OA276: Did Kansas Really Show Us The Way Forward on Abortion Rights?

Automatic TRANSCRIPT

So I hold myself in contempt. If you try to pull me up here to court without attorney. The questions carjack Willie objection. I'm gonna lower Gerke Rogers that offenders carjacker. You didn't kill Thompson. But you did Mr.. Well. County. Water. Order quo is out of order. Welcome to opening arguments. The podcast that pairs inquisitive interviewer with the real life. Lawyer this podcast is sponsored by the law offices of p Andrew Torres LLC for entertainment purposes, is not intended as legal advice does not form attorney client relationship. Don't take legal advice from a podcast. Opening arguments two hundred and seventy six and that means that you find folks just heard a new intro. How about that Matt grinding related quote as we say every time. I hope my clip from soap made it into the intro. So we'll see we'll see. No special polar around it. You know, just like you don't help me with the bar exam. I don't help you find better. I don't tip the scales in favor of your your quotes for the intro. So we'll see got to earn it on its own merit. Andrew takes the intro quotes exempt. All right, but that's awesome. I love I love the intro quotes. They're always fun. But we get to have a nice depressing episode today. I think is that right? No, this is a super positive encouraging episode. I mean, not counting. What I'm gonna talk about in the in the pre show. But, but no, this is a really really good episode while that's interesting because in the words of the title, I'm seeing over overturning Roe v. Wade. So I'm I can't wait to hear how this is a positive episode, but you'll forgive my worry. I guess I will. Okay. All right. Well, turns out there you go. We're going to talk about that. We're gonna desktop field. Are you a cop segment that'll be fun? We'll talk about corporations being people. We're going to talk about this Kansas abortion decision which apparent again. I've got a hold. Andrew Tuiti says this is a not not a depressing upsets. Going to put myself out there. Subject myself to this row v. Wade related episode that Andrew says isn't depressing in this day and age, I don't know how but we'll see. And then we got another listener question. And I'm excited for that. It's our listeners asked the best questions. They're always interesting. And this one is about the descent from the same case, we're going to discuss in the main segment, so that's our agenda, but you have a little pre show segment here. What he got for us. Yeah. In two fifty nine. We broke down the Jeffrey Epstein plea deal in Florida. And the fact that that case was reopened after eight years of litigation by plaintiffs. The federal government has been given an extension at that. This point in time that runs until this Friday may the tenth. So you won't get it on this up. Assode you won't get it on Friday's episode because it will come out after we record. But you will hear news stories at the end of the week because that is the deadline for the government to submit how what what it thinks the remedy should be in. The Epstein case for the prosecutors violation of the victim's Rights Act with respect to Jefferson's victims. Right. We pointed out that lots of media outlets were reporting. This as Epstein's plea deal was going to be torn up. And and that's not the case that that certainly is among the possible items that it's possible course. But I'm not sure that I would intimidate that. That's what that's the position government's gonna come up with whatever they do. We will cover it on the show. We will update you. But but you're going to see those stories at the end of the week. So we wanted to flag those for you now. Right. I'll be curious to hear what goes on there. But let's get to our listener question in. Are you a Cup format? If you ask a coffees a cop? He's like obligated to tell you it's in the constitution. So she go ahead and ask you. Okay. So Ralph Dietrich asks if the Scotus has decided that corporations are people why can't Eddie Lampert be tried for murder or attempted murder. If the fact pattern you followed on OA to seventy three is proven true. If you a ninety five year old man who is ill. And I killed you, regardless of your condition or realistic time left. I would still be a murderer. So yeah, I mean corporations aren't people in that sense. But I'm sure you'll put a lot more into that. So have at it. I I absolutely I love the grammar of the question, and at at I like, the kind of cheeky idea of hey, you know, you've been saying corporations people. So while if you've murdered Sears, why haven't you murdered a person and at at Thomas as as you point out? That that top line. This is we've actually discussed the history of the supreme court's rulings on this way back in one fifty five. So I recommend pulling that one out of the archives where where we talk about all of it. But but the the bottom line is there is no one supreme court decision. That says corporations are people, my friend. What what what there is is in the law? Corporations are a form of person, but different laws refer to different kinds of people and can refer to it in different ways. Right. And so what corporations enjoy are a bundle of rights some of which are associated with person hood. And but not right. The entirety of the of those rights. And and even I mean what has. Made the recent corporate decisions that you're likely thinking of right things like citizens United or things like trinity Lutheran. What has made those decisions pernicious is they are not grounded in the idea that like, oh, people have these rights and corporations are people therefore corporations have these rights. But but rather cases, and I should I I should throw in hobby lobby, right? In those cases, it's actually far worse than you're suggesting right in in the hobby lobby versus Burwell decision. The the holding of the case was not hobby lobby's, a corporation corporations are people therefore because people have religious the holding was no hobby lobby has sincerely held religious beliefs that is novel unprecedented. And you know, I believe that a future supreme court when I am a. Cyborg will look back at this era in time and go. Yeah. That was just invented out of whole cloth. Corporations. Obviously don't have religious beliefs. Their profit centers similarly in trinity Lutheran the majority we've we've mentioned this at at at some length. The majority says, you know, a church shouldn't have to choose between. It's, you know, religious beliefs and competing for government grants, and and again churches don't have rights under the first amendment, right? It is the first amendment is designed to protect religious believers, and despite the fact that I'm eight Theus year Navias like I will go to the mat. I'm a member of the ACLU, which has done more to defend religious liberties in this country than any other organization. I will go to the mat to defend your individual religious liberties as a believer. Where that decision goes off the. Rails is in describing rights to trinity Lutheran as an entity. So I like the question I wanted to point out number one. We've done the full history number two corporations. Aren't you know, full people they aren't co extensive with the rights that adult persons have that adult real persons have. Although we all stuck about on away to thirty six, for example, the corporations can be pardoned. I guess that's a little bit of spoiler. If you hadn't heard that that thirty six so they do enjoy some rights, but what the supreme court doing what the supreme court is doing right now is even more pernicious and even more dangerous than you think. So guess I'm off to a good start with this being an upbeat episode. Yeah. That this is this is very cute. But like we have laws about fraud and stuff that should cover that. Like, it doesn't need to be the murder of a corporation as a person it