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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey, Aggie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm good. How are you?
J. Aughenbaugh: Well, of course, I'm excellent. One, I get to speak with you this fine morning, but two, we once again get to talk about my beloved United States Supreme Court. Listeners.
N. Rodgers: Which before known as SCOTUS.
J. Aughenbaugh: SCOTUS, yes, US Supreme Court or Supreme Court of the United States. SCOTUS. This is episode 2 of our Annual Summer of SCOTUS series.
N. Rodgers: Yes, when last we spoke, John Roberts was sad.
J. Aughenbaugh: Yeah, he was about ready to have a nervous breakdown, I believe.
N. Rodgers: Now we're going to find out why.
J. Aughenbaugh: No.
N. Rodgers: The different cases. These cases, the first set are all so you'll know, Aughie, when cases come out, I don't talk to Aggie for the first like three or four hours after cases come out because he is devouring.
J. Aughenbaugh: Yes.
N. Rodgers: He's devouring the cases, and he reads very quickly. He's a speed reader, which is awesome. I don't bother to ask. Like, What does that even mean? Because I know I'm gonna find out, but I'm not going to find out immediately, 'cause he's going to cogitate over it and think about what it means. But he says to me about these first few cases. He's like, they're all unanimous. I was like, Okay. He says it with this voice of doom. They're all unanimous, Nia. I'm like, Okay, how's that bad? He's like, Because it means something's coming. Something terrible is coming. That's going to be your five, four or six three, and it's going to set fire to the court. It's going to be something where we're going to be talking about it for days and days and days. I was like, Okay.
J. Aughenbaugh: This is the infamous calm before the storm, right?
N. Rodgers: Exactly. This is Aggie saying, Okay, you need to get back in the boat because there are alligators in the water and they are about to come for us. Everybody just get back in the boat.
J. Aughenbaugh: Yeah, because the water looks calm. You haven't stepped on too many rocks. But if you go a couple more feet.
N. Rodgers: Piranha. You're going to be eaten alive. Let's talk about the easy cases first 'cause, and I love that they're doing that. I love that John Roberts has learned now to put out the easy cases or the cases where it was unanimous or the cases. Not easy because no Supreme Court case is actually easy. But ones where more or less, it's a relatively quick turnaround because that means he leaves the worst stuff for the time right before they leave town. Well, it was a really smart thing to do.
J. Aughenbaugh: It also reflects the fact, Nia, that chances are the justices, particularly those writing in dissent or concurring opinions are still putting the final touches on the barbs, jabs, and critiques that they want to get in at the majority. Right now, the justices and the clerks aren't sleeping very much.
N. Rodgers: No. That's what August is for.
J. Aughenbaugh: This is like particularly for students who are listening, it's like what you guys go through, the two or three days before a paper's due. You're drinking way too much caffeinated beverage, you're not sleeping well, you're not getting enough sleep, you're not eating right, you're snapping at your friends, your loved ones. This is all that's going on right now at the Supreme Court. But first.
N. Rodgers: If spouses were smart, they would leave town in June and say, join me at the beach house when you're done with your.
J. Aughenbaugh: School is out. I'm going to take the kids.
N. Rodgers: I'm bailing.
J. Aughenbaugh: We're going to go ahead. We're going to set up our summer cottage on the beach. You come up when your work is done, and by the way, in the drive or the airplane flight to the Summer house.
N. Rodgers: It it all out of your system.
J. Aughenbaugh: Yeah. Get your mind right in the infamous words of Cool Hand Luke. You got to get your mind right. Anyways, listeners, we're going to talk about some cases. By the way, the rulings in some ways are pretty significant, and we're going to get to a couple of these. But with one exception, the first set of cases are all unanimous. But the first case is the anomaly. This is the case Oklahoma Statewide Charter Board versus Drummond. This is the case from the state of Oklahoma, Nia, where the Oklahoma Statewide Charter Board granted the approval for the Oklahoma Catholic Church diocese to operate a charter school. What was interesting about this case was that the Oklahoma Attorney General, a Republican by the name of Drummond, actually challenged the charter board's decision arguing that Oklahoma could not grant a charter school, if you will, license to a church related private school, because he argued that it violated both the Oklahoma Constitution but also the Federal Constitution in regards to the establishment of religion. Now, the Supreme Court took the case, not to look at the establishment clause, the US Supreme Court took the case after the Oklahoma Supreme Court upheld the Oklahoma law that prohibited granting a license to the charter school.
N. Rodgers: The Oklahoma Supreme Court said, No, you cannot give the diocese a charter.
J. Aughenbaugh: They agreed with the attorney general against the Charter Board's decision. The Supreme Court took the case because the Charter Board said the Oklahoma Supreme Court decision violated the free exercise clause of the First Amendment.
N. Rodgers: Because remember, folks, the First Amendment says that you both have the freedom to have a religion and the freedom from a state religion.
