had been out for a very long time. I floated a theory that that's because somebody on the court wanted to reconsider Boerne v. Flores, which would provide an alternate justification for RLUIPA that wouldn't require you get into the spending clause, which desperately needs to be reconsidered. I am completely I was completely wrong.

[00:09:34] [Will] Somebody, Derek Muller, pointed out to us before the opinion came out that, you know, if the court was gonna reconsider Boerne, Callais would be written differently. So that was a fair point. But I was hoping for at least a peep from somebody, and there was no peep.

[00:09:47] [Dan] Yep. So I don't think any particular interesting explanation of why it took so long other than that this is just a controversial one and maybe there was Justice Jackson spent a long time on her dissent.

[00:10:02] [Will] Right.

[00:10:02] [Dan] But I don't think there's no like, okay, this case, you know, switched result or reasoning. I don't there's nothing from the opinion that would suggest that that was likely.

[00:10:12] [Will] Right. I think Jackson dissent backlog I mean, the majority opinion is twenty-two pages, and the Jackson dissent is fifty-one minus twenty-two pages. And especially if there are a lot of other long Jackson dissents still to come and other major decisions, you can imagine that we're just kinda jammed up. Yep.

[00:10:32] [Dan] Okay. So this one, pretty big and let's walk people through the legal issues. Now we've talked about this one not at great length before, but we may have explained the legal issues in the case at an earlier point, but we should probably do so again.

[00:10:52] [Will] Okay. Where to start? The First Amendment of the constitution guarantees religious liberty. In a case called Smith, the Supreme Court held that actually does not guarantee very much religious liberty, that it doesn't apply to so called neutral laws of general applicability. In the nineteen nineties during the Clinton administration, Congress was sufficiently upset by this.

[00:11:16] [Will] They enacted a statute called RFRA that tried to overrule Smith and return the previous status quo in which violations of religious liberty received strict scrutiny. In Boerne v. Flores, the Supreme Court held that this was unconstitutional as applied to the states because Congress has power to enforce the Fourteenth Amendment, and thus the First Amendment does not allow it to pick a different rule of decision than the Supreme Court would pick. But after that, Congress passed another statute, RLUIPA, the pronunciation actually is an interesting question we can get into, that then re-restored RFRA, thus re-restoring the status quo of strict scrutiny for violations of religious liberty for people facing zoning disputes and prisoners.

[00:11:59] [Dan] Have you dug into the history of that statute at all?

[00:12:03] [Will] A long time ago. I

[00:12:04] [Dan] I'm just curious why it ended up being those two areas. Because I would imagine those are not the only two areas where religious liberty comes up and also not the only two areas where there might be a sufficient nexus to Congress's spending power, which is the basis of the statute to enable Congress to regulate in some way. It just seems and it seemed the two things seem like kinda unrelated to me. So I would love to know a little bit more about the drafting history as to how Yeah. Congress settled on that. Especially because people in prison are not normally the most politically powerful constituency in Congress.

[00:12:40] [Will] I don't remember that. Well, I obviously land use was the fact pattern of Boerne itself. Boerne was a zoning dispute about a church. And my memory is that both those were areas where there was sort of quite a long record of documented indifference by bureaucrats Mhmm. to various religious claims.

[00:13:02] [Will] And so you could kind of and that's different than the kind of broader proposition of many other, you know, vaccines, schools, drugs, etcetera, etcetera. My memory is also the fact that in some broad strokes, land use, like zoning freedom as a conservative cause and prisoners' rights as liberal cause was relevant. Like Yeah. RFRA was so popular that it passed the house by voice vote. Like, there wasn't even a, you know, recorded vote.

[00:13:29] [Will] Yeah. And but no. I don't know enough about that.

[00:13:33] [Dan] Okay. So that statute is okay, right, as a general matter? Like, it's not like, you know, we think Congress has power to do some kind of restoration of religious liberty rules for this category.

[00:13:50] [Will] I guess so. So let's bracket the land use present for a second. I can't actually remember whether that's a spending clause statute or whether the theory is land use is interstate commerce or something, which we that and that's not where the litigation has been under RLUIPA, at least of the Supreme Court. But Congress has power under its spending powers to impose conditions on states that it can't oppose directly. This goes back to, you know, many cases in the New Deal and more recently South Dakota v. Dole, where the supreme court said it was okay for Congress to say, you can't have federal highway money unless you don't let people under the age of twenty-one drink.

[00:14:32] [Will] So in as a general matter for Congress to say, in order to get money that you wanna use on, you know, prisons and various ways in which we provide federal funding to state prison systems, you've got to agree to, you know, respect their religious exercise. That's just as okay as saying, you know, you've got to agree to let not let them drink or whatever else.

[00:14:54] [Dan] As a matter of state law.

[00:14:56] [Will] You've got to well, yes. So this is where it gets more interesting. So like, how does the structure of those requirements work? Right? In South Dakota v. Dole, what Congress said and the Supreme Court said was okay is, you, as a matter of state law, must ban drinking by people under the age of twenty-one in exchange for getting the federal money.

[00:15:16] [Will] And indeed, Congress couldn't do that directly among other things because of the commandeering doctrine. Congress can't make states an act of state law, but they can say, you know, if you do an act of state law, here's some money. In RLUIPA, the statute seems to do something a little different, which is to create a direct federal remedy. Right? So to say, if somebody violates your imposes a burden on your religious exercise, you can assert a violation of RLUIPA and seek appropriate relief.

[00:15:45] [Dan] And so it doesn't say specifically money damages?

[00:15:49] [Will] I don't think it says so in quite so many words. Although RFRA, the federal version, which still applies to the federal government, has been held to allow money damages. The court has a case about that from a couple years ago that says, sure, of course, asserting a violation of RLUIPA and seeking appropriate relief could include money damages. Part of what the statute says explicitly is its goal is to restore the status quo ante Smith, which involved suits for money damages. We would then have to fight for a qualified immunity.

[00:16:18] [Will] Although this is the rare case where even Justice Alito presumably would not find qualified immunity because there was a Fifth Circuit opinion on point that they threw in the trash. So it doesn't say that in quite so many words, you could have tried to decide whether appropriate relief includes money damages, but the court instead decides to resolve this by looking at the constitutional power at issue.

