SCOTUS Rules on Illegal Drug Users Owning Firearms

A

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. Don't forget. If you want to join us for the live term review with Advisory Opinions, we're doing that July 8th in D.C. at the Bloomberg center with Johns Hopkins and the ACLU. You can sign up at SCOTUS blog while you're there. By the way, sign up for the Advisory Opinions newsletter and get video, transcript, and our own producer Anna's summary and hot takes on everything that we said. I mean, we're letting her get away with quite a lot of stuff in this newsletter, David. I don't. I don't know, but fun times. So. So come Join us for July 8 term review in person. And sign up for the newsletter if you want to see David wear the exact same thing every day. It's a quarter zip, y'. All. It's always a quarter zip.

B

There is nothing wrong with a quarter zip.

A

And on today's podcast, we will go through the Supreme Court opinions that we got Thursday morning, including the gun case for drug users, the Hunter case. I know everyone's getting confused because you're thinking Hunter Biden with the drug case, but nope, nope. The Hunter case is about whether you can waive your appeal in part of your plea bargain of your sentence in a criminal case. What if that sentence turns out to be, like, unconstitutional Bonkerstown and something. You didn't know what the sentence would be when you agreed to the plea deal and you waived your right to appeal. Oh, no. The Supreme Court weighs in on that with some fun times between Justices Gorsuch and Kavanaugh. Once again, they're on the same side, but they are not on the same side. Well, David, the Supreme Court did not take us up on our challenge to release only duds for Thursday morning. But these weren't exactly the sexiest cases that were left remaining. They were solid mid June cases, in my opinion. Let's start with Hamani. So this was a gun case, and this was the question over 922 G3. Let me read you 922 G3. I mean, I'm sure most people have it committed to memory, but maybe you don't, David. So this part of the Federal Gun Control act prohibits various categories of people from possessing guns. And under its terms, one of those categories is that anyone who is an unlawful user of or addicted to a controlled substance is automatically banned from possessing a gun. And we talked about dear Mr. Hamani. He is a dual citizen of the United States and Pakistan, born In Texas, spent most of his life there, lived in the Dallas area. But the government conducted a search of the family home. In 2022, Mr. Hermani surrendered a gun he kept in the house and pointed agents to some marijuana on the property. He also consented to an interview telling law enforcement agents that he used marijuana about every other day. The agents also found cocaine in his parents closet. He claimed ownership of that as well, though he maintained that his mother had hidden it from him and he had not used any recently. David, we talked about the fact that this guy was suspected of all sorts of terrorism related to Iran, but he was not charged with any of that. He wasn't charged with terrorism, he wasn't charged with drug trafficking. He was charged with 922G3, possessing a gun while being an unlawful user of or addicted to a controlled substance. Now, when we talked about this case, David, in our run up to the big cases, we mentioned this case, we said that this looked, I mean, they have a choice. There's 922 G3s all over the place. And they chose the guy who was being suspected of terrorism. That felt to us like a bad man stays in jail type case. And we predicted that Mr. Hamani would lose based on that. David, have any pair of podcasters in the history of podcasting ever been as wrong as we were on this podcast? This was a unanimous 9, 0 decision finding for Mr. Hamanian that he could not be dispossessed of his gun and certainly not convicted of, of any crime for possession of a gun. So David, why did we get it wrong?

B

Oh, this is such a great question, Sarah. And it's a warning for podcasters everywhere. Don't get too high on your own supply. We had exactly right.

A

We didn't even talk about this ahead of time, David, but that's exactly what happened.

B

It is exact. We got so in love with bad man stays in jail. A doctrine that doesn't actually exist, by the way. It's just a summary. It's a way to view, not jurisprudence, but how the court selects the cases that become jurisprudence. That's more precise way of saying it. That as you were saying that of all of the cases 922, you could select, you select one involving a guy who seemed to have a little bit of affection for terrorists out there, and that's the guy. And so you our thinking, which was not judicial thinking, it was sort of more atmospherics, institutionalism, et cetera, et cetera, that this looked like a Rahimi style case. And Rahimi was The guy who was subject to domestic violence restraining order, who challenged his, you know, challenged application of federal law to prevent him from owning a gun while under restraining order. He was a very bad guy. He had used his Used guns unlawfully a lot. Not exactly the kind of guy you want to hand a gun to. And so we had the bad man stays in jail construct. Even though, Sarah, if you read the oral argument, the signs were everywhere. And as soon as I saw that it was Justice Gorsuch, I was like, who wrote the majority opinion? I was like, oh, yeah, of course. This checks out completely. And so, mea culpa, guys. Mea culpa. We looked at atmospherics. We were swayed too much by atmospherics. We got, as I said, high on our own supply. And the reality was this really was a case was the mere possession of an illegal drug. Does that mean that I can be sent to jail for also possessing a gun? And the court was 9, 0. This might be our biggest whiff in all of the years of predicting Supreme Court outcome. I think this is our biggest whiff.