should just be able to be fraud. And like you can't engage in fraud. I want to be able to voluntarily dissolve a corporation right before. Like without without getting Kevorkian on the line is. Like do this voluntarily dissolve a person. Like, I'm getting a lot more acid here. That works to. Okay. I was. Yeah. Either way works on both levels. Yeah. So yeah, you have to call in. I was thinking like you have to call in cavort to come in the dead of night to like sign the papers to get you to get rid of the corporation dissolve the corporation that way because it's it's euthanasia. It's not allowed. Alright. So great question that was fun, but corporations are people in some senses, my friend, but not in every sense, basically and extra getting extra bonus special rights from a supreme court that is taking rights away from everybody else. So. No, right. Well, good start on your not depressing episode. Andrew. For racing. Of course, they are everything. Corporations earn goes to people. Here we go continue the streak of somehow making this not depressing by talking about this Kansas abortion decision. Okay. So let's get the depressing stuff out of the way, I on abortion, and and and I want I mean, we had some fun in the first segment this is deadly serious. Obviously at as we are recording this episode. The Alabama house has passed Bill three fourteen the Alabama Senate is likely to follow suit, and the Alabama governor is likely to sign the Bill into law. This will criminalize abortion in the state of Alabama. The except for. As necessary to preserve the life of the mother. There is no exception for rape or incest. That's. The way it's written it. It will make performing an abortion a class a felony in the state of Alabama with a maximum prison sentence of ninety nine years attempted abortion is defined as a class sif Elanie up to ten years in prison. I could go through the the full definition this Bill passed seventy four to three in the Alabama house. The reason it passed seventy four to three is because the Democrats in the Alabama house of representatives walked out in protest rather than vote on this blatantly obviously unconstitutional Bill, so what is going to happen? This Bill is going to pass it will be signed into law by the governor before it can take effect. It will immediately be the subject of a lawsuit that lawsuit. Will result in the law being stayed because even in Alabama a federal district court judge is going to be bound by the obvious precedent in a row v. Wade and Planned Parenthood versus Casey. And so the judge may say, well, you know, if Roe v Wade were overturned this law is fine. But since it isn't I have to follow precedent clearly have a likelihood of success on the merits, and it would clearly 'cause reparable harm. So I'm going to enjoin the law that will then get appealed to the fifth circuit. Again. Even though the fifth circuit is a conservative circuit, the fifth circuit absolutely is going to uphold that injunction and from there. It will go to the supreme court from their that decision at the district court level in Alabama will be appealed to the eleventh circuit the eleventh, circuit is a conservative. Court. But again elicit completely goes off the rails. And and I don't think that weapon the eleventh circuit is going to affirm the issuance of the injunction because it too is required to follow precedent. And then that will get appealed to the supreme court, and that is the gold here. The only reason to pass this law is as a vehicle to challenge a woman's right to choose before the supreme court, and when it gets to the supreme court there are two options option number one is that chief Justice John Roberts joins the howler monkey contingent and overrules rove e Wade Planned Parenthood versus Casey, I I think that that is a likely that their large sheaf of outcomes in which that can happen institutional thesis, in my view may almost be worse. Right. I said I think that this is where we're likely to go. I I know that John Roberts would like to be known in history, as you know, the judge who, you know, despite his personal opposition managed to forge a consensus and save Roe v. Wade and what and you know, what he will do is offer the supreme court's liberal wing, the sane justices on the supreme court say, hey, look, if you let me write the majority opinion and you join with it. I'm going to write a version of Casey, I'm going to reaffirm that that abortion is a right that is protected in the constitution. But I'm gonna further narrow it. And and further gut the already weak protections that exist in Casey, by the way, episodes twenty eight and twenty nine we go through what exactly happened in plain parenthood for sketchy. So check those out and to me, the really really interesting things behind the scenes are going to be what the supreme court's wing does in in response to to those overtures, right? Whether they are willing to sign on 'cause so then you will either get a five four opinion overturning Roe v. Wade or you will get a five four decision. The other way with probably four separate concurrence is from the liberal justices issuing the whatever test is concocted by John Roberts that is going to be sort of even more narrow than the undue burden test that that Planned Parenthood vk came up with either way, it's it's going to be a bad day for for for women in this country. And and I've become more pessimistic. That that whatever that opinion looks like is is going to be bad. So why is today a good day because this Kansas decision illustrates, I think the way in which we need to work moving forward in the way in which we need to think about instruct constructing our arguments, if you take as a proposition as I do that the supreme court may be lost for thirty years. Right. If the supreme court is an instrument of regression, then your recourse, even if you live in a state like Kansas over the next thirty years on questions of fundamental rights is going to be in the state supreme court, and that brings us to holds and now's versus Schmidt a six one opinion by the Kansas state supreme court ruling that abortion is a fundamental. Oh, right protected in the Kansas constitution and protected above and beyond independently of the protection found in the US constitution. This is a really really good opinion. It really deserves our attention, and it is part of kind of the the way forward. And and so so I wanna talk about it. But. But there is that is that sufficiently uplifting or did I not do at all. Let's see when does the uplifting part start. So here's the uplifting part for a very very long time. And by the way, this is another follow on to an episode. We did over a year ago away one ninety in which we talked about a similar decision coming out of the Iowa supreme court again, you know, these are red flyover states right to Iowa's less conservative than Kansas. But, you know, neither one is, you know, Bernie country, and in Iowa the supreme court struck down a a law that would have required a three day waiting period, plus a medically unnecessary ultrasound. Plus, a whole bunch of information rang all of these kinds of barriers in the way of of a woman seeking an abortion in Iowa. And what was interesting in that case. Was for the same reason that this is an interesting decision. The Iowa supreme court said, yes, if we were just analyzing this under Planned Parenthood versus Casey if we were looking at this under the federal undue burden test this law would probably pass muster. But the Iowa constitution offers more protection than that. And so the law is unconstitutional under the Iowa constitution. And that's exactly what the Kansas supreme court said here. And that's why this is a really really interesting decision. So so what does it say, I want you to if you're you know, reading this case, and this case is one hundred ninety pages long. But don't worry the the majority opinion is only eighty six pages