We defy all predictions by releasing a third episode in a week. This time, we talk about the intersection of public accommodations law and the First Amendment in 303 Creative and the Confrontation Clause in Samia v. United States.
We defy all predictions by releasing a third episode in a week. This time, we talk about the intersection of public accommodations law and the First Amendment in 303 Creative and the Confrontation Clause in Samia v. United States.
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, who could have predicted? Three episodes in a week.
Will: I did not predict it, Dan, and I didn't know we were recording today.
Dan: I was like promising them on earlier episodes and you didn't want me to do that because you thought there was no way we could actually pull it off. Yet here we are.
Will: Well, if we pull it off, I want us to get the element of surprise.
Dan: Okay. Well, I think people will be surprised because we've overpromised and underdelivered enough times in the past. I think at this instance, we're at least promising and delivering neither over nor under. Maybe we're overdelivering.
Will: Yeah.
Dan: People will have to tell us.
Will: Our readers are going to say-- listeners. Listeners are going to say, [unintelligible [00:01:03]. It will not be a two-hour episode, I don't think.
Dan: Better not because I got to leave in less than two hours. Unless you stay on the mic talking after I leave, it's going to be hard for us to get to that length.
Will: I never thought of that-- Oh, we should start doing a thing where I stay on and record outtakes.
Dan: Yeah, your center controls the funding for editing, so I couldn't really stop you if you wanted to do that.
Will: Yeah, but you're the one who actually sends it to the editors.
Dan: That's true. That's because I'm the one with technological savvy in this operation.
Will: Indeed.
Dan: Although you were able to get all the equipment and do your recording from Israel. I really thought that wasn't going to work. I wasn't going to say anything, but I thought for sure you would screw up the technology purchase. It worked fine. You did great.
Will: There were some close calls, I'll just say, setting up.
Dan: Did you have some secret assistance I didn't know about?
Will: No, but I didn't have a battery and then I had to figure out how to run it off my computer's power. And then, I originally set up in the laundry room because that was the one place because everybody was asleep where it wasn't going to be disturbed. But then, I did a practice recording and it sounded like I was recording in a barrel going down Niagara Falls.
Dan: Well, I think people would have excused you that given that you were going to great lengths to record. I don't know, what time was it? You were recording in the middle of the night?
Will: Yeah. Last time I screwed up the audio a year ago. We heard about it all summer.
Dan: That was even worse. You were not recording using a correct mic.
Will: This sounded worse.
Dan: Speaking of Israel, the judicial form for which you were at the protest. You did not participate in the protest to my knowledge, that did pass, so the protests failed.
Will: And now, can the Israeli Supreme Court decide whether that's constitutional? Is that how it works?
Dan: I don't know. I mean, in theory, they don't have a written constitution. They have like a basic law, but it's not like it's like statutory law.
Will: Can they just apply the separation of powers or something and say, this is--
Dan: I don't know. I mean, I think it's kind of uncharted territory. That'll be an interesting standoff that we can watch from afar without sufficient expertise to render expert opinions on it, but maybe we can find an expert who can inform us.
Will: Speaking of jurisdiction stripping issues that we'll talk about someday, there is a pending shadow docket issue at the Supreme Court that we're not going to talk about today, but I suspect it's going to happen in the next few weeks, probably this week. Case called Mountain Valley Pipeline v. The Wilderness Society, involving the legality of building this pipeline that Senator Joe Manchin has been moving heaven and earth to make sure it gets built, that has some jurisdiction to certain provisions that the Fourth Circuit might think is unconstitutional, and it's now gone to the court on an emergency basis. That's on the radar.
Dan: I will be eagerly awaiting developments in that case because Alan Trammell and I have our article on jurisdiction stripping that is being edited right now. So maybe, if the court gives us something interesting to work with, we will update our article in light of that.
Will: Yeah, this is good. Among other things, you're a jurisdiction stripping expert.
Dan: Yeah, ish.
Will: Top 10.
Dan: [laughs] No, I'm not going to claim. There's a lot of people that have written about jurisdiction stripping.
Will: Okay.
Dan: But not going to promote myself. [crosstalk]
Will: Top 100.
Dan: Oh, yeah. Easily.
Will: [laughs] Okay. Just making sure we have that.
Dan: I'm not sure there are 100 people who have written about it in the academy, so I feel more comfortable with that.
Will: Yeah. One other quick piece of follow-up to, I guess, what is now two episodes ago when we're talking about fallout from the affirmative action case, Students for Fair Admissions, and I think we were talking about can you sue the schools for damages? A listener pointed out some interesting lower court case law that has created a qualified immunity like standard under Title VI and Title IX because those are Spending Clause statutes. And so, the argument goes that the court's Spending Clause cases like Pennhurst mean you can't be held liable if the law is not clear. There's currently, like an unbonk Second Circuit case about this doctrine comes up in various contexts. So, another interesting fed court's wrinkle that could come out of this someday.
Dan: I did not know anything about that, and I will be excited to learn about it when it gets up to the court.
Will: I wouldn't be surprised. All right, should we talk about some other decisions?
Dan: Yeah, we're slowly marching through our backlog. I don't know how many of the opinions from the end of the term we're going to get through, but a fair number. We've talked through, I don't know, four or five of them so far. And let's add two more to the list today.
One of the last day cases, which are usually the most divisive, most controversial, 303 Creative LLC v. Elenis, which is about-- I'm struggling to figure out exactly how to summarize the case that doesn't prejudge what the case is about because I feel there's a big debate in the case, what the case is about. How would you describe what the case is about without prejudging the thing that's at issue, the activity that's at issue?
Will: I would describe this as a case about the conflict between the free Speech Clause and state and the discrimination law.
Dan: Okay. Yeah, I think that's okay. Or you could say there's no conflict.
Will: Well, you can have a case about it by saying there isn't one or there is one, and if there is one, who wins?
Dan: Okay, fair. Less problematic, but maybe less precise as the other ways we could have framed it. Okay, so 303 Creative--
Will: You want me to do a problematic one?
Dan: No, you say enough problematic stuff as it is. And then the other one, which is Samia v. United States, which is an interesting crim pro case about the Confrontation Clause. So maybe not-- didn't get quite as much attention as some of the other marquee cases, but I think it's one that's controversial, divisive, and interesting.
Will: One of my favorite clauses.
Dan: Really? Do you have a ranking?
Will: Not off top of my head.
Dan: Is that top 10 or just top 100?
Will: Ooh.
Dan: You've probably got a lot of clauses you like, I'm just going to guess.
Will: There are a lot of good clauses. Definitely top 10 in the Bill of Rights.
Dan: Really?
Will: The Confrontation Clause?
Dan: Yeah.
Will: It's a good one.
Dan: Top 10. Okay. Because there's a bunch of clauses in the 14th Amendment. So, you mean like in the original Bill of Rights?
Will: Of the original eight Amendments, which have then probably 40 clauses or something, put in the top 10.
Dan: It's 75th percentile, at least.
Will: I used to follow the Confrontation Clause very obsessively and I still follow the Confrontation Clause Blog by Richard Friedman.
Dan: Oh, yeah.
Will: Which doesn't update often but is just like A+ content whenever it updates.
Dan: The caseload, the court has maybe slowed down a little bit.
Will: Thank goodness.
Dan: But okay, which one first?
Will: Let's do the Confrontation Clause first.
Dan: Okay. Go small and then go big. Okay. How do we ease people into this one? Because I feel like this is a case where it's really a lot about case law that's come before.
Will: Sort of, yeah.