[00:16:43] [Dan] Okay. So it's gonna skip over statutory interpretation and directly decide a constitutional question. That's often not the way we do things, right? Where, you know, if there's a constitutional issue, a lot of times the court would engage in avoidance, right? Let's interpret a statute in a way that avoids that question.

[00:17:03] [Will] It is. Now the majority says in footnote one, the dissent accuses us of giving short shrift to the principle of constitutional avoidance. But one, this is a prudential rule, not a mechanical one. Two, the constitutional question here is readily resolved by our precedents. Boy.

[00:17:24] [Dan] That's not correct.

[00:17:26] [Will] Three, it is narrower than the statutory question in an important respect. It does not require us to address whether RLUIPA ever authorizes money damages.

[00:17:34] [Dan] I don't that didn't make a ton of sense to me.

[00:17:41] [Will] Well, that last point I think is technically true, but misleading. Yeah. It's broader in a different respect, which is this impacts the power of Congress's spending, you know, on a huge number of statutes.

[00:17:57] [Dan] Yes. Okay. Okay. Yes. So that sets up where the court is gonna go with this.

[00:18:03] [Will] Right. I will say, I don't think there is any plausible basis for considering the statute not to extend the damages given that the court had correctly interpreted that the identical language in RFRA extended to money damages. The only reason to do so would be this constitutional concern lurking in the background.

[00:18:19] [Dan] Couldn't you say appropriate means, you know, in this context means, you know, it's appropriate unless it raises a constitutional concern?

[00:18:28] [Will] Well I

[00:18:28] [Dan] mean, that's pretty vague language.

[00:18:30] [Will] Well, but this is it's only appropriate to the extent you believe in the constitutional concern described in the opinion.

[00:18:37] [Dan] Well, can believe in the concerns without actually saying a hundred percent that the concerns are valid. Right?

[00:18:41] [Will] Well, okay. So this is where there are two different constitutional avoidance doctrines, a good one and a bad one. The good one is if you have two grounds of resolving the case, maybe you should use the nonconstitutional ground rather than the constitutional ground, just as a you should avoid sort of having to resolve the question at all. The different one is when you are resolving it, you should also put a thumb in the scale in the kind of like anti constitutional in the direction that avoids the constitutional vibes without deciding whether the constitutional vibes are actually serious enough to make this action unconstitutional.

[00:19:16] [Dan] Mhmm.

[00:19:17] [Will] That's like what gives us the major questions doctrine. And that second one, I think, is often source of great mischief because it lets you combine crappy statute interpretation and crappy constitutional analysis into a holding where you don't quite have to put your weight on either one. And so that's what they would have had to do here. Now the court does that, you know, other places, but it's not bad they didn't do it here.

[00:19:41] [Dan] Okay. So do you wanna walk through the majority's reasoning? So the majority is going to say, I think, statute allows this and that is unconstitutional. Right.

[00:19:54] [Will] Right? It says, we are willing to assume the statute allows it. They claim not to resolve what the statute allows. But so assume that appropriate relief includes suits for money damages, an assumption that is correct, but the majority does not firmly take a position on. The statute is unconstitutional to the extent it allows suits against individual officials in their individual capacity.

[00:20:18] [Will] Why? Because the nature of spending clause legislation. Spending clause legislation, unlike Congress's other enumerated powers, is not a freestanding regulatory power. It's the power to offer money, which the states can accept or reject, and it's the power to attach strings so that if the states accept it, it comes with various strings. But it's in that sense, ultimately, contractual power, a power based on consent.

[00:20:45] [Will] And that's something that's been in the court's cases before. Right? They say spending claw like spending laws conditions have to be explicitly in the statute. They have to be voluntary and knowing. In NFIB v. Sebelius, the court struck down some of the strings attached to the Medicaid expansion on the grounds that they violated the court's views of proper consent and contracting and so on.

[00:21:07] [Will] But those general principles now extend to something very, you know, a very important implication. The court draws out from that is that the person who doesn't receive federal funds can't be held liable because, you know, you and I can't agree to impose obligations on, I don't know, pick your third person or Orin Kerr.

[00:21:33] [Dan] Yeah. I like he's the name that first came to you. Good friend of the show. Yeah. I mean, that's pretty broad and it's obviously not a hundred percent true because the court acknowledges from this case, Sabri, more than twenty years ago that said it is okay for Congress to criminalize theft, fraud, bribery against a federal funding recipient.

[00:22:02] [Dan] Right? And so there you have a law that is passed pursuant to the spending clause and then it is gonna ultimately end up imposing criminal liability on third parties who didn't agree to that spending condition. Right?

[00:22:15] [Will] Yes. So that's where this gets to this is a I think a really huge case. Right? So in Sabri, the court said that, yeah, you can criminalize the theft of bribery of federal money, federal spending money. So there you are imposing obligations of third parties.

[00:22:30] [Will] You don't steal money. Yeah. And the court says, one thing that I think is correct, which is well, technically, Sabri would be a necessary and proper clause case, not a spending clause case. It's not that the spending itself, but that necessary and proper to spending money in the states is stopping other people from purloining the money or misusing the money.

[00:22:48] [Dan] Which makes sense, which seems right to me.

[00:22:49] [Will] That makes sense. But then, why is RLUIPA not valid under the necessary and proper clause? Right? And the court has to hold not just that it's invalid under the spending clause, but that under the necessary and proper clause, Congress can't say, we want to spend money on prisons and we want to make sure that money is not used to violate people's conscience. Apparently, they can't do that.

[00:23:15] [Dan] Yeah. Which I find unpersuasive and wrong. I mean, my view is if Congress can pass this legislation and get funding recipients to agree to this scheme, it is fine to then as necessary and proper to that to have remedies, right? And those remedies could run against other people in the same way that criminal liability runs against third parties in Sabri. And I mean, can we I don't know if you have a plan to before we get there, but can we talk about Justice Gorsuch's, you know, parade of horribles?