long. So that's you know, you can you can curl on page three and a half of the of the Miller report. Take me a minute. So I let me talk about why this is an important strategy. Right. Because. Being active and understanding what your state supreme court is doing is when it comes to individual rights, really a no risk strategy. We've talked about this before, but a state supreme court cannot restrict your rights blow the federal US constitutional baseline, right? So if you have constitutional as of for example, right like, the the supreme court of California couldn't decide like, hey, you know, what like we're going to get rid of the New York Times v Sullivan standard. And you know, we're going to grossly curtail the right to freedom of expression and allow people to sue you for libel. Even if your, you know, a newspaper printing stories about a public figure, right? It wouldn't matter. What the the California state constitution says because you'd have a federal first amendment, right? That would Trump that right? But but states can go beyond. Donned those bare minimum protections. Exactly. Like I did. And exactly what Kansas did here. And there is no doubt in my mind. When you read this opinion, their efforts to divorce their ruling from the US constitution, our design are are are one hundred percent in mind of the fact that the US supreme court is staffed with right wing judicial activists. And and this is really an important trend that that I'm starting to notice, and that is lots of these courts that have very very conservative justices on them. Nevertheless, have what I would consider more traditional conservative justices. Right. That is justices who care about precedent who, you know, have a philosophy of you know, limited government. And non-intervention, and maybe you're pro business, but, but but do not share the sort of wholesale regressive activism that is being championed by the federal society right now. And the federalist society has been very very successful in getting Donald Trump to pack. The federal judiciary with mindless I'd hill hutch drones. But in kits. Sepah -ssarily. Well, that's nice. I mean that that's that's cool. I remember you talking about this. What you said it was about a year ago. Ten flies. That was really cool. Like this one. We are trick to protect abortion rights at least by state, but I'm still worried. Do you think we are going to get to the point? I think I might ask you something similar last year. Can't are we going to get some BS conservative judicial activist decision that rephrase is the right in terms of like the is right to life. And so therefore, the federal protection is actually more strict because it's you know, it's giving the fetus more rights, and so therefore the state can't take away those rights. Are we going to get something like that? Should I even be quiet right now? So they don't figure that out to do that. Because I'm already scared that they're going to do that. Look that is a possibility if there is a fifth howler monkey judge that has added to the supreme court. So yes, but I will point out that every time every effort, and you know, sort of too much for a for a sidebar here any effort to vest, a fetus with rights is going to be immediately problematic and unworkable, and I think right. There's no way that John Roberts is going to sign onto a, you know, a fetus has more rights than a seventeen year old for example. Right. We've talked about how the supreme court's jurisprudence on children is is basically like writes in trust thesis right there. Some specifically, you know, tinker versus demoing students do not shed their rights at the schoolhouse gate, right? There are some specific rights where the courts have said you kids have this kind of right? But but by and large right the minute, you give somebody a right? You are then saying that that person has a claim that they can make against the majority. Even if the majority passes a law, and that law will have to survive strict scrutiny, if it infringes upon a fundamental, right vesting fetuses with rights is is going to be so profoundly unworkable that I think you would have a chance of, you know, even pulling out like, you know, a Neal Gorsuch, for example. Right. Like, yeah. It'll get a Lido, and it will get Thomas because again in the in the realm of of, you know, TV ugly, right? Clarence Thomas is is not smart. And I don't think he cares. But I mean that would be so profoundly unworkable that that. That would surprise me. But again coming to supreme court. Yes. As you near us is what I would say. Okay. I don't think I really really don't think. So and that that would actually be I mean, put that on the whiteboard, it would be a really good topic for future show as to why it's it's not likely, but but you are right. That like whenever there is a way of characterizing something as a fundamental, right? That would then Trump whatever protections exist at the state level. I in that future show. I will talk about you know, ways to make it clear. Right. You need a satanic temple style strategy there. Right. Like of okay. But if you come up with this. Here's what's going to happen. And it needs to be so clear that even Neal Gorsuch is like, yeah. That that kind of seems like that could be a problem. But back to leave that aside. Let's let's assume we're just in the realm of evaluating. The question is not is a fetus a person deserving constitutional rights. That's a separate question. The the first question is does a woman have a liberty heaven autonomy right to make reproductive health decisions concerning her own body. Right. And in the United States since nineteen seventy two the answer to that question has been. Yes, at the point at which the answer that question into the US constitution becomes no. The question is is there a basis for support for that argument in your state constitution? And and here we go to something that this is just crucial that you become informed at at your state level. In terms of understanding, the kinds of candidates that your governor intends to appoint to the bench. And and and that we are informed in our discussions. Right. So one of the things that state supreme court justices have done for a long long time is they have there's a phrase called in pari Materia and its Latin. So I don't know exactly what it means. But, but but what it means is in illegal terms is I it means interpret read the same or substantially the same as right? And so what happens is oftentimes a state will have a version of the federal Bill of rights in their state constitution. But it will be worded differently. Right. And the question will then come up before that state supreme court that says, hey, look, you are first amendment in the, you know, let's say this is not in Maryland example, let's say the Maryland declaration of rights says in article one that you know, all people enjoy the right to freedom of expression and the unlimited right to assemble four addressing. The government, right? And that's written slightly different than the first amendment. Does it mean to those differences mean anything, right? Is it is it to be interpreted separately from the first amendment or is it to be interpreted in pari Materia, right? And. For a long long time the trend at the state court level, particularly during the Warren court, which was a liberal expansion of rights from from the supreme court was to say, well, they're in pari Materia, right? It's the written a little bit differently. But, but we're going to defer whatever the supreme court says is the law on freedom of speech is also the law on the Maryland declaration of rights, for example, them accents. Yeah. I may see you don't wanna be trying to litigate like what the subtle tiny differences in wording would be. It's it's essentially just not it's the same rights. Yeah. That's exactly right. So now that question was posed to the Kansas supreme court and here the two