A

Okay, so let's run through it. As we said, it was unanimous, although technically only seven justices were on the majority opinion. Two justices concurred in the judgment only. And then we had a separate concurrence by Jackson and Sotomayor that were basically like, hey, we still object to Bruin. David, I kind of want to start with the concurring and the judgment only from Alito and Kagan. First of all, I can't think of another concurrence or separate writing that is just Sam Alito and Elena Kagan. But if you had given me 99 years to come up with what a separate concurring in the judgment only from Elena Kagan and Samuel Alito would look like Written by Samuel Alito. 99 years. And I can guess one every minute. I never would have gotten to the Cheech and Chong of the Supreme Court, Sam Alito and Elena Kagan. I mean, right? This is like after Raish and all of our drug distortion cases. And I'll just let me read you what Sam Alito wrote that Elena Kagan joined onto. Were they high together when they came up with this? Okay, here we go. Cheech and Chong. In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana. As the opinion of the court explains, the habitual drunkard laws that the government cites did not allow officials to disarm all those who regularly used intoxicants, or even just those who sometimes use them to excess. These laws instead threaten disarmament only for those who used an intoxicant, rendered them practically incapacitated and incapable of managing their affairs. Those persons drank so much so often that they were incapacitated not only during bouts of drunkenness, but also in a more persistent and pervasive manner. That is the only thing we needed to decide. And so based on that alone, that is how, you know, we would have decided this case. So we concur in the judgment only. This reminds me, David, of when, like, your parents were really strict with you, but then you bring your children, their grandchildren over and they just like pour sugar on them and every toy that they see at the store. What has happened to the Sam Alito that I grew up with as a

B

Supreme Court justice who the Sam Alito I knew and loved would have required mandatory viewing of Reefer Madness in his dissenting opinion? I mean, come on. So I have two responses to this. First is a question for Nick, our producer. Should we name this the Cheech and Chong of the Supreme Court or the Herald and Kumar of the Supreme Court? Because which pair is more culturally salient to the largest group of people? So that's question number one. But what's interesting point number, not really question, but point number two about this is it's very interesting because I think in a very short manner it made the core point of the majority opinion in like a paragraph which was quite simply, look, if you're going to look for a historical analog, all of the historical analogs you could find where somebody's got to be really messed up, they have to be really messed up, like in the drunk tank all the time, Max, messed up, can't function in life. Messed up for the historical analogs that you have chosen the habitual drunkard laws to lock in here. But this part was really interesting to me, Sarah. This part here was fascinating. In attempting to rebuff a Second Amendment challenge, the government need not identify a historical twin or precise precursor. Still, the government must cite analogs that are relevantly similar and that therefore furnish a basis for inferring that a challenge law is consistent with the historical understanding of the right that the Second Amendment codified here, the government's analogs are too far afield. This again, and this is with Kagan joining. This is an Alito Kagan, in my view, like reaffirmation of the intermediate scrutiny theory of historical analogs. It's saying you don't have to be precise. Again, just relevantly similar. And Sarah, what is relevantly similar? That's just judge wins. What the judge deems to be relevantly similar is relevantly similar. And I agree with the majority's reasoning. I agree with this concurrence. But I'm going to reaffirm and when we get to the Jackson concurrence, that'll be an ideal opportunity to talk about it. But I'm going to restate and incorporate herein five years of podcast objections to text history as tradition at this moment.

A

So we're going to spend a little bit of extra time on this Alito Kagan thing because it's unusual and because I think it highlights an interesting divide between Justice Thomas and Justice Alito, even though. Right. They're sort of in our group of three together and Justice Gorsuch, for that matter. Really all three of them have different ways in which they decide this case. Justice Gorsuch writes the majority opinion. Justice Alito writes a separate concurrence on the Commerce Clause issue and whether Congress has the authority to do 922 to begin with. And then Justice Alito, they're, you know, spinning Bruin just a little bit more. But the one I want to focus on for the second is Justice Kagan. She does not join the Jackson Sotomayor continued critique, the David French ism of text, history and tradition in Bruen. Do I think she totally disagrees with them on it? No, I do not. But here you see Justice Kagan at her most influential. She adds weight to Justice Alito's concurrence, a lot of weight, by joining it. If this were just a solo concurrence by Alito, I don't know that we'd even be talking about it. Not really. But with Kagan joining it, you see, I think how she sees influence on the court. Look, I am going to refashion what Bruen means. You guys are writing some separate concurrence about Bruen. What a waste of time. Instead, find a conservative to align with who is willing to narrow that in this case for whatever reason. And you are rewriting Bruin slowly but surely you're doing the same thing. You don't need to overturn Bruin to undermine Bruin and Justice Kagan. You know, we've said this before. When she joins as a 7:2 opinion instead of 6:3, a lot of folks are going to be willing to do some to get it to be 7:2 instead of 6:3 along ideological lines. And it makes Justice Kagan, I think, quite influential. And here's another example of that in my mind, where she gets to rewrite Bruin just a little bit rather than just shouting into the wind. I don't like Bruin.

B

This is so shrewd. If I had to guess that Justice Kagan without Bruin probably would have been in the intermediate scrutiny camp for tears of. Tears of scrutiny on, she would have. I think she would have gone with the mainstream circuit view, which was intermediate scrutiny. And so she's getting it. She's getting intermediate scrutiny through a different vehicle, through a broad and expansive and sort of permissive reading of text history and tradition, as opposed to a strict reading of text history and tradition. And what is she doing? She's putting her thumb on the scale in a pretty shrewd and a pretty interesting way towards the originalism version of intermediate scrutiny. And so at the end of the day, you know, she may well get the kind of first. I mean, I'm sorry, Second Amendment jurisprudence that she'd be, I'm not going to say happy with, but maybe more or less okay with. And this is, this is a very interesting example, Sarah. And I think you hit the nail on the head. And by the way, you didn't note my actual intentional pun high on your own supply. And he went with the unintentional pun bluntly, but we're just, we're just covering.