[00:23:57] [Will] Yeah. Let's just do one more minute on Sabri first. Yeah. Okay. I think what the majority would say though is that, you know, the necessary proper clause always, you know, always has to have limits.

[00:24:05] [Will] And that it's one thing to say, you can't fritter away and graft the spend money itself. But that's different from imposing remedies on people who, you know, subvert the conditions that you're hoping would come about with the money. So, like, in Dole, you can say, you know, don't steal the highway money. That would be, you know and you can say you have to make the drinking age twenty-one or less. But you can't also impose federal dram shop liability on anybody who sells booze to people under the age of twenty-one, thus subverting the twenty-one old rule.

[00:24:38] [Will] But that's now the thing is

[00:24:40] [Dan] Although that's not I mean, that's a much more extreme example. Right?

[00:24:44] [Will] Well, I think this would

[00:24:45] [Dan] be the equivalent would be, can you impose money damages on state highway patrolmen who, you know, patrol the federally funded highway or something like that.

[00:24:59] [Will] Sure. So two wrinkles are right. One is this ready to draw the line. Like, once we establish there is some sort of inside and outside the program limitation, how do we figure it out? Ironically, this was Justice O'Connor's dissent in Dole.

[00:25:12] [Will] Like, she wanted to say her objection to Dole in the first place was Congress can impose limitations on how the money is spent, but that's different from Yeah. requiring various sort of concessions, you know, in exchange for the money Yeah. which always seemed quite logical to me. Although it's hard to do it. It's hard to draw that line coherently.

[00:25:32] [Will] And the other difference is that the officials here are agents of the person who received the money. So you might say, yeah. It's one thing to impose, you know, responsibilities on Orin Kerr who is not an agent of either you or me and is, you know, his own man. But if we said that, you know, you and I are going to agree that my son has various obligations, you know, then maybe we still can't do that, and I'm sure he would resist. But it's not as intuitively obvious that I can't that you and I couldn't agree to that.

[00:26:00] [Dan] Yeah.

[00:26:01] [Will] Okay. So what's the parade of horribles?

[00:26:04] [Dan] This is on page thirteen of the opinion. Mhmm. It says notice two where mister Landor's theory would lead. And, you know, the point of this paragraph is basically to show that, you know, Congress has spent all this money in all these different ways and if, you know, this theory advanced by the religious liberty claimant were correct, it could impose all these regulations on third parties. Take some examples.

[00:26:35] [Dan] On mister Landor's theory, Congress could require coaches at universities that receive federal funds to permit transgender athletes to play women's sports or face personal liability in suits for damages. Likewise, Congress could bar doctors at medical practices that accept federal funds from administering certain vaccines to children, again on pain of damages. And he goes on to say none of that fits with our system of limited and enumerated federal powers where all others are reserved to the states and the people. Okay. I mean, first of all, like neither of those seemed particularly problematic to me.

[00:27:11] [Dan] And honestly, of those I mean, if you told me that such laws existed, I would have believed you. Maybe they don't.

[00:27:18] [Will] I think they do. So the first one, the transgender example, there's an en banc Second Circuit case from just a couple of years ago. I think it's called Soule, where the Second Circuit splits over this very question, like how to

[00:27:32] [Dan] Over the damages question?

[00:27:34] [Will] I think well, yeah. It's partly such an interpretation question, but whether or not you can sue individual people, I think coaches under Title IX for and I can't remember which side they're on, but they're either rightly or wrongly, you know, putting the wrong people in sports teams in light of the Pennhurst principle and this sort of concern about third party liability. I think there was even a cert petition in this case. So, you know, it's a live issue. I think that parade of horribles was inserted on purpose to ensure that the opinion would resolve these other spending clause issues.

[00:28:13] [Will] Is that crazy? No.

[00:28:15] [Dan] It strikes me as kind of irresponsible. And but I mean, it strikes me as both rhetorically unpersuasive and somewhat, you know, inappropriate.

[00:28:28] [Will] You mean because the Supreme Court shouldn't resolve major issues in dicta?

[00:28:32] [Dan] Yeah. Especially without being totally clear that that is what it's intending to do. Right? I mean, as written, this is just supposed to be like, these would be such absurd results that they necessarily show that this theory must be wrong. I don't know.

[00:28:46] [Dan] I mean, you're telling me that medical practice receives federal funds, Congress can't, you know, like provide a remedy for people that violate those conditions, against people that violate those conditions? I don't know.

[00:28:59] [Will] I mean, that is what they tell you.

[00:29:01] [Dan] Yeah. I mean, that doesn't seem at all intuitive to me.

[00:29:05] [Will] Well, I mean, I do think look. I do think that is the logical conclusion, the logical implication of Landor. So if you think that the spending power is a very different kind of power that doesn't, you know, that's a consent based power that doesn't oppose third party liability. And if you think the necessary and proper clause has to be limited or Sabri was wrong or whatever, then I think these examples follow. It is unusual, I think, for the court to lean into that in quite the way you described here, and the dissent criticizes the majority for trotting out this parade of horribles.

[00:29:37] [Will] Maybe because the dissent also thinks the majority is inserting this on purpose just to make sure the decision makes a bunch of law that they wanna make. But I have a slightly more mixed feelings. I guess, I do think it's very bad when the Supreme Court accidentally messes up some area of law in dicta. Like, they just like assert some propositions that seem obviously true to them by the law works, not realizing that lower courts have done it differently and that they're, you know, a bad law on accident. And I think it's actually one of the first and most important duties of Supreme Court law clerks to make sure that the justices don't accidentally mess up some area of law.

[00:30:09] [Will] But when the justices, like, mess up an area of law on purpose, you know, they know that there are these cases out there. They think they're wrong and inconsistent with the court's approach, and they're trying to lay out the new approach here. That's kind of their prerogative. Right?

[00:30:24] [Dan] I guess. I mean, it still seems like you might want a little bit more in the way of briefing on those questions or maybe a lengthier explanation about the specific facts of a case like that.

[00:30:38] [Will] Yeah. I mean, the thing

[00:30:39] [Dan] that it cites is, you know, the oral argument transcript. Yes. So in the case.