J. Aughenbaugh: That's right.
N. Rodgers: But there are two aspects to the religious freedom part in.
J. Aughenbaugh: In the First Amendment of the US Constitution.
N. Rodgers: There's free exercise and there's the establishment, prevention of establishment.
J. Aughenbaugh: They're often in conflict. This case presents that conflict head on. The Supreme Court takes the decision, and when the court took the case, Justice Coney Barrett announced almost immediately she was recusing herself from the case. She didn't state why, and they don't have to.
N. Rodgers: She doesn't have to.
J. Aughenbaugh: That's right.
N. Rodgers: By the bye, Supreme Court recusal is self regulated. They decide when they are going to recuse, they can state why or they can just say, I'm recusing and I'm going to be mysterious about it. That's fine.
J. Aughenbaugh: That's right.
N. Rodgers: They get to do that.
J. Aughenbaugh: The court ended up dividing four to four, and they didn't even say which justices voted in favor of the state of Oklahoma or which ones voted in favor of the Catholic Diocese and the Charter Board.
N. Rodgers: But what it means is the Oklahoma ruling stands.
J. Aughenbaugh: That's right.
N. Rodgers: Because when the Supreme's tie, it goes back to the previous decision.
J. Aughenbaugh: The lower court decision stands. In this case, it's Oklahoma State Supreme Court.
N. Rodgers: The Catholic diocese cannot start a charter school.
J. Aughenbaugh: Now, is this issue going to go away, Nia? Heck, no.
N. Rodgers: Heck to the no. They'll come back with a different case.
J. Aughenbaugh: It'll come back with a different case, and perhaps in that one, Coney Barrett will be able to participate.
N. Rodgers: Again, we don't know who voted how.
J. Aughenbaugh: No, we don't. Now, if I had to venture a guess Nia, the votes were for the Charter Board in the Oklahoma diocese, Thomas, Alito, Gorsuch, and Kavanaugh.
N. Rodgers: States rights.
J. Aughenbaugh: No. Free exercise. If I had to venture a guess, John Roberts voted with the three liberals on the court simply because he wanted to avoid issuing a decision that would certainly upset public school advocates in the United States, because public school advocates, one, don't like charter schools because they take resources from regular public schools and give them to charter schools. But two, public school advocates don't want any state money to go to private religious schools.
N. Rodgers: That's been a long question in education.
J. Aughenbaugh: Yes. But if I had to venture guess, John Roberts joined the Liberals and was just like, man, this will put this decision off for another year, 3, 5.
N. Rodgers: I might not even be on the court in the morning.
J. Aughenbaugh: Yes. I might decide to go ahead and jump this ship in 2028.
N. Rodgers: Or Oklahoma may change the law in Oklahoma to make it more clear about whether you can or can't have religious charter school. That's the other possibility.
J. Aughenbaugh: What's really fascinating about this is that Oklahoma's prohibition on public monies going to religious schools, originated in a law passed at the turn of the 20th century, passed by a number of states that were vehemently against private religious schools, not because they had a problem with private religious schools. They just had a problem with Catholics and Jews.
N. Rodgers: Who tend to have schools.
J. Aughenbaugh: Yeah. Their own religious schools.
N. Rodgers: Not a whole lot of Baptist schools out there.
J. Aughenbaugh: How do you assimilate into the American culture if you're still sending your kids to?
N. Rodgers: Catholic school or Hebrew school.
J. Aughenbaugh: There you go. There's a lot to unpack here, but the court avoided it.
N. Rodgers: But the court dodged unpacking anything. The court was like, no, not opening that suitcase. We're just going to throw it right out the window and see what happens.
J. Aughenbaugh: Our next case was actually handed down yesterday. We're recording on Friday, June 13. This case was handed down on Thursday, June 12.
N. Rodgers: Although you won't hear this till July. Sorry. This won't come out until July.
J. Aughenbaugh: But nevertheless, another public school case. AJT, these are the abbreviation for the student because in many states, minors, their full names are not actually stated in case titles, versus the Osseo Area Schools. Now, this is a case that arose in, Nia, what state was this? I want to say Wisconsin. Could you look that up quickly?
N. Rodgers: I will. If you tell us about the case, I will find this location. Minnesota.
J. Aughenbaugh: Minnesota. I knew it was in the upper Midwest.
N. Rodgers: I was going to say a cold laky place.
J. Aughenbaugh: Wait a minute. That is actually the nickname of the State of Minnesota, right?
N. Rodgers: Yeah. Land of 10,000 lakes.
J. Aughenbaugh: Yes. How about that? You should go on Jeopardy.
N. Rodgers: I'm not fast enough with the button and I would panic.
J. Aughenbaugh: See, I'm not good with the science questions. My mom keeps on saying, son, you should go on Jeopardy.
N. Rodgers: You have to know more about lots of stuff. There's a skill set to being on Jeopardy.
J. Aughenbaugh: Just even the bets because I'm inherently conservative.
N. Rodgers: I'll get $1.
J. Aughenbaugh: Even when I play poker, I don't go ahead and bet a lot. Anyways. This is a case that looks at whether or not students faced a higher standard or bar in challenging activities for disabled students. Because what the school district argued was that the students would have to go ahead and demonstrate, okay, a level of discrimination by the school because they were disabled. That would be greater than what we see in other disability law contexts. Does that make sense?
