November 8, 2022 • 51 mins
Legal precedent is an odd thing. It matters, but it isn't codified. There are advantages and disadvantages. Let's all dive in and take at STARE DECISIS today.
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Episode Transcript
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Speaker 1 (00:01):
Welcome to Stuff You Should Know, a production of I
Heart Radio. Hey, and welcome to the podcast. I'm Josh,
and there's Chuck and Jerry's here too, and this is
stuff you should know. And boy do we mean it.
This is stuff you should know. Even though I have
(00:23):
to admit, Chuck, I don't think I've ever gotten sleepier
than I was when I was researching this this episode.
You know, I've learned more about the law since we
got this job than I ever wanted to or intended
to write. Uh, some of like, you know, just because
we have work contracts for the first time. So some
(00:44):
of it's because of that, some of it because of
all the trouble we get in, all the trouble we've
gotten in over the years. And then we just kind
of covered a lot of stuff legally speaking. And it's
interesting the law it is it is. And this one
was like it was kind of tough because Olivia helped
(01:04):
us out with this, and it was like it's a
really unless you're in the legal profession one way or another,
Like it's really dry, like incredibly dry. But if you
can just chip past that crusty dryness, and it takes
a lot, Yeah, it gets a little moisture the further
(01:25):
you get in, But finally you get to the rich
new Gute center and there you realize, WHOA, this is
actually super important because what we're talking about legal precedents
um kind of guides our society and a lot of
a lot of ways beyond just this is law. This
is not law, UM, this is illegal. You can do
this like that. We actually organize our lives in surprising
(01:48):
ways according to what's legal and what's not. And as
if the law is steady and stable, which is the
point of you know, relying on legal precedence, as we'll find,
then you know, society and he can kind of grow
and experiment and try new things because the law part
is covered. But if the law is going to change
every couple of years, it makes it really hard to um,
(02:09):
be in a gay marriage, or start a business or
invest in a like kind of a risky new technology,
because there's you can't rely on the law being stable.
So it makes life for us unstable. And I didn't
really realize just how much of a just an effect
that that law has, like an unseen effect on just
our day to day lives, because you don't think about
(02:31):
that kind of thing. But until you start researching something
like this, right, and or until you get slapped with
that lawsuit, and all of a sudden you're like, what, uh,
so much about the law too, is uh attorney's love words? Yes? Um,
that the simple I mean, anyone who's ever even if
you've never dealt with an attorney, great congratulations. I'm not
(02:54):
saying attorneys are bad, but that means you, you know,
you have a blissfully simplistic way of living that is
to be admired. But uh, you've probably clicked on in
terms of service or something, and you know that's all
legal words. It's all legal wording, like those you know,
nine hundred thousand words to sign up for a website
(03:14):
or whatever, or to download an app. Those are words
written by attorneys. And so much of law is so
specific to it can hinge on the wrong couple of
words that a well meaning jurists typed up in their decision.
Just a couple of things can really change things. A
(03:36):
couple of words, because it's all about those words and
how those words are interpreted by others. And um, I
just I don't know that part about it. I find
pretty fascinating and I think every attorney I know really
like UM values words. Let's just say that, and not like,
oh because it could charge to it. I mean, you know,
(03:57):
they value like boy, you better be careful about how
you say something. You know. Yeah, it's true, which really
doesn't jibe with me because I'm pretty hyperbolic, and I
just assume everybody's going to understand that I'm being hyperbolic.
But that's not always the case. Especially, I guess now
that I think about it, it's when I'm talking to
lawyers that it really gets lost. Uh. So I guess
(04:19):
we should go back to the early eleven hundreds, uh,
specifically eleven fifty four, when Henry the second Um kind
of codified the fact that they were going to be
in England was going to be working on something called
common law, or at least towards something called common law,
because you'll see, it takes precedent and common law and
(04:41):
this kind of thing takes a long time to really
take hold, uh for a lot of reasons we'll get to.
But it was common law because they said, hey, right now,
we're deciding these cases all over the land and everyone
has their own opinion, and it's a bit of a mess.
So maybe if we had one sort of common law
for all the kingdom and there were you know, we
(05:02):
could refer to that law and these decisions to make
decisions on down the line, that might be a pretty
smart thing. And it was and it is yeah, because
I mean the stuff that they were doing locally was like,
if you couldn't tell the truth between you know, a
plane iff and a defendant, you had them both snatch
a rock out of a pot of boiling water. I'm
(05:23):
not kidding, and then whoever whoever healed fastest was telling
the truth, and then you would execute the one who
healed slower. Like that was the kind of legal stuff
you would face like at this time. So Henry the
second the idea that he came up with common law
and said, all this is nuts, We're just gonna have
one law for all of England. Um. It was really
forward thinking. And when you dig into it a little more,
(05:45):
he established trial by jury um the concept of circuit
courts um. That that comes from this time when judges
would travel around and and go to like different localities
to hear cases, and the fact that they weren't rooted
to one specific locale meant that that was much more
difficult to corrupt them. There's a lot of really forward
(06:07):
thinking stuff and the basis of it, Chuck. The common
law formed the foundation of not just England's law, but
basically every country that was colonized by England, including the
United States. We have a common law system, which is um,
I don't want to see the opposite, but it's the
It's one of two basic ways that you can conduct
(06:30):
your society legally, and the other one is civil law. Right,
even though Henry the Second was still like it's still
like to bob for apples and bats of acid because
that's just fun. Sure, Yes, civil law is not the
way we went Um. That was you know, it was
kind of developed around the same time and Europe back
(06:50):
in the day. But that's uh. Common law was the
smarter approach. And what we got out, what we realized
early on with common laws was what we needed to
adhereby was a principle that you've heard a lot kind
of lately. It's a Latin term meaning let the decision stand,
uh star a decisive right. And that's that big deal. Yeah,
(07:10):
And that's I mean, it's not like Henry the Second
came up with common law, and said and also it's
it's going to be based on this concept of starry
decisives that actually evolved over time. And the idea behind
starry decisives is if there's a good decision made by
a judge, um, then later judgments about cases that have
(07:32):
some similarities are a lot in common with that case
that the original decision was made on have to follow
that same precedent. It's a legal kid necessarily say again,
I don't even know that I would agree that it's
based on a good decision, because originally it was like
they even said it was as long as it wasn't
(07:53):
flatly absurd or unjust. And they have said later on
that like and well we'll get to it. But know,
the decisions don't have to be perfect, right right, the
I guess what I meant by good was good meaning
like not like the judge wasn't wearing a tinfoil hat
and sentenced the person to like eat their own poop.
(08:13):
I mean good like they like, it was reasonable, it
was thought out, it was you know, deliberative, like it
was a sound judicial opinion, whether it actually was good
or not. Right, Okay, I'll buy that. But here's the deal.
Like I said earlier, like applying common law and applying
precedent is something that takes a long long time because
(08:35):
early on, I mean for a lot of reasons, but
one of the main reasons is early on the courts
were such a mess. They didn't even start recording, really,
um their decisions in a really meaningful way until like
the mid eighteen hundreds in England the early eighteen hundreds
in the US, so they may not have even known
there might have been precedent in any given case. But
(08:57):
starting like I said, early eighteen hundreds, in mid eight
hundreds in England, we started to have a real sort
of president. Yes, I guess, yeah for sure. And we
talked about that in our Unsung Heroes of the Court,
with our I think our transcriptionist segment, right, I think so,
I think so too. But the reason that, um, that
(09:18):
you have this this emphasis on precedence is because in
a common law system, law kind of builds on judgment
after judgment, and the more judgments you have about like
a particular um the topic or or you know, case
or something, the more well rounded and in robust the
idea of the law concerning that goes. Like in a
(09:42):
civil or in a common law society, the legislature makes
a law, but it's not you know, they don't try
to lay out every single law with every single possible
outcome that they can think of. That's what civil law
is based on. In common law, it's like they lay
it out, it kind of makes sense, it's open to
interpret cation. And then people start suing each other, and
then over the years the judges figure it out. But
(10:04):
they figured it out by basing their assumptions on the
previous rulings of other judges. Right, that sounds like a
good breaking point. I think so too. I'm at my
breaking point. No, not already. Ye, all right, Josh is
out in the first third, but we'll press on and
we'll talk about the U S system right after this
(10:37):
stopt Alright, so Josh is gone, everybody, I'm gonna do
the rest of this one solo. So we're just gonna
(10:59):
talk talk about car tunes and breakfast cereals. Josh, I'm
back up. I couldn't leave you, Chuck. Uh. So, if
we're gonna talk about the the U S system, as
far as legal precedent goes, we need to talk a
little bit obviously about the constitution. Uh, the Constitution of
the US doesn't really talk a lot about how the
(11:20):
court system should operate. Uh, they don't talk about precedent.
This is something that the United States. Uh you know,
it goes from the top down here in the US,
and we'll talk about it gets really confusing at some
point as far as which courts bind with other courts
so that that mess will follow. But it goes top down.
So the Supreme Court is is really what ultimately matters
(11:44):
and what they decide about the really important cases because
everything binds upwards to them. But they didn't really like
they kind of made it up as they went. And
that's not to like knock the Supreme Court. It just
is to say there weren't any real rules in place
as far as this goes. But they realize early on,
and I think in nineteen thirty two is when it
(12:05):
really became serious when a justice named Lewis Brandeis of
Brandeis University fame. Oh yeah, yeah, of course, I wrote
in a descent in a case Burnett versus UH Coronado
Oil and Gas Company, UM, basically laid out what started
to decisive is all about for everyone to look back
(12:28):
on from then on and they have when he wrote,
in most matters, it is more important that the applicable
rule of law be settled than it be settled, right,
And that was what I was kind of referring to earlier.
He's he's basically basically saying, listen, courts aren't perfect, laws
aren't perfect. But what's really important, unless it's a really terrible,
(12:49):
terrible decision, is that we kind of come together and
agree that this is how it is. Uh. And then
he went on to kind of say, ultimately, like it,
you can't overturn precedent if it is really really bad. Yeah,
because if you didn't, if you just blindly followed precedent,
then you have the potential for a bad judgment, a
(13:11):
bad decision, infecting your society and your legal system. And
if you just have to follow it blindly even though
it's a really bad ruling, that's not good. So you
need to have an outlet to overturn those bad decisions.