[00:30:47] [Will] But it's hard to imagine what the further briefing would be on, like why those cases would be any different on the court's theory. Now I agree, might want more of a defense. Like rather than a parade of horribles, maybe this should be the dissent's parade of horribles. Maybe the dissent should say, boy, if the majority is right, then look at all these things the congress can't do. And then the majority should have to explain Yeah.

[00:31:09] [Will] Why it doesn't think Congress can do them.

[00:31:11] [Dan] And these come from a kind of lengthy question that Justice Gorsuch asked at the oral argument of the petitioner of the religious liberty claimants. Counsel, friend of the show, Zach Tripp, he says, suppose a federal statute said something like this, if a coach at a federal funds receiving university allows biological men on a women's sports team, a female trying to make the team could sue for a million dollars. Again, like offering this as if it's, you know, so obviously terrible. Like, what if the law said any recipients of, you know, someone who works at any university that's a recipient of federal funds shall face personal liability if they like religious if they racially discriminate. Right?

[00:31:53] [Will] Yeah. Right.

[00:31:54] [Dan] Is that that bad? I don't know.

[00:31:57] [Will] Well

[00:32:00] [Dan] And there's a notice concern, right, Justice Gorsuch as well. This is bad because of notice. I don't know. First of all, I guess you could deal with that by qualified immunity. Right?

[00:32:12] [Dan] Right. But second, I mean, you know, in civil liability, there's not a kind of freestanding notice principle in general. There's all sorts of ways that we do things that might generate civil liability for us that we don't know about. You know, I have no idea whether Title IX imposes, creates a cause of action for money damages against you and me. I guess it must not.

[00:32:38] [Will] Not anymore.

[00:32:39] [Dan] Yeah. If it ever did, it must not. But it also seems like if you had asked me, I might have said, well, maybe, you know.

[00:32:46] [Will] Right. Well, you So is part of the underlying problem that there is no spending clause in the constitution?

[00:32:54] [Dan] I mean, I certainly think that that vibe concern is at the heart of what the court's doing here. Right? Explain that to people. Explain that objection.

[00:33:03] [Will] Well, and not just the vibe concern. So and the court even says this. So the constitution contains in article one, a list of regulatory powers like regulating bankruptcies and regulating commerce and coining money and punishing piracy. And then it contains a clause that says that Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense in general for the United States. And so one question is, does that last clause provide for the common defense and general welfare of the United States?

[00:33:35] [Will] Is that a freestanding power rather than just like a description of what you're supposed to do when you're taxing? And if it is a power, what is it? And there was a debate about the founding, and the court even cites a very interesting article by former Georgetown Dean, Bill Treanor, about how Gouverneur Morris maybe

[00:33:52] [Dan] Gouverneur.

[00:33:54] [Will] Gouverneur Morris.

[00:33:55] [Dan] That's what I'm told. Okay. I've had a debate with my colleague here, Conor Clarke, about, you know, whether it is knowable how people pronounce their names who are long dead. But my understanding is that the historical consensus or near consensus is that he pronounced his name Governir.

[00:34:13] [Will] Okay. Gouverneur Morris, when he was in the committee of style, maybe tried to replace the comma in that sentence with a semicolon to ensure that it was a freestanding power.

[00:34:24] [Dan] So this would be after the word excises, power to lay and collect taxes, duties, imposts, excises, semicolon, to pay the debts and provide for the common defense and general welfare of the United States. So without the semicolon, the pay part is modifying the stuff about taxes. Right? That's why you're collecting the taxes.

[00:34:44] [Will] Right. I mean, as it stands, we do interpret it as a so anyway, so then they bring it back to a comma, making it less clear that's a freestanding power. Now still under current precedent, the court does have a freestanding power. Congress is allowed to Yeah. raise and spend money in support of the general welfare.

[00:34:59] [Will] It's just not a, like, separate regulatory power.

[00:35:03] [Dan] Yeah. But, I mean, I'm not sure that the difference is that consequential. Right? Even if they're related, I mean, Congress, whenever it spends money, is ultimately spending money that comes from somewhere. Right?

[00:35:15] [Will] Yes. But here's the question. So if it's not a separate clause, the Madison argument was, then all spending money has to be in furtherance of the enumerated powers. If spending money isn't a freestanding power, then what's the underlying power? So you could spend money to aid commerce.

[00:35:33] [Will] You could spend money to aid the army.

[00:35:35] [Dan] I see. That doesn't necessarily strike me as turning on the semicolon or comma. Right?

[00:35:42] [Will] I don't know that it necessarily like, think it's a spectrum of how great and independent is this power, and the semicolon move it a little bit down the spectrum. But I think, yeah, I think it's actually analytically separate from the question we have here. Yeah. It could be at one stage or the other. But once you think Congress can spend money on things outside of the enumerated powers, then all these questions arise.

[00:36:05] [Will] If you want the Madisonian view that spending money is just a means of implementing the enumerated powers, then you don't need to ask, well, you know, is this because you just say, well, why is congress why does congress have a power to regulate free exercise in a Louisiana prison at all? And maybe they don't. In which case, you know, the spending itself might be invalid. Once you start on this path, then you end up needing to come up with some way to stop the spending power from eating all the other enumerated powers. Now this way is very dramatic and hard to square with, but it's a way.

[00:36:42] [Will] Okay. Can I ask one more question at this point? Yep. Is this the most important federalism case since NFIB? It could be.

[00:36:52] [Dan] Okay. Could be. I think we'll have to wait and see. But the thing that I don't know, not having studied the question, is exactly how many laws, federal laws, does this lay waste to? How many federal regulatory schemes does this significantly impair?

[00:37:12] [Dan] This one, you know, everybody agrees that there was some obligation to not shave the guy's head, right? And yet without some kind of remedy, that doesn't mean a ton. Maybe, you know, if it's a local jail, he could sue the local jail directly. But if it's a state institution, there's a sovereign immunity issue.

[00:37:39] [Will] Right. Well, I think you could now yeah. Congress could now pass legislation that says to get federal prison money, you have to either impose liability on those officials yourself under RLUIPA analogues.

[00:37:54] [Dan] As a matter of state law or as a matter of contract. Right?