Dan: Well, I mean, to understand the rule that is at stake, you have to both understand the Confrontation Clause, but also understand the sort of what's called the Bruton rule, which is a rule, arguably prophylactic rule that sort of goes beyond the Confrontation Clause.
Will: So, you teach this stuff, and I have the advantage of not fully understanding the case law. So, let me say what I understand the problem to be without the case law, and then you can tell me about the case law works.
Dan: All right.
Will: Two different clauses in the Constitution. One is called the Confrontation Clause of the Sixth Amendment, which says that in all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him. And one is the self-incrimination clause of the Fifth Amendment, which says that nobody can be compelled to bear witness against themselves in a criminal case. When you try two people at the same time, sometimes you get conflicts between these two clauses. Because, as my criminal defense friends would call them, D1, first defendant, may well want to cross-examine D2, especially in the not uncommon situation where, let's say, D2 has confessed.
Dan: Yeah. And just to be clear, this is an issue because D2 has given an out-of-court statement that is going to be introduced as evidence. So, if D2 is testifying-[crosstalk]
Will: On his own in the court.
Dan: No problem.
Will: If D2 shows up in court, voluntarily takes the stand and says something, then that's--[crosstalk]
Dan: D1 can cross-examine.
Will: Right. But if D2 said to the police, "Yeah, D1 and I did it." And then at trial, one very good piece of evidence you can use against D2 is the fact that D2 said, "We did it." But D1 is sitting there with this statement saying, "Hey, we did it," and D1 would really like to cross-examine the person who gave that statement. And if there were anybody else in the world who made like an out-of-court statement like that, D1 would have a very strong argument to the Confrontation Clause. You can't just read this statement saying, "I did it," without giving me a chance to cross-examine that person, but that person is also a criminal defendant, and so they can't be cross-examined because that would be forcing them to justify.
Dan: Yeah, because then D2 has the constitutional right not to testify.
Will: Right. Okay. So, this must happen all the time. I moved on to that many trials. But in these small subsets of criminal cases that go to trial, I assume actually this happens all the time.
Dan: When there's multiple defendants, alleged conspiracy and so forth.
Will: Right. And you may even do this on purpose, I guess. If you have two defendants and one of them is confessed, then the prosecution might think it's a really good idea to prosecute these people together because it'll be good to have the obviously guilty guy in the room while we're trying to convince the jury this other guy's guilty.
Dan: Yeah. And other strategic reasons. Like, you don't want to tip your hand about your prosecutorial strategy by having to go through the trial for one before you go through the trial for the other. Conserve resources. All sorts of reasons why you might want to do that. But yes, the guilt by association and ability to bring in evidence against each is advantageous. Normally, we'd have like the traditional way of just solving this problem, which is very simple and easy.
Will: What's that?
Dan: Which is just say, "Well, we want to bring in the confession by D2 to be used against D2," which is always okay. Like your own statement can be introduced against you and you don't have a right to confront yourself. That's no problem. And so, the solution is to say, "Well, we're just bringing it in as evidence against D2. And yeah, it does say the statement did say D1 did it as well. But we'll just tell the jury this little instruction that says, 'By the way, don't pay any attention to this with respect to D1, only consider this as evidence against D2.'" And that theory--
Will: This is the idea that-- the reason let in stuff the jury is not supposed to hear, we tell them, "Don't pay attention to it."
Dan: We'll tell them, "Yeah, you're using it for this purpose, but not this other purpose." And to the extent that's legitimate and effective, it solves the constitutional problem because that means that D2 is no longer a witness against D1. So, D2 is not a witness against him. D1 then doesn't have any right to confront him.
Will: Okay. D2 is not a witness against him because the jury has been told-
Dan: Yes.
Will: Ignore the--[crosstalk]
Dan: This is only being used against D2 himself, not against the person D1 that was named in the confession.
Will: Okay. I'm not very satisfied with that. Does that really work?
Dan: Tell me why not.
Will: I just don't buy that the jury-- that it would work. You just don't buy that you tell the jury, "By the way, this other person in the courtroom says that D1 is guilty but pay no attention to that."
Dan: Yeah.
Will: That seems--
Dan: I share your concern about that, although I think it raises a lot of hard questions that we should get to in a second. But the law did come up with a solution, or at least a partial solution to this problem, which is the Bruton rule, which is an older case. And it said that in this situation, sharing your intuition that there's just too much risk that the jury is going to put too much weight on it even if they're told not to. Okay. In this 1968 case, Bruton, the court said, "You just can't do this. To protect the Confrontation Clause values, you can't bring in the non-testifying codefendant's inculpatory confession that inculpates D1 without confrontation." You just can't do it. Limiting instruction.
Basically, it's a situation where we're going to say, normally a limiting instruction action to the jury to pay no attention is going to be sufficient to fix all sorts of problems. This is a case where we're just going to say, "No, that's not good enough," and so you just can't do it. And so the solution is, if you're going to try them together, you just can't use the statement or you can do a separate trial and then can use D2's confession against D2. If D1 confessed, you can use D1's confession against D1, but you can't bring in the other defendant's confessions as evidence of guilt against the one who is trying to obtain confrontation. You like that solution?
Will: So, if you confessed and you want to go to trial anyway, you really want to get yourself in trial with somebody else, your co-conspirator.
Dan: Yes. Unless the government can come up with a workaround. And that's sort of what this case is about is, what kinds of workarounds are possible? Or, maybe asked differently, what is the scope of the Bruton rule? Because government and lower courts have basically tried to come up with various ways around this.
And so, one example, most relevant here, there's a case named Gray where they had introduced the non-testifying codefendant's statement, but they had just deleted the names, the name of the defendant of D1 and just sort of said, the confession was, "Me and deleted went and committed the robbery."
Will: But it was still "and deleted." It wasn't just me. It wasn't just I committed the robbery.
Dan: Yes. So, it still would have been apparent to the jury that someone else was named and that whoever it was, that had been redacted. And in that case, the court says, "No, you still can't do that. That's still going to violate Bruton. The jury is going to know what's happening. We don't believe that this is actually going to solve the problem. The jury will be able to put the pieces together. And so, the Bruton rule should still apply to that."
Will: Right. Because you can't say, like, "Me and blank." "Well, why is blank blank?" "It's because we can't tell you who it is." "Well, who's the one person we can't tell you who it is."
Dan: Yeah. And who is the person that we've been told we should not pay any attention, that we should not treat this confession as evidence against? It's D1. So, I think juries are going to figure that out. So, I think that's at least as a pragmatic point, that's not crazy.
Will: It's interesting to me that we have this general assumption in the law that juries are obedient and do what they're told. Like, we tell them, "Don't go google this case when you're at home," or whatever. And we pretend they do that. Here's the legal standard, we pretend they understand that. But in this area, we somehow think, "Ah, well, we just can't take the fiction anymore."
Dan: Yeah, no, that is really, really interesting. It's something that came up a little bit at oral argument and that resurfaces in the opinion a little bit as we'll talk about in a second. But yeah, throughout the law, various examples, there's stuff that goes wrong or stuff that juries aren't going to need to hear for some other reason. And we normally say, "Just give the jury an instruction. We're just going to sort of presume as a matter of law that juries follow their instructions." And you can understand why we do that because if we didn't, we'd have a lot of really tough questions. Like, anytime there's accidentally-- there are situations in trial where maybe a witness says something they're not supposed to say. And then all of a sudden, there's an objection after it's been said and then the jury is told, "Disregard that." And if you were to say, we're just going to assume that juries can't going to ignore all those instructions, you might have to reverse or stop trials way more often than you do.