N. Rodgers: Students have to reach a higher bar than ADA compliance for a building?
J. Aughenbaugh: That's right. Or a workplace.
N. Rodgers: That doesn't seem good.
J. Aughenbaugh: Yes. What was interesting was a unanimous Supreme Court in a majority opinion written by Chief Justice John Roberts, rejected the higher standard that had actually been adopted by a number of lower federal courts. This is a case that concerns two laws. One, Section 504 of the Rehabilitation Act, and then the well known Americans with Disabilities Act, which was passed.
N. Rodgers: Title II.
J. Aughenbaugh: Title II of the US Code. In part, what the other courts had said was that students with disabilities, in trying to establish, if you will, the justification for their IEPs. IEP stands for individualized educational program. If you're a parent and you have a student with a disability, you first got to demonstrate that your child has a disability. Once you do, then the burden falls on the school district to come up with a program, an IEP that will address your child's disability.
N. Rodgers: Because what we want is equal education for all children.
J. Aughenbaugh: That's right.
N. Rodgers: Regardless of their ability levels.
J. Aughenbaugh: Yes. What a number of lower courts had ruled was just because a school district might be reluctant to come up with an IEP that you want as a parent does not mean that they were discriminating against your child. That you actually had to show intent by the school district. Parents of AJT argued, wait a minute, here, why do we actually have to show discriminatory intent in this context when in other disability contexts, we don't? All we have to show is there was some discrimination. That's it.
N. Rodgers: If your building does not have a ramp for people with wheelchairs to get into your building, all they have to do is say, hey, there's no ramp and that doesn't meet ADA compliance. You're a public building, you have to meet ADA compliance. They don't have to show how they personally have been burdened.
J. Aughenbaugh: Or they don't even have to show that your intent was to discriminate against you because you were in a wheelchair.
N. Rodgers: They can just say, it's a public building and you did not provide access.
J. Aughenbaugh: Likewise, this is a public school. You've recognized my child has a disability per federal law. Now, it's your job to come up with a plan that satisfies this disability. Why do we have to show that their intent was to discriminate? No, they are discriminating. Now let's try to go ahead and figure out how to address the discrimination. In the Supreme Court was just like, Yeah, we agree with you, parents of AJT. The argument that the school district made was this is going to be a huge burden on the 400,000 plus schools in the United States, and the Supreme Court was just like, that might be the case. However, the way the law is written is that school kids don't have to show that the public school was intentionally discriminating.
J. Aughenbaugh: Then they sent the case back to the lower courts to figure out whether or not the school district was engaging in discrimination. But again, that was unanimous.
N. Rodgers: Well, and this goes to the Department of Education, we were discussing in an earlier episode where one of the things about the Department of Ed is that, generally speaking, it is a pass through money organization. It gives money to states to do things like help children with disability.
J. Aughenbaugh: That's right.
N. Rodgers: Help them get an education. Like, that's one of the things it does. If your state needs more money to make that happen, then you apply to the federal government and you say, we need more money because we need more mitigation for ex students because we have to help out with their IEPs in some way. Like there's ways to make this work. I'm with AJT's parents on this. Sorry, Asos school district. I get what you're saying about. It's a burden, but a kid deserves an education, and you are obligated to give them one.
J. Aughenbaugh: If the school system for a state is saying that it's going to offer free and equal public education, then you can't discriminate against, special students. You just can't?
N. Rodgers: It's either free and equal for everybody or not for anybody.
J. Aughenbaugh: Our next case I mean, by the way, these cases deal with some hot button topics.
N. Rodgers: Children, special needs children and their education. That is a huge.
J. Aughenbaugh: Charter schools? Huge. Next one, also huge. But again, the court's decision was unanimous. Smith and Wesson, which is a gun company in the United States versus Estados Unidos Mexicanos, which is the government of.
N. Rodgers: United States of Mexico.
J. Aughenbaugh: That's right. Now, the Mexican government attempted to sue gun manufacturers, including Smith and Wesson in federal courts for aiding and abetting, gun trafficking and drug cartels that have killed thousands of Mexicans.
N. Rodgers: Well, that's not gonna fly in the United States. I don't see how that could fly in the sense of manufacturer going back to the old adage, guns don't kill people, people kill people. Then it's not Smith and Weston's fault when somebody uses a gun to kill someone. Like in the United States, we would never if you shot me with a glock, we would never allow me to sue Glock.
J. Aughenbaugh: Yes.
N. Rodgers: For you using a glock to shoot me, I would be allowed to sue you for shooting me.
J. Aughenbaugh: Yes.
N. Rodgers: If Glock knowingly made guns that exploded and your gun exploded when you were trying to shoot me, your family could sue Glock for knowingly making something that explodes when it shoots people.