[00:37:57] [Will] Right. Yeah. Or as a I think the court also says if the individuals themselves consent to be sued, that would also work. So you could kinda have, like, every say just every prison's officials have to all sign RLUIPA waivers Yeah. as a condition of working there.

[00:38:13] [Will] And, you know, now it gets a little bit hacked together. Right? Like, could say, you can't we won't give the prison funds unless everybody there signs a RLUIPA waiver, and then you're still signing a RLUIPA waiver. But then if an official didn't sign their RLUIPA waiver in the prison and like the federal government didn't notice in their audit, then maybe you still couldn't sue them. I'm not sure.

[00:38:33] [Will] It's a little like, you know, all the various like boxes you have to check to consent to things. If you didn't check the box, they really matter. But Yeah.

[00:38:41] [Dan] Okay. So we should talk about the other case. One last thought. Why grant this case? Was this the only case they could have granted to decide this issue?

[00:38:49] [Dan] Because it's the kind of case that my instinct was once you grant this case, the facts are just so horrible, it puts the court in a tough position. Yeah. It's one of those cases where the hard part is getting it granted. Once you win, you know, the facts are just gonna kinda dictate the outcome. Does the court really wanna say it's okay to literally throw the law into the trash.

[00:39:11] [Dan] And apparently it is.

[00:39:12] [Will] They're not saying it's okay. They're just saying you'll be sued for it.

[00:39:15] [Dan] Well, they're saying it's functionally okay. Right? If there's no remedy, you know.

[00:39:19] [Will] You get an injunction.

[00:39:21] [Dan] I'm not sure. Right? I'm not sure that you can get an injunction because there would be, you know, ripeness problems. Right?

[00:39:26] [Will] Yeah. Standing problems.

[00:39:28] [Dan] I mean, first of all, you don't always know. The person doesn't always know they're gonna go to jail or prison, and certainly not they're not gonna necessarily know in time to go seek appropriate relief. I mean, the prison officials here did not take the time to figure out their obligations. They basically were like, oh, do you have anything from the sentencing judge? Nope.

[00:39:47] [Dan] Okay. Hold them down.

[00:39:49] [Will] Right. I think if I like my odds of a class action requiring that they post a copy of the opinion on the wall in the room where they

[00:39:58] [Dan] But that wouldn't have done anything. The guy had the opinion.

[00:40:00] [Will] No. Well, they I think they don't they throw it away in one room and then

[00:40:04] [Dan] But even if it's on the wall, like, I mean, they were told that this is the law. Yeah. Fifth Circuit opinion, why would having it posted make any difference? Especially if they're told, you know, nothing bad can happen to you if you do this. Maybe the state if the state cares about it, maybe you can get in disciplinary trouble.

[00:40:22] [Dan] If the state doesn't care about it, then no.

[00:40:24] [Will] Yeah. Yeah. So I don't know. I'd be very interested to find out, is this a case where they granted it on egregious facts and then dug in and realized the law actually Yeah. was different?

[00:40:35] [Will] Or is the case where actually, all along, they were like, oh, yeah. This is an important spending issue, which I think had been held open by Sossamon v. Texas and Tanzin v. Tanvir, the two other cases about remedies against states under RLUIPA and against officials under RFRA. I'd be very interested to know.

[00:40:53] [Dan] Yeah. It doesn't it

[00:40:54] [Will] actually make the but if it's the case that they granted it on sympathetic facts and then realized that the law or something else, does that actually make them look good? Isn't that proof that they are following the law rather than just being reflexive believers in religious liberty claims no matter what?

[00:41:09] [Dan] Maybe. But nonetheless, it's still just, you know, I wish that we didn't have a case like this, you know. Yeah. I wish that if this was where it's gonna go, the court had just let it go.

[00:41:21] [Will] Yeah. Well, I mean, I wish it hadn't happened and we shouldn't have Boerne.

[00:41:24] [Dan] Yeah. I mean, so if the court overturned Smith, you know, the person could at least sue a local it could sue an individual official or a municipality directly under 1983. Right?

[00:41:38] [Will] Correct.

[00:41:39] [Dan] Okay. And so maybe, you know, maybe the court gets there, the court is very close to that, and then that provides the solution with Yeah. this situation, but not necessarily other ones.

[00:41:53] [Will] Yeah. Okay. United States v. Hemani.

[00:41:58] [Dan] Okay. So this one we previewed at some length Mhmm. some number of months ago. So I don't remember which episode that was, but if you're interested in it, would encourage you to go back and listen to that episode.

[00:42:13] [Will] I would not because I think you will discover again that we kind of misdirected this one. Did we? Well, alright.

[00:42:21] [Dan] I'm gonna I guess I'm gonna check now.

[00:42:23] [Will] It's just me.

[00:42:25] [Dan] So you thought the government was gonna win here?

[00:42:27] [Will] I think I did.

[00:42:29] [Dan] Okay. I try to not make predictions that we're gonna lose on.

[00:42:36] [Will] Yes. You avoid saying falsifiable things and you thus Yeah. avoid embarrassing yourself.

[00:42:42] [Dan] Okay. So, yeah, I'm looking back at our transcript. You did say you said, I predict the SG's office runs the table, predict the Second Amendment claim it's a win in Hawaii, they lose in Hemani, so you were very clear. I said I agree with respect to the Second Amendment issue, so I was wrong about that, but then I suggested that they might find a way out on statutory interpretation. Yeah.

[00:43:02] [Dan] Okay. And not what they did here. Okay. I mean, it does strike By the way, it does strike me as the statute here is like extremely vague. And so friend of the show, Joel Johnson, had been pushing a vagueness solution to the case or, you know, statutory juror petition in light of vagueness.

[00:43:20] [Dan] The court doesn't do that.

[00:43:22] [Will] Right. Okay. So 922(g)(3) is a federal gun control law that forbids the possession of a gun by somebody who is an unlawful user of or addicted to a controlled substance. And Hemani was prosecuted for being an unlawful user of a controlled substance while possessing a gun.

[00:43:45] [Dan] Yeah.

[00:43:46] [Will] And the court says that's unconstitutional.