A

That's because bluntly was so much more clever. Okay, I want to walk through the majority opinion. And when I'm doing that, I basically, like, outlined it for you, but I want you to listen because remember, Alito and Kagan are agreeing with the majority opinion, but they're only concurring in the judgment. Meaning they are not signing on to the majority opinion and just adding their two cents. They are not signing on to this opinion. Ask yourself why. Okay. One, apply the Bruin test. Does the Second Amendment cover the conduct? If so, the government must provide the restriction that is consistent with historical tradition. Two, the government's theory is extremely broad. The government argued that anyone who unlawfully uses any controlled substance in any amount, whether dangerous or not, is automatically barred from possessing firearms and can be charged with a crime. Three, historical habitual drunkard laws are not analogous. The government relied on these laws concerning habitual drunkards. And Gorsuch et al. Reject the analogy for several reasons. One, historical drunkards were severely incapacitated. Two, the purpose of those drunkard laws differed. They were about morality and protecting families from financial ruin and vagrancy. Three, they all provided process Right. You lost your liberty only after some sort of judicial proceeding. It wasn't just like, you know, if we now decide that you're a habitual drunkard, we can do something to you. Next up, the court is skeptical of giving government unlimited power to label groups dangerous right because it incorporates the Controlled Substances Act. It means that Congress can like in theory do a total end run around the second Amendment by just naming anything to be a controlled substance. And then all of a sudden you could lose your second Amendment rights. Do I think that's very unlikely? Yeah, totally. But the point is that's not how the Constitution works. So once 922 incorporated the controlled Substances act, it made it very that your rights rise or fall like the tide of whatever is in the Controlled Substance of Substances Act. And the proof is kind of in the pudding with marijuana because it's a Schedule 1 drug, now it's a Schedule 3 drug. We're not sure. And so again your constitutional rights rise or fall with whether Congress thinks marijuana is in what part of the schedule. That doesn't sound very good. And then Gorsuch says this decision does not decide whether addicts may be disarmed, whether intoxicated persons may possess guns, whether Congress could enact narrower evidence based restrictions, whether the government could prove that a particular user's drug use makes him dangerous, or the constitutionality of felon in possession laws. And so David, let me read you the money line. In many respects this case is a narrow one. We do not address efforts to ban addicts or those presently intoxicated from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a specific special risk of misusing firearms. We do not address 922 provision disarming individuals convicted of felonies, often including drug related ones. We do not even address whether the government could bring a prosecution under 922 accompanied by an individualized assessment that the defendant's use of marijuana or any other drug renders him a danger to himself or others, or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way. All that is before us is one if surely ambitious theory. The government maintains that it may automatically strip Mr. Himani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week, more than that because he possessed a gun. Despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life. According to the government, none of this turns on how much marijuana Mr. Himani uses or what effect it has on him. It makes no difference either if he keeps a firearm only in his home or for self defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his marijuana use. The only thing the government must show, it says, is that an individual like Mr. Himani regularly uses any amount of any controlled substance. To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between the present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its efforts to disarm any regular user of any controlled substance without any further showing. But the government's analogy falls under every measure it asks us to consider the historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government's submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hamani complies with the Second Amendment. Why do you think Alito and Kagan don't join this opinion?

B

That is a really good question, Sarah.

A

It is the question, and I don't have a perfect answer to it right now. They just wanted the narrow decision. It is based on that narrow decision. I get that there's a lot of other sort of, you know, the purpose of the law. Maybe they don't want that.

B

Maybe they don't want to be diving as intensely into the historical analysis as Gorsuch did that. It's just a much simpler analysis than he undertook.

A

Stuff about the Controlled Substances act. Like that whole part would be gone, obviously.

B

Or maybe that it's really more in their minds about marijuana that the Cheech and Chong of the court are like

A

as they're passing the doobie between the two of them. Should we include this line? Oh, that's a good one. You can tell I've never smoked marijuana by all of that. Like, I don't even know what I'm doing. I tried to inhale a cigarette for my 30th birthday and failed. I don't know how to do it.

B

So maybe it really is okay. Wait a minute. This is marijuana. You know, they. Because they had. To the extent that there's any really extended discussion at all in this very short opinion, it's like, I mean, why are you doing this with Weed. When booze, you know, booze is just as intoxicating, if not more than marijuana. Why are we doing this? So is it because it's a. Marijuana is special? I don't know. It is interesting because I literally read their concurrence as the Cliff notes version of the majority.