But what Brandis was saying is, for the most part,
you want to just leave it alone. If it's even
remotely good, leave it alone. Let it But yeah, and
(13:34):
that's really to me. If you like middle of the
road stuff, started to cease. This is exactly what you want,
because it's like it's the it's the full crum between
going one direction where you just have like a whiplash
going on because law is changing all the time, and
then the other direction on the other end of the spectrum,
where the law just does not change, it is just
(13:56):
set in stone. And that's that. This is like, Okay,
you want to follow tradition, you want to observe custom
to have some stability, but at the same time, you
want to be able to let society evolve by having
the laws evolve as new ideas and concepts come around. Yeah,
it's it reminds me of one of my favorite I'm
not a big axiom guy, but there's a handful that
(14:17):
I really kind of informed my way of thinking, and
one is don't let perfect be the enemy of good.
That's that's always been as a sort of an underachiever
in life. It's always been one I really stood on,
And that's kind of what they're saying here. It's like, listen,
if we go for perfect, you're just gonna because law
is subjective to like, these justices are deciding things based
(14:41):
on what they think, based on other things. But ultimately
it's the subjective thing. So we can't just go back
and forth forever trying to get a perfect ruling on something. Right,
My favorite axiom is it has to be perfect or
else I'm a completely useless human. Oh no, oh yes,
So over time that concept of starry decisive when when
(15:04):
was it? It was like the I guess ninety two
with brand Ice. Yeah, that's when he kind of laid
the gauntlet down, and think about how meta that is.
He was establishing precedent about when to follow or overturned precedent.
Pretty amazing stuff that guy deserves, like a sure university
named after there's a statue there, but over there better
(15:27):
be um. But over time, after brand Ice, you know,
said that, they were like, okay, well you know exactly
when is it okay to overturn the decision? And they've
actually come up with a handful of kind of guiding
bullet points that are appropriately laid out in bullet points
for us UM that just kind of say like, okay,
does it check this box? Is check that box? And
(15:49):
it's not like a perfect Scantron sheet where everything every
box is going to be filled out and you calculate
them all and you say, yes, it should be overturned. Like,
there's still a lot of subjectivity and weighing all of
this stuff, but it's pretty good guideline if you ask me, no, absolutely. Um. Well,
the first thing, and this is a little bit counterintuitive,
but it's easier to overturn a decision based on the
(16:13):
Constitution than it is a statutory law. And again that
seems counterintuitive because the Constitution can feel so locked in.
But basically what that means is is if it's just
statutory law, then you can change the law pretty easily.
Like the Constitution is very hard to get changed. So
it's easier to change a decision based on the Constitution
(16:34):
than the actual underlying constitution. Yeah, because Congress is going
to say, oh, yeah, we we we miss that one.
And then similarly to Congress can actually create laws to
overturn unpopular judicial rulings. Um, So they can make a
law that, you know, if everybody's really mad about, say
some judicial ruling, and Congress says, you know, our constituents
(16:58):
are really up in arms, let's make a law that
says the opposite of what that was just ruled. That
that law um takes precedence over every ruling, including that
Supreme Court ruling. So now judges have to follow that
law until new precedents are set that kind of adjust
it and make it evolve. That's right. Uh. The next
one is working something called workability, which is basically like,
(17:21):
how difficult in practice is it really to implement this
original decision? Uh? And if it's really difficult for lower
courts to to follow whatever that original decision was in practice,
then you may want to take another look at it. Yep.
Another one is reliance, and this one makes a lot
of sense to me too. It's um, really kind of um,
(17:44):
what's that word that people use when it's just kind
of like it lacks substance though it's it's not concrete.
It's kind of poofy coofy sounds great. I've never heard it,
but I like that word. If you're gonna go with
that from now on, So reliant it makes sense. But
it's a little fee I think legally speaking, because what
it's saying is if if this judgment was not quite right,
(18:06):
if the reasoning wasn't very good, if the deliberation wasn't perfect.
But it's become so enshrined in society that overturning it
would basically really mess society up, even temporarily. Um, then
you would not want to overturn that. That's UM. There's
a good example of the Miranda rights were under attack
(18:27):
in two thousand I guess from a case and Um,
the court I think, in a very narrow I think
five to four ruling said no Miranda should stay. It's
on it's based on a flawed interpretation of the Constitution.
But we've become so reliant on it to protect legal
rights of people accused of crimes that we're just gonna
leave it, they said, But it's already in all the
(18:48):
TV shows exactly. Lawn owner editors were just like, please don't,
please don't. Yeah, I mean, reliance is kind of the
it's too late to turn back now. Basically, Yeah, the
bell has been wrong, the genie's out of the bottle,
the smell is in your nose. That's my favorite. The
(19:08):
basically the next one is abandonment, which is basically UM,
when the court says this is old timey, Um, this
is antiquated. When they looked at Lawrence v. Texas in
two thousand three that overturned the previous ruling, UM about
private same sex as sodomy laws things like that. Uh,
the Supreme Court came along and said, oh, you know,
(19:30):
things have kind of changed and maybe we shouldn't be
in people's bedroom and forcing laws about how they want
to have sex. Yeah, they're like, we all just saw
Brokeback Mountain and really we really feel differently about such
a great love story they wrestled. So there's also legitimacy
to um, which is saying like, Okay, there's a really
(19:51):
good chance that if we start overturning previous decisions that
people have come to rely on that we're actually good decisions. Um,
that going to to harm the legitimacy of the Supreme
Court in the eyes of the public. I can't think
of any example, um, but that is it is something
that they take into account when they are considering overturning
(20:15):
something or not. That's right. Um. The next one, I'm
just going to call it the was it close. That's
when they can look back at a previous case and say,
you know, this was five four, there was a really
spirited descent it wasn't you know, it was maybe a
controversial case, but not necessarily but just really really close. Uh.
(20:37):
Then maybe you know, we could take another peek at it, right. Um,
there's also quality of reasoning. I've kind of hit on
that a couple of times that it's like, if you
can look back and look at the judgment and the
reasoning behind the judgment and it still makes sense, then
maybe kind of leave that law alone. If it's just
completely and equated, if it's um racist, if it just
(20:58):
doesn't jibe with the most of you know, society today,
then maybe it is ripe for being overturned or other laws,
like of other laws have come along since then to
kind of eroded or negated, or if facts have changed. Yeah,
that's a big one, especially when it comes to scientific
findings and stuff like like you find the moon is
not made of cheese, so cheesemakers no longer have to
(21:21):
pay a moon tax. That's a good example of real
real life. Uh was that off the cuff? Very nice? No,
I wrote it down. Let's still I could not think
of an example, and that is the best I could
come up with. Sad, that's really good. Uh. So here's
where judicial philosophy kind of comes into play, because when
(21:42):
it comes to being a jurist, as we've seen on
the Supreme Court, especially lately. Uh. There are a couple
of different ways you can go as far as looking
at the Constitution. You can be what's called an originalist, which, um,
you know, some originalists say, you know what, the only
thing that matters is what these founding fathers meant when
they wrote these laws hundreds of years ago. Yeah, so
(22:04):
like whatever happens in society today, however it applies to
the late eighteenth century, that is the law. That's what
the originalists think. And there are actually justices on the
Supreme Court who are fervent originalists, that's right. Uh. And
there are originalists that say, you know, what's happened in
the past two and thirty four years is uh some
(22:28):
of these decisions, a lot of them have subverted the
will of the and the intent of the founders. And
pragmatists come along and then say, duh exactly, because what
we would like to decide law based on is modern
times and uh, the context in which we live and
(22:48):
the impact on our society as it is today, and
those two things pushing and pulling is uh, as we've
you know, it's always been this way. But every I
think gener ration when they see the big decisions coming
down paid more attention to it. So right now, because
of Row, obviously everyone is paying a lot of attention
to this push and pull of originalists versus pragmatist but
(23:12):
also pragmatizing, but also the tension between originalists and people
who follow Starry Decisive too, there's a big tension between
that as well. Um and I was reading about originalism
Chuck and Clarence Thomas is like a hardcore died in
the wool originalist, like literally what the Founders literally meant
(23:34):
when they wrote the Constitution is law and anything beyond
that should not be law. And he if you read it,
he kind of makes a pretty good case. It makes
sense to an extent, But then you stop and realize
what he's talking about is a civil law society, a
law where you have a founding document of laws and
rules and regulations and it's super um specific and it
(23:59):
covers as any basis that possibly can, and then the
judiciary has a very limited role in in shaping those laws.
You come before a judge and they say, uh, did
you violate this this um article? Yes you did, Yes
you're guilty, or no you didn't know, you're not guilty.
That's the role of judges, and that sounds like Clarence
Thomas is like dream job. But he's in the wrong
(24:20):
kind of society because we have a civil law society
where judges are dependent upon to interpret the law correctly
and sensibly and in a way that applies to the
society at large. And that that really is intention with
originalism big time. Yeah. And I'm you know, no shock,
I'm a pragmatist, and I don't think you should like
(24:41):
just ditch the Constitution. But I think it's crazy to
think about in a hundred and fifty years in the
in the in the future where we're flying around and
and we look like Buck Rogers in the twenty first century. Man,
it'll be twenty second century. I can't wait. I'm gonna
be first in line to get that haircut to once
this over, jumpsuits come out. But it's crazy to me
(25:03):
to think about going back to a time when they
spelled the word time with a y, you know, and
say like, no, we still have to go back, you know,
four or five six years to what these uh, I mean,
the world just changes so much. I just it's crazy
to me that the law shouldn't change with it, and
the law has changed with it. I'm not, you know,
(25:24):
saying that it hasn't, But I don't know. It's a
little frustrating sometimes I'm kind of in between. I'm a
starry decisiveist, I guess you'd say, because I feel like
pragmatism can be a little whiplash eat. The law can
change a little too much, um, which we've seen, you know,
where one administration comes in and makes a bunch of rules,
and then the next administration comes in and and changes them,
(25:45):
and it's it's really tough to say, like run a
business like that or to live your life like that. Um.