Will: Maybe.
Dan: So, for practical reasons that seems hard, but for whatever reason, traditionally the balance had been struck differently in this one area.
Will: Yeah.
Dan: Okay, so I think that's the setup.
Will: I'm with you so far.
Dan: Okay. And we have another case, Richardson v. Marsh, where the court had sort of not extended or maybe not gone further on the Bruton rule, that said, "Look, if the statement that's being introduced doesn't directly inculpate the defendant who seeks to avail himself of the Confrontation Clause, it's not going to be a problem."
Will: Well, isn't that true the gray statement too? It's like me and Blank doesn't directly implicate.
Dan: Well, that was sort of what the debate in the case was about and that same question is going to come back in this case, which is where do we draw the line? Clearly, the court has said, not every statement that might sort of in some way could still be used by the jury or the jury, if it ignores this instruction, could still look at and still form some opinion about the guilt of D1, that isn't necessarily barred. And the question is sort of how close are we to one or the other?
And so here, what happened was rather than just-- there was a confession that was made by a non-testifying co-defendant, so you have our petitioner in this case, Adam Samia, and he is tried with a couple of other folks, Stillwell and Hunter. And Stillwell had given a confession to a government agent. And in theory, what the government wanted was for the agent to be able to come in and testify about what Stillwell had said. And so, they couldn't just have the agent sort of say-- and then he said that redacted him committed the crime. Instead, what they did was they had the agent testify using the phrase, "The other person." And so for example, he know in response to a question from the prosecutor on the stand, he said, "Stillwell described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving." So, rather than saying that Stillwell said that Samia pulled the trigger, he said the "other person."
Will: "The other person and I are driving, and the other person pulled the trigger?"
Dan: Yes.
Will: But I don't say blank. And so, they don't know whether the reason I'm saying other person is because it's redacted or because he actually just was vague about who the other person was.
Dan: Yeah, there might be other situations where you actually have like a written statement or something like that, rather than just having a witness testify to the substance of what was said. You can imagine a different situation where you have an actual written statement that has to be modified redacted in some way for being, let's say, read to the jury. That's what happened. And so, the question is, was this a Bruton violation or is this okay?
Will: Is this more like blank or is this more like the one where we just like don't mention the person at all?
Dan: Yeah. And you can inferentially maybe reason that it inculpates D1 but doesn't directly do so. And here, brief opinion by Justice Thomas, joined in large part by all the conservative Justices and then in a dissent by Justice Kagan. Justice Barrett writes a short concurrence that we can talk about in a minute. But you have your beloved 6-3 conservative-liberal, Republican-Democrat split on the court. Short opinion by Justice Thomas that basically describes the problem and sort of basically takes the view that in this instance, the curative instruction, the instruction to the jury is fine, that in general we think that those things work and here, we're not going to say that they don't work.
Will: Okay, but does this mean that the redacted case, the case where you can't say, "Redacted and I did it," in every case, as long as instead of redacted, you say the other guy, someone else, Mr. X?
Dan: I think that's the case. I mean, I guess it would depend on if there's some situation where somehow, it's not possible to do that. And I don't know if that would be the case. But yes, in theory if there's a way to just modify the confession so that it doesn't have a conspicuous deletion but just has a modification that says something that sounds more innocuous, I guess, then it's okay.
Now, I have a question about this though, and this sort of came up, although a little bit not exactly the same problem at oral argument. Justice Gorsuch at oral argument was asking petitioner's counsel, the counsel for the defendant, Kannon Shanmugam, friend of the show, about whether at a certain point, limiting what could be introduced in terms of the statement by D2 would actually infringe on D2's due process rights.
Will: Why would that be?
Dan: Well, because D2, the right to present a defense and maybe D2 wants to be able to point the finger a little bit at another person. And so, to the extent that you weren't allowed to even suggest that there was another person present, that might be problematic. The opinion doesn't really get into this. I'm not sure how strong it is because D2 could always solve the problem by testifying.
Will: Well, but they were right to simultaneously present a defense and not testify. They want their lawyer to say, "Look, it was probably D1." But then, if they haven't been allowed to introduce any statements by D2 observing that D1 was in the car, okay, I see the problem.
Dan: Yeah. Does seem tricky. And you could imagine a hypo where the more you are actually editing, changing, revising D2's confession, that might itself pose a due process problem. You basically are saying that you're using evidence against D2, you're using a statement. But that is actually not the statement D2 made.
Will: I mean, I don't know if it's a due process problem. I do find it weird, uncomfortable. I get why we have to accept the reality that juries don't accept these statements, but then to actually lie to them, not just--[crosstalk]
Dan: What kind of problem would it be? If the government just made up a statement and introduced that against the defendant, what clause do you think--? Clearly, that can't be a--[crosstalk]
Will: [crosstalk] -clause. I mean, that's just wrong and illegal.
Dan: Right, but is it unconstitutional?
Will: I mean, it's perjury.
Dan: But is it unconstitutional?
Will: I guess we would now say it's a due process violation. [crosstalk]
Dan: You're willing to concede that?
Will: No, I said we would say it. I'm not saying I would say it.
Dan: Who's we? You and me?
Will: The law. The court.
Dan: Okay, well--
Will: There are all these cases where the prosecutor gets up and says ridiculous, nasty things at closing argument and those are always a due process violation. I've always thought it was a little weird that those were--
Dan: Should it be anything or should it be great?
Will: I mean, they're both not great and not anything. It could just be against the rules of evidence. You should be sanctioned for it, illegal. We could have statutes about them. I'm just not sure.
Dan: So, you're not a fundamental fairness guy?
Will: I am a fundamentally unfair guy. But the Confrontation Clause, that's a real constitutional clause. There are better solutions to this, Dan. I feel like I've thought of three just sitting here.
Dan: Okay. Is one of them separate trials?
Will: Yes.
Dan: Okay. What else have you got?
Will: Well, what's wrong with that one?
Dan: I mean, I'm fine with it. It's more work for the prosecutor. It's more resources, more work for the judicial system. It does give an advantage as something court flags. It gives an advantage to whoever is lucky enough to go second.
Will: We should say that the guy who confessed has to go first, and the guy who didn't confess goes second, because--[crosstalk]
Dan: But sometimes, they both confessed, and you want to use each of them against the other.
Will: Okay, then maybe we-- okay, that brings me a second one. Maybe we can have the trials at the same time, but separately. There's a couple of ways to do that. You could just have two rooms next to each other, move the witnesses back and forth but neither of them would be able to watch the person's trial because it'll be in their own trial. Or if that's too much work, have one trial with two juries. And then when stuff that D1's jury is not supposed to hear happens, get D1's jury out of the room. And then, when the stuff that D2's jury is not supposed to hear, get them out of the room, and there are parts of the trial they both can watch. Then, you actually avoid the [unintelligible [00:26:49] problem, and it's a little more work because you need twice as many jurors, but only one trial.
Dan: That seems better. I like that one.
Will: Somebody else came up with that one. I don't remember who it was, but--
Dan: I don't know why we can't just do that.
Will: It feels too hokey, is the problem. And the current courtrooms don't have room for two juries.
Dan: That seems like a solvable problem.
Will: I think some of them were modified during COVID. They have a lot more space when people were trying to hold trials during physical distancing. So, you could always find room for a second jury. Third option is-- this is the other--
Dan: I thought we already did three.
Will: Wait. Same trial, separate trial. Okay.