[00:43:49] [Dan] Yeah. And the statute doesn't say what it means to be an unlawful user.

[00:43:53] [Will] Right? Or addicted to. Right.

[00:43:55] [Dan] Yeah. Or addicted to would addicted to is not an issue here.

[00:43:59] [Will] Right.

[00:44:00] [Dan] But unlawful I mean, like, if you did it last month, if you did it last year

[00:44:05] [Will] Right. If you did it once Yeah. if you did it once and might do it again at some point in the future, but the court doesn't care. So the I mean, the thing is kind of simple. I mean, there's a lot to say about it if we had time, but it's kind of simple in that we already have Bruen and now then Rahimi saying that to decide whether a restriction on the right to keep and bear arms is constitutional, you should ask whether or not it falls in some kind of historical exception or is analogous to some kind of historical exception to the right to keep and bear arms.

[00:44:39] [Will] And in Rahimi, the court said, yes, that stopping people who are under domestic violence restraining orders is constitutional. And now they say, no, that stopping people who use marijuana in some fashion is not. The most interesting thing is that there were these historical laws about habitual drunkards Yeah. which, you know, you might think is like a pretty good analogy to a regular drug user, that they reflect the obvious concern about the mix of intoxicants that stop you from behaving responsibly, and firearms let you do very bad things when you're irresponsible. And the court says not at a good enough mix.

[00:45:23] [Will] I guess because habitual drunkards, it turns out, were not just people who drank a lot.

[00:45:31] [Dan] They drank a whole lot.

[00:45:34] [Will] Right. Well, they drank a lot.

[00:45:35] [Dan] They were basically addicted. They were basic I mean, they were alcoholics. Right? I don't think they had that word at the time.

[00:45:41] [Will] Right. And, you know, Justice Gorsuch, again, this is sort of rehearsing a bit he did argument, like, goes through the massive amounts of alcohol of the founding fathers who are presumptively responsible and arms bearing people drank. And being a habitual drunkard must be a lot more than that.

[00:45:59] [Dan] Right? Which is a lot. Right? A lot of alcohol. Madison consumed a pint of whiskey daily.

[00:46:06] [Dan] Although, apparently, there's a historical dispute about whether he was more into wine. Uh-huh. George Washington drank three glasses of Madeira. That's not nearly as much. Jefferson, three or four glasses of wine at dinner.

[00:46:19] [Dan] That's kind of, you know, getting close to a full bottle. There was a party for General Washington at a tavern, fifty-five guests, fifty-four bottles of Madeira, sixty bottles of wine, eight bottles of old stock, I don't know what that is, twenty-two bottles of porter, eight bottles of cider, twelve bottles of beer, and seven large bowls of punch.

[00:46:39] [Will] Big party.

[00:46:40] [Dan] Well, fifty-five person party.

[00:46:42] [Will] Yeah. So we would call this alcoholic originalism. Like, to understand the constitution's treatment of alcohol and intoxicants, we have to index off of how much the founding fathers drank?

[00:46:53] [Dan] I mean, sort of. I mean, this case does illustrate for me a little bit of the indeterminacy of the Bruen method. Right? Because, you know, in Rahimi, you know, they looked at other laws. They looked at these like surety laws, which was, you know, did you have to like, you know, put up a bond if you were a spousal abuser at the time?

[00:47:17] [Dan] I mean, it doesn't strike me as an algorithmic process. I think and it strikes me as a process that is somewhat value laden and I do think that part of what's going on here is the justices reflexive intuition that this law is way too broad, right? This would encompass a lot of conduct that maybe it's technically unlawful, but that is engaged in by many many many many Americans and would, you know, render many many people federal felons if taken seriously. I think that has to be doing a lot of the work, whereas in Rahimi, the specific defendant in Rahimi was like a really bad guy and the conduct was not really the kind of conduct that the court cares about, you know, creating a danger of criminalizing kind of everyday Americans.

[00:48:18] [Will] No. I basically agree. I mean, I think this is why it's actually good that the court has now taken a couple of these cases. Like, now you've got Rahimi and Hemani as opposite points of the balance. Now, obviously, there's more to do, but I do think there is a certain amount of balancing in this methodology.

[00:48:34] [Dan] Yeah. Which is a methodology that was designed to be different than what the lower courts had been doing, which was balancing. Right? Interest balancing.

[00:48:41] [Will] Well, so this is the question. So Bruen claims that interest balancing is bad, and we gotta stop doing interest balancing. It might be that what was really bad was just the interest balancing the lower courts were doing in which the guns lost too much. And a new round of interest balancing, the balance is like, you know, more balanced balancing. Yeah.

[00:49:00] [Will] That is okay. And that seems to be where the court is working towards landing.

[00:49:05] [Dan] Yeah. But it's balancing through this weird lens. It's kind of hidden balancing. Right?

[00:49:12] [Will] Yeah. Well, so that so

[00:49:13] [Dan] it purports to be just about, you know, how close is it to this old thing.

[00:49:18] [Will] Right. Well, I think that's I'm not sure that's hidden. I think the idea is the Second Amendment itself strikes some kind of balance, and then we have to implement that balance. And, obviously, since the Second Amendment's balance is quite vague and the analogs are not mechanical in implementing the balance that we are itself ourselves balancing, but we are balancing as agents of a principle of the right to keep and bear arms. Like, you gotta balance like you believe in guns.

[00:49:43] [Will] You can't balance by saying, well, we now know guns are terrible. I wish the second one wasn't there, and I will balance it away.

[00:49:51] [Dan] Yeah. But again, it's not framed as a balancing test. It's framed as an analogies test.

[00:49:57] [Will] I agree.

[00:49:57] [Dan] And to the extent that those concerns are doing the work, I would rather them just say this is a balancing test, you know, maybe it's, you know, super strong intermediate plus scrutiny or something like that. I mean, I just think that was in part, you know, my this is an issue you've thought a lot about. This is a hard set of questions, a hard methodology for lower courts to execute, especially district courts. Right? District courts get tons of cases all the time and they don't have time or really the resources to go like pull out James Gabler's treatise, Passions: The Wines and Travels of Thomas Jefferson.