J. Aughenbaugh: Again, what is at issue here is the interpretation of a federal law passed by Congress in 2005. Congress passed a law in 2005 that basically shielded the gun industry from lawsuits in US courts for the misuse of guns by others. What Mexico was arguing is that the gun manufacturers had to know that when they sold to buyers in Mexico, that those guns were going to be used to kill civilians in Mexico. What the United States Supreme Court in a nine to zero vote majority opinion written by Justice Kagan. Again, we're talking about all nine justices, including the three liberals on the court went ahead and said, Hey, Congress has clearly spoken. I'm going to read a passage from her opinion that just deals with the analogy that you used just a few moments ago. Kagan explained that to hold someone liable for aiding and abetting a crime, that a person must both take an affirmative act to advance the offense and intend to facilitate the commission of the crime. What she was basically saying is, Mexico can't show that the gun manufacturers, one, knew how the guns were going to be used when they sold them to purchasers in Mexico.
N. Rodgers: And intended for it to be used that way.
J. Aughenbaugh: Use that way. That's right.
N. Rodgers: If Ford sells you a car and you run me over with it, Ford did not have any reason to believe that you would run me over with the car.
J. Aughenbaugh: That's like the people who post 911 attempted to sue Boeing and the airline companies.
N. Rodgers: The airlines had no intention for their planes to be used that way.
J. Aughenbaugh: When Boeing goes ahead and makes a 737 or 747, they're not thinking.
N. Rodgers: I hope this turns into a bomb one day. Same with Smith and Wesson. They're not saying when we sell these in Mexico, we certainly hope that the cartels are buying them and shooting people. That is not their.
J. Aughenbaugh: No. Again, we may hate gun violence. Nia and I on this podcast episode have.
N. Rodgers: We're not talking pro, like, let's get more Smiths and Wesson in the hands of Cartel member, that is not what we're saying.
J. Aughenbaugh: But what we are saying, and by the way, Brett Kavanaugh during the oral arguments, actually made this point because Kavanaugh was just like, if we allow this lawsuit to go forward, then think about pretty much any industry in the United States that makes a product that eventually gets used differently than the company that made the product. He goes, where does this end?
N. Rodgers: No more pillows sold in the United States. Why? Because occasionally monsters use pillows to suffocate people.
J. Aughenbaugh: That's right.
N. Rodgers: We can't have any pillows in the United States. Like, that is the outplay of this law. You'd have to be really careful about.
J. Aughenbaugh: We can't sell any more running shoes because there are some idiots, who run too much, and they destroy their joints, their back, etc.
N. Rodgers: And they sue us for their medical bills.
J. Aughenbaugh: Where does this stop? That's the larger point. I mean, how do you set behavioral norms in the law when you can't hide, even if you have the most creative mind, how do you hypothesize how somebody else is going to use your product beyond what you thought was the purpose of the product?
N. Rodgers: Remember that the 911 Commission found that the first thing that we had was a failure of imagination. We know that that's a known thing. What I think that this case was about was trying to curb Smith and Wesson from selling guns in Mexico. That may have a chilling effect, even though the case went against them. It may have the chilling effect of, you know what? We'll just pull out of Mexico as a market because we don't want to deal with the drama of this. That may in fact happen. I don't know.
J. Aughenbaugh: Our next case, again, for a whole bunch of nine to zero decisions or in the case or the first case we mentioned, a four to four deadlock. But, again, we're dealing with, things that you're not supposed to discuss and play company. We're once again going to talk about religion. This case actually did arise from the state of Wisconsin. Catholic Charities Bureau versus the Wisconsin Labor and Industry Commission. The Wisconsin Labor and Industry Commission issued a ruling saying that the Catholic charities did not qualify from exemption for paying state unemployment tax. The reason why the Wisconsin Commission issued that ruling was that Catholic charities do not require religious proslytizing when they actually do their charitable work. The commission said, You're not a religion, and therefore, you don't qualify for one of the exemptions for paying state unemployment tax. The US Supreme Court, again, in a nine to zero vote said, that's wrong. The Supreme Court said that Wisconsin violated the Constitution when it refused to give the Catholic Charities Bureau the same exemption that it gave to other churches, religious schools, and other religious groups. The majority opinion was written by Justice Sotomayor and she said, It is fundamental to our constitutional order that the government maintain neutrality between religion and religion. There may be and here's the money quote. Do my horse head. There may be hard calls to make in policing that rule, but this is not one of them.
J. Aughenbaugh: Wow. The ultimate, if you will, plan. You're right.
N. Rodgers: It may be difficult in some cases, but this isn't it.
J. Aughenbaugh: This ain't it.
N. Rodgers: This is very clear.
J. Aughenbaugh: Again, what we're talking about here is thousands of dollars. Now, you might be one of those people who thinks that no group, there shouldn't be, if you will, exemptions in tax codes. I understand those arguments. But in this particular case, Wisconsin was basically picking and choosing which religious groups were exempt from paying an unemployment tax. They did so on some just strange ground because one of the reasons why you give, if you will, tax breaks to religious groups is that legislatures believe that religion is a good thing.
N. Rodgers: Right. Because it's a social good.
J. Aughenbaugh: It's a social good.
N. Rodgers: That is arguable.
J. Aughenbaugh: Once you give one to one group.
N. Rodgers: You have to give it to all of them.
J. Aughenbaugh: Yeah, because it would then allow the government to go ahead and start picking and choosing how you do your religion.