Dan: And then simultaneous trials.
Will: Simultaneous trials was a joke suggestion.
Dan: Oh, really? I took that seriously.
[laughter]
Will: Thank you.
Dan: Okay.
Will: It was a subpart of separate trials.
Dan: Okay.
Will: Can't we just use immunity grants? I've always thought it was weird and this is a hobby horse of my criminal procedure professor, Akhil Amar, that the Confrontation Clause does not give the defendant-- the defendant supposedly has the right to confront witnesses against them and also to compulsory process for obtaining witnesses in their favor where they subpoena people. But the one thing they don't get, that the government gets, is the government, when it wants to put on the stand somebody who has Fifth Amendment rights, the government is allowed to do a workaround where they say, "Well, you have to testify, and we won't use it against you."
Dan: Yeah.
Will: So, couldn't we do that? Couldn't we say the defendant gets to force the D1 gets to force D2 to take the stand, confront them, and just give them immunity.
Dan: In the same trial? I feel like you still need to pair this with any other solutions because it just recreates a different problem. If you say D2 has to testify at his own trial, despite assertion of his privilege to remain silent.
Will: But, yeah, we'll just tell the jury to ignore it.
Dan: Doesn't that just solve one problem by creating another problem of exactly the same magnitude?
Will: Well, I feel like a Confrontation Clause versus a due process-- I feel the Confrontation Clause is more important. We have to--
Dan: More important than the Fifth Amendment privilege?
Will: Yeah.
Dan: Why?
Will: Definitely.
Dan: That's completely arbitrary. Fifth Amendment privilege, it's earlier.
Will: Last in time. The last-in-time controls.
Dan: This is not a rule of constitutional interpretation you have ever believed until this minute. But do you actually believe that? You don't believe that?
Will: I don't believe the last-in-time argument. I think it is sometimes true that the last in time controls, but it's more--[crosstalk]
Dan: They're not in conflict. They're just different.
Will: Yes. If they're in conflict, last-in-time controls, No, it's more like-- I guess right now it seems like there's a conflict, we are limiting the Confrontation Clause rights in the name of the self-incrimination clause.
Dan: Yeah.
Will: So, I would think it was equally legitimate to do it the other way around.
Dan: Well, unless there's no conflict. Which the court thinks in this situation, there's not a conflict because you give the instruction, and therefore that means the other defendant is not a witness, D2 is no longer a witness against D1. Therefore, everything's fine.
Will: No. Similarly, if you gave an immunity instruction to D2's jury and said, "None of this cross-examination is against D2," that would also be fine, because then D2 is not bearing witness against himself.
Dan: But I just don't know why that's better.
Will: Well, whether it's better-- the point is it's no worse. And then, we've got a normative choice of which--
Dan: It might be worse. For example, typically, one of the main reasons defendants don't want to testify is because if they do, their testimony can be impeached using prior convictions, subject to some limits on this.
Will: Not against them, only against others. But again, all this would be not admissible against them.
Dan: I understand, but I'm not persuaded that this somehow decreases the net amount of harm in the courtroom. I think it just shifts it around.
Will: Right. So, here's the thing. In the case where one of the two defendants has a much stronger claim of actual innocence than the other. Now, again, sometimes they've both confessed, sometimes there are events of guilt or innocence that's apart from the confession. But in the case where one of them has a credible confession that is very likely guilty and one of them has a much stronger case that the other one is lying, it seems to me that if there were two equally available rules, it seems like we ought to have the rule that privileges the right of the possibly innocent person to prove their innocence.
Albeit not every case, and that's why I like the Confrontation Clause better. It seems to me that the self-incrimination clause, sometimes it protects the innocent, often it protects the guilty. It's a fine clause, maybe a little outdated, reflects a theology we don't really believe in anymore. It's a standard view, I think. But the Confrontation Clause seems to reflect an ideal of innocence and due process and possible the trial is truth seeking that we still very much do believe in. So, if we were forced to choose, I would choose the Confrontation Clause.
Dan: Okay. Well, the court doesn't buy that there's a choice. The court seems to think we can have all of our constitutional rights. This is interesting because you have this majority opinion that just sort of says, "Look, part of instructions, really just solve the problem." And that is a rationale that basically seems to undermine Bruton itself. And that Justice Kagan sort of says that in her opinion. She sort of says, "Look, this is really like all--" Maybe Bruton itself is next on the chopping block in terms of the conservative majority's drive to overturn precedent. And she's not wrong that the reasoning in this opinion seems equally forceful with respect to Bruton. But it's interesting because in trying to show that these curative instructions are generally seen as okay. The majority makes this sort of like vague gesture at history.
Will: I mean, it's not vague. They cite some stuff.
Dan: Yeah, but in a way that's arbitrary. Justice Barrett writes this separate opinion saying, "Look, we got to be a little bit more careful with how we're using history. And the history that the majority is using seems arbitrary." Because specifically what the court does is it's looking at an early 20th century evidence treatise, and some cases from the late 19th century, in situations where courts and the treatise said, "You can introduce stuff like this and just give a curative instruction, right?
Will: Yeah.
Dan: But none of that was Confrontation Clause case law.
Will: Right. The rules of evidence case law.
Dan: Yeah. And Justice Barrett, I think, fairly sort of says, like, "Why are we picking those out? Those do not bear on the kind of, like, meaning stuff in the late 19th century doesn't really bear on the meaning of a part of the Bill of Rights. If we're looking at those, why aren't we looking at stuff from the 1940s." And she says, "Look, I would just prefer to just say history is indeterminate here. What do you think? Is she right?
Will: I love this opinion.
Dan: Yeah.
Will: I do think it displays a level of care with the citation of historical sources that is unusual for our Supreme Court Justice. Like, maybe it's holding them to a higher standard than they normally can meet because I do think the usual attitude is like, "Oh, yeah, 1881. That's pretty original." That's a long time ago. [laughs] I think both points are good, both the question of these, like, two to four decades after the founding, how relevant are those.
And the second point about the conflation of Confrontation Clause and rules of evidence, I think is very important. Maybe further reaching than she acknowledges because I think, this was when I first got into the Confrontation Clause, I was thinking of writing an article sort of a critique of the Crawford line of cases that it may be engaged in that conflation of the rules of evidence with the Confrontation Clause. That it really might be that if the rules of evidence that tell you who has to be in court and not, like, the hearsay rule. And the Confrontation Clause is more about what do you do with the stuff the people that show up in court.
Dan: Yeah.
Will: Which I think was Wigmore's view once upon a time.
Dan: It was about testifying witnesses?
Will: Yeah. That there are two different rules. One is the hearsay rule, that most testimony has to be offered in person. And the other is the Confrontation Clause rule that testimony is offered in person has to be cross examined. And that it might be that the constitutionalizes the second, but not the first.
Dan: And so would that mean that one of the premise of the recent Confrontation Clause revolution was that the Confrontation Clause exists to stop the stuff that happened in the trial of Sir Walter Raleigh?
Will: Yeah, it would mean that-- [crosstalk] well, the thing is, a lot of different stuff happened in the trial of Sir Walter Raleigh and the premise that all of it was made unconstitutional.
Dan: But it would be the use of out-of-court statements, which he says he's shouting, like, bring my accuser to my face, or whatever it is. That would not be actually--
Will: That would be the idea. Now I'm not sure it's right. It's part of the reason I abandoned it. This was sort of a hypothesis. And as I sort of dig into it, I was just really not sure anymore what the right answer was. But I remain interested, and I like the results of the current doctrine.