respective provisions. You know, the fourteenth amendment to the constitution says in relevant. I know it by heart fourteenth little. Earlier says no state can deprive any person of life liberty or property without due process of law, nor denied any person within its jurisdiction the equal protection of the law of the law ready. We said the same time guy if you didn't hear it over sky. We were saying reciting it with you. Brandin edit me. And so I said it all right? Section one of the Kansas. Bill of rights says all men are possessive equal and inalienable natural rights among which are life, liberty and the pursuit of happiness. So again, think about the hypothetical that I just gave you right? You might say those seem like they might be in pari Materia, right? Like that. They seem pretty close. Right. They're both getting at equal protection of the law. Right. And and what the Kansas supreme court said was no those are not identical provisions. They should not be interpreted identically, and in fact, right? The the key provisions here is the fact that our Kansas Bill of rights starts with equal and inalienable natural rights and that phrase natural rights is not found in the. Fourteenth amendment. And it means that we need to do an independent analysis of what natural rights are. And then does super lengthy analysis of what natural rights are where ultimately what the Kansas supreme court says is and this is page forty four if you want the the the key takeaway at the heart of a natural rights philosophy is the principle that individuals should be free to MC choices about how to conduct their own lives. Or in other words to exercise personal atonomy few decisions impact our lives. More than those about issues that affect once physical health family formation and family life. We conclude that this right to per- personal autonomy is firmly embedded within section one's natural rights guarantee. And it's included concepts of liberty and the pursuit of happiness. So that means this is a perk uranium decision. There is one there's a concurrence the talks about the test, which we don't need to get. There is a VO dissent from a forty seven year old Scalia acolyte that we'll talk about in the c segment, but this very very conservative state supreme court that six one said, yeah. No. When when we look at the history, the original intent, the meaning behind the people who enacted section one of our Kansas Bill of rights, it very clearly meant to to protect personnel me and personal Tana me means the right of women to control their bodies is not an activist. Crazy progressive supreme court state supreme court fly pie. Any means. This very first off. I think my new phrase for like whether or not you, and I agree should be. Are we in pari Materia here? We you. And I there you go. And then Secondly, this is shocking to me. And I'm trying to think the first time I want to emphasize like, obviously, I, you know, I agree with the substance of of what's happening. I agree with the. Come here. And I'm glad for it that that that they want to protect the, you know, a woman's right to choose what happens to your body totally very ecstatic that they are doing that. But, but if we if we change it we're talking about something else, for example. I don't know what. But some other issue maybe and a court had had done it just it kinda strikes me as activists to be honest with you, you know, like how how do you how do you figure out? Okay. Here's what we're gonna do. We're gonna take this subtle language difference that is existed in our state constitution for probably however many hundred years, and we're going to decide today in twenty nineteen that it actually means a different thing than it was in the federal, you know, the United States got Zueschen and how we going to do that. I had some clear to me are they going back and doing an originalist textual. Reading of what the Kansas founders, the founding can which I think is Oz. A related as it's got to be some people involved in vase movie. I think they were the first ones to discover Kansas. Now, I like how they doing this how they figuring out. And how would they do? So in a way that wouldn't just be a partisan lens. You know, like, I I really don't know. So I I I love that. Let Libby that's a bunch of questions. Let me try and break them down. And and and let me postpone answering it for just a minute, right? Because I think the best way to answer that question is to talk about should have done this at at the outset is to talk about the specific facts of the case that came before the Kansas supreme court, and that is in twenty fifteen the Kansas legislature passed Senate Bill ninety five it was enacted into law. Senate Bill ninety five prohibits physicians from performing the dilation and evacuation method of abortion except quote where necessary to preserve the life of. The pregnant woman or to prevent a quote substantial and irreversible physical impairment of a major bodily function of the pregnant woman. Okay. And that dilation and evacuation procedure that is the procedure that is used for ninety five percent of all second trimester abortions. Sidebar to the sidebar. There is a and I don't know that I'm even gonna have time to mention a stunningly dishonest national review article. I know that those are synonyms, but the the the hysterical antiabortion, right? Calls dilation evacuation. Oh, gosh. What do they call it? The dismemberment of a fetus. And I, you know, it's an all sorts of other, you know, kind of learned from Donald Trump at what happens in this actually happened because we you know, I recently had a baby in the this is absolutely true. What they do is they wrap up the baby. All nice. And then they ask you do you want to murder the baby that do this every through teen? That's that's how it works in America. Courting to Trump. So, but, but if you want a great Gotcha for anybody. Who is saying, oh, well, you know, we this is a hideous and barbaric procedure, and then then code page nine of the opinion because before the trial court, right? So so the Bill passes, and then the exact procedure that I told you was going to happen in Alabama happened in Kansas. Right. A Kansas, except this was in the state courts, a Kansas state courts had were slapping down an injunction on this very clearly, violates the the the woman's right to an abortion under Planned Parenthood versus Casey because you are restricting ninety five percent of of the abortions in in the second trimester. And and the state in order to argue Ono there. They're plenty of other alternatives. The alternatives that the state suggested were labor induction abortions. Right. What they refer to as partial birth abortions, by the way, induction of fetal demise using an injection what they refer to as poisoning the baby inside the womb and in induction of fetal demise using umbilical cord transaction, right? So all three of those are the same order of can be described in kind of similarly gruesome language, so you know, when you see pieces like this national review or your aunt, Cathy or whatever say oh. And they allowed fetal dismemberment abortions. Or, you know, whatever they're calling it on FOX the state themselves argued for, you know, methods of abortion that would be similarly capable of being described in that kind of language. And of course, the game is to reduce this out piecemeal, right? You get rid of the most common method. And then you go after all the rest of the methods, right and the undisputed factual defiant findings below were that there were no safety benefits to using any of those other methods of of abortion as opposed to the dni method that those other methods had a greater risk of harm to the woman in in some what you know in some you might consider more on the minor scale. But but health risks include nausea, vomiting, impossible's ation. And in the in the case of the umbilical cord transaction that that these of that