But with starry decisives, it's it's veneration and respect to
tradition and custom and stability. But there's again, there's that
ability to change, to be pragmatic when it's called for. Um,
it's again it's really middle of the road, and it's
it's right up my alley, right up your alley. UM.
(26:08):
So let's get to the confusing part. I mentioned earlier
that there would be an eventual breakdown of kind of
how courts bind to one another. And when we're talking
about binding authority, that basically means decisions that a lower
court must follow from an upper court in its jurisdiction. Uh,
and it and it goes a little something like this. Uh.
(26:32):
State courts are only bound by higher state courts in
their own state. They're not bound by federal courts except
for the Supreme Court. Again the ultimate authority. Uh, they
can strike down state court decisions is unconstitutional. And then
you've got the whole and I want to say, mess.
It's not a mess if you really understand it, but
the whole sort of Plato spaghetti, which is the federal
(26:54):
court system, which is take it away, man. I was
hoping you're and take it all the way home. The
federal court system is based on those circuits that was
established all the way back in the twelfth century. Um.
But rather than traveling around, I think judges kind of
have home courts. But the point is these courts are
(27:14):
related to one another. And there's ninety four districts. Um.
You know, there's twelve districts with ninety four district courts.
It's very confusing. Twelve regional circuits, okay, thank you, with
nine district courts spread out among them, right. Yeah. Each
each regional court has one appellate court. And then there's
a court of appeals for the federal Circuit. It has
(27:36):
nationwide jurisdiction over certain cases. It gets really confusing, Yeah,
it really does, because you start out in district court,
you end up in um, I guess circuit court maybe,
and then you end up in appellate court. Um. I
may have added a step there, you know, I like
to do stuff like that. And then eventually you end
up at the Supreme Court, which is the final arbiter
(27:58):
of the law of the land. Um. But the Supreme
Court tries not to overrule state law because the states
have their own supreme courts and they tend to be respected.
The point is in federal court in a district, if
you have a ruling made in a district appellate court,
(28:18):
it will apply to all the courts in that district,
But in the next district over it will have no
no impact whatsoever. Yeah, And you don't you know, as
a regular citizen, if you ever are bouncing through the
bouncing away up the court system, you don't have to
really understand it because you're gonna have an attorney that says, well,
now you go see this lady, all right, Well, now
(28:39):
you go see this guy, and you just go okay, right,
like and and they're like, and by the way, you
owe us another check or you could just come listen
to this on repeat several times. Yeah, good luck with that, right.
So the other so the thing is is like they're
there this This didn't land with me until like the
(29:01):
second or third time I really kind of read over this.
But you have to follow precedent if your state supreme
court rules on something. If you're a lower court and
that same similar case comes to you, um, you have
to follow with the supreme court ruled on that other
(29:21):
case that that established precedent, you have to. Um. That's
that's binding. That's what that's called. But there are other
times where, um, if you're a lawyer or if you're
a judge and you're kind of examining case law, there's
other kinds of non binding types of judgments or precedents
that you can use to be persuaded one way or
(29:42):
another to prove your case. Um. But it's it's not
like incumbent upon you to actually follow those. Yeah, that's
a good way to say it. One of those is
what's called persuasive precedents. It is non binding, and that
you know that means exactly what you said. There's no
real precedent, but maybe the decision is very useful. Maybe
it's a very similar kind of case, and maybe it's
(30:05):
a principle that you can look at at least when
you do make your decision. Um. Another one is called
an unpublished when they say it's not for publication their opinion.
And this is basically like, it doesn't mean it's literally
not They just like wattered up and throw it away
at the end. It just means, hey, this is a
like you see this most times in state trial court,
(30:27):
Like this is just some run of the mill state
trial case. The judge doesn't like, Hey, this isn't gonna
affect law or precedent moving forward. I don't want if
I mess up one tiny little thing, I don't want
people to refer back to this and say, oh, but
this judge said that. It's kind of like it's sort
of the let's go to lunch, let's get to lunch already, uh,
(30:50):
and just get through this trial and it's not really
that important. So they just say it's not for publication. Yeah,
And I guess it's up to the judge to decide
that or not. So I about Like you said, though,
it's not like they just throw it away. It is
actually published, it's just not it means that this is
a non binding decision. It's like, don't come looking at me,
(31:12):
right right, I'm just going to t G I Friday. Okay,
you want to take a break and then come back
and talk about some overruled precedents, sure, let's do it.
(31:35):
Stop stop, okay, Chuck. It seems like they the Supreme
Court over rules precedents every couple of days these days.
But I guess they started out fairly slow. Um, in total,
(32:00):
they have overruled their own judgment. So remember if you
look at the Supreme Court as a single body made
up of you know, rotating or incoming and outgoing members,
but it's still it's the same things. I don't know how,
I just like everyone knows that the Supreme Court is
and I just managed to make it confusing. Anyway. The
(32:20):
Supreme Court has overruled itself over two d and thirty
times in in the it's lifetime, and it started in
eighteen ten, right, But like you said, it didn't happen
a lot. I think in with Pollock ve Farmers and
Loan Trust Company, Uh, that is when things really got
(32:42):
rolling and the Supreme Court started overturning itself more and
more because it's happened. I mean, that wasn't that long ago,
and it's happened, Uh, how many times since then? Well,
it happen. Yeah, it only happened twenty six times in
the entire nineteenth century from eighteen ten to eighteen nine nine.
So everything since then, yeah, has been you know, they've
(33:05):
been going gangbusters. Um. And that that Pollock versus Farmers
Loan and trust had to do with the income tax.
And that's actually a good example of Congress coming in
and saying, oh, you overruled our ability to have an
income tax. Here's the sixteenth Amendment down your throat. So Um,
the thing is is like little by little, kind of
(33:25):
like the little train that could going up the hill
and starting to kind of gain steam and gain speed.
If you look at the Supreme courts um over rulings
or overturned precedents, um, if you like, graft him on
like a spectrum of time, the few, the present, and
you know, the recent past would have a lot of
dots on it. And some people say that's evidence that
(33:48):
the Supreme Court has become much more activist and politicized
over the years. But then other people say, well, I mean,
it just makes sense that further back in time they
had much fewer rulings to return. They're basically starting from scratch.
Now there's so many rulings to consider and deliberate on them. Yeah,
of course there's going to be more overturned because there's
(34:10):
more precedents to be overturned. Yeah, I think the middle
of the road, like myself would say, it's probably a
bit of both. Yeah, I agreed. Um, you know, a
starry decisiveist like us. Um, here are some very famous
examples and truly important, you know, because I mean I
(34:30):
think overall, overturning precedent as a starry decisist isn't the
greatest thing, but um boy that it sure has been
the right thing in a lot of cases. Yea. And
of course that's it's all subjective, but that's my opinion. Um,
Brown v. Board is one of the big ones. Uh.
Plus e v. Ferguson, the U. S. Supreme Court said,
(34:51):
separate but equal is how we should go forward. We
can segregate things. We can make black kids go to
black schools and white kids go to white schools, and
it doesn't protect or I'm sorry, it doesn't violate the
equal protection clause of the fourteenth Amendment. As long as
long at things are equal and these schools have the
same uh, school supplies and they're all they're all the same,
(35:14):
it's all good. And that was later overturned. Of course,
the lower courts um sided with it, but the in
the the double A CP would eventually appeal this to
the Supreme Court with Brown v. Board And this is
one of those situations where like new uh, new data
and new studies kind of came into play. Then it
(35:36):
happened since that original plus e versus Ferguson ruling, UH
in Chief Justice or A. Warren said hey, look we're
looking at these studies now that say, yeah, these schools
may be equal on paper, but inherently they are not
equal if they are segregated. And that will, um, that
will really has a big psychological component to a young
(35:57):
black student, even if they have the same textbooks and
school supplies, just affects the fact that they have to
go to a different schools harmful to them, right, And
so that clearly violates the Fourteenth Amendment to equal protection
under the law, and that made Brown versus. Board of
Education one of the most celebrated not just court cases,
(36:18):
but one of the most celebrated um overturnings of a
legal precedent in American history. For sure, pretty much everybody
can get behind Brown versus Board of Education. You know,
there's probably a few holdouts there are. I was researching it,
and it's surprising. It's not everybody you would think it's
It's kind of like people on both sides are like,
it was kind of better before, But for the most part,
(36:40):
society is like now now, even if it was rough
at first, like it was a step we needed to
take as a society so we could evolve and stop
living separately, because that's ridiculous. What about paying versus Tennessee?
This one, I I thought was surprising. It kind of
flies under the radar if you're not paying attention to
low stuff. But there it used to be. The Supreme
Court upheld this idea that you could not have a
(37:03):
victim impact statement at sentencing because they said that it
violated the Eighth Amendments protection against cruel and Unusual punishment
because this emotionally charged you know, atmosphere right before a
person's sentence really increases the risk that they're going to
get the death penalty. And in uh nineteen late eighties case,
(37:24):
a guy named Purvise Pain who had murdered a woman
and her two year old daughter. UM, the woman's mother
had given a victim impact statement, and apparently the Supreme
Court at the time was made up with I think
enough liberal justices that they were like, now you should
be able to have victim impact statements. And third Good Marshal,
(37:47):
who was one of the most liberal justices in Supreme
Court history, wrote a descent and a critical descent saying like, hey,
you're taking starry, decisive way too lightly, Like this is
this is tradition, this is cus to minute, it's like
reasonable that Yeah, it increases the risk that somebody's going
to be put to death. Uh, and you guys really
dropped the ball. But now, uh, the Supreme Court overturned it.
(38:09):
So to this day you're allowed to have victim impact
statements at sentencing in the US. Uh. Yeah, that's um.
Ropert versus Simmons was another that was a case where
they basically um where like kind of things had changed
since the original decision. UH in nineteen eighty nine Stanford
versus Kentucky. UM. That was they found that it was
(38:30):
unconstitutional to sentence a minor. I'm sorry. In two thousand five,
they found it was unconstitutional to sentence a minor to death,
which overturned the nineteen eighty nine decisions Stanford versus Kentucky.
And they basically said, you know, we've evolved since then.