Dan: Yeah. It's interesting though, because I think if you're really taking this issue seriously from an originalist perspective, I think, what the case is really about is what does it mean for someone to be a witness against you, right?
Will: I think so.
Dan: Is that really what the case is boiling down to? Is someone a witness against you if they're testifying at your trial, but the jury is told, "Ignore this"?
Will: Yes.
Dan: That's sort of the question because I think we can agree that if we think D2 is actually a witness against D1, it can't come in.
Will: Correct.
Dan: That's a confrontation.
Will: Correct.
Dan: Okay. But then, I feel like neither the majority nor Justice Barrett really ever clearly explain that question, like answer that question. They sort of just say, "Curative instructions are good and fine," but it's far from clear whether that would have been the original understanding of this provision, given that the rules of evidence have gotten a lot more sophisticated since the founding.
Will: Yeah.
Dan: Right. And so, the majority itself doesn't seem to have a lot of great stuff showing that the situation arose a lot in the late 19th century, [crosstalk] 18th century.
Will: I mean, there is this passage of page 6 of the majority opinion that goes by pretty quick where it sort of describes the basic Crawford rule and then says, "Nonetheless, the Confrontation Clause applies only to witnesses, 'against the accused,' Crawford." And then, quotes this Richardson case. "Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness against a defendant if the jury is instructed to consider that testimony only against a codefendant."
Dan: Yeah.
Will: So, I guess that's their--
Dan: Yeah.
Will: It's just incorporating a quote from previous precedent rather than--[crosstalk]
Dan: It's not doing the originalist dive you might expect.
Will: Yeah.
Dan: If you dig back, the Richardson case is a Scalia opinion, so itself has a little bit originalist pedigree. But if you look back at that opinion, it's a very short opinion, and it itself does not do any kind of real originalist work to justify that rule about jury instructions. It just cites a bunch of 20th century case law. So, it seems like we don't really have an originalist justice really doing that work.
Will: Yeah. The original meaning of witnesses against.
Dan: Yeah. And whether it would have been understood, these kind of jury instructions would have been understood. How widely were they used at the time of the founding? I have no idea.
Will: Yeah. It's also interesting, I guess, a lot of these cases are 14th Amendment cases, and we also have to ask about the Privileges Immunities Clause in 1868. This is a federal case. So, yeah, we'd really need to know at the time of the founding, which is even harder to figure out.
Dan: Yeah.
Will: This goes back to when I was saying that doing ridiculously, unjust, fundamentally unfair things might not violate due process. It's the same problem of, what subset of bad, illegal, or should be illegal stuff that happens at trial is also unconstitutional is actually a tricky problem because there's overlapping clauses and how much of it do they govern and how much of it is not good but governed by something else, I find tricky.
Dan: We can't just say everything bad is a due process violation?
Will: Well, I think there's an honorable tradition of that. [laughs]
Dan: You think it's a dishonorable tradition?
Will: Not everything bad is a due process violation. Not everything bad is unconstitutional, but I understand the temptation to say that.
Dan: Okay, where are you in this? You sounded more receptive to petitioner than one might expect, given where the many originalist Justices land on this one.
Will: I guess I'm unsatisfied-- it's not that I find the other side that much more satisfying, but I'm just unsatisfied with the whole frame, I guess. So, I get it, but I don't understand why these are the only options on the table. So, I guess I would be concurring in the judgment. In an appropriate case, we should ask, "If there's a conflict between two constitutional rights, why is it not the merely judicial administration principle of joint trials that has to go?" Because there's no constitutional clause that says, "Oh, hold trials jointly."
Dan: But that's only necessary if you think there's a conflict and the majority thinks there's no conflict.
Will: I think there's no conflict at all.
Dan: That's what it says. If you buy the move that D2 is not a witness against D1, once you have the instruction, then that's the end of the story, right? [crosstalk]
Will: [crosstalk] Let me ask this. In a non-joint trial, would the same stuff be allowed? [chuckles]
Dan: Like introduce it but then say ignore it?
Will: Well, if they say ignore it, yeah. Introduce it--
Dan: It would in the sense that if it was erroneously admitted and then the trial court realized it halfway through and then gave the instruction, that might save the trial.
Will: What if they just said, "We're going to hear a bunch of stories from the DEA witness about some people [chuckles] he apprehended. We're just going to hear them. Don't consider them." Maybe again, it may violate the rules of evidence. It'd be more prejudice and probative, but under the majority's theory, it wouldn't violate the Constitution. If a state said, "Our practice is to let the DEA officer testify about other people's crimes," I don't think even in a state, the court would let that happen.
Dan: Yeah, that's interesting. It's more of like a smell test thing. It's like, "Why would you be doing this but for your desire to violate the Confrontation Clause?"
Will: Sure. Okay.
Dan: But, yeah, formally, they seem to be saying that that's sufficient.
Will: Yeah, it might happen if there are a bunch of-- you can imagine happening where there's a bunch of-- I don't know, there's just-- this is your area, Dan. What do you think?
Dan: I don't know. I think that I'm very receptive to the functional reasoning underlying the Bruton rule. Which is that I do think there's a lot of reason to think with some evidence that's this powerful that just telling the jury, "Don't pay any attention to this." I don't know whether you can really expect them to be able to do that. I think I would find it hard to do that. I would like to just say, "I'm going to pay no attention to this evidence against this person, but I'm going to put a lot of weight on it with respect to this other person who's on trial." That seems hard.
That said, I do think, and this is sort of one thing you were saying, and something that comes up in the opinion, which is that there are a lot of other places where we agree that we indulge the fiction that the jury follows its instructions. And it does seem maybe arbitrary to choose to ignore that here and not elsewhere. But on the other hand, I do also think that part of the reason why the government might seek joint trials is particularly to get this advantage. Even if everyone knows that yes, jury has been given an instruction, that really part of what this is about is being able to get this confession in.
Will: Yeah, I will give the majority. There are lots of reasons I can imagine the prosecutors will want to have joint trials. Less burden on the witnesses, the risk that the defense lawyers will watch the first trial and learn some things.
Dan: But in general, lots of observers say-- one reason they like joint trials is the ability to get other kinds of evidence, evidence that's admissible against one, that still going to inform the jury how the jury thinks about it and the jury will get confused. There's going to be a lot of different evidence coming in, and sure, it's going to be told. This relates to D2 and this relates to D3 and this relates to D1. The overall cumulative effect may make the jury more likely to convict each of the defendants.
Will: Right.
Dan: I guess to the extent that we don't seem to have-- coming at this from an originalist perspective, to the extent that as far as I can tell, we don't have any conclusive evidence one way or the other on how broadly to interpret that witness against component of the Sixth Amendment, I think this might be a situation where we have to do a little bit more balancing or trying to figure out what's going to best protect the values underlying the amendment. If we don't have a clear answer to that question, we at least need to figure out on which side are we going to err. Does that make sense? We're not sure whether this should count. As an originalist matter, if we're not sure whether this should count as testimony against the defendant, should we maybe say, well--
Will: Where do you come down to that, what is the purpose of the Sixth Amendment and what do you think?
Dan: Yeah. Well, I think here the underlying purpose of the Sixth Amendment isn't really-- there's not really a debate about that. We're sort of taking the Sixth Amendment for granted, and the question is just how far does it go? If the point is precisely to, if we'd be super, super, super troubled by bringing in this statement against the defendant in a solo trial, then if we think this is a situation where we're not sure whether it should count, whether this actually formally violates the text of the rule, we just don't have clear answers on that, then maybe we should err on saying, "Yeah, it probably does violate the rule."