increases the procedure time makes it more complex increases the risk of pain infection. Uterine perforation and bleeding, and that all of those are very very minor procedures by minor. I mean minority infrequently used right? So this is fairy very clearly an effort to make it difficult for women. If not impossible to get an abortion in the second trimester in Kansas, and what happened was trial court said. Yep. Obviously injunction. This case, violates the law Kansas appellate court wrestled with the question of whether this constitutes an undue burden under Casey. And so it split. But because it split the injunction stood and then and then that was a firmed at the at the Kansas supreme court on on different grounds. So so that gets into the second half of your question, which is is this a kind of activism and and. I would give you a qualified. Yes rate. I would say this is a kind of activism in the way that hating a hate group is kind of hatred, right? Seriously. And and and I mean that way that calling racists racist is the real race. Right. Exactly. Because what what has happened is fright. Four decades state supreme court has said look we can rely on the US supreme court to faithfully adjudicate what individual rights are. And we're gonna let them do the heavy lifting, and you know for good or for ill. That's how state supreme courts have generally worked. And and here is a state supreme court that very clearly looked at this and said, look, we don't have to stick ourselves with the reasoning that this runaway train wreck of a US supreme court with where they're going. And again, I want to emphasize this is a conservative an old school conservative backlash against a an activist reactionary US supreme court. There is nothing. So. Now. Is it is it activism in the sense that they changed their course in their jurisprudence. So yeah, that's that's a fair initial description, but is it activism in the larger sense? Absolutely, not right. There is nothing that prevents a state supreme court from saying we're going to undertake this analysis independently, and you know, what states are sovereign. So even if the people because think about this if. If the idea if follow originalism bright to its stated possession, right which is to say that the you are bound by the meaning of the terms of the provisions of the constitution as understood by the people who ratified it right at the at the time at which that was ratified. That understanding right? You you could have identical words, and the understanding on a national level may be very different than what it's understood in a particular locality, right? You could say, yeah, we interpreted these words this way, generally across the country interpreted in this way here in Kansas. There's there's absolutely nothing inconsistent. Even if the words were identical. And and where the words are not identical. Right. Then it certainly is worth saying, hey, did did we mean to do something different now in going through the historical analysis? The the Kansas section one of the Kansas Bill of rights was passed prior to the passage of the fourteenth amendment. It predates it. So. Yeah. There was a lot, you know, going on at the time and again twenty years ago. This decision wouldn't have come out right because twenty years ago, the Kansas supreme court would have said, you know, what where okay with where the US supreme court is going. They're not okay with it anymore. And and and then to answer the second part of your question half of this opinion. I told you the majority opinion was eighty six pages long. That's true all eighty six and a half almost eighty seven the bit that I read you about personal autonomy is on page forty four the next forty pages is a historical analysis of the original, meaning and precedent for since the adoption of section one of the Kansas Bill of rights, and and Mika it's what I it's why really wanted to get into this opinion, because there is in my view, you know, if you want to words that differentiate old school conservative jurisprudence from contemporary howler monkey react reactionary judicial activism. Right. It's those words and precedent. Right. It is there is no question here that that there is an effort being made to understand the original. Meaning of those words in the Kansas constitution. That's what they set up to. And there's nothing improper about wanting to do that. All I've ever argued against originally. I've never said, you know, hey, we we shouldn't try and figure out you know, what this meant in seventeen Eighty-nine. All I've said is that the ordinary model of jurisprudence says is that that understanding is informed by how those words have been interpreted over time by the relevant court of jurists, you know, having a relevant jurisdiction interpreting those words over time. And that we don't get to look at it fresh in twenty nineteen and say, well, you know, obviously, the second amendment means that individuals have a right to a semi automatic weapon with a magazine round capacity of thirty like that. That's what makes it preposterous. Right. It's not the effort to to divine the original principles. It is refusing to recognize that how those principles get applied over time is what makes the rule of law the rule of law. It's it's it's a. Really really fascinating decision. So if you have a couple of hours. I would encourage you to read the first seven pages. Yeah. Curl up with with this. No this. It's also a fun read because Steet supreme court decisions are are written differently than than US supreme court decision. And I can take you say I seven pages. That's really really funny. The first eight or nine pages of this are the head notes. They're numbered. It's actually just the first five pages. They're the Twenty-one head notes, which is a summary of the of the findings below. So you can read the first five pages. And it gives you kind of the spark notes Cliff's notes summary of of the law in a way that any listener of away can can can clearly understand it. So right, for example, head note. Three says Kansas courts have the authority to interpret Kansas constitutional provision, independently of the manner in which federal courts interpret, similar or corresponding provisions of the US constitution. This can result in the Kansas. Institution protecting the rights of cans more robustly than would the United States constitution. Right. That's not hard. And and it's a great. It's it's a it's a great lesson. And and it's a it's not soluble. But it still feels like a matter of luck. Like, I I mean countdown to this being used for evil and some other state, right? I mean, couldn't you couldn't the state supreme court decide something abhorrence just based on the same method. But again, they can't decide it lower than the minimum bar protected by your federal US constitutional rights. So it can't get worse. Look like, I agree. You know, your federal rights are are dwindling by the moment. But, but that's what I mean when I say that it's no risk, right? Like, if they if they come up with a kind of terrible decision than the floor of that decision is going to be the US supreme court. So, you know, it's it can't be worse than that. You know? You know, it's a it's a heads. Nothing happens entails you win. So. What that means is. When you are talking to your candidate for governor in your state, ask her who she intends to appoint to the to the state supreme court, right? Ask her how she intends to maintain the independence of the Kansas or the Maryland or the California judiciary from the US judiciary. That's out bad things have gotten it's requiring us to know and care about who might be in some sort of state government that I guess we all have who. Yeah. We should. Engaged wish. I I'm entirely joking. We should be more civically engaged anyway. But good advice there. Hey listeners. Opening arguments is brought to you by the New Yorker. And we love the New Yorker because it represents the best writing in America today. It is good thoughtful compelling, storytelling, the New Yorker is home to some of the best writers in the world. And also, they hold people in power accountable. They are home to one Ronan Farrow who wrote the breaking news on Harvey Weinstein, unless moon vest, and he won the poster prize in two thousand eighteen for that. You know, I want also recommend Delaney Cobb who's a staff writer and professor of journalism at Columbia. He writes frequently about race in politics, for example, just wrote something on the central park five, you know, you'll re recall the Donald Trump took out a full page ad asking for the death penalty for the central park five. Who were then later found innocent juillet Cobb gives you the the full breakdown there and takes you back to what it was like experiencing that story. Especially with the paranoia about crime in New York as it. There was a huge crime. 