In in nineteen eighty nine, and most people thought it
was okay to to put a sixteen year old to death,
(38:50):
but now things have changed and we don't really feel
that way. As the year graduated high school, Uh, I
could have been put to death. And it's a good
thing you didn't get in trouble, Chuck. That was a
good kid. But they cited a state legislature UH, and
the decisions there that outlawed it. UH. And they even
(39:13):
looked at like sort of what was going on around
the world as far as that kind of thing goes.
There's another really consequential case that came before the Supreme
Court and UM had to do with their emergency docket,
which will we'll talk about a little bit about later.
But UM, in some cases where the time is of
(39:33):
the essence, the Supreme Court will hear really important emergency cases.
I'm very short noticed, will deliberate on it over a
very short period of time and issue a ruling um
that does not have anything to do with anything else
except for that one case. Ideally, but Bush versus Gore
is a good example of how that's not the case,
(39:55):
because this is a this is one of those emergency
cases that they heard, and Chuck, I think we needed
do an entire episode on the two thousand election because
it was so consequential to the United States, and also
it's just super interesting too. But the upshot of is
that the there was a really important quote that came
out of it that said, our consideration the Supreme Court
(40:16):
is saying this, our consideration is limited to the present circumstances.
Comma for the problem of equal protection and election processes
generally presents many complexities. And some people say the fact
that they said that their consideration is limited just to
the present circumstances means that it's not precedents. Other people say, yeah,
but that second part about how you know, all all
(40:38):
election processes are different. They're actually saying, like, don't just
apply this rotely to it. So it is a precedent,
and it's been cited a bunch of times since then.
But even though it's a big controversy about whether those
kind of rulings should be included at all in precedence. Yeah,
and that's sort of the it's not a slippery slope.
It's just sort of the system we have when there
there isn't a law about precedent. It's just sort of like,
(41:02):
you know, we'll try and figure it out case by case.
H I laughed because slippery slope came out of the
Supreme Court too. I think it was suitor right, Oh really, yeah,
I don't remember what cases. Yeah, the slippery slope came
out of out of the Supreme Court. Did not know that.
That's good fact. That's why I laughed, because I'm the
(41:23):
biggest nerd on the BOK. That is pretty funny. Um,
and now you know we should close with row. We
did a full episode on just the ins and outs
of Roe v. Wade not too long ago. But um,
did that come out right after the decision had been rendered?
I think did? Or right before our podcast episode? Right
(41:47):
after after? Okay, we're very timely in topical Yeah, don't
break your arm adding yourself on the back. I couldn't
remember if it was before after, but at any UM rate,
we should touch on it here at least because that
is obviously the most recent really super impactful uh time,
(42:10):
when a super impactful time when the some members of
the Supreme Court said sorry, sorry decisive. But even though
we might have even said in our confirmation that this
was settled ball, we're gonna reverse on that now. Yeah.
And the reason that Row was upheld for so long,
and we talked about this in our episode that it
was really roundly considered to be based on shaky legal foundation,
(42:35):
but it was upheld time and time again because it
had become reliant. People had come to rely on it.
So that reliance factor kept it from being overturned even
though a lot of justice is considered it like this
is not the best ruling we've ever made. UM. But
then with UM Dobbs versus Jackson Women's Health Organization, the
ruling from was two. Yeah, that overturned. Man, it's been
(42:58):
a heck of a year that overturned Row. UM. They
they basically said like, no, we're we're just going to
go ahead and say like this is not this argument
was totally fallacious it was a bad, bad argument. But
also we're gonna go one step further and apply our
originalism to it and say, the Constitution doesn't say anything
(43:20):
about abortions, and if you're going to apply the fourteenth
Amendment to it, which is what that shaky legal reasoning
was for Row that, um, you couldn't deprive a woman
of her privacy a k. A liberty that was guaranteed
through the fourteenth Amendment. If we're gonna apply the fourteenth Amendment,
let's go back and talk about what things were like
(43:40):
in eighteen sixty eight and how people understood the law
in eighteen sixty eight, and they would not have been
okay with abortion because three quarters of states already had
abortion outlawed on the books ipso facto abortion has no
constitutional protections. But again, they really went to the other extreme,
which in this case was the far right, in saying like,
(44:02):
there's nothing in the Constitution about abortion, and no one
had ever said it was in the Constitution, or that
the Constitution explicitly, you know, protected women's rights to choose
about reproductive health. What they were saying is, you know,
the judges kind of determined over time that this was, um,
(44:23):
this was worthwhile and this was what society needed, um,
and they ruled on it. So it was a case
of pragmatism, frankly and originalism, which is where we're at now,
and then eventually we may get to that middle of
the roads storry, decisive, nous, who knows, I don't know,
No one knows, right. And it was also a case though, where, uh,
(44:46):
if you're going to open up that can of worms
with the fourteenth Amendment, all of a sudden you're looking
at other decisions decided on that same rationale, like same
sex marriage and uh, interracial marriage and say sex sex
um also called just sex. That's right, depending on who
(45:06):
you are. Uh. Alito said, you know, but but you know,
it doesn't apply to that stuff. It just applies to this,
and that's UM. I think a lot of people worry, like, well, yeah,
but the can of worms is now open. And I
think immediately after Clarence Thomas even said like, maybe we
should go back and look at these other cases. Yeah, totally.
And that's the scary thing about it because it established
(45:29):
a precedent, and a big one too because of that reasoning.
But then again, a Supreme Court can come with new
sitting judges down the line and be like, this was
terrible reasoning. We don't agree with originalism. We're gonna overturn dobbs.
Who knows. I suspect that it's going to kind of
ping pong back and forth for a while. Who knows. Uh.
(45:49):
There's also a bit here that I move your honor,
that we uh, that we cover this in a short stuff.
Overruled this whole Oh oh uh. There's a whole matter
of the shadow docket, which I think it would make
for a good short stuff. Yeah, that was that had
to do with that Bush versus Gore two thousand election thing.
It's like an emergency thing that they probably are using
(46:12):
a little flagrantly these days. But I agree, I think
that's a good short So sustained after all, thank you?
You got anything else about um legal precedents? Now? I
don't want to talk about the law for a while,
so maybe bump shadow ducket out to summer twenty three. Okay,
that sounds good. We did it, Chuck. We made it
through legal precedents. If you want to know more about
(46:36):
legal precedents, you can research starry, decisive originalism, pragmatism, all
that stuff. On your favorite search engine. And since I
said that and Chuck said, woo who, it's time for
listener mail. I'm gonna call this just one email about
our sitcom's two parter m. You got a lot of
(46:57):
great feedback. People really enjoyed those episodes, I think, which
is always fun. We did miss a couple of things
before I read this. Um, I don't know why. I
guess I said that Rhoda was a spinoff of All
in the Family. No, I did, Oh you did? Okay,
I thought it might have been me. I knew it
was Mary Tyler Moore. I don't know why I didn't
speak up. Then, if I could take one thing back
(47:20):
in this entire podcast history, it would be that so
many people wrote in to say that, and some also,
most of were very nice. But I want to give
you a piece of guidance, just as a friend here everybody,
if you send an email and the subject lind contains
more than one question mark, it made you're being hostile
(47:41):
and you may want to second guest sending that email
because it makes you look like a huge jerk. You
mean that the subject line is who does your research
for a four question marks? Maybe? Also, UM, the Simpsons
has a little Maggie. They're not for Simpsons. Yeah, I
really goof that one. I forget about Maggie. I I
(48:03):
love babies, but Maggie didn't do a lot on the show,
so I forgot all about her. Big apologies to Maggie Simpson. Yeah,
same here. I didn't catch that either. Um. And then
also a lot of people, at least as many who
wrote in about Rhoda being a spin off of Mary
Tyler Moore UM wrote in about um Roseanne and the
(48:23):
two Becky's pulling a Darren switch, Um, which I just
walked right past. I was never a big Roseanne fan.
I never watched it, but there were a lot of
Roseanne watchers. I'm assuming the original one right, But that
one falls under not so much a correction as how
could you not include this? And we get a lot
of those, especially with stuff like this like how could
(48:46):
you not talk about everybody loves Raymond? How could you
not talk about my favorite shoe? Yeah, it's kind of
like we put together, um a list of the one
hundred top sitcoms of all time in a two episode
format and just let her rip because it was inevitable.
I'm actually surprised we didn't get more stuff. And it's
really interesting that almost everybody wrote in to talk about
(49:07):
Roseanne Us leaving out Roseanne. I know I didn't watch
that show. Yeah, I just didn't do Sorry everybody, hopefully
we didn't taint your experience. But here's a fun email
from Laura Lampert that summed up her admiration of this episode. Hey, guys,
this is a complaint that these two episodes were too
engaging and entertaining. I really needed to sleep, but it
(49:28):
wasn't happening. So I put my podcast Q onto play
starting with these two episodes because I really didn't find
the subject that interesting. Uh. The thought was that listening
to you guys drone on about a dull topic to
me would send me off to the land of nod.
But that didn't happen. Here I am at three am
sit in front of my computer to find out about
the universe that was mentioned. I guess the Tommy what's
(49:51):
it called universe, Tommy Westfall, Tommy west Fall universe as
wide awake as I was two hours ago. Maybe you
consider some dull or less interesting to topics, guys, and
then just leave them that way. No jokes, no side notes,
no tangents, just drone on. You can label its stuff
you should sleep by, and that is Laura Lampert. That's
a good idea. That's a really good idea. We could
(50:14):
just kind of talk like that's the whole time. That's
right about Varya boring things? Yeah, like a legal precedence
we should have would that could have been our debut episode.
We have to rerecord it, Chuck, we have to go
back and give it another shot. Just play it at
half speed. There you there you go. That's great advice
to Laura Lampert. Great name. You can tell it's a
(50:35):
great name because I remembered it and didn't have to ask,
Chuck Um. Which is not to say that when I
don't remember your name, it means you don't have a
great name. It's just not quite as memorable. How about that? Sure? Well,
since I just dug myself out of that hole, everybody, Um,
that's the end of listener mail. And if you want
to get in touch with this, like Laura Lampert did,
you can send us an email to to Stuff podcast
(50:56):
at iHeart radio dot com. Stuff you Should Know is
a production of I Heart Radio. For more podcasts, my
Heart Radio visit the I heart Radio app, Apple podcasts,
or wherever you listen to your favorite shows. H
Welcome to Stuff You Should Know, a production of I
Heart Radio. Hey, and welcome to the podcast. I'm Josh,
and there's Chuck and Jerry's here too, and this is
stuff you should know. And boy do we mean it.