N. Rodgers: More importantly, punishing people who they didn't like.
N. Rodgers: Yes.
J. Aughenbaugh: That's the far more important matter here involved is you don't get to punish some people and not punish others. Either no religious group gets an exemption in your state, or all religious groups get an exemption in your state. Once a group has proved that it is a religion, which I don't know what the standard for that is, because I see some things and think, really, that's a religion. But it's not up to me to decide those things.
J. Aughenbaugh: It's not up to the government. Because again, Wisconsin recognizes the Catholic charities as one, a nonprofit organization, but two, it's associated with the church. The Catholic Church is not the only church that has nonprofit, if you will, arms of that church. They do charitable work. There are some parts of the country where hard pressed to find a hospital that's not associated with a religion.
N. Rodgers: Richmond, I'm looking at you. FoNS Course is a Catholic.
J. Aughenbaugh: St. Mary's.
N. Rodgers: That is not an uncommon thing. You also have Samaritan's Purse, which is a religious-based charity organization. It's based out of the Baptist faith. There's all these different. I'm with Sotomayor. This is clearly a violation. This is clearly because you don't like Catholics. Or this is clearly because you think the Catholic Church has enough money, but it shouldn't get an exemption. I'm like, no, no, no, that's not how exemptions work. Tax exemptions don't work based on how much money you have. Ask Jeff Bezos. It just doesn't work that way. The law has to apply equally or not at all. No person is above the law.
J. Aughenbaugh: Listeners, for those of you who don't understand the example that Nia just gave, Jeff Bezos is one of the richest people in the world, and he is the owner of the Washington Post, but he's also the owner of Amazon. The Amazon corporation has received all kinds of tax breaks in a number of states if Amazon is willing to put one of their distribution centers in that state. Now, there are plenty of people who are like, why are we giving tax breaks to Jeff Bezos. But the problem is if you're going to give certain companies and industries tax breaks for relocating to your state because they're creating jobs, then how do you go ahead and say to another corporation and CEO, we ain't going to give them to you.
N. Rodgers: If you give a paper manufacturing mill a local tax break to locate their mill in your town because it's going to hire 40 people. That happens all the time. You cannot say, but we're not giving it to Amazon because it's a quasi-cabillion-dollar company. Either everybody gets a tax break or nobody gets a tax break. I'm Sotomayor on that. This is very clear. If you're going to punish all religious groups in your state, we think that's a bad idea, but okay.
J. Aughenbaugh: But it may not even be punishment. You could go ahead and say, we're getting rid of this exemption simply because our unemployment tax fund needs more money. We're getting rid of all these exemptions. Okay, fine. You get rid of the exemptions for everybody.
N. Rodgers: For everybody.
J. Aughenbaugh: But in particular, because this deals with religion, once again, it brings into play the establishment in the free exercise clauses.
N. Rodgers: Which current religion is going to live with.
J. Aughenbaugh: As Sotomayor pointed out, this is not a tough call. The next case. This is one, by the way, that Nia, to her credit, yesterday afternoon waited until I had a chance to read the full case decision before she called me up and said, can I go ahead and talk about a Supreme Court ruling from today? The case is Martin versus the United States. This is a case concerning the Federal Tort Claims Act. This is the federal law that gives victims of, if you will, damaging federal government activities, the right to go ahead and sue in federal court to get a remedy for their injuries. The case facts here are horrible. I'm going to read them. Because if anybody has to go through this, you can see why Martin wanted to sue the federal government.
N. Rodgers: This case made me livid.
J. Aughenbaugh: In 2017, in a predawn raid, FBI agents went to a home in suburban Atlanta, where Hilliard Toi Cliatt lived with his partner, Trina Martin, and her 7-year-old son, again, initials GW. The agents had intended to execute a search warrant at one location, 3741 Landau Lane, where they believe suspected gang members were hiding out. However, the personal GPS used by an FBI agent directed them to 3756 Denville Trace, which was where Cliatt lived. Wrong location. Now, when they arrived.
J. Aughenbaugh: They used flashbang grenades.
N. Rodgers: They did what you do when you are executing an FBI predawn raid on a gang, which is you kick in the door, you do flashbangs, you come in with weapons drawn.
J. Aughenbaugh: You immediately put handcuffs on the offender.
N. Rodgers: You're yelling. Imagine a FBI raid. That is exactly what happened because what you're trying to do is the element of surprise. If you are going after gang members, you do need the element of surprise. I'm not suggesting the FBI should change their tactics. I'm suggesting the FBI should use better GPS. Because holy cow, imagine you're sleeping. There you are, Aughie, you're sleeping, snarf sleeping. You've got your 12 year old kid in the house with you.
J. Aughenbaugh: It's my home.
N. Rodgers: Because it's your time with her and you guys are sleeping away, and your front door comes open off its dang hinges, and there's flashbangs and there's guys yelling. Tell me your child is not traumatized. Tell me your child is not freaking out. Sorry, I'm getting feisty about it, because just the facts of the case make me so angry.