[00:50:37] [Dan] Right? It's just not feasible. It's not feasible as a lower court methodology.

[00:50:41] [Will] I'm not sure that's true. I mean, it's harder as a lower court methodology, but I read a bunch of these lower court cases and litigation when Judith Miller and I were teaching our seminar on litigating originalism. And, you know, part of what happens is the courts don't have pull them out. Like, you have a party presentation principle and burdens of proof in the lower courts, and the SG's office has a big library. So if the government wants to support a federal gun control law, they should go find the books that they got the strongest case.

[00:51:12] [Will] I mean, it's chaotic, and I do think we're gonna need more some good decisions to sort of, like, decide where the lines are. So in that sense, it's not like the lower courts are gonna

[00:51:25] [Will] skip this forever. The felon possession statute is the big question.

[00:51:25] [Dan] And by the way, it's not just the SG's office. Right? I mean, it's local district attorney's offices.

[00:51:31] [Will] Sure.

[00:51:31] [Dan] Although I mean, this applies to states.

[00:51:33] [Will] Yeah. It applies to states. Although a lot of these, you know I mean, yes. It applies to states too. So it's the state all of the local district attorneys could call the attorney general or whoever, and the SG can share it.

[00:51:44] [Dan] Maybe. I mean, maybe if they're maybe they'll I don't if they're gonna devote resources to it.

[00:51:48] [Will] Well, they can call. Now they answer.

[00:51:50] [Dan] I mean, these are like two-hundred-plus-year-old fifty-state surveys. I mean, they're often looking at, you know, laws from the colonial era. I mean, this is not easy.

[00:51:59] [Will] No. I'm not saying it's easy. And I also agree with you. It's not algorithmic. But I guess I do think this is something where and the idea is it kind of works itself out a little bit over time.

[00:52:10] [Will] And this is part of the working out. But, obviously, the hard question the court seems to be at pains to avoid is what about the felon possession statute? Yeah. Which Or

[00:52:20] [Dan] even other parts of this statute. Right? What about addicts?

[00:52:23] [Will] Yeah. Addicts I mean, addicts are obviously not okay, I think.

[00:52:27] [Dan] Because they seem more like habitual drunkards.

[00:52:30] [Will] Well oh, no. Sorry about the other way. That being addicted is not itself the actus reus problem. That being addicted, you could be addicted without using.

[00:52:41] [Dan] Okay. I mean, I guess it maybe depends on how that's interpreted. Right. I think if you were an active addicted user, I think that's probably okay. I mean, the court specifically reserves the question about addicts.

[00:52:55] [Will] I agree. Yes. It might be that we have to construe addicts not to apply to clean addicts, like, the people who have a property of being addicted, but are no longer using. Yeah. I think the Fifth Circuit has been striking down as applied felon possession statutes to a bunch of different felonies.

[00:53:09] [Dan] For like nonviolent, you know?

[00:53:11] [Will] Yeah. Yeah. And the SG has been petitioning for cert. I think another one is just denied. So the, you know Yeah.

[00:53:19] [Will] That there's still like a big thing to work out. Yeah. And I guess I don't mean to praise this opinion too much. I'm withholding judgment either way until we see what the court can figure out to say about that. Yeah.

[00:53:30] [Will] Because if they can't figure out what to say about that, then it suggests their methodology is fundamentally ill equipped to the question that it has to answer.

[00:53:36] [Dan] Yeah. Again, it seems strikes me as, you know, when they actually get the issue, there is gonna be some of this values intensive balancing. Yeah. By the way, the SG's office also lost in Landor. I don't know if we mentioned that, but they came in as amicus in that case in support of the plaintiff.

[00:53:57] [Dan] Interesting. So two government, federal government losses in this case.

[00:54:03] [Will] Yeah. And they've been having all their cert petitions denied in all these cases.

[00:54:06] [Dan] Yeah. That's interesting.

[00:54:07] [Will] Yeah. So also interesting before we go is just that this is unanimous.

[00:54:12] [Dan] Ish. Yeah.

[00:54:13] [Will] Ish, but

[00:54:14] [Dan] On the result.

[00:54:16] [Will] There are nine votes to say the statute's unconstitutional.

[00:54:20] [Dan] Yeah. It is not a unanimous opinion.

[00:54:23] [Will] Because Alito and Kagan concur only in the judgment.

[00:54:26] [Dan] We have an interesting concurrence by Justice Thomas who flags, you know, an issue that really strikes me as one that, you know, might have been helpful for the court to address a long time ago. Right? In the wake of United States v. Lopez, which struck down the federal law banning possession of a firearm in a school zone, the solution Congress came up with was to add a jurisdictional hook element, basically like, okay, this only applies to firearms that had previously traveled in interstate commerce. Yep. Right?

[00:54:58] [Dan] And that never struck me as the most satisfying solution, right? It at least rests on a very, very broad understanding of Congress's commerce power to say they can, you know, criminalize possession of some object that had, you know, been involved in interstate commerce at some point even if the sale, you know, is not addressing a sale across state lines. But the court had never come in and, you know, in the wake of Lopez and said, oh, but let's resolve that and make sure that that's okay. Yep. And maybe they will at some point.

[00:55:31] [Dan] Justice Thomas, you know, makes the case that it's an issue that the court should resolve. But then we have a couple other opinions. We have Justice Jackson joined by Justice Sotomayor who says, look, this correctly applies Bruen and Rahimi, but I think Bruen was wrongly reasoned, and I think it's good that she said that, right, to avoid the criticism that, oh gosh, you don't like Bruen, but now you like it when it protects, you know, marijuana users who presumably as a liberal you like. So I that struck me as appropriate to say, you know, look, you know, if we're gonna do this, I'll follow it where it leads, but, you know, I don't think it's a good test. Right.

[00:56:17] [Dan] Okay. Don't get there's no join on that by Kagan, you know, who's now the big defender of stare decisis.

[00:56:25] [Will] Uh-huh.

