Coale Mind

Special guest! Jason Bloom, one of the nation’s leading jury consultants, talks about his experiences with jury selection during the COVID-19 pandemic. From that foundation, he and I talk about issues likely to arise as jury trials return to reopening courthouses across the country. They include:

- A surprising eagerness of people to show up and serve on juries, in part driven by widespread feelings of frustration after months of shutdown;

- Concern about what Jason calls the “massive exercise in confirmation bias” that potential jurors bring to the courthouse with them, depending on how restricted a juror’s information sources may be;

- The once-obscure psychological terms “ultracrepidarian” and “pareidolia” (you have to listen to the podcast to explore those terms’ meaning :));

- Remembering that 2020 changed potential jurors not only because of COVID, but because of Black Lives Matter, the Biden-Trump election and its aftermath, etc.

- And a reminder that jury service—unlike the similar civic-engagement exercise of voting—forces jurors to form a consensus among their different beliefs; and 

- Why 1-page written questionnaires for potential jurors may be particularly useful now in light of the above issues. 

 For information on Jason, his background, and his outstanding jury consultation services, please visit his website.

The Constitution protects economic liberty,  but only against regulations that lack a rational foundation in a legitimate governmental interest. 

Two recent cases from the U.S. Court of Appeals for the Fifth Circuit show how slippery this principle can be in practice. The underlying principle is alive and well, but "rationality" is a fairly easy burden for a regulator to satisfy. 

In one, a Louisiana ban on the making of funeral caskets by Catholic monks was struck down (in no small part, because the ban served to benefit the funeral home directors who controlled the relevant agency). 

In the other, a Texas ban on telemedicine by veterinarians was affirmed, by a 2-1 vote, on the rational basis that pets cannot talk while humans can. (The dissent was swayed by the argument that babies cannot talk either, but we allow pediatricians to treat them by telemedicine). 

Despite the disappearance of the shadowy "Q," and the failure of the long-promised "Storm" to occur, followers of "QAnon" still hold out hope. Some believe that President Trump will return to power on March 4, 2021, in the reversal of an 1871 that turned the US into a "corporation" (spoiler alert--it didn't). Another view is that "NESARA," a secret package of economic reforms, will kick into gear in the summer of 2021, bringing about the return of President Trump and at last triggering the "Storm." 

These beliefs are fanciful, but they are spun from underlying facts that many times are correct--so far as they go. Why do we do this to ourselves? This episode examines the psychological concepts of "pareidolia" and "apophenia"--our tendency to create order from unrelated sensory information, as was famously illustrated by NASA's "Face on Mars" picture in the 1970s. Those psychological tendencies, while useful in another time when our ancestors needed to instantly distinguish friend from foe, now poses dangers to the proper operation of our democracy--which assumes that voters are operating with reliable and fundamentally factual information and worldviews. 

In just the first few weeks of his Administration, President Biden has issued 20-plus executive orders--a noticeably faster pace than his immediate predecessors. What exactly is his authority to issue such orders? And what are the limits on it? This episode of Coale Mind examines the text and structure of the Constitution to identify some answers--both substantive, and procedural. 

The Senate plans to begin a second impeachment trial of Donald Trump. Can it do so under the Constitution? This episode looks at the Constitution's text, evidence of the framer's intent, two historical impeachment cases, and the Constitution's structure. It concludes that the answer is likely a matter of political will and consensus, which the two historical examples  (former Senator William Blount in 1798 and former Secretary of War William Belknap in 1876) show is hard to actually sustain all the way through a trial to an judgment of impeachment. 

The pardon provision in Article II of the Constitution is broad -- but so are other clauses that describe other aspects of the Presidency. This episode of Coale Mind reviews those terms of the