Is there anything left of Bruton after this? You still can't admit the directly inculpatory confession and you still can't admit the statement with the conspicuous deletion, but I think most of the time you're going to be able to solve the root of the problem this way, right?
Will: I think so. I mean, again, maybe it does depend on the length and detailed nature of the confession and whether or not you can really solve it with it, just like the other guy.
Dan: And if it's like a videotape or something, that might make it more complicated.
Will: I was trying to figure that out. But a videotape might be admissible-- Yeah.
Dan: I mean, it could be admitted for some other purpose but you'd still have the same problem, which is even if the jury is being told to consider it for a different reason.
Will: Well, a videotape is not a witness, is it? [crosstalk]
Dan: Well, neither is a written statement. It's a statement, it's not a court statement.
Will: All right, so there's a videotape of D1 and D2 committing the crime.
Dan: Oh, yeah. But I mean, a videotape confession by D2 in the police-- That's what I mean. Rather than having an officer, an agent sort of say, "Here's what D2 told me, we actually have D2 on tape." The kind of thing that you would totally want to admit all the time. But normally, you can't admit a recording of a witness against the-- I mean, that's what the core Crawford cases are about, like the 911 calls and stuff.
Will: Do you think we could make the defendant D2 dub it out of court?
Dan: [laughs] That would violate Creative 303, compelled speech.
Will: [laughs] Brilliant segue.
Dan: All right. Are we good on the segue, or is there anything more to say about this? I guess one other thing we didn't really talk about, there was a short, separate dissent by Justice Jackson.
Will: She's done a lot of solo dissents.
Dan: Yeah, she's getting in the mix. It was interesting. We sort of picked up on something that came up at oral argument. And actually, sort of picked up a question, I think, sort of originated with Justice Sotomayor. But basically, all she's trying to do is reframe the issue in the case, which is, she says, "Well, the majority says Bruton is an exception to a default rule that we assume that juries follow their instructions." But she sort of instead is saying, "No, the default rule is the Confrontation Clause. And the question whether this is a statement in general that would violate the Confrontation Clause. And the question is whether under these circumstances, the curative instruction causes an exception to that clause." It's just like a framing choice. I don't know.
Will: Yeah. The majority skips over the first question today. Its analysis assumes there's no Sixth Amendment problem in the first place. That quote from Richardson looked like it's not just assuming, it looks like the cases actually say there's no--
Dan: Yeah. I didn't really buy that this was pointing out like analytic mistake so much as just like a totally a different view of the cathedral. Just a different perspective to see this from.
Will: Yeah. And look, she's essentially saying she is also a Confrontation Clause fundamentalist and just thinks we ought to start from the premise that's a much more important clause, then I'm right there with her.
Dan: Okay, but I thought it was a pretty good Kagan dissent, not super long, but she does have-- I think the most notable thing is her thing to the end that I mentioned about saying, "One might wonder after reading today's decision, whether Bruton is the next precedent on this court's chopping block." So, by saying the "next," I mean, she's sort of alluding to her broader set of critiques she's made about how eager the majority is in terms of overturning precedent.
Will: Mm-hmm. Yeah.
Dan: But she basically says they don't need to do that because we can now basically always get around Bruton.
Will: Right. They need not overrule Bruton because they have reduced it to a formality.
Dan: Yeah, effectively done so. Okay. I think that's enough about that one.
Will: Yeah.
Dan: Let's do a more hot button case.
Will: An easier case.
Dan: Is it?
Will: Yes.
Dan: Okay. I don't think people will like you saying that, but I guess it depends on easy in what direction? Yeah. 303 Creative which, as you said, is a case about the conflict or not between the First Amendment and state public accommodations laws.
Will: Yeah.
Dan: Say more about that.
Will: So there have been a lot of cases about this in the past, including one that the court had and decided on other grounds a few years ago when Justice Kennedy was in the court, Masterpiece Cakeshop. I think one of the first of these cases is from New Mexico called Elane Photography. The florist, the photographer, the calligrapher, the website designer, the cake baker. But they're all variations of the question of a service provider who provides some service and does not wish to provide some service for a same-sex wedding in the face of various state and discrimination laws. Here, we have a-- well, supposedly we have a website designer, Ms. Smith, who will one day design wedding websites, although she does not--[crosstalk]
Dan: [crosstalk] -never done so yet.
Will: We can talk about that. We have the state of Colorado last known to us for its appearance in Masterpiece Cakeshop again. And we have the question of does she have to make websites for same-sex weddings? And even like, what does that mean? An argument, there was a lot of specific questions about-- I think her view and the court's view is, she is happy to make a website for a same-sex couple if it's not about a same sex-wedding. Like the same-sex couple wants to make a website for their dog or a website for their friend's wedding or something, that's fine. And there was even some debated argument about maybe if the website just-- if she continued to put her Christian beliefs on those websites, "I'm against same-sex marriage, here's a same sex wedding," I think she would not do that. But there was some dispute with the state of whether that would violate the statute or not. And there's some dispute throughout the case whether to think of this as somebody who discriminates against gay couples or somebody who makes websites for weddings and has a view about what those websites should say.
Dan: Yeah, I think how you answer that resolves the case. Is that fair? Whether you think this is about a rule that says you have to serve all people equally regardless of the status, or a rule that says you have to say stuff?
Will: Well, the second one, maybe it would or wouldn't be easy. Sorry, the first one. A rule about serving all people regardless of their status. Like, we know federal law says that you can't discriminate on the basis of race in all sorts of public accommodations. And we know that people even argued back in the civil rights era that their religion or their identity or their expression was opposed to having an integrated lunchroom. And the court was like, "No, you can't do that. We don't care about that."
Sexual orientation discrimination, there's a later case called Dale where the Boy Scouts of America were covered by a public accommodation ordinance, the theory that the Boy Scouts were public accommodation, and they were given a First Amendment exception, at least as to the Scout masters because that did implicate their expressive message. So, that's like a weird line of cases you might have to get into. But the way the court frames is this is easier than that. This is not a case about customer identity. It's a case about compelled speech. Now, it's true that the correlation between the set of people who want websites about same-sex weddings and the set of people who are gay or lesbian is very, very high, regardless formally it's a case about compelled speech.
Dan: And that framing, or at least that particular move you just made, makes Justice Sotomayor in dissent, I'd say, furious.
Will: Yeah. Okay.
Dan: This idea that you're treating these-- the distinction that you're drawing there in a way to not frame this as discriminating against a certain set of customers just doesn't hold any water.
Will: And do you think that's right? There are lots of versions of this, but take the Nazi bookseller. Imagine a bookseller who only sells books with large Swastikas emblazoned on the cover and puts them there if the book doesn't already have one. And then, somebody says, "You're discriminating against Jewish customers. You're not letting us buy books." And the Nazi bookseller says, "You're welcome to buy the books with the Swastikas on them." And the Jews say, "No, we're not going to buy books with Swastikas on them." And he says, "Okay, fine, that's on you." Maybe Justice Sotomayor has the same reaction. Obviously, I don't really want to buy these books, probably not a good business model. But is that anytime you sell a product that you know that a protected class doesn't want to buy, are you discriminating against the class?
Dan: It's such a preposterous example. I'm finding trouble engaging with it, but I think there's something--
Will: Maybe it's pork. Maybe I put pork in everything.
Dan: Yeah, that's interesting. That's interesting that you're just saying this is a product that we sell, and it turns out that some of the customers are just not going to be interested in it. She says--
Will: [crosstalk] -on purpose.