[00:56:26] [Dan] You know, would she agree to overrule it, you know, if there were five votes to do so? I suspect yes, but who knows. Instead she joins, and this is an unusual combo, joins just Justice Alito concurring in the judgment and I take it the point of this concurrence is to say as applied to this guy, he's not enough like the habitual drunkards, but not necessarily making a more categorical judgment about the statute.

[00:56:53] [Will] And maybe as applied to marijuana. Yeah. There's this part where they talk about how, you know, we now apparently have de facto legalized marijuana in this country Yeah. despite that not actually being the law.

[00:57:05] [Dan] Yeah. And I tweeted out just this one sentence. Alito says, marijuana use today is like alcohol use at the founding. I provided no commentary on that. I literally just tweeted that sentence out, and it went super viral, got hundreds of retweets that really struck a nerve with people.

[00:57:22] [Will] I mean, I don't think that's true.

[00:57:25] [Dan] I don't think it's true. Yeah. Don't think it's true.

[00:57:27] [Will] I mean, do you think it's true that all of our, you know, presidents are smoking marijuana in quantities comparable, like regularly in quantities comparable to the quantities that Washington and Jefferson are drinking?

[00:57:36] [Dan] I don't. I mean, I think literally everybody, I mean, almost literally everybody was drinking lots of alcohol at the time. In part because, you know, clean water was less readily available. This was one way to, I guess, to hydrate yourself, although alcohol is also kind of a diuretic, so I don't totally know how that worked.

[00:57:51] [Will] I thought it was also a calories thing. Like, there was just like a huge amount of crops you couldn't easily move around unless you fermented them.

[00:57:58] [Dan] Yeah. Alcohol is highly caloric. Yeah. So yeah, I don't think that is true to the same degree. I mean, it is true that it is used by many many Americans.

[00:58:10] [Dan] I haven't seen the latest statistics, but you know, probably half of Americans use it regularly.

[00:58:15] [Will] Really?

[00:58:16] [Dan] I don't yeah. I think so.

[00:58:17] [Will] Holy crap.

[00:58:18] [Dan] I mean, I don't know if Chicago is like this, but here, you know, I mean, there are dispensaries like every few blocks, you know, it's kind of shocking to me. I mean, they must all be making huge amounts of money even though they're in this legal gray zone. They, you know, can't take credit card payments. Yeah. Okay.

[00:58:38] [Dan] So it's fifty percent have used it according to the Gemini search and Okay. It's now not

[00:58:44] [Will] fifty percent used regularly.

[00:58:45] [Dan] No. Not fifty percent used regularly. Apparently, it's fifteen to seventeen percent according to Gemini. So half have used it. Fewer than half do use it.

[00:58:54] [Dan] That's and that's not remotely comparable to alcohol at the founding. Yeah. But that was an it was an interesting statement by Justice Alito who, you know, of all the justices on the court, you know, you might think would be least sympathetic to marijuana users. I mean, you know, I think all the justices probably have had to say at some point that they've never used it.

[00:59:15] [Will] They make you say that?

[00:59:17] [Dan] Well, I think that you're asked that question or about your history of drug use on senate confirmation paperwork. I don't know for certain, I haven't gone back and looked and I haven't You know, I was just listening to Justice Thomas's book, you know, he admits to lots of drinking in his youth, he specifically says he didn't use drugs. I don't know whether, you know, the others strikes me as quite plausible that maybe at some point they would have. Although they, you know, a lot of them were kind of straight arrows who, you know, maybe were thinking ahead to their Right.

[00:59:48] [Dan] Government careers at the time. So maybe not. I don't know.

[00:59:50] [Will] And if you saw Douglas Ginsburg's nomination to the Supreme Court was derailed in part over his marijuana usage. So if you were a politically ambitious future lawyer, you might think, not touching that stuff.

[01:00:02] [Dan] Yeah. I mean, if you thought at nineteen or high school, right, if you're, you know, sixteen that, you know, I'm gonna be a Supreme Court Justice, I don't think all of them are like that. I think some of them might have been.

[01:00:13] [Will] Justice Jackson says that in her book, doesn't she? That she planned to be a Supreme Court Justice from a very young age.

[01:00:17] [Dan] I haven't read her book yet.

[01:00:18] [Will] How have you not read her book?

[01:00:19] [Dan] Justice Sotomayor did not. Right? Justice Sotomayor basically says, you know, she at one point she hoped that she could become a judge eventually, that she didn't think of the Supreme Court for, you know Yeah. for a very long time. Justice Thomas, you know, doesn't sound like he, as he describes it, had no ambition to be a judge until, you know, midlife basically.

[01:00:42] [Dan] So I don't know. Yeah. But Justice Alito thinks like, you know, marijuana's, I guess, not such a big deal.

[01:00:52] [Will] Yeah. I agree. It's interesting that it's him who thinks that.

[01:00:55] [Dan] Yeah. Which I imagine he dislikes. Right? I imagine he's someone who my impression is that, you know, he went to Princeton, didn't really like the hippies, was annoyed by all that. But apparently thinks, yeah, everybody's using.

[01:01:09] [Dan] Must be like the founding. Okay. We are out of time. Last thought, if you can say it in thirty seconds.

[01:01:15] [Will] Are you sure you're right about Justice Thomas? Because Claude thinks you're wrong. About what? Whether Justice Thomas admits to using marijuana in his autobiography.

[01:01:24] [Dan] I would I will go back and verify as I certainly got through I'm now at the point where he's just been nominated to the court, you know, there was a point that struck me as pretty clear where he says I used a lot of alcohol, but didn't, you know, didn't use drugs. But I'll go back and check.

[01:01:43] [Will] I trust you over Claude, but if for once you have to confess error rather than me, I'll be relieved.

[01:01:48] [Dan] It happens sometimes. Alright. I think we should close out.

[01:01:52] [Will] Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Deborah Caffaro for your support.

[01:01:59] [Dan] And remember to go to our website dividedargument.com for transcripts, store.dividedargument.com for merchandise, blog.dividedargument.com for commentary from us and our friends in the extended universe. And if there's a long delay between this and our next episode, it will be because we are indulging our new freedom to be unlawful users and still retain our Second Amendment rights and maintain our extremely extensive firearms collections.

[01:02:31] [Will] Not me.