This is stuff you should know. Even though I have
(00:23):
to admit, Chuck, I don't think I've ever gotten sleepier
than I was when I was researching this this episode.
You know, I've learned more about the law since we
got this job than I ever wanted to or intended
to write. Uh, some of like, you know, just because
we have work contracts for the first time. So some
(00:44):
of it's because of that, some of it because of
all the trouble we get in, all the trouble we've
gotten in over the years. And then we just kind
of covered a lot of stuff legally speaking. And it's
interesting the law it is it is. And this one
was like it was kind of tough because Olivia helped
(01:04):
us out with this, and it was like it's a
really unless you're in the legal profession one way or another,
Like it's really dry, like incredibly dry. But if you
can just chip past that crusty dryness, and it takes
a lot, Yeah, it gets a little moisture the further
(01:25):
you get in, But finally you get to the rich
new Gute center and there you realize, WHOA, this is
actually super important because what we're talking about legal precedents
um kind of guides our society and a lot of
a lot of ways beyond just this is law. This
is not law, UM, this is illegal. You can do
this like that. We actually organize our lives in surprising
(01:48):
ways according to what's legal and what's not. And as
if the law is steady and stable, which is the
point of you know, relying on legal precedence, as we'll find,
then you know, society and he can kind of grow
and experiment and try new things because the law part
is covered. But if the law is going to change
every couple of years, it makes it really hard to um,
(02:09):
be in a gay marriage, or start a business or
invest in a like kind of a risky new technology,
because there's you can't rely on the law being stable.
So it makes life for us unstable. And I didn't
really realize just how much of a just an effect
that that law has, like an unseen effect on just
our day to day lives, because you don't think about
(02:31):
that kind of thing. But until you start researching something
like this, right, and or until you get slapped with
that lawsuit, and all of a sudden you're like, what, uh,
so much about the law too, is uh attorney's love words? Yes? Um,
that the simple I mean, anyone who's ever even if
you've never dealt with an attorney, great congratulations. I'm not
(02:54):
saying attorneys are bad, but that means you, you know,
you have a blissfully simplistic way of living that is
to be admired. But uh, you've probably clicked on in
terms of service or something, and you know that's all
legal words. It's all legal wording, like those you know,
nine hundred thousand words to sign up for a website
(03:14):
or whatever, or to download an app. Those are words
written by attorneys. And so much of law is so
specific to it can hinge on the wrong couple of
words that a well meaning jurists typed up in their decision.
Just a couple of things can really change things. A
(03:36):
couple of words, because it's all about those words and
how those words are interpreted by others. And um, I
just I don't know that part about it. I find
pretty fascinating and I think every attorney I know really
like UM values words. Let's just say that, and not like,
oh because it could charge to it. I mean, you know,
(03:57):
they value like boy, you better be careful about how
you say something. You know. Yeah, it's true, which really
doesn't jibe with me because I'm pretty hyperbolic, and I
just assume everybody's going to understand that I'm being hyperbolic.
But that's not always the case. Especially, I guess now
that I think about it, it's when I'm talking to
lawyers that it really gets lost. Uh. So I guess
(04:19):
we should go back to the early eleven hundreds, uh,
specifically eleven fifty four, when Henry the second Um kind
of codified the fact that they were going to be
in England was going to be working on something called
common law, or at least towards something called common law,
because you'll see, it takes precedent and common law and
(04:41):
this kind of thing takes a long time to really
take hold, uh for a lot of reasons we'll get to.
But it was common law because they said, hey, right now,
we're deciding these cases all over the land and everyone
has their own opinion, and it's a bit of a mess.
So maybe if we had one sort of common law
for all the kingdom and there were you know, we
(05:02):
could refer to that law and these decisions to make
decisions on down the line, that might be a pretty
smart thing. And it was and it is yeah, because
I mean the stuff that they were doing locally was like,
if you couldn't tell the truth between you know, a
plane iff and a defendant, you had them both snatch
a rock out of a pot of boiling water. I'm
(05:23):
not kidding, and then whoever whoever healed fastest was telling
the truth, and then you would execute the one who
healed slower. Like that was the kind of legal stuff
you would face like at this time. So Henry the
second the idea that he came up with common law
and said, all this is nuts, We're just gonna have
one law for all of England. Um. It was really
forward thinking. And when you dig into it a little more,
(05:45):
he established trial by jury um the concept of circuit
courts um. That that comes from this time when judges
would travel around and and go to like different localities
to hear cases, and the fact that they weren't rooted
to one specific locale meant that that was much more
difficult to corrupt them. There's a lot of really forward
(06:07):
thinking stuff and the basis of it, Chuck. The common
law formed the foundation of not just England's law, but
basically every country that was colonized by England, including the
United States. We have a common law system, which is um,
I don't want to see the opposite, but it's the
It's one of two basic ways that you can conduct
(06:30):
your society legally, and the other one is civil law. Right,
even though Henry the Second was still like it's still
like to bob for apples and bats of acid because
that's just fun. Sure, Yes, civil law is not the
way we went Um. That was you know, it was
kind of developed around the same time and Europe back
(06:50):
in the day. But that's uh. Common law was the
smarter approach. And what we got out, what we realized
early on with common laws was what we needed to
adhereby was a principle that you've heard a lot kind
of lately. It's a Latin term meaning let the decision stand,
uh star a decisive right. And that's that big deal. Yeah,
(07:10):
And that's I mean, it's not like Henry the Second
came up with common law, and said and also it's
it's going to be based on this concept of starry
decisives that actually evolved over time. And the idea behind
starry decisives is if there's a good decision made by
a judge, um, then later judgments about cases that have
(07:32):
some similarities are a lot in common with that case
that the original decision was made on have to follow
that same precedent. It's a legal kid necessarily say again,
I don't even know that I would agree that it's
based on a good decision, because originally it was like
they even said it was as long as it wasn't
(07:53):
flatly absurd or unjust. And they have said later on
that like and well we'll get to it. But know,
the decisions don't have to be perfect, right right, the
I guess what I meant by good was good meaning
like not like the judge wasn't wearing a tinfoil hat
and sentenced the person to like eat their own poop.
(08:13):
I mean good like they like, it was reasonable, it
was thought out, it was you know, deliberative, like it
was a sound judicial opinion, whether it actually was good
or not. Right, Okay, I'll buy that. But here's the deal.
Like I said earlier, like applying common law and applying
precedent is something that takes a long long time because
(08:35):
early on, I mean for a lot of reasons, but
one of the main reasons is early on the courts
were such a mess. They didn't even start recording, really,
um their decisions in a really meaningful way until like
the mid eighteen hundreds in England the early eighteen hundreds
in the US, so they may not have even known
there might have been precedent in any given case. But
(08:57):
starting like I said, early eighteen hundreds, in mid eight
hundreds in England, we started to have a real sort
of president. Yes, I guess, yeah for sure. And we
talked about that in our Unsung Heroes of the Court,
with our I think our transcriptionist segment, right, I think so,
I think so too. But the reason that, um, that
(09:18):
you have this this emphasis on precedence is because in
a common law system, law kind of builds on judgment
after judgment, and the more judgments you have about like
a particular um the topic or or you know, case
or something, the more well rounded and in robust the
idea of the law concerning that goes. Like in a
(09:42):
civil or in a common law society, the legislature makes
a law, but it's not you know, they don't try
to lay out every single law with every single possible
outcome that they can think of. That's what civil law
is based on. In common law, it's like they lay
it out, it kind of makes sense, it's open to
interpret cation. And then people start suing each other, and
then over the years the judges figure it out. But
(10:04):
they figured it out by basing their assumptions on the
previous rulings of other judges. Right, that sounds like a
good breaking point. I think so too. I'm at my
breaking point. No, not already. Ye, all right, Josh is
out in the first third, but we'll press on and
we'll talk about the U S system right after this
(10:37):
stopt Alright, so Josh is gone, everybody, I'm gonna do
the rest of this one solo. So we're just gonna
(10:59):
talk talk about car tunes and breakfast cereals. Josh, I'm
back up. I couldn't leave you, Chuck. Uh. So, if
we're gonna talk about the the U S system, as
far as legal precedent goes, we need to talk a
little bit obviously about the constitution. Uh, the Constitution of
the US doesn't really talk a lot about how the
(11:20):
court system should operate. Uh, they don't talk about precedent.
This is something that the United States. Uh you know,
it goes from the top down here in the US,
and we'll talk about it gets really confusing at some
point as far as which courts bind with other courts
so that that mess will follow. But it goes top down.
So the Supreme Court is is really what ultimately matters
(11:44):
and what they decide about the really important cases because
everything binds upwards to them. But they didn't really like
they kind of made it up as they went. And
that's not to like knock the Supreme Court. It just
is to say there weren't any real rules in place
as far as this goes. But they realize early on,
and I think in nineteen thirty two is when it
(12:05):
really became serious when a justice named Lewis Brandeis of
Brandeis University fame. Oh yeah, yeah, of course, I wrote
in a descent in a case Burnett versus UH Coronado
Oil and Gas Company, UM, basically laid out what started
to decisive is all about for everyone to look back
(12:28):
on from then on and they have when he wrote,
in most matters, it is more important that the applicable
rule of law be settled than it be settled, right,
And that was what I was kind of referring to earlier.
He's he's basically basically saying, listen, courts aren't perfect, laws
aren't perfect. But what's really important, unless it's a really terrible,
(12:49):
terrible decision, is that we kind of come together and
agree that this is how it is. Uh. And then
he went on to kind of say, ultimately, like it,
you can't overturn precedent if it is really really bad. Yeah,
because if you didn't, if you just blindly followed precedent,
then you have the potential for a bad judgment, a
(13:11):
bad decision, infecting your society and your legal system. And
if you just have to follow it blindly even though
it's a really bad ruling, that's not good. So you
need to have an outlet to overturn those bad decisions.