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I wish I could. Okay. Long fake lightning round. Stephen Davis asks Caleb Steagall win from being the governor's chief counsel to a state supreme court Justice in just eight months with a short layover on the Kansas court of appeals. He's forty seven Steagall Stu gal like Stevens degaulle. Goal is a hardcore originalists in worship Scalia. My question is this what the clown horn is his descent supposed to mean, his leap from individual rights to the states police power makes no sense. And I'm not sure what if anything I missing while what? An awesome question from a highly informed listener, Stephen Davis. Yeah. What what he said? All this. Hey, I I love the background on Steagall. His descent begins at page, one hundred fifteen and is eighty four pages long so longer than the majority opinion. When once you've subtracted up the head notes in the introduction. I mean significantly longer. Here's the reason that the opinion seems weird. And that is the entirety of the case comes down to as we've mentioned the distinction that you know, the the the distinction between the Kansas constitution using the word natural rights and the fourteenth amendment not using those terms. So then the question is what do natural rights me. Right. By the way. This is something I can't tell if I don't know this carry Severino is in the national review. So I can't tell if this is disingenuous or just stupid, but it's one of those two right because the the conservative sources, you see pillorying the the state the the Kansas supreme court are like, and why would, you know, state supreme court like go through this lengthy opinion me I'm gonna read from the national review here the opinion meandered from the historical and quote philosophical underpinnings of natural rights to an exploration of bodily integrity. And and you know, sort of lampooning it as kind of judicial activism and navel-gazing you have to figure out what the words natural rights means in the Kansas constitution in order to adjudicate whether it's different from the fourteenth amendment. And by the way, that's what you should be doing. If you honestly believed in your originalist philosophy that you care to a spouse now. What is Steagall doing in his dissent? And why is he talking about the police power? It is terrifyingly simple. And it is this the the second paragraph. And and I get you know, that there's a ton after the second have actually summarizes where his opinion goes. He says the structural idea that gave birth to Kansas as a political community, which is achieved consensus support across most of our history is that the proper conditions for just rule are met via participatory consent to secure and promote the common welfare. Now. That's a lot of fancy language for saying, hey, the majority passed a law who are we to tell the majority. They can't pass a law. I I realized that sounds ridiculous because the entire right? Like the definition of a right is a right against the majority rally. You don't need a right if unless until passes a law preventing you from doing, but but that's literally what he says. And so the the the importance of the police power is to say if he can prove that the state has the legitimate right to pass laws in that area. Then by definition, you don't have a specific, right? As against the government in order that that that then can be the basis of a lawsuit or in this case right can be the basis of claim arising under the Kansas Bill of rights. So the entirety of the descent is meant to say, no Lockie in natural rights. Here were not meant to be rights, but were meant to. Curtail the power of the state in specific ways, they're not curtailed in this particular way, when it comes to abortion. Therefore, you don't have this wide ranging individual right to Autan. Emmy, that's the argument that they're trying to put together if you're thinking, hey, wait a minute. I thought these were supposed to be Liber -tarian pro small government. You know, drowned in the bathtub the answer to that is sh. No, there's no there's no consistent answer to how these smoke. Visit this explicitly a defense of wide range government power to let the majority do whatever it is the majority wants when it comes to, you know, restricting women's bodies, and and other stuff that you know, conservatives care about, but you know, the government has to be hands off when it when it comes to to taxes. There is the it. I don't recommend reading the descent. I I have read I it. It is truly a clown horn of a descent, I mean, it include it, it it feels like it was not cobbled together by lawyer, it it it includes like the veered discussion of how is it snitty like it was written by one of the staffers undermines are called back to our testimony. Yeah. I I would hear what do you make of this? Okay. Today's opinion does not disclose. The inconvenient fact that a majority of the forty-one women serving in the Kansas legislature at the time of passage voted in favor of SP ninety five in favor of his by the way, the majority does not grapple with the problem of sex selection abortions and the vicious misogyny inherent in that despicable practice. See Eberstadt the global war against baby girls from the new Atlantis. I mean, like literally if this were a liberal judge had written this opinion. Everybody would be all over your appealing to the votes in the legislature. And you cite an opinion article in the new Atlantis. Are you kidding me? Like, well, whatever happened to just unpire calling balls and struck, you know, and then right? There's a long, you know, select there's a long there's a citation to the UN population fund to. Talk about the worldwide rise of sex selective abortions. Despite the fact that the Scalia Accola Antony Scalia, you know, once ridiculed Ruth Bader Ginsburg from the bench for citing to the United Nations in an opinion. The majority does not mention the fact that more quote, progressive nations in our global community tend to restrict abortion after the first trimester. I are you kidding me? Like, these are the kinds of arguments that Scalia mayday career out of lampooning. And and you know, he certainly would not sign onto this opinion. It's it's it's a stonning to me. So little out there. It seems a little desperate it. Absolutely. Right. It seems politically motivated like have you guys considered something that might be happening on an international scale that I read in this one magazine, does you consider that in your opinion majority. So, but look like this is state supreme court again, you know, people who belong to federal society listen to the show. So, you know, maybe they're gonna start trying to weaponize state supreme courts as well. That's what I'm saying. Just countdown to this us being used for evil. But right now, you know, this is this is this is where we need to be out in front, and and look, you know, this this goes to show, you the landscape at least here, you know. Isn't