A

Okay, let's talk about Justice Thomas's concurring opinion, meaning he does join the majority opinion. He writes separately to say Congress cannot regulate the possession of everything that ever traveled across state lines. As an original matter. The commerce clause authorizes Congress only to regulate the buying and selling of goods and services trafficked across states state lines. It gives Congress no power to regulate activity wholly separated from business, such as gun possession. The power to regulate commerce can by no means encompass authority over mere gun possession any more than it empowers the federal government to regulate marriage, littering or cruelty to animals throughout the 50 states. Because 922G not G3 note you all of 922G. Felon in possession. All of it. Okay. Because 922 criminalizes possession of firearms apart from any purchase or sale of goods and services across state lines. I doubt that it could be an exercise of Congress's commerce clause powers as an original matter. Now, as to our doctrine, it must either regulate 1 the use of the channels of interstate commerce, 2 regulate and protect the instrumentalities of interstate commerce or persons or things in interstate commerce or three the one that's remotely relevant here regulate activities that substantially affect interstate commerce. And then David, he goes on to explain why it 922 does not regulate activities that substantially affect interstate commerce unless you actually make it an element of the crime that the gun as part of this transaction, not that the gun was for instance made in Pennsylvania and then you 10 years later bought it at a Walmart in Texas, but that like you bought it in Pennsylvania and then drove it to Texas or whatever like that this transaction involved interstate commerce. David we have cited many of the lower court judges flagging this. Most notably, I think we read quite extensively from Judge Willett on the 5th Circuit flagging this problem. But Judge Ho has done it as recently as 2022. We have a lot coming from Judge Bachelder as like 1996 is when Alice Bachelder had been flagging this problem. DeMoss I mean some of the. Oh, Scanlan, these are some big names in circuit court lore, let's just say. And so a bunch of lower court judges have been like, hey, does anyone think this is weird? How is this part of Congress's power and there hasn't been a case that's made it to the supreme court. David, I 100% promise you there will be soonish. Like do I think it's next term? Maybe not. And nobody joined this Thomas concurrence. But and normally I'd say like, oh, there's only one vote for this. I don't think that's the case here. I think this is just a law review concurrence. I'm going to start calling them where it's like wouldn't it be interesting if invitation for cert petitions hear concurrence. So I think there are certainly, there's certainly more than one vote on this court to strike down this so this

B

is the Hive Mind podcast because I was just about to say this is a law review article. A classic law review article is concurrence by Thomas with a twist. So I tend to think of like the cla, the, the Platonic form of Thomas lawview article as concurrence was in Dobbs when he went on this whole privileges or immunities versus due process, which I'd sense like zero appetite, zero appetite in the Supreme Court for them to take on privileges or immunities as the real source of unenumerated rights. This was a hybrid in my view of a classic law review concurrence and a concurrence that is instructive for lower courts. Because I'm with you, Sarah. I think it's definitely, I'm not going to say it's a 50% chance, but we're way above non zero chance that we get a commerce clause opinion around 922 at some point in the next 10 years because there's just, there's a lot of chum in the water about it. You've got a lot of not just, you know, not that any appellate judges are randos, but you, you've got, you've got lots of like non rando court opinions in the, in the courts of appeal about this very issue. So it's very interesting. It's a law review concurrence that's not quite a law review concurrence in my view.

A

All right, David, when we get back, we're going to talk about the Hunter case. This is about appellate waivers in criminal proceedings, which may not sound sexy, but you are about to get the gorsuch trip around the sun when it comes to coercive plea bargaining. Like if you thought that tariff concurrence was a festivus opinion, hold on to your Britches we'll be right back. Aren't we all drawn to brands that care about how something is made, not just how it's marketed? And that's one of the reasons I'm impressed with Brooklyn Betting. We just got a Sedona Elite from Brooklyn Bedding for our guest room and it's been quite the upgrade for our guests. It feels sturdy and supportive, the kind of mattress that's clearly built to last. 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In exchange, the government agreed to dismiss the other nine charges and to refrain from prosecuting Hunter in the future for the conduct they described. The agreement also included an appeal waiver applying to both Hunter's conviction and to his still to be decided sentence. So after that was all signed the district court, then you know accepted the plea. There's going to be some back and forth. Is this knowing involuntary, blah, blah, blah. Then we're going to get to the sentencing. The district court sentenced hunter to serve 51 months in prison, followed by three years of supervised release. The release conditions would include the medication requirement to which Hunter had objected at the sentencing hearing. David, Much of the discussion focused on a condition of supervised release that the probation office recommended go into effect once Hunter completed his prison sentence. According to the office's presentence report, Hunter suffers from symptoms of anxiety and depression and has refused medication to treat his symptoms. The report thus proposed that while on supervised release, Hunter be required to participate in a mental health treatment program and to take all mental health medications that are prescribed by his treating physician. Hunter objected to the mandatory medication part of that condition, saying that he should not be forced to medicate. He said, you know, I don't drink. I don't take drugs. I don't even curse. Like this violates a fundamental constitutional right to not be medicated against my will. And the judge sentenced him to 51 months in prison, followed by three years of supervised release. And the release conditions would include the medication requirement to which Hunter had objected. So he appeals, but remember, he signed that appeal waiver. And so the question for this case is, is that appeal waiver good? Does it apply to, like, a mandatory medication? What else could a judge put into a sentence that that person, again, you agree to the appeal waiver at the plea bargaining stage before you've been to the sentencing, so you don't know what sentence you are agreeing not to appeal. The decision of the court is 8:1. Justice Kagan writes it. Justice Thomas dissents. And we get, you know, a lot of concurrences. We get one from Justice Gorsuch, joined by Sotomayor and Jackson. That's the one. That's like plea bargains bad. We get one from Kavanaugh, joined by Alito and Barrett. That's like Gorsuch bad. Plea bargains good. Then we get one from Barrett in which she says, I read your dissent. Justice Thomas. Did you read my law review articles? And she cites two different law review articles written by a period Barrett. And then you have Justice Thomas filing a dissenting opinion asking, do any of you guys even know what plea bargains are? You complete young idiots. Okay, David. So this is the holding of Justice Kagan's majority opinion. We approve the majority view among the courts of appeals that an appeal waiver is enforceable when it would result in a miscarriage of Justice. That rule, properly understood and applied, sets a high bar. The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious, not one a judge could reasonably make. And it must be the type that would undermine public confidence in the judiciary. Hunter and the government here dispute whether, under the right legal standard, his appeal can go forward. Recall that Hunter wants to challenge the district court's requirement that while on supervised release, he take all mental health medications that his physician prescribes. In Hunter's view, the right to be free from coerced medical treatment is fundamental and the district court infringed on it without a sufficient basis. In the government's opposing view, a sentencing court may demand that a defendant take medication when he has suffered from mental health problems, as the presentence report found Hunter had done. In keeping with our usual practice, we decline to decide in the first instance how that dispute should come out under the miscarriage of justice approach we adopt today. The Court of Appeals did not address that question because its circuit precedent required a narrower inquiry. And we are, as we usually say, a court of review, not of first view. It is therefore now up to the 5th Circuit to decide whether enforcing Hunter's appeal waiver would result in a miscarriage of justice. David, have you ever heard a better application of we decide questions, not cases? Thank you for visiting the Oracle. Bye bye.

B

Just a tremendous piece of writing from Cheech. No, I. I found this case very interesting because it strikes me again, this is one where I'm going to agree with the majority in the same way that I did agreed with the majority. And in our gun case, this seems to me to be obviously correct. This sort of idea that an extraordinary miscarriage of justice can be essentially pre ratified by a plea bargain strikes me as plainly, obviously unconstitutional.

A

Let's get to the fun stuff here. Once again, the fight between Gorsuch and Kavanaugh, right? So like when we talked about how Gorsuch and Kavanaugh were only on the same side in closely divided cases 50% of the time last term, this wouldn't even count as one of those. Right, because they're on the same side. This is an 8:1 decision. But. But they are writing these concurrences, just sniping at each other, and I for one, am here for it. Okay, so here's Gorsuch. In our times, the jury trial has given way to a conveyor belt of plea bargains. At least Some responsibility for that development lies with this court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence. Today, the Court begins to correct course. It rules that prosecutors may not always leverage their plea bargaining power to induce a defendant to forego the right to contest his sentence on appeal. I agree. And write separately to outline how we got here and some of the work still ahead. And he basically goes on to say, this is a great opinion because if read correctly, it covers. And then it's like all plea bargains, like, there is no such thing as an appeal waiver for a sentence, any sentence, really, that could have anything possibly wrong with it. And he goes through the history of coercive plea bargains. And like, if you work at any libertarian think tank or organization, you're going to have, I don't quite know quite how many, like, 15 pages you're going to need to fit on that tattoo you're getting on your inner thigh or whatever. It's going to be long is my point. And it's going to be awkward to explain at swim parties, but nevertheless, I assume you'll be getting the whole thing. Here's Justice Kavanaugh's opening. So remember, it's Gorsuch, Sotomayor, and Jackson. It's Kavanaugh, Alito, and Barrett. I joined the Court's opinion in full. The Court's opinion sets a high bar for the miscarriage of justice exception to render an appeal waiver unenforceable. The Court describes the exception as applying in extreme cases to sentencing errors that are egregious and obvious and that undermine public confidence in the judiciary. I appreciate Justice Gorsuch's thoughtful concurrence, but I respectfully disagree with his understanding of the miscarriage of justice exception. As I read it, his concurring opinion would set a lower bar for the miscarriage of justice exception than the Court's opinion does. In my view, therefore, the concurrence may not be entirely conceived consistent with the Court's opinion. In any event, the Court's opinion, of course, speaks for itself.

B

I love it. I love. I'm here for it as well, and I'm. Consider me on Team Gorsuch.

A

This is such a good example of your bully point, David, if you would like to make that again and use this entire concurrence.

B

By the way, I floated this theory that I'm about to share to Justice Gorsuch himself. He was digging it.

A

Is this before or after he told you that he doesn't want you to psychoanalyze him.

B

This is after. But yeah, but I did it anyway. So essentially the theory, the jurisprudential theory, is that Gorsuch, all other things being equal, when push comes to shove, however you're going to want to do it. When matters are in doubt, he's going to rule against the bully. And if you look at this, and you can look at a lot of his jurisprudence, this is a consistent theme. So let's look at his Native American jurisprudence, for example. This is a justice who is arguably the most friendly to Native American legal rights of any justice in the entire history of the United States. And I think, you know, I've floated that theory by a number of progressive critics of the court and they agree with it. They say, okay, I don't like Gorsuch on a number of counts, but on Native American rights, he's been the best. A lot of his, if you read what he says about the administrative state and the very skeptical way in which he approaches the administrative state. So if you look at his, his first book that he wrote that is story after story of the big bullying state, essentially oppressing, bankrupting the little guy time and time again. So that's the administrative state portion. Then if you're going to look at criminal law, criminal law time and again, he's the guy who's reviving the rule of lenity, that essentially the tie goes to the defendant. He has been very skeptical, he's very skeptical here of the big coercive plea bargaining. So time and time again, if you have the underdog, if you have the little guy being subjected to the coercive power of a huge administrative state, the coercive power of federal prosecutors, the coercive power of the federal government and the military over history with Native Americans, he's constantly siding with the underdog. And I would also add in here, and some listeners are going to disagree with this, I would add Dobbs to that. There's few more powerless people in the whole world than an unborn child. And so I look at Justice Gorsuch as the anti bully justice. And this fits, as you said, just very neatly into that construct.

A

The part of Justice Gorsuch's concurrence that I think is actually the most important is his retelling of the history of plea bargaining and the Supreme Court's involvement in it. As in each time plea bargaining really starts jumping in terms of percentage, it's because the Supreme Court has blessed some part of it and Particularly during the Warren or early Burger Court years when the Supreme Court was maybe more in that platonic guardian phase of like, I think we can, we can make a system that we know best. And Gorsuch is like, yeah, well, you created this. So that's the part that I'm going to be rereading. I think like, when I go back and check Hunter, it won't be for the sort of like egregious and blah, blah, blah. It's going to be the Justice Gorsuch history. But also, David, Justice Thomas's dissent is no joke. I mean, the cheese stands alone, as Justice Thomas usually does. I went back and looked, by the way, over the last 20 or so years, how many terms Justice Thomas was the justice the least likely to be in the majority? It's like every other term for a lot of those years. It's crazy how often he is just hanging out by himself and yet we think of him as being so influential because he is, I mean, but like, not because he's in the majority. God knows not. Not only is he not in the majority the most, literally the least often. Um, and so over the course of his entire tenure on the Court, compared to everyone else's course of entire tenure, mind you, he's been on longer though that should actually mean the law of large numbers would move him to the middle. He is the justice least likely to be in the majority, which I think is just really interesting. Okay, he is who he is. So let me read you his take on this. Munson Hunter deceived others to make himself nearly half a million dollars. The government charged him with 10 counts of fraud. If a jury had convicted him of all 10 counts, Hunter could have received a 300 year sentence. Instead, Hunter knowingly and voluntarily made an agreement with the government. Under the agreement, the government would dismiss nine counts. In exchange, Hunter would plead guilty to the remaining one and waive his right to appeal his sentence unless it exceeded the statutory maximum, a 30 year prison term followed by up to five years of supervised release. Thanks to the agreement, hunter received a 51 month prison term followed by three years of supervised release, less than 2% of the prison time to which the indictment exposed him. Now Hunter wants to keep his reduced sentence but take back the appeal waiver. And the court holds that he may be able to do so. I see no basis for excusing Hunter from his appeal waiver. Defendants could not appeal federal criminal sentences at all for more than 100 years after the Founding. Only then did Congress create the statutory right to do so like many constitutional and statutory rights, the right to appeal can be waived by the defendant. And once that choice is finally made, the defendant is bound by the decision. The court today creates a miscarriage of justice exception to this rule, but it cannot identify any source of law for its exception. Neither the contract law principles that Hunter invoked nor this court, supposedly supervisory power, gives it the authority to override Hunter's appeal waiver. Without any source of law to justify its decision, the court appears to rest on its policy concerns that holding defendants to their waivers may sometimes lead unfair results or make federal courts look bad. But policy concerns.

B

How. How is that tone of voice implied by the text? It is. It is good.

A

But policy concerns are not rules of decision in courts of law. Because I would decide Hunter's case based on law rather than policy, I respectfully dissent. Really? Is it respectful? Okay, so, David, this is the part that I found pretty interesting. I, as a policy matter, as a, in my heart matter, I get Justice Gorsuch's point totally about the way the system is working right now. I don't love it. But the fact that a criminal defendant, the fact that a criminal defendant couldn't even appeal their sentence for a hundred years at all, waiver or not waiver, means that you do not have a constitutional right to appeal your sentence, which to me means you definitely have the ability to waive the right to appeal your sentence, if that all makes sense. Now, the majority points out some, like, really egregious hypotheticals of, you know, a judge letting an orangutan pick your sentence out of a jack o lantern and then you would have, you know, waived your right to appeal. But as Justice Thomas points out, there are, you know, other potential ways maybe to get there rather than like these appeal waivers, perhaps. And that being said, David, we also got an email from an actual prosecutor and I just wanted to run through that real quick and get your whole response to Justice Thomas plus prosecutor. Here's his argument. I think the reason we have so many plea agreements now is because our justice system is, top to bottom, light years better than even 50 years ago. Back in the day when we had a much higher percentage of trials, we didn't have such things as government paid defense attorneys. Gideon wasn't decided until 63. We didn't have Miranda warnings until 66. We didn't have Batson until 86. We also didn't have DNA, security video recordings, dash body cams, cell phone location data, text messages, emails, live streaming, cell phone video recordings, IP addresses, et cetera. We also didn't have modern procedural rights. A special especially pretrial discovery which defendants now have access to when they are deciding whether to go to trial or seek to accept a deal. No man made system is perfect. A very small percentage of people are wrongfully convicted, although they are often ultimately exonerated by our modern techniques, DNA, et cetera. And as with any exercise of executive power, there is the possibility of abuse, coercion, especially when a prosecutor offers a ridiculously low sentence to avoid an extremely high possible outcome. You know, plead guilty to a misdemeanor in exchange for not seeking the death penalty, et cetera. But guardrails to prevent that already exist. My plea offers have to be reviewed, approved by my supervisor, and depending on the case in the plea deal, additional levels of supervisors above him and the judge on the case has to approve and accept any agreement that prevents 99% of improperly coercive plea deals. In my unscientific opinion. So, David, who's right? Is this actually a sign of a good system that we have so many plea deals? The government is bringing those cases which it has dead to rights and everyone is better off just, you know, saving our judicial resources? Or is Gorsuch right that the court has created the algae bloom in the reflecting pool of, you know, the criminal justice system? So many more criminal laws, all of these incentives to plead, not the resources to actually take these cases to trial. And a conveyor belt that once you've been charged, you're pleading out.

B

So I think Gorsuch is right with the modification, with the helpful modification by the prosecutor in this sense that I don't think Gorsuch is saying that plea bargaining, just as a concept, is unjust. He's talking about the plea, the coercive plea bargaining. Coercive plea bargaining can take many forms. One of them is a hey, we're going to. Or unjust forms of plea bargaining. We're going to offer you a sweetheart deal because we want to pocket a conviction that's unjust or we're going to overcharge. We're going to throw charges into the indictment like croutons on a salad to raise the specter of hundreds of years of prison to try or, you know, dozens of years of prison to try to coerce you into a agreement with a much smaller prison sentence. At the same time, it is, I think, absolutely correct, as the prosecutor said, that the improvement in policing methods, pretrial discovery means that even in a non coercive environment, you would have a boatload of plea bargains. You would have, I think you would have an absolute boatload of plea bargains. Even if you did away with overcharging, even if you had constraints and guardrails preventing the kinds of sweetheart deals that lead to this, there would still be. It's not an all or nothing. It's not the case that if you go down the Gorsuch road, that you're clogging the criminal justice system with countless trials. No fact, you might actually only see the impact on the margins. But those margins really matter, because those margins, each margin is a case involving a human being confronting the power of the state, and it matters on the margins. And so I think that that's where I'm much more on the Gorsuch side, but with acknowledging the reality of what our prosecutor friend wrote in, which is an awful lot of these cases are, by the way, open and shut. They just are. And if you can give a modest incentive to a slightly better, a slightly shorter sentence to induce a plea bargain, rather than clogging the system with open and shut cases, okay, that's okay. But I think the prosecutor's perspective is important to correct those who might think, well, if we did away with coercive plea bargains, it's just trial after trial after trial after trial. And I don't think that's the case at all.

A

We'll get to one other potential avenue that people who have been unjustly charged might have that the different Hyde Amendment. But David, we'll be right back after these messages. But you know what? We're not going to talk about. Not going to talk about Rooker Feldman. That was the third case decided Thursday morning. It was 5 4. It was a barn burner of a case about something that basically never comes up that doesn't matter, called the Rooker Feldman doctrine that we're not going to talk about about. Basically, when you have a state, when you lose in state court and you want to go to federal court to complain about the state court, can you do that while your state court proceeding is pending? Can you definitely not do it after it's done? Is Rooker Feldman, you know, bend secretly? Is it a zombie precedent? Again, I can't tell you how much I, I didn't care. But also it kind of looked like the justices, while they cared enough to be five, four, also didn't. I didn't feel a lot of passion in this opinion, but the lineup was interesting. Sotomayor, Thomas, Alito, Kavanaugh, Jackson versus Barrett, the chief justice, Kagan and Gorsuch Barrett may be at her finest in dissent as the former civil procedure law professor that she is. Sorry, Justices Sotomayor and Barrett, we it's not going to happen when we get back. Instead, we'll talk about that Hyde Amendment and when you get taxpayer dollars after DOJ indicts you for something and then plays shenanigans. DAVID let's just start with the headline here. Taxpayers may pay legal bills of activists in dropped case over ICE protests near Chicago. The Department of Justice will not fight a demand by people charged in since abandoned criminal cases stemming from anti ICE protests in Chicago that the federal government pay their legal bills. The highly unusual move appears to be a gesture by the top federal prosecutor in Chicago, Andrew Boutros, to quell the controversy over his office's handling of the Broadview Six, a group of activists and local Democratic politicians indicted on felony conspiracy charges last year over a protest at an Immigration and Customs Enforcement facility in South Chicago. This is a write up from Josh Gerstein over at Politico. DAVID this was after the judge in the case found found prosecutorial misconduct relating to the prosecutors doing shenanigans with the grand jury, striking people from the grand jury who they didn't think would vote for them, talking to the grand jurors outside of the court. Here's from the judge in the case. I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken. We all took the government attorney's word on a great many things. I at the time was operating on a presumption of regular grand jury proceedings, which these clearly were not, given that the former defendants, the people who were charged, asked for attorney's fees from the government. And DOJ is basically at this point being like, yeah, we won't contest that. We'll pay your attorney's fees. And I'm pretty mad about it, David which is weird because, like I'm I'm not happy that they did shenanigans, obviously. But here you have DOJ bringing politically motivated charges for a press release that they knew they wouldn't get convictions on doing shenanigans, undermining both doj, the presumption of regularity, just people's faith in the rule of law in general, and then they're using taxpayer money to pay the people that shouldn't have been indicted in the first place. I'm at a loss. I'm really mad.

B

And the details here when you dive in on this are really, really bad. SARAH so you have the Broadview Six were a collection of Democratic lawmakers and activists, progressive activists who were arrested. And there was a press release. Todd Blanch, now the nominee for attorney general, announces this in Washington, D.C. these six people are arrested, accused of impeding and attempting to injure the person or property of a federal official. Enforcing. Trying to enforce immigration laws. Serious charges are brought. Then, I believe it was in March, the Broadview Six become the Broadview Four. They dismiss two of the six, and then they narrow the charges against the other four, which then leads the defense to ask the court for grand jury transcripts to review grand jury transcripts to make sure that the grand jury was properly instructed on the one remaining charge. The prosecutors then produced grand jury transcripts for the court that are redacted, Sarah. They are redacted. They don't have everything in there. So the court says, I want to see the whole thing. So then when they see the whole thing, what does the court find? Well, the court finds on the good ledger that the grand jury was properly instructed on the underlying charge. But on the bad ledger, there were three things they did. Number one, something called vouching, which is when a prosecutor basically tells the grand jury, well, if you're worried about the evidence, just trust me. Like, I wouldn't bring it to you if I didn't think that I could get in. Well, that's improper. You go based on the evidence, not your personal commitment to the prosecutor. Number two, they were interacting with the grand jury outside the grand jury room. They were engaging in shenanigans outside the grand jury room. And then, number three, they dismissed grand jurors who indicated they didn't like the charges. So rather than returning a no bill or rejecting the. They said, no, you can't decide this. And they knocked him off the grand jury and then exacerbated all this in the eyes of the judge by then redacting all the evidence that this occurred. So then this happens. And the judge then says, all right, I want the attorneys who participated in this process to appear before me personally in court. So they appear before her personally. She says she's never seen anything like this. That. And there's a brief recess, and then the prosecutors come back and dismiss the whole case. And so, yeah, Sarah, this was really bad. But within. What makes it worse, okay, it's bad enough to have a single case of meritless prosecution, but the Chicago Sun Times has been keeping a database, a tracker of all of the cases brought against protesters. Okay, are you ready for some numbers, Sarah? So there was around roughly 30 or so that were brought for non immigration related criminal charges out of the Midway Blitz protests, two guilty pleas, five deferred prosecution agreements and two that are still pending. 24 other cases just failed, 20 were just dismissed by the prosecution. The grand juries refused to indict and three and one was acquitted by jury. So here you have now think about this in historic Department of Justice terms, Sarah, and you can speak to this better than I can. Is it normal for the Department of justice to get two guilty pleasure, five deferred prosecutions out of about 30, 30 plus cases? I'm saying no to that. I'm saying no to that. And in one of those cases, this was a famous case involving a woman who was shot five times by police, charged with assaulting police officers. Then when the body camera footage emerged, found out that called a domestic terrorist in a press release by the doj, body camera footage emerges. None of that's true. Her case was dismissed voluntarily with prejudice. So it's a bad scene out there, Sarah. It's a bad scene. And I will say this, I will say I've got a little bit of hope. It's getting better. I'm very angry that they're agreeing not to contest attorneys fee charges, but that's the right call.

A

Yeah, yeah, sorry. I'm mad because taxpayer money is getting paid so that they could put out a press release because there was political pressure to bring these cases. Not that they shouldn't pay the money.

B

Totally. And then also the US Attorney who was overseeing the office when all these shenanigans were happening is now announcing sweeping reforms to internal grand jury practices. And so my theory is this, and you tell me if you think that I'm wrong, if this was this time last year when sort of there was maximum arrogance and sort of maximum aggression, these reforms would not be being made. You fast forward. I think a lot of the air is going out of the tires on a lot of this. With the Trump administration facing a lot more headwinds even from its coalition that it's faced in the past. This sort of idea of this big vibe shift is done over. I do wonder if this is a sign that regular order is going to come back. I don't know. I'm just trying to pull some sort of silver lining out of this dark cloud. But this was bad with a capital B.

A

We shall see. Next time on advisory opinions, perhaps undermining your point, we'll talk about the legality of the memorandum of understanding in the Iran quote deal, end quote. Professor Jack Goldsmith of Harvard Law School, making the case that this whole thing isn't even legal. But can anyone stop the President? And have we? I mean, we've talked so much about Congress doing its job in the domestic sphere. We haven't even really talked about how the same exact thing is happening and maybe with much bigger consequences on the foreign policy stage. Congress having left the field entirely, not having a veto proof majority now means that presidents alone do foreign policy. And the pendulum swings, whether it's the Iran deal or Paris climate accords, where every four years we have a different foreign policy. Fun times. And we got more accommodation stuff. We're basically never leaving that topic. I got an email from a student, David, who asked for an accommodation for the two weeks postpartum. No, definitely not. That's not, we don't accommodate that. I mean, you can't like sit or, you know, keep all of your bodily fluids inside your body at your own command, but no that, we're not accommodating anything like that. So we'll talk about more accommodation and accommodation theories. I've had a couple law professors write in as well. But David, before we hopped on this podcast, I had about 15 minutes where I'd finished reading everything, but we weren't starting yet. And I went to a white rug that I have that was vomited on last night by a certain six year old. It's pretty hard to clean vomit out of a shag rug, I'll tell you that. But you know, if I told you that your 6 year old is going to vomit somewhere in your house, you know it's going to be the white shag rug, right? Like it has to be.

B

Well, you're in the middle of a move so you don't have to move the rug.

A

That's literally what Scott said. He was like, look, this problem has been solved. I'm gonna go back after this pod and continue cleaning vomit. And I just, I mention that because sometimes it can seem like I must lead a very glamorous, high intellectual, law filled life where I read Supreme Court opinions and have these incredible conversations with David French. And I just think it's important for you guys to know I'm picking out. Are they chicken nugget remnants? They're orange. I'll just tell you that. It's orange and it's really gross. And that's what I'll be doing right after this.

B

Well, you're doing that the day after we were cleaning up vomit from a dog on a white rug. So hey, we're just united in this just.

A

All right, see you next time on Advisory Opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free. And help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@the dispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns, or corrections, you can email us@advisoryopinionsthedispatch.com we read everything, even the ones that say, David's right. That's gonna do it for our show today. Thanks so much for tuning in. We'll see you next time.