Dan: She says, "Apparently, a gay or lesbian couple might buy a wedding website for their straight friends. This logic would be amusing if it were not so embarrassing. I suppose the Heart of Atlanta motel could have argued that black people may still rent rooms for their white friends." What do you think about that as a response? Going back to one of the very classic civil rights era cases where the court upheld public accommodations law barring racial discrimination. Is that different? You say, "We'll rent a room to anybody, we just won't let you stay here if you're black."
Will: That does seem different. It seems like you can't do that. Now, maybe part of the problem is that rooms are not expressive. So, it's harder to say that's about the content, the expressive content of the room exactly.
Dan: Would that be more like saying, "We'll let anybody buy our pork, but we won't let Jewish people eat it," or something? Maybe that’s--
Will: Analogies rapidly get out of control. That's why, in some ways, the majority's framing seems to make an easier case, because I guess they don't have to get into the full question of how to slice the customer versus the activity, because they can say when it comes to selling websites, newspapers, books, the speaker gets to decide what's in them.
Dan: So, how far do you think lower courts are going to run with this case? This is sort of the thing about the Supreme Court cases, is that we have these cases that in theory, they apply to the limited factual context in which they're decided. But because the court doesn't hear that many cases, they end up influencing a much broader set of issues, fact patterns than the court can actually address. And so, I think maybe that's the problem here which is that even if the court says, "Look, this is just this narrow thing about compelled speech. There's still the danger that this will end up being expanded by lower courts far beyond the specific factual context."
Will: I do think that happens. I do think there's a way in which maybe even especially in this area of the gay rights law, especially there's this actual doctrinal holdings of the cases, and then there's sort of the vibes and the signals and the trends. And so, there have been a ton of these cases in the lower courts, the vast majority of them go against the service providers. And starting a few years ago, the court clearly became interested in stepping into that. That's why they granted Masterpiece Cakeshop. And then, I do think there's a way in which the Supreme Court having signaled, the tide is too far in that direction, probably would cause a number of lower courts to change even though they're not all going to be cases as easy as this one. I mean this one is especially easy because sort of all the facts are stipulated and so many of the hard questions are stipulated away. This is expressive. This is-- I'm sure some lower court judges will say, "Oh, well, this case is different," but at least some will-- this will reset the gestalt.
Dan: Yeah. And it seems like that matters a lot. Because you could imagine court saying, well, anytime you provide a service to someone that involves speaking, providing the service suggests approval of the conduct, like selling a wedding dress to a gay person.
Will: And it's definitely not resolved by this case. This case is much narrower but I think you're totally right that it will-- I mean, at the risk of a problematic analogy, part of the initial litigation strategy leading up to the dismantling of separate but equal before Brown v. Board was to bring these cases on very narrow, clear, factual grounds, like this university-- and it would've kind of been a win, a narrow, factual win but a win. And then, those wins can pile up, and lower courts can start to connect the dots and expand them in various ways. And I'm sure that the Alliance Defending Freedom has a similar-- I don't know what their Brown v. Board of Education is, but I'm sure they have a similar idea. And while this one is narrow, it'll be the first step.
Dan: How far do you think the majority would be willing to go?
Will: Well, I expect the majority doesn't agree, they may not know. Did you notice, I don't think the majority talks about what if this were the same case, but it's interracial marriage rather than gay marriage?
Dan: Yeah. This is the tough thing about all these cases, is you have to be able to answer that question, or at least you have to think about the answer to that question because maybe it should matter legally, maybe it shouldn't. It might not matter legally. And if that's the case, it really is going to put your intuitions to the test basically, because everybody has to agree. As a matter, you have to just participate in our polity at this point. I think you're basically not allowed to say, I think it would be okay to that I think you're not allowed to sympathize with people who are against interracial marriage and say, opposition to that would be constitutionally protected. At least, it's a lot harder to say that.
Will: Well, I'm sure Justice Gorsuch thinks that. I'm sure Justice Gorsuch would say, "We protected the Nazis marching in Skokie." "Yes, we would also protect the person who says, 'I personally object interracial marriage.'"
Dan: I guess I'm not saying no one would believe there's First Amendment rights. I'm just saying it makes it a lot harder, I think, because we think there's two different issues. One is which we acknowledge, "Yeah, gay rights, there's a majority view." Most people think that they're pro-gay rights at this point in society, but there's a really, really big contingent of people who are not on board yet. Whereas 90 some percent, I mean, a very large percentage of people are now okay with interracial marriage.
Will: If you think interracial marriage should not be legal, you're some weird bigot who we might allow to speak, but only because you're some weird bigot that we can kind of safely put out there than Nazis. Justice Kavanaugh, I bet, thinks the interracial marriage case is different. I bet he would say, now our constitutional history and the Constitution itself know there are special concerns around eradicating the vestiges of Jim Crow.
Dan: What would the doctrinal route be? Because the First Amendment doesn't draw a distinction there. There would be strict scrutiny, like somehow the law would survive strict scrutiny if it was aimed at racial discrimination?
Will: One of the interesting features of Justice Gorsuch's opinion is it's largely devoid of doctrine. So, maybe it would say, yes, exactly. That's a compelling state interest and eradicating opposition to same-sex marriage is not a compelling state interest. I'm not even positive if strict scrutiny lets you get around compelled speech. Sometimes, compelled speech is just taken to be like a categorical bar, like a strict scrutiny thing. But you just say the Constitution itself, in the interracial marriage case, there are competing constitutional values, it's a little awkward. I'm not saying there are satisfying answers to these things, but that's what makes this one, again, sort of an easy case for the majority, even if it raises a lot of questions.
Dan: Try to imagine a wedding vendor case isn't speech-y. Things you know, I don't know if you guys had a traditional elaborate wedding reception, but you've got to rent forks, right?
Will: I think the forks are--
Dan: Well, I mean, you have to rent stuff, you have to rent chairs. All these different vendors.
Will: We already had the cake case, and we already saw the court unable to figure out--
Dan: Is a cake speech, right?
Will: Right. And I think maybe--[crosstalk]
Dan: Renting a chair is not speech.
Will: Custom cakes are, but non-custom cakes aren't. I think then-- wasn't it Justice Kagan who said, why is it that the cake is speech, but the buffet is probably not speech?
[chuckles]
Will: Does it depend on the buffet? I don't know. The band, presumably the band is speech.
Dan: Give me the chair rental. That's not speech.
Will: The chair rental is not speech.
Dan: Sure. What is the court-- if christianweddingchairrentals.com doesn't want to rent the chairs to the gay wedding, do they have to rent the chairs?
Will: Unless they have some-- I mean, we eventually have to decide if there's a free exercise right too. But assuming we're just on speech grounds, I think christianweddingchairrentals.com would lose.
Dan: Yeah.
Will: Now, if they put on the chairs some biblical quote that is objectionable to gay couples, that starts to get them in a-- they might have right to put the quotes on the chairs.
Dan: Yeah.
Will: And if Colorado says, "You got to take the quotes off the chairs because you have a hostile environment to same-sex couples, then maybe it's a different case. Look, I find this artificial. There's a way in which everything at the wedding is expressive. The whole thing is a ceremony. It's an elaborate play in which the costumes, the scenery that’s all--
Dan: It doesn't mean that every vendor supplying services to the wedding is expressive.