J. Aughenbaugh: Because when I read the case facts.
N. Rodgers: A 7 year old kid, I'd never sleep normally again as a kid.
J. Aughenbaugh: All I can immediately thought about was my daughter and me, and how for years afterwards, we're traumatized, right?
N. Rodgers: Right.
J. Aughenbaugh: Martin Sieta filed a lawsuit against the United States in federal court and they relied upon the FTC, the Federal Tort Claims Act and this law waives the federal government's general immunity from lawsuits seeking compensation for injuries by federal employees "acting within their scope of employment.
N. Rodgers: Sorry. Can we briefly say that generally speaking that immunity is so that if you are raided in a legitimate raid, you don't get to sue the government for raiding you at a legitimate raid. If you're running a meth lab out of your basement and the FBI comes in and happens to break down your door while they're coming in to break up your meth lab, you don't get to sue them to put the door back on the cords. That is why that law exists. If they are in the correct, doing the correct thing in their job. Let's do a much less terrifying, a white collar crime thing is happening. Aughie is embezzling money from VCU, which good luck with that. Aughie doesn't have access to any of their money. But he's embezzling money from VCU. When the FBI comes in to get his computer from his house, they happen to smash the Ming vas that he also bought legitimately on the market. I don't know how he would afford a Ming vas, probably with all that embezzled money and he doesn't get to sue them for breaking the vas.
J. Aughenbaugh: For damaging the vas.
N. Rodgers: That's not how that works. 'Cause it's right next to the laptop on the table and they happen to knock it off, et cetera.
J. Aughenbaugh: So the FTC, I'm going to go with FTCA because the FTC is the Federal Trade Commission. So the FTCA, the Federal Tort Claims Act, however, has 13 different exemptions to the waiver of immunity. Meaning that if the federal government can legitimately claim one of these exceptions, then the lawsuit is dismissed. Two of those exemptions were at issue in this case. The first is known as the intentional tort exception. This says that the government cannot be sued for a variety of claims alleging intentional wrongdoing such as assault, battery, false imprisonment, false arrest, et cetera, because again, these fall under what you would just say, Nia. If the DEA shows up claiming that I am a drug kingpin and they put handcuffs on me in front of my kid, I can't then go ahead and sue them for abusive process or false arrest or false imprisonment.
N. Rodgers: I don't know it's false in the moment.
J. Aughenbaugh: If I did this, this would act as a disincentive for the DEA to actually go ahead and arrest people, which would defeat the purpose of having the DEA. Now, that list, however, has a provision, and this is known as the law enforcement provisor. They nevertheless allow such claims when they relate to "acts or omissions of investigative or law enforcement officers." This might apply here because who screwed up the address?
N. Rodgers: The FBI special agent.
J. Aughenbaugh: It's not because these individuals lied to the federal government saying where their address was. No, they didn't lie at all. They were just sleepy. Who screwed up?
N. Rodgers: His personal GPS.
J. Aughenbaugh: GPS.
N. Rodgers: That's important here.
J. Aughenbaugh: The other exception is known as the discretionary function exception, which prohibits claims that are based on the exercise of the officials discretionary function. That is decisions involving an element of judgment or choice. Let's just say, for instance, in this particular case, they decided to go ahead and do the raid at noon. For whatever reason, you're like, that caused me intentional distress. Well, wait a minute here. If they felt the best chance of capturing these gang members was at noon, well, then they're going to do it at noon. Now, most of the time these raids occur predawn because they basically know even gang members eventually have to do what?
J. Aughenbaugh: Have to sleep.
N. Rodgers: They have to sleep. You want to wait until they got three or four hours into their REM cycle.
N. Rodgers: Exactly.
J. Aughenbaugh: Where they're really out, they're just dead to the world, that's when you break in. The Court of Appeals ruled for the government, because the 11th Circuit said that even if this was intentional, they fell within the discretionary function exemption. In other words, the agent had discretion in how he prepared for the warrant execution.
J. Aughenbaugh: The Court of Appeals also said that the FTCA provides that the government is only liable under similar circumstances. A private person would be liable under the law for doing the same mistake. Writing for a unanimous court, Justice Gorsuch began by observing that Congress had placed the law enforcement provision at the end of the intentional tort exception rather than making it a standalone provision. In other words, Gorsuch noted at the end of his opinion that the Court of Appeals must consider whether the family claims are barred by the discretionary function exception. If they are not, according to Gorsuch continued, then the Court of Appeals must consider only whether under Georgia law, a private individual under like circumstances may be liable. In other words, the family now has a chance to sue those agents in federal court. This is a win as far as I'm concerned. Even if the court rules against them, you got to have a chance to go to court. I'm sorry, this is the United States. Institutions don't get a pass because GPS gave them the wrong address. I'm sorry.
N. Rodgers: Well, please tell me, first of all, that dude doesn't have his job anymore.
J. Aughenbaugh: Yeah, what are you doing using your own personal GPS? You're a federal agent.
N. Rodgers: There is federal GPS available to you, and there should have been a system in which a second official made sure that was the correct.