But what Brandis was saying is, for the most part,
you want to just leave it alone. If it's even
remotely good, leave it alone. Let it But yeah, and
(13:34):
that's really to me. If you like middle of the
road stuff, started to cease. This is exactly what you want,
because it's like it's the it's the full crum between
going one direction where you just have like a whiplash
going on because law is changing all the time, and
then the other direction on the other end of the spectrum,
where the law just does not change, it is just
(13:56):
set in stone. And that's that. This is like, Okay,
you want to follow tradition, you want to observe custom
to have some stability, but at the same time, you
want to be able to let society evolve by having
the laws evolve as new ideas and concepts come around. Yeah,
it's it reminds me of one of my favorite I'm
not a big axiom guy, but there's a handful that
(14:17):
I really kind of informed my way of thinking, and
one is don't let perfect be the enemy of good.
That's that's always been as a sort of an underachiever
in life. It's always been one I really stood on,
And that's kind of what they're saying here. It's like, listen,
if we go for perfect, you're just gonna because law
is subjective to like, these justices are deciding things based
(14:41):
on what they think, based on other things. But ultimately
it's the subjective thing. So we can't just go back
and forth forever trying to get a perfect ruling on something. Right,
My favorite axiom is it has to be perfect or
else I'm a completely useless human. Oh no, oh yes,
So over time that concept of starry decisive when when
(15:04):
was it? It was like the I guess ninety two
with brand Ice. Yeah, that's when he kind of laid
the gauntlet down, and think about how meta that is.
He was establishing precedent about when to follow or overturned precedent.
Pretty amazing stuff that guy deserves, like a sure university
named after there's a statue there, but over there better
(15:27):
be um. But over time, after brand Ice, you know,
said that, they were like, okay, well you know exactly
when is it okay to overturn the decision? And they've
actually come up with a handful of kind of guiding
bullet points that are appropriately laid out in bullet points
for us UM that just kind of say like, okay,
does it check this box? Is check that box? And
(15:49):
it's not like a perfect Scantron sheet where everything every
box is going to be filled out and you calculate
them all and you say, yes, it should be overturned. Like,
there's still a lot of subjectivity and weighing all of
this stuff, but it's pretty good guideline if you ask me, no, absolutely. Um. Well,
the first thing, and this is a little bit counterintuitive,
but it's easier to overturn a decision based on the
(16:13):
Constitution than it is a statutory law. And again that
seems counterintuitive because the Constitution can feel so locked in.
But basically what that means is is if it's just
statutory law, then you can change the law pretty easily.
Like the Constitution is very hard to get changed. So
it's easier to change a decision based on the Constitution
(16:34):
than the actual underlying constitution. Yeah, because Congress is going
to say, oh, yeah, we we we miss that one.
And then similarly to Congress can actually create laws to
overturn unpopular judicial rulings. Um, So they can make a
law that, you know, if everybody's really mad about, say
some judicial ruling, and Congress says, you know, our constituents
(16:58):
are really up in arms, let's make a law that
says the opposite of what that was just ruled. That
that law um takes precedence over every ruling, including that
Supreme Court ruling. So now judges have to follow that
law until new precedents are set that kind of adjust
it and make it evolve. That's right. Uh. The next
one is working something called workability, which is basically like,
(17:21):
how difficult in practice is it really to implement this
original decision? Uh? And if it's really difficult for lower
courts to to follow whatever that original decision was in practice,
then you may want to take another look at it. Yep.
Another one is reliance, and this one makes a lot
of sense to me too. It's um, really kind of um,
(17:44):
what's that word that people use when it's just kind
of like it lacks substance though it's it's not concrete.
It's kind of poofy coofy sounds great. I've never heard it,
but I like that word. If you're gonna go with
that from now on, So reliant it makes sense. But
it's a little fee I think legally speaking, because what
it's saying is if if this judgment was not quite right,
(18:06):
if the reasoning wasn't very good, if the deliberation wasn't perfect.
But it's become so enshrined in society that overturning it
would basically really mess society up, even temporarily. Um, then
you would not want to overturn that. That's UM. There's
a good example of the Miranda rights were under attack
(18:27):
in two thousand I guess from a case and Um,
the court I think, in a very narrow I think
five to four ruling said no Miranda should stay. It's
on it's based on a flawed interpretation of the Constitution.
But we've become so reliant on it to protect legal
rights of people accused of crimes that we're just gonna
leave it, they said, But it's already in all the
(18:48):
TV shows exactly. Lawn owner editors were just like, please don't,
please don't. Yeah, I mean, reliance is kind of the
it's too late to turn back now. Basically, Yeah, the
bell has been wrong, the genie's out of the bottle,
the smell is in your nose. That's my favorite. The
(19:08):
basically the next one is abandonment, which is basically UM,
when the court says this is old timey, Um, this
is antiquated. When they looked at Lawrence v. Texas in
two thousand three that overturned the previous ruling, UM about
private same sex as sodomy laws things like that. Uh,
the Supreme Court came along and said, oh, you know,
(19:30):
things have kind of changed and maybe we shouldn't be
in people's bedroom and forcing laws about how they want
to have sex. Yeah, they're like, we all just saw
Brokeback Mountain and really we really feel differently about such
a great love story they wrestled. So there's also legitimacy
to um, which is saying like, Okay, there's a really
(19:51):
good chance that if we start overturning previous decisions that
people have come to rely on that we're actually good decisions. Um,
that going to to harm the legitimacy of the Supreme
Court in the eyes of the public. I can't think
of any example, um, but that is it is something
that they take into account when they are considering overturning
(20:15):
something or not. That's right. Um. The next one, I'm
just going to call it the was it close. That's
when they can look back at a previous case and say,
you know, this was five four, there was a really
spirited descent it wasn't you know, it was maybe a
controversial case, but not necessarily but just really really close. Uh.
(20:37):
Then maybe you know, we could take another peek at it, right. Um,
there's also quality of reasoning. I've kind of hit on
that a couple of times that it's like, if you
can look back and look at the judgment and the
reasoning behind the judgment and it still makes sense, then
maybe kind of leave that law alone. If it's just
completely and equated, if it's um racist, if it just
(20:58):
doesn't jibe with the most of you know, society today,
then maybe it is ripe for being overturned or other laws,
like of other laws have come along since then to
kind of eroded or negated, or if facts have changed. Yeah,
that's a big one, especially when it comes to scientific
findings and stuff like like you find the moon is
not made of cheese, so cheesemakers no longer have to
(21:21):
pay a moon tax. That's a good example of real
real life. Uh was that off the cuff? Very nice? No,
I wrote it down. Let's still I could not think
of an example, and that is the best I could
come up with. Sad, that's really good. Uh. So here's
where judicial philosophy kind of comes into play, because when
(21:42):
it comes to being a jurist, as we've seen on
the Supreme Court, especially lately. Uh. There are a couple
of different ways you can go as far as looking
at the Constitution. You can be what's called an originalist, which, um,
you know, some originalists say, you know what, the only
thing that matters is what these founding fathers meant when
they wrote these laws hundreds of years ago. Yeah, so
(22:04):
like whatever happens in society today, however it applies to
the late eighteenth century, that is the law. That's what
the originalists think. And there are actually justices on the
Supreme Court who are fervent originalists, that's right. Uh. And
there are originalists that say, you know, what's happened in
the past two and thirty four years is uh some
(22:28):
of these decisions, a lot of them have subverted the
will of the and the intent of the founders. And
pragmatists come along and then say, duh exactly, because what
we would like to decide law based on is modern
times and uh, the context in which we live and
(22:48):
the impact on our society as it is today, and
those two things pushing and pulling is uh, as we've
you know, it's always been this way. But every I
think gener ration when they see the big decisions coming
down paid more attention to it. So right now, because
of Row, obviously everyone is paying a lot of attention
to this push and pull of originalists versus pragmatist but
(23:12):
also pragmatizing, but also the tension between originalists and people
who follow Starry Decisive too, there's a big tension between
that as well. Um and I was reading about originalism
Chuck and Clarence Thomas is like a hardcore died in
the wool originalist, like literally what the Founders literally meant
(23:34):
when they wrote the Constitution is law and anything beyond
that should not be law. And he if you read it,
he kind of makes a pretty good case. It makes
sense to an extent, But then you stop and realize
what he's talking about is a civil law society, a
law where you have a founding document of laws and
rules and regulations and it's super um specific and it
(23:59):
covers as any basis that possibly can, and then the
judiciary has a very limited role in in shaping those laws.
You come before a judge and they say, uh, did
you violate this this um article? Yes you did, Yes
you're guilty, or no you didn't know, you're not guilty.
That's the role of judges, and that sounds like Clarence
Thomas is like dream job. But he's in the wrong
(24:20):
kind of society because we have a civil law society
where judges are dependent upon to interpret the law correctly
and sensibly and in a way that applies to the
society at large. And that that really is intention with
originalism big time. Yeah. And I'm you know, no shock,
I'm a pragmatist, and I don't think you should like
(24:41):
just ditch the Constitution. But I think it's crazy to
think about in a hundred and fifty years in the
in the in the future where we're flying around and
and we look like Buck Rogers in the twenty first century. Man,
it'll be twenty second century. I can't wait. I'm gonna
be first in line to get that haircut to once
this over, jumpsuits come out. But it's crazy to me
(25:03):
to think about going back to a time when they
spelled the word time with a y, you know, and
say like, no, we still have to go back, you know,
four or five six years to what these uh, I mean,
the world just changes so much. I just it's crazy
to me that the law shouldn't change with it, and
the law has changed with it. I'm not, you know,
(25:24):
saying that it hasn't, But I don't know. It's a
little frustrating sometimes I'm kind of in between. I'm a
starry decisiveist, I guess you'd say, because I feel like
pragmatism can be a little whiplash eat. The law can
change a little too much, um, which we've seen, you know,
where one administration comes in and makes a bunch of rules,
and then the next administration comes in and and changes them,
(25:45):
and it's it's really tough to say, like run a
business like that or to live your life like that. Um.
But with starry decisives, it's it's veneration and respect to
tradition and custom and stability. But there's again, there's that
ability to change, to be pragmatic when it's called for. Um,
it's again it's really middle of the road, and it's
it's right up my alley, right up your alley. UM.