isn't? Maybe what you think it is. And you know, I I've said from the very literally from episode one of the show, you know, give me an honest political conservative on any court anywhere. You know, somebody with whom I can have a discussion and say, okay, you know, we disagree over X. But we at least agree on the facts, we at least agree on the line of precedent from seventeen eighty nine to now, you know, I can talk to that person. I can deal with that person. And most importantly, I can construct an argument in front of that person. Right. You know, a Samuel Alito. I. I construct an I mean, this is the question we tried to ask Monica billet, right? How do you? How do you try and persuade Clarence Thomas answer? You don't write like that it that feels like a, you know, a bad bad Rodney Dangerfield routine. But like, it's true. Right. I mean who on earth with a politically motivated or with with an opinion that has a potential political outcome. Why would you look at Clarence Thomas? When you're when you're making your argument. Right. Like, you know, how he's gonna vote in advance lots of people, right? Did you know we talked about this in in in Friday's episode? I clerked for a very conservative supreme court state supreme court judge Justice. And and those people did not get involved in the law to rubber stamp, you know, political outcomes right by and large that they're they're they're not the same as the current wing of activists that are out there. And and and I think it's time that we start understanding how to how to pitch our arguments to the folks who might listen. So so there you go. All right. Well, let a little little bit encouraging. But we'll leave it to the listeners to decide, but it is time to thank our new patrons over on patriot dot com slash law. And hope you enjoyed the QNA. Hope you enjoyed the new metro coats all the good stuff bonus episodes occasionally as well. And a lot of movies coming at you soon. But here we go we start with d four takes the bar exam. Thirty two for one twenty two twenty six point two percent next answer is d o. So someone's just rolling dice. I write defer. Yeah. There you go cranky activists count. Well, they're they're prediction is next answer is d so we'll see if that's right because I I think I guess see I don't know find out in a minute cranky activists coloring, Nathan Dickey, Chris Naylor Jaycox. Anton pope Papa vine. Sorry. Scott bell. Jeremy Smith hamburger. And Dan Bongino can eat a clown horn Bongino. Yeah. Yes. He can't Bongino. Yeah. Who is that? Oh it. I don't have enough time to go through it. But yeah. Okay. Well, you're. Thank you to Christopher c-. Stotts Tom Kaine Kelder Cleveland Christie Java. John's J O H H joh- John's Nicklaus stark Westerberg. Valerie, Galloway Charrette Novak Josh and Malia Savar mental. And then there's some symbols Mr. bible pants. So thank you so much. And if you'd like us to give you shout out head on over patriot dot com slash law. Give us little as Bach contoss book. And we'll read out your name, even if it has clown horns or bible pants, or I know repeated letters in it. Thank you so much for helping us out. 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But I recommend this cooking course, called the everyday gourmet rediscovering the loss art of cooking. I have been actually having to cook dinner since Lydia's tethered to a newborn I've been having to cook dinner, and you know, I'm kind of enjoying it. And I wanna get better at it. I'm gonna watch this everyday gourmet rediscovering lost. Art of cooking course. And it's all kinds of stuff like that. I love that. If you wanna get into anything, whether it's with cooking or. Photography whatever it is. You can learn from the best in the world at the at the touch of a few buttons here. So empower yourself with knowledge sign up for the great courses. Plus today, our listeners get an all access trial for free for free. Start your free trial. Now, go to the great courses plus dot com slash oh. A that's a of course for opening arguments. Remember, the great courses plus dot com slash oh. A free trial access to every course that you could possibly want. Go check it out. All right. I it's time for TB. I'm I'm not I'm not happy with with how this one went. We'll see I I'm not domestic though. And also we get to check if the D four answer of d if the dice answer D is right. Maybe the dice is doing better than I am on this one. We'll say, oh, no, socially. This firm has ever failed the Bar Chen kidding? Yeah. So this was someone bought a bottle. Of decomposing snail soda. It's incredibly addictive coming to LA merge story. Gosh. Decomposing snail Cole of that's I bet some of our listeners could feel I feel like are proven innocent candles will sell bad on that. They're so good. And you know, got got totally sick. And and sued the store to recover damages for injuries that she. The the Chee had from drinking decomposing snail soda important facts, the parties agreed that the snail had been put into the bottle during the bottling process over which the store had no control parties. Also that snow would have been visible in the bottle before the consumer opened. This is a super classic tort question. It is a question of strict liability. And so you need to know is this a strict liability offence. And if so did any of those facts that I talk about matter, and you eliminate you immediately eliminated d which I have to tell you was a really excellent elimination. And I'm hoping that you will eliminated a because of you didn't say this. But I'm hoping because of a prior TT where we talked about recipes a look tour. Yes. Because the store had exclusive control over the bottle before selling it to the consumer exclusive control is one of. The tests of recipes alot quitter, right? And recipes is the tort doctrine that allows you to somebody even when you can't directly prove it was them. Right. That is right. Yeah. Yes. So the barrel. That says Thomas barrel company falls off the truck and rolls you, and you know, and what you have to do is show that the barrel says Thomas barrel company, even though, you know, you don't know who had who was driving the truck, or, you know, twelve surgeons are in and they leave the sponge that says, you know, this sponge comes from Sacramento General Hospital. Right, right. Yeah. You don't have to be able to prove which doctor did it. It's just like all right. You guys did this. Exactly. Right. So this is not a recipe case. So that is a total non attractive distracter. It did not attract you, it did not distract you. Good work. Then the question was is this analyze -able? Under ordinary negligence principles. So a was no because the consumer could have seen the snail in the bottle before she drank out of it that is the defensive contributory negligence. Right. And in most states contributory negligence is a common law doctrine. It is not followed in most states. It is followed in Maryland kind of weird. But but contributory negligence says if you contributed to your negligence than the defendant is alleviated from the responsibility, right like, so if it's kinda your fault than you can't pin it on the defendant. And so it breaks the chain of cause Asian almost every state has moved to a comparative negligence standard, which is exactly what it sounds like. It's like, okay. Well, how much of this was your fault? Okay. You were twenty percent at fault. The defendant was eighty percent at fault. So you get eighty percent of your injuries recovered, and how could that happen, right? That is like somebody T bones you, but you weren't wearing your seat. Belt, right? So you're injuries are worse than they would have been if you had on your seatbelt. But the guy still slammed into you. Right, right. This is going for a contributory or comparative negligence with respect to you could see that there's a snail, and you drank, and you dummy doesn't matter not a defense in a strict