Will: Right. Well, interestingly, another thing that was stipulated was that the speech involved was Ms. Smith's speech. And I think there's an interesting set of questions for a lot of these, whose speech is it? So, I'm not sure the court will take more of those wedding speech cases or whether this is like, "Let them make their point."
Dan: Yeah. There is going to continue to be a move to keep pushing on anti-discrimination law. I haven't had a chance to dig into it, but about a month ago, Fifth Circuit panel said that RFRA provided a defense to Title VII gender orientation discrimination claims for a certain employer with a religious objection.
Will: Yeah. Although for state discrimination law, RFRA doesn't constitutionally apply because of Boerne.
Dan: So, yeah. You'd have to run that through the constitution.
Will: Yeah. Last question though, is this case a fraud?
Dan: Yes. This is a little bit weird. There was this thing that came out right around the case, was decided about how there was something in the record of someone requesting a gay wedding website, same-sex marriage website, whatever, however we want to describe this, but that appears to be phony.
Will: But maybe not-- Does it matter? This is a pre-enforcement challenge decided on a bunch of stipulated facts, which is like totally orthodox, especially under the First Amendment, under Modern Ripeness doctrine, SBA List versus Driehaus and Abbott Labs and whatever. If there's a law that prohibits your speech, you're allowed to say, "I would like to speak, but I'm not going to speak [chuckles] because I would get in trouble. Please say the law is unconstitutional so I can speak." We don't make you speak first and then get in trouble. But then you have to show that there's some risk that the law being enforced against you. And she says, "Look, this is Colorado Masterpiece Cakeshop land. Of course, they're going to force it against me." But then, to supplement that claim, she says, "Look, some guy, somebody asked for my services for a same-sex wedding on my random web form." And then I guess, yeah, somebody at the New Republic maybe called him up. He said, "No, I didn't." Now I guess maybe he did, and he forgot. Maybe a friend signed him up and he forgot. Maybe Ms. Smith signed herself up and somehow invented him, I don't know. But it seems like none of that really matters.
Dan: The alleged person who allegedly filled out the form is married to a person of the opposite sex. So, it seemed a little bit puzzling. But, yeah, no, that was weird. Was that something that one of the litigants, the lawyers, did themselves to try to--? Who knows? It doesn't seem to matter though, as far as the court is concerned. It plays no role in the opinion. Procedurally, it doesn't seem to matter.
Will: Right. And yet not to be a slave to the discourse, but this produced like a huge fury of people-- even I was talking to sophisticated lawyers whose minds have not otherwise been consumed by bad things, who seem to think something really weird had gone on here in terms of justiciability. And maybe it's just-- I mean, it's true that the case involves a bunch of stipulated facts and a pre-enforcement challenge. Maybe we shouldn't litigate cases that way. I'm open to the view that we should turn back the clock on Ripeness Doctrine, but that just didn't seem to bother me at all.
Dan: Yeah, it seems like if it was something that really called into question some premise of the majority opinion, sure, but it doesn't seem to have anything to do with what the majority does. And generally, we seem to think pre-enforcement challenges are okay. So, I don't know. It's one of these things where people-- there's a lot of effort to gin up various kinds of outrage at the court right now, and some of it lands and some of it doesn't. And I worry that people who are not happy with the court should maybe pick battles a little bit better.
Will: Yeah. Although what worries me is that the battles that are successful, that are accurate, like the things that are actions we should be worried about and the battles that successfully catch fire are necessarily the same. Nothing's going to happen in the end, but this one sort of got a lot more people to say nasty things about the court than many of them do.
Dan: Well, it relates to our Supreme Court ethics discussions we've had, which is just that there can be mismatch in terms of what people get upset about and what we think actually matters the most. And that's unfortunate.
Will: Yeah.
Dan: Maybe it's not just diluting, it's actually distracting because this one seemed to really make people mad. Even though, I don't know, it just seems like focus on the substance of the decision. There's plenty you could choose to disagree with and Justice Sotomayor, she writes-- I'd say it's an angry dissent. She doesn't respectfully dissent. She just says, "I dissent."
Will: I hate to call these things angry.
Dan: Okay, that sounds too judgy? Judgmental.
Will: I just think it's very hard to read tone on these things, and we often are reading our own--
Dan: If you drop the "respectfully" from my dissent, aren't you trying to send a message that--?
Will: I forget. Some people are-- some of them are right. But it's a long non-respectful-- no, I'll go with you.
Dan: Okay.
Will: I think talking about the substance is always good. And then, I feel like there's always this when you lose in the substance, then it's like, "Aha, there's a cheat code. My journalist found out that it was all based on a lie, and that will--" This is not the province of any particular side of political discourse. Everybody wants the cheat code.
Dan: Yeah. I guess in terms of what I think about the case, a lot of it comes down to that question of how broadly it's going to go because if you do think about it narrowly, I think I could say, "Okay, maybe we can just all agree that this is compelled speech." I can live with the rule that says, "You just don't get to compel people to do that." But if we end up saying, now all of a sudden all antidiscrimination law is unconstitutional because it violates people's freedom to choose whom to associate with whoever they will," I'm starting to get increasingly nervous.
Will: Yeah. There is an intellectual challenge like that. Not to all antidiscrimination law, but to half of antidiscrimination law because I think it used to be more invoked to divide. Some antidiscrimination law is about substance, like the meat and potatoes question. Like, when you stop in this town at night, is there someplace you can go? And then, some is about dignity and symbolic harms.
Dan: Yeah.
Will: And so, you could imagine a broad-based First Amendment challenge to all of the symbolic discrimination law. Like, if you could get a website somewhere else that was just as good, that's all that should matter. That came up a little bit in Masterpiece Cakeshop. Maybe that's the Brown v. Board of Education of the ADF, I have no idea. That would be a revolution.
Dan: Yeah. Okay. Well, it's a case that's going to provoke pretty strong reactions. And for that reason-- I think we try to just get less into the up or down on the really big, hot button social issues cases because I feel like I have less to contribute on that and you can figure out what you think about it. And our job is just to, I don't know, clear the ground so people can figure out their own views.
Will: Yeah. I just think they're boring, usually.
Dan: Yeah. Because they're less about the law and more about our underlying views about the--[crosstalk]
Will: I mean it depends on the case. We spent a long time on Dobbs and Bruen last year, and that was justified.
Dan: I guess. I feel like we talked a lot about the stuff surrounding Dobbs.
Will: I think it was our longest episode to date at the time, was our Dobbs-Bruen episode.
Dan: But we didn't really get into the meat of substantive due process. We talked about the League and a bunch of other stuff. I don't know. Okay, well, plenty more we could say, but after having two nearly two-hour episodes, I think we should cut this one at merely an hour plus.
Will: Keep it unpredictable, Dan.
[Divided Argument theme]
Dan: Okay, thanks very much for listening. If you like the show and want to encourage us to do more frequent episodes, such as we're doing now, positive feedback helps. So, rate and review on the Apple Podcast app or elsewhere. Send us positive feedback at pod@dividedargument.com. Buy our merchandise at store.dividedargument.com. Check out our website at dividedargument.com where we post transcripts of the episodes, not immediately, but very shortly after they come down for those of you who don't love to listen to our mellifluous voices. And you can leave us a voicemail, ideally in song format, at 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. If you have cases you're really hoping that we'll catch up on that we might otherwise neglect, write in, cast your votes. Dan probably won't listen to you, but I might. Maybe I can influence him.
Dan: And if there's a long gap between this and our next episode, it's because we're being tried in a joint criminal trial.
[Divided Argument theme]
[Transcript provided by SpeechDocs Podcast Transcription]