(26:08):
So let's get to the confusing part. I mentioned earlier
that there would be an eventual breakdown of kind of
how courts bind to one another. And when we're talking
about binding authority, that basically means decisions that a lower
court must follow from an upper court in its jurisdiction. Uh,
and it and it goes a little something like this. Uh.
(26:32):
State courts are only bound by higher state courts in
their own state. They're not bound by federal courts except
for the Supreme Court. Again the ultimate authority. Uh, they
can strike down state court decisions is unconstitutional. And then
you've got the whole and I want to say, mess.
It's not a mess if you really understand it, but
the whole sort of Plato spaghetti, which is the federal
(26:54):
court system, which is take it away, man. I was
hoping you're and take it all the way home. The
federal court system is based on those circuits that was
established all the way back in the twelfth century. Um.
But rather than traveling around, I think judges kind of
have home courts. But the point is these courts are
(27:14):
related to one another. And there's ninety four districts. Um.
You know, there's twelve districts with ninety four district courts.
It's very confusing. Twelve regional circuits, okay, thank you, with
nine district courts spread out among them, right. Yeah. Each
each regional court has one appellate court. And then there's
a court of appeals for the federal Circuit. It has
(27:36):
nationwide jurisdiction over certain cases. It gets really confusing, Yeah,
it really does, because you start out in district court,
you end up in um, I guess circuit court maybe,
and then you end up in appellate court. Um. I
may have added a step there, you know, I like
to do stuff like that. And then eventually you end
up at the Supreme Court, which is the final arbiter
(27:58):
of the law of the land. Um. But the Supreme
Court tries not to overrule state law because the states
have their own supreme courts and they tend to be respected.
The point is in federal court in a district, if
you have a ruling made in a district appellate court,
(28:18):
it will apply to all the courts in that district,
But in the next district over it will have no
no impact whatsoever. Yeah, And you don't you know, as
a regular citizen, if you ever are bouncing through the
bouncing away up the court system, you don't have to
really understand it because you're gonna have an attorney that says, well,
now you go see this lady, all right, Well, now
(28:39):
you go see this guy, and you just go okay, right,
like and and they're like, and by the way, you
owe us another check or you could just come listen
to this on repeat several times. Yeah, good luck with that, right.
So the other so the thing is is like they're
there this This didn't land with me until like the
(29:01):
second or third time I really kind of read over this.
But you have to follow precedent if your state supreme
court rules on something. If you're a lower court and
that same similar case comes to you, um, you have
to follow with the supreme court ruled on that other
(29:21):
case that that established precedent, you have to. Um. That's
that's binding. That's what that's called. But there are other
times where, um, if you're a lawyer or if you're
a judge and you're kind of examining case law, there's
other kinds of non binding types of judgments or precedents
that you can use to be persuaded one way or
(29:42):
another to prove your case. Um. But it's it's not
like incumbent upon you to actually follow those. Yeah, that's
a good way to say it. One of those is
what's called persuasive precedents. It is non binding, and that
you know that means exactly what you said. There's no
real precedent, but maybe the decision is very useful. Maybe
it's a very similar kind of case, and maybe it's
(30:05):
a principle that you can look at at least when
you do make your decision. Um. Another one is called
an unpublished when they say it's not for publication their opinion.
And this is basically like, it doesn't mean it's literally
not They just like wattered up and throw it away
at the end. It just means, hey, this is a
like you see this most times in state trial court,
(30:27):
Like this is just some run of the mill state
trial case. The judge doesn't like, Hey, this isn't gonna
affect law or precedent moving forward. I don't want if
I mess up one tiny little thing, I don't want
people to refer back to this and say, oh, but
this judge said that. It's kind of like it's sort
of the let's go to lunch, let's get to lunch already, uh,
(30:50):
and just get through this trial and it's not really
that important. So they just say it's not for publication. Yeah,
And I guess it's up to the judge to decide
that or not. So I about Like you said, though,
it's not like they just throw it away. It is
actually published, it's just not it means that this is
a non binding decision. It's like, don't come looking at me,
(31:12):
right right, I'm just going to t G I Friday. Okay,
you want to take a break and then come back
and talk about some overruled precedents, sure, let's do it.
(31:35):
Stop stop, okay, Chuck. It seems like they the Supreme
Court over rules precedents every couple of days these days.
But I guess they started out fairly slow. Um, in total,
(32:00):
they have overruled their own judgment. So remember if you
look at the Supreme Court as a single body made
up of you know, rotating or incoming and outgoing members,
but it's still it's the same things. I don't know how,
I just like everyone knows that the Supreme Court is
and I just managed to make it confusing. Anyway. The
(32:20):
Supreme Court has overruled itself over two d and thirty
times in in the it's lifetime, and it started in
eighteen ten, right, But like you said, it didn't happen
a lot. I think in with Pollock ve Farmers and
Loan Trust Company, Uh, that is when things really got
(32:42):
rolling and the Supreme Court started overturning itself more and
more because it's happened. I mean, that wasn't that long ago,
and it's happened, Uh, how many times since then? Well,
it happen. Yeah, it only happened twenty six times in
the entire nineteenth century from eighteen ten to eighteen nine nine.
So everything since then, yeah, has been you know, they've
(33:05):
been going gangbusters. Um. And that that Pollock versus Farmers
Loan and trust had to do with the income tax.
And that's actually a good example of Congress coming in
and saying, oh, you overruled our ability to have an
income tax. Here's the sixteenth Amendment down your throat. So Um,
the thing is is like little by little, kind of
(33:25):
like the little train that could going up the hill
and starting to kind of gain steam and gain speed.
If you look at the Supreme courts um over rulings
or overturned precedents, um, if you like, graft him on
like a spectrum of time, the few, the present, and
you know, the recent past would have a lot of
dots on it. And some people say that's evidence that
(33:48):
the Supreme Court has become much more activist and politicized
over the years. But then other people say, well, I mean,
it just makes sense that further back in time they
had much fewer rulings to return. They're basically starting from scratch.
Now there's so many rulings to consider and deliberate on them. Yeah,
of course there's going to be more overturned because there's
(34:10):
more precedents to be overturned. Yeah, I think the middle
of the road, like myself would say, it's probably a
bit of both. Yeah, I agreed. Um, you know, a
starry decisiveist like us. Um, here are some very famous
examples and truly important, you know, because I mean I
(34:30):
think overall, overturning precedent as a starry decisist isn't the
greatest thing, but um boy that it sure has been
the right thing in a lot of cases. Yea. And
of course that's it's all subjective, but that's my opinion. Um,
Brown v. Board is one of the big ones. Uh.
Plus e v. Ferguson, the U. S. Supreme Court said,
(34:51):
separate but equal is how we should go forward. We
can segregate things. We can make black kids go to
black schools and white kids go to white schools, and
it doesn't protect or I'm sorry, it doesn't violate the
equal protection clause of the fourteenth Amendment. As long as
long at things are equal and these schools have the
same uh, school supplies and they're all they're all the same,
(35:14):
it's all good. And that was later overturned. Of course,
the lower courts um sided with it, but the in
the the double A CP would eventually appeal this to
the Supreme Court with Brown v. Board And this is
one of those situations where like new uh, new data
and new studies kind of came into play. Then it
(35:36):
happened since that original plus e versus Ferguson ruling, UH
in Chief Justice or A. Warren said hey, look we're
looking at these studies now that say, yeah, these schools
may be equal on paper, but inherently they are not
equal if they are segregated. And that will, um, that
will really has a big psychological component to a young
(35:57):
black student, even if they have the same textbooks and
school supplies, just affects the fact that they have to
go to a different schools harmful to them, right, And
so that clearly violates the Fourteenth Amendment to equal protection
under the law, and that made Brown versus. Board of
Education one of the most celebrated not just court cases,
(36:18):
but one of the most celebrated um overturnings of a
legal precedent in American history. For sure, pretty much everybody
can get behind Brown versus Board of Education. You know,
there's probably a few holdouts there are. I was researching it,
and it's surprising. It's not everybody you would think it's
It's kind of like people on both sides are like,
it was kind of better before, But for the most part,
(36:40):
society is like now now, even if it was rough
at first, like it was a step we needed to
take as a society so we could evolve and stop
living separately, because that's ridiculous. What about paying versus Tennessee?
This one, I I thought was surprising. It kind of
flies under the radar if you're not paying attention to
low stuff. But there it used to be. The Supreme
Court upheld this idea that you could not have a
(37:03):
victim impact statement at sentencing because they said that it
violated the Eighth Amendments protection against cruel and Unusual punishment
because this emotionally charged you know, atmosphere right before a
person's sentence really increases the risk that they're going to
get the death penalty. And in uh nineteen late eighties case,
(37:24):
a guy named Purvise Pain who had murdered a woman
and her two year old daughter. UM, the woman's mother
had given a victim impact statement, and apparently the Supreme
Court at the time was made up with I think
enough liberal justices that they were like, now you should
be able to have victim impact statements. And third Good Marshal,
(37:47):
who was one of the most liberal justices in Supreme
Court history, wrote a descent and a critical descent saying like, hey,
you're taking starry, decisive way too lightly, Like this is
this is tradition, this is cus to minute, it's like
reasonable that Yeah, it increases the risk that somebody's going
to be put to death. Uh, and you guys really
dropped the ball. But now, uh, the Supreme Court overturned it.
(38:09):
So to this day you're allowed to have victim impact
statements at sentencing in the US. Uh. Yeah, that's um.
Ropert versus Simmons was another that was a case where
they basically um where like kind of things had changed
since the original decision. UH in nineteen eighty nine Stanford
versus Kentucky. UM. That was they found that it was
(38:30):
unconstitutional to sentence a minor. I'm sorry. In two thousand five,
they found it was unconstitutional to sentence a minor to death,
which overturned the nineteen eighty nine decisions Stanford versus Kentucky.
And they basically said, you know, we've evolved since then.
In in nineteen eighty nine, and most people thought it
was okay to to put a sixteen year old to death,
(38:50):
but now things have changed and we don't really feel
that way. As the year graduated high school, Uh, I
could have been put to death. And it's a good
thing you didn't get in trouble, Chuck. That was a
good kid. But they cited a state legislature UH, and
the decisions there that outlawed it. UH. And they even
(39:13):
looked at like sort of what was going on around
the world as far as that kind of thing goes.
There's another really consequential case that came before the Supreme
Court and UM had to do with their emergency docket,
which will we'll talk about a little bit about later.
But UM, in some cases where the time is of
(39:33):
the essence, the Supreme Court will hear really important emergency cases.
I'm very short noticed, will deliberate on it over a
very short period of time and issue a ruling um
that does not have anything to do with anything else
except for that one case. Ideally, but Bush versus Gore
is a good example of how that's not the case,
(39:55):
because this is a this is one of those emergency
cases that they heard, and Chuck, I think we needed
do an entire episode on the two thousand election because
it was so consequential to the United States, and also
it's just super interesting too. But the upshot of is
that the there was a really important quote that came
out of it that said, our consideration the Supreme Court
(40:16):
is saying this, our consideration is limited to the present circumstances.
Comma for the problem of equal protection and election processes
generally presents many complexities. And some people say the fact
that they said that their consideration is limited just to
the present circumstances means that it's not precedents. Other people say, yeah,
but that second part about how you know, all all
(40:38):
election processes are different. They're actually saying, like, don't just
apply this rotely to it. So it is a precedent,
and it's been cited a bunch of times since then.
But even though it's a big controversy about whether those
kind of rulings should be included at all in precedence. Yeah,
and that's sort of the it's not a slippery slope.
It's just sort of the system we have when there
there isn't a law about precedent. It's just sort of like,
(41:02):
you know, we'll try and figure it out case by case.
H I laughed because slippery slope came out of the
Supreme Court too. I think it was suitor right, Oh really, yeah,
I don't remember what cases. Yeah, the slippery slope came
out of out of the Supreme Court. Did not know that.
That's good fact. That's why I laughed, because I'm the
(41:23):
biggest nerd on the BOK. That is pretty funny. Um,
and now you know we should close with row. We
did a full episode on just the ins and outs
of Roe v. Wade not too long ago. But um,
did that come out right after the decision had been rendered?
I think did? Or right before our podcast episode? Right
(41:47):
after after? Okay, we're very timely in topical Yeah, don't
break your arm adding yourself on the back. I couldn't
remember if it was before after, but at any UM rate,
we should touch on it here at least because that
is obviously the most recent really super impactful uh time,
(42:10):
when a super impactful time when the some members of
the Supreme Court said sorry, sorry decisive. But even though
we might have even said in our confirmation that this
was settled ball, we're gonna reverse on that now. Yeah.
And the reason that Row was upheld for so long,
and we talked about this in our episode that it
was really roundly considered to be based on shaky legal foundation,
(42:35):
but it was upheld time and time again because it
had become reliant. People had come to rely on it.
So that reliance factor kept it from being overturned even
though a lot of justice is considered it like this
is not the best ruling we've ever made. UM. But
then with UM Dobbs versus Jackson Women's Health Organization, the
ruling from was two. Yeah, that overturned. Man, it's been
(42:58):
a heck of a year that overturned Row. UM. They
they basically said like, no, we're we're just going to
go ahead and say like this is not this argument
was totally fallacious it was a bad, bad argument. But
also we're gonna go one step further and apply our
originalism to it and say, the Constitution doesn't say anything
(43:20):
about abortions, and if you're going to apply the fourteenth
Amendment to it, which is what that shaky legal reasoning
was for Row that, um, you couldn't deprive a woman
of her privacy a k. A liberty that was guaranteed
through the fourteenth Amendment. If we're gonna apply the fourteenth Amendment,
let's go back and talk about what things were like
(43:40):
in eighteen sixty eight and how people understood the law
in eighteen sixty eight, and they would not have been
okay with abortion because three quarters of states already had
abortion outlawed on the books ipso facto abortion has no
constitutional protections. But again, they really went to the other extreme,
which in this case was the far right, in saying like,
(44:02):
there's nothing in the Constitution about abortion, and no one
had ever said it was in the Constitution, or that
the Constitution explicitly, you know, protected women's rights to choose
about reproductive health. What they were saying is, you know,
the judges kind of determined over time that this was, um,
(44:23):
this was worthwhile and this was what society needed, um,
and they ruled on it. So it was a case
of pragmatism, frankly and originalism, which is where we're at now,
and then eventually we may get to that middle of
the roads storry, decisive, nous, who knows, I don't know,
No one knows, right. And it was also a case though, where, uh,
(44:46):
if you're going to open up that can of worms
with the fourteenth Amendment, all of a sudden you're looking
at other decisions decided on that same rationale, like same
sex marriage and uh, interracial marriage and say sex sex
um also called just sex. That's right, depending on who
(45:06):
you are. Uh. Alito said, you know, but but you know,
it doesn't apply to that stuff. It just applies to this,
and that's UM. I think a lot of people worry, like, well, yeah,
but the can of worms is now open. And I
think immediately after Clarence Thomas even said like, maybe we
should go back and look at these other cases. Yeah, totally.
And that's the scary thing about it because it established
(45:29):
a precedent, and a big one too because of that reasoning.
But then again, a Supreme Court can come with new
sitting judges down the line and be like, this was
terrible reasoning. We don't agree with originalism. We're gonna overturn dobbs.
Who knows. I suspect that it's going to kind of
ping pong back and forth for a while. Who knows. Uh.
(45:49):
There's also a bit here that I move your honor,
that we uh, that we cover this in a short stuff.
Overruled this whole Oh oh uh. There's a whole matter
of the shadow docket, which I think it would make
for a good short stuff. Yeah, that was that had
to do with that Bush versus Gore two thousand election thing.
It's like an emergency thing that they probably are using
(46:12):
a little flagrantly these days. But I agree, I think
that's a good short So sustained after all, thank you?
You got anything else about um legal precedents? Now? I
don't want to talk about the law for a while,
so maybe bump shadow ducket out to summer twenty three. Okay,
that sounds good. We did it, Chuck. We made it
through legal precedents. If you want to know more about
(46:36):
legal precedents, you can research starry, decisive originalism, pragmatism, all
that stuff. On your favorite search engine. And since I
said that and Chuck said, woo who, it's time for
listener mail. I'm gonna call this just one email about
our sitcom's two parter m. You got a lot of
(46:57):
great feedback. People really enjoyed those episodes, I think, which
is always fun. We did miss a couple of things
before I read this. Um, I don't know why. I
guess I said that Rhoda was a spinoff of All
in the Family. No, I did, Oh you did? Okay,
I thought it might have been me. I knew it
was Mary Tyler Moore. I don't know why I didn't
speak up. Then, if I could take one thing back
(47:20):
in this entire podcast history, it would be that so
many people wrote in to say that, and some also,
most of were very nice. But I want to give
you a piece of guidance, just as a friend here everybody,
if you send an email and the subject lind contains
more than one question mark, it made you're being hostile
(47:41):
and you may want to second guest sending that email
because it makes you look like a huge jerk. You
mean that the subject line is who does your research
for a four question marks? Maybe? Also, UM, the Simpsons
has a little Maggie. They're not for Simpsons. Yeah, I
really goof that one. I forget about Maggie. I I
(48:03):
love babies, but Maggie didn't do a lot on the show,
so I forgot all about her. Big apologies to Maggie Simpson. Yeah,
same here. I didn't catch that either. Um. And then
also a lot of people, at least as many who
wrote in about Rhoda being a spin off of Mary
Tyler Moore UM wrote in about um Roseanne and the
(48:23):
two Becky's pulling a Darren switch, Um, which I just
walked right past. I was never a big Roseanne fan.
I never watched it, but there were a lot of
Roseanne watchers. I'm assuming the original one right, But that
one falls under not so much a correction as how
could you not include this? And we get a lot
of those, especially with stuff like this like how could
(48:46):
you not talk about everybody loves Raymond? How could you
not talk about my favorite shoe? Yeah, it's kind of
like we put together, um a list of the one
hundred top sitcoms of all time in a two episode
format and just let her rip because it was inevitable.
I'm actually surprised we didn't get more stuff. And it's
really interesting that almost everybody wrote in to talk about
(49:07):
Roseanne Us leaving out Roseanne. I know I didn't watch
that show. Yeah, I just didn't do Sorry everybody, hopefully
we didn't taint your experience. But here's a fun email
from Laura Lampert that summed up her admiration of this episode. Hey, guys,
this is a complaint that these two episodes were too
engaging and entertaining. I really needed to sleep, but it
(49:28):
wasn't happening. So I put my podcast Q onto play
starting with these two episodes because I really didn't find
the subject that interesting. Uh. The thought was that listening
to you guys drone on about a dull topic to
me would send me off to the land of nod.
But that didn't happen. Here I am at three am
sit in front of my computer to find out about
the universe that was mentioned. I guess the Tommy what's
(49:51):
it called universe, Tommy Westfall, Tommy west Fall universe as
wide awake as I was two hours ago. Maybe you
consider some dull or less interesting to topics, guys, and
then just leave them that way. No jokes, no side notes,
no tangents, just drone on. You can label its stuff
you should sleep by, and that is Laura Lampert. That's
a good idea. That's a really good idea. We could
(50:14):
just kind of talk like that's the whole time. That's
right about Varya boring things? Yeah, like a legal precedence
we should have would that could have been our debut episode.
We have to rerecord it, Chuck, we have to go
back and give it another shot. Just play it at
half speed. There you there you go. That's great advice
to Laura Lampert. Great name. You can tell it's a
(50:35):
great name because I remembered it and didn't have to ask,
Chuck Um. Which is not to say that when I
don't remember your name, it means you don't have a
great name. It's just not quite as memorable. How about that? Sure? Well,
since I just dug myself out of that hole, everybody, Um,
that's the end of listener mail. And if you want
to get in touch with this, like Laura Lampert did,
you can send us an email to to Stuff podcast
(50:56):
at iHeart radio dot com. Stuff you Should Know is
a production of I Heart Radio. For more podcasts, my
Heart Radio visit the I heart Radio app, Apple podcasts,
or wherever you listen to your favorite shows. H
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Chuck Bryant
Josh Clark
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