liability case, and then be no because the store was not responsible for the bottling process. I kinda felt like that was the most intuitively attractive distracter and that really gets down to the the whole philosophy behind strict liability in the first place. So what a strict liability mean, it means what it says. Right. If you do a thing and somebody is injured, and the tort is strict liability than it does not matter whether you exercise care or whether the plaintiff failed to exercise, nothing matters. We think that that kind of tort is something where from a social perspective we value making the victim. Whole more than we value properly apportioning the fault, right? And so in other words, if you think about and manufacturing defects, right? And that's what this would would fall under right? That's that's the significance of the snail gets into the bottle during the bottling process. Right. So it's a manufacturing defect. I'll be at a weird one. You know, usually, it's something like, you know, the the teeth on this chainsaw are offset. Right. Like, there's a there's a problem on the line. And now the chainsaw when you started up at throws the chain into your face. Right. And so yeah. Real Andrew's school of gruesome. Strict liability cases, right? But so you could imagine if you're just using ordinary negligence principles right now, you have to figure out well who was negligent here, right? Like did. I use the chainsaw the wrong way. Did I did? I put on the chain the wrong way did the store failed a label at did the distributor failed a box. It up did the manufacturing as legal test of denying do. Exactly, right. Nice current reference by your. Yeah. Yeah. Current. No. So in strict liability cases, we say, you know, what they're some kinds of torts that we don't want the plaintiff. We don't want the burden to be on the plaintiff to figure out where figured I change went wrong. We wanna we want the plaintiff to be made whole I let them recover from whoever. And then let the defendant sorted out. Right. So that and that by the way is kind of the answer to the fairness question. So you have you have discovered by process of elimination your answer. See, yes. Because the consumer was injured by defective product sold to her by the store that is indeed the correct answer. And and the reason that you were a little bit uncomfortable. I suspect is is you're thinking, well, what if the star at the store didn't know rhyme? Yeah. It doesn't quite seem. It's interesting. I'm glad I ended up the right answer. But yeah, it's like I felt uncomfortable because it doesn't seem entirely fair. But it sounds like it's. Kind of where we've landed socially like, this is what we want to be that. It's the best option in the series of options. And there's a really really important second half of this that doesn't show up in the question that is nevertheless important in the law. And that is the question doesn't ask what causes of action? Does the store have against the manufacturer? Right. Yeah. So the the store and look realistically all of this is likely to be covered by insurance in real world. But yet, but even common law, right? What this does is? We all have to decompose nail insurance policy. I hope I hope you definitely take snail insurance policy from podcast advice. I'm sorry. This policy has a writer that specifically excludes decomposing snails and forget their new advertisers nail assuring if it had been a live wool Rhys, then you would have been. Okay. But decomposed snail is on the exclusions. No it. What what strict liability does is it. It doesn't leave the last person holding the bag it shifts the risk of litigation from the plaintiff to among the defendants. Make sense. It's kind of it's more. It's not based on like, a, okay. What's the absolute fair thing to happen? It's kinda based on like, all right? Who's gonna tend to have the power in the situation? And who do we want to whose life? Do we want to make whole easiest, and I and that the answer would be the poor snail consumer who's who's barf. Yeah. And and look this was this was the battleground on which I litigated insurance coverage cases for fifteen years. Right. And that is there there there are two ways in in the corporate insurance world to view how a. An insured can make a claim for a long term liability. Right. And and and so these are things like pollution cases, or health hazards as best us, right like, okay. People working at our plant were in the boiler room were exposed to us bestest over thirty year, period. We had fifty different insurance policies over that thirty year period. And the threshold question was could that insurance policy holder? Could they pick any one person and anyone insurer and say, hey, guess what? Lloyd's london. I add a Lloyd's policy, and I want you to pay for all of it. Or did they have to pro- Radha split it up over every single insurer over those thirty years and that and that approach right, obviously, the the insurance represented the insurance company we argued for the pro rata approach for for. His reasons. But even when we had it's called all sums is the first one even when one ensure gets stuck with all of the losses. It's not the end of the day. Right. It just means that that shifts the responsibility from the proving shifts responsibility from the policyholder to now. Okay. Now you ensure I I got I got mine. I I was made whole now you ensures go figure it out amongst amongst yourselves. And so it's it's it's it's still a common so common doctrine in the law in terms of trying to figure out who bears the ultimate risk of loss. And and that and that risk, right? I suppose I should add this this last bit here. The real risk is. What happens when somebody goes bankrupt. Right. So that's part of what that that's that's the longest explanation of an answer that I even got right? You got right. I know I'm sorry offline pari Materia here that I got it. Right. You got it. Right. I'll later I'm sorry. Does that die feel that it roll the D idiot? The attractive distracter wanna yummy. All right, gone top. Here. We go hop in your time machine and give us a forty five minute explanation of which listener got this fishing. All right. This was a great question for social media. A lot of folks had fun plan along. And there were a lot of really perceptive right than wrong answers. So Tom Pendle. For example, writes see the store can then sue the bottle in company to cover its losses as they are in a better position to do. So then the poor be snailed customer, which is exactly right, Dan s ads. I'm with Thomas on see the key is that the bottle was transparent. The store had an opportunity to examine the snail infusion prior to sale actually not relevant, but it does sort of go to the fairness question as as we talked about. But the first person out of the gate with the right answer is action toast. I believe a now a two-time TB winner who writes, the answer is c as Thomas discern stores that sell food are liable for damages for faultier inedible. Maddox sold to consumers, and they then have the ability to go after the manufacturer to recoup those damages because the customer does not have a direct relationship sinked dead on correct on the law, and congratulations for being this week's winter action toast, and everyone give it a follow at action underscore toast on Twitter and congratulations on being this winter. All right. Thanks so much for listening. Thanks for everything. Patrons. We love you. Thanks for making the show. Having patriot dot com slash law. Go support get access to goodies. And we will see on Friday for a nother rapid response. Stay fresh cheese bags. The law. This has been opening arguments with Andrew and Thomas if you love the show and wanna support trips odes, please visit our patriarch page at patriot dot com slash off. If you can't support a Spanish -ly, it'd be a big help. 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