J. Aughenbaugh: Correct address. Yes.
N. Rodgers: What we're telling the FBI is, you still do this. You just need to be more careful. You can't just go busting in.
J. Aughenbaugh: You can't go ahead and say time is of the essence. I'm sorry. You know how quickly I could look up somebody's address on the Internet just to go ahead and verify that it's correct?
N. Rodgers: Or walk out and look at a mailbox. I'm just saying, there's also the mailbox. There is finding out that you are in the correct spot on Earth. Google Maps will help you do that.. I understand that they're talking about gangs and gang violence and trying to stop gang violence. I do. But by the same token, traumatizing people and then saying, and you can't sue us. I get to sue you for traumatized. I may not win, but I get to be heard. I get to be heard and your tactics get to be questioned, because if we don't live in a world where the government's tactics can be questioned and the government just gets to do stuff and we have to suck it up, I don't want to live in that world. I'm glad Gorsuch came down on the side of, no, these people have the right to say that was not cool and you don't get to treat me that way.
J. Aughenbaugh: Yeah, and it was a unanimous decision too. I like the fact that the court clearly sent a message. Hey, if you all in law enforcement or other government agencies don't want to spend a whole bunch of time in court, then get your crap together. I agree with you. This is the reason why people don't trust government.
N. Rodgers: Exactly. Because this is what leads, forgive me for using this word nut jobs to think that it's okay to arm themselves to the teeth to prevent the government from doing this to them. This is the thing that leads to that when it doesn't need to do that.
J. Aughenbaugh: When I was reading the case facts, you know how easy it was for me to envision what you described or other people.
N. Rodgers: Yeah. Anybody who's got a kid is thinking, oh, my gosh, my kids screaming and crying, trying to figure out what's happening in the middle of the night.
J. Aughenbaugh: How do I explain afterwards that you should trust law enforcement.
N. Rodgers: Whenever you're lost, ask a police officer for help. I think not.
J. Aughenbaugh: Yeah, what are they are going to do.
N. Rodgers: First of all, how are they going to help me? They get lost too. That's not my problem. Now my trust for you being able to get me home has gone out the window. Also, it does lead to a whole lot of questions. The other part of this, and I like that Gorsuch is pushing back on, the government needs to be held accountable in court. If the government is not found guilty, even if they don't win the case, there needs to be due process.
J. Aughenbaugh: Yeah.
N. Rodgers: All right, Gorsuch.
J. Aughenbaugh: Yeah.
N. Rodgers: By the way, if you're bored, go read that case because it's fascinating.
J. Aughenbaugh: Yeah.
N. Rodgers: That case has a lot of historical fact in it that's very interesting.
J. Aughenbaugh: By the way, for listeners who may not know this, until Congress passed the Federal Tort Claims Act, before that, it actually required a bill from Congress to award you financial damages when the government screwed up. Because the assumption of federal courts was, the government has immunity. Because, again, otherwise, the government would spend all of its time in court, and we do we need to provide another incentive for the government to not act?
N. Rodgers: It is a balancing act.
J. Aughenbaugh: Yeah.
N. Rodgers: But there should be times when it's so egregious that it does need to be addressed in the court system. Then there's one more.
J. Aughenbaugh: There is one more case we're going to discuss. This was also a unanimous decision. The name of the case is Ames versus the Ohio Department of Youth Services. Ames was a white female state worker who claimed workplace discrimination by her gay supervisor, and she argued reverse discrimination per Title VII of the 1964 Civil Rights Act.
N. Rodgers: Basic case fact is she was overlooked for promotion twice.
J. Aughenbaugh: Twice. Yes.
N. Rodgers: In favor of employees who were also gay. She believed that it's because her gay supervisor wanted to promote people who were gay.
J. Aughenbaugh: That is right.
N. Rodgers: She believed that it was not that she was being discriminated against because she was not gay.
J. Aughenbaugh: Yes.
N. Rodgers: That more or less the case fact?
J. Aughenbaugh: Yeah, those were the case facts. The Supreme Court decided unanimously to send the case back down to the lower courts. In a unanimous ruling with the majority opinion written by Justice Ketanji Brown Jackson. The justices agreed that the Federal Appeals Court, this would be the Sixth Circuit Court of Appeals in Cincinnati, was wrong to impose a higher bar for the case because Ames is a member of a majority group. Nia is giving me that look.
N. Rodgers: No, make sure I understand what the court is saying. The court is saying if you are alleging discrimination.
J. Aughenbaugh: Yes.
N. Rodgers: There should be no difference in the bar of showing discrimination for a person in a majority group or a person in a minority group.
J. Aughenbaugh: Correct.
N. Rodgers: That the bar should be the same, which is you must show that there was discrimination, and it was intentional and whatever else. But that bar shouldn't be higher if you are a member of a group that has traditionally not suffered discrimination in the past.
J. Aughenbaugh: Yeah, because what the Sixth Circuit Court of Appeals did, Nia and by the way, it wasn't just the Sixth Circuit Court of Appeals. Other lower federal courts had done this, is that they had added an additional requirement for members of "majority groups". Ames would fall into this because she was white and heterosexual. They had added an additional requirement for members of majority groups who alleged workplace discrimination. That additional, if you will, step or requirement was, you would have to establish background circumstances that support your suspicion that the defendant, in this case, the Ohio Department of Youth Services, was actively discriminating against the majority. Brown Jackson said, "That's inconsistent with the text of the federal law." Because she said, "The text of the federal law bars discrimination against everyone, whether you are a member of a minority group or a majority group." You get the same protection for every individual.
N. Rodgers: Without regard to the individual's membership in whichever group.
J. Aughenbaugh: To me, what's fascinating about this, if you couple this decision with the previous case dealing with the Federal Tort Claims Act, and a couple others that we mentioned in this podcast episode, at least with these initial cases, if there is a theme, Nia, it's that the Supreme Court is champing individuals against institutions. Whether it be the Catholic Charities, Ames, you're sleeping at home with your partner and your kid. You're a disabled student. I'm telling you, government institutions aren't faring well so far in this Supreme Court term. They're taking it on the chin.
N. Rodgers: As much as I love the federal government as much as I am a proponent of governments and agencies, I still come down on the rights of individuals. The thing that Jackson wrote that I liked, the quote that you wrote was, Congress left no room for courts to impose special requirements on majority group plaintiffs alone. What Ketanji Brown Jackson is saying is a state or Congress could impose extra requirements on all groups but not on one group versus another group. That's where we're coming to that Catholic Charities.
J. Aughenbaugh: Think about the disabled students. If a state says that they're going to provide free and equal education for every student, then they have to. A state does not have to provide free public education, but once they do, according to the federal law, then they have to not discriminate against students with disabilities. Why are we adding these additional requirements? This is the other thing. The lower federal courts are being sent pretty clear messages by the US Supreme Court, quit adding stuff to clearly stated laws, which doesn't always happen. Let's be very clear. Congress is not always clear with the laws that they write. But the laws in question in these cases, I'm sorry. I'm just going to like who thought adding additional language here or an additional test was a good thing.
N. Rodgers: That is the very definition of judicial activism that drives conservatives completely bonkers. If the law makes a statement and if it's not clear, then as the courts, you're supposed to send it back and say, this is unclear. You need to fix that language because it's unclear. You don't get to just impose language when you don't like it or when you feel like it's unclear. Be careful about that.
J. Aughenbaugh: The last thing I'm going to mention here with this last case, the Ames case, I find it really interesting the extent to which Justice Scalia's if you will, impact has now permeated the entire court. Because if you read Brown Jackson's majority opinion in this case, Sotomayor and Kagan's majority opinions in the other cases, it's textualism writ large. This is Scalia. It's funny when Scalia died. I remember Kagan wrote a piece for Harvard Law Review in a remembrance of Justice Scalia. She has a famous quote where she says, we're all textualists now. If you read Brown Jackson's majority opinion, particularly in the Ames case listeners, she's just like in reading the language of Title VII of the 1964 Civil Rights Act, again, Congress left no room for courts to impose special requirements. I was just like, wow, because liberals on the Supreme Court in the 1950s, '60s, '70s, heck even into the 1980s would be like, well, if the purpose of the law was to go ahead and get rid of discrimination, particularly discrimination encountered by minority group members in the workplace, then sure, let's go ahead and add on additional requirements for members of majority groups. But you don't see that now. Even the liberals on the court are like, what does the law say or what does the constitutional provision say? Boom, done.
N. Rodgers: We're going with what the words were that Congress wrote, because theoretically, that's the House of the people.
J. Aughenbaugh: Yes.
N. Rodgers: The thing is, is in many of these cases, you can be appalled by the case facts. But I like your observation that what the court is overall saying is individuals' rights to pursue their due process should never be stepped on by the government. I don't know. This court is surprising me. Of course, I'm worried that that means that they're going to come up with something I'm going to go, no, which I feel certain that's coming, but I'm going to take my wins while I can get them.
J. Aughenbaugh: Because if you look at some of the other cases here, Nia, that the court has yet to rule on in this term, you're talking about redistricting the FCC's authority to impose attacks on telecommunication providers. Another one about the Federal Task Force in regards to the Affordable Care Act. We got the case from up in Maryland about a school refusing to give opt out for books about gender and sexuality.
N. Rodgers: We got a lot coming.
J. Aughenbaugh: We got free speech about accessing Internet porn. We got Trump versus CASA concerning national-wide injunctions about birthright citizenship.
N. Rodgers: [inaudible].
J. Aughenbaugh: We got Tennessee case about gender affirming care. We got some big ones still on.
N. Rodgers: Well, I'm looking forward to it, Aughie.
J. Aughenbaugh: Yeah, I can tell.
N. Rodgers: I look forward to chatting with you more. I'm sure some of them will make me angry, but I'm also just looking forward to your summary at the end, because I always find that fascinating about where the court has been and where you think it's going. I'm looking forward to it, we've got a lot more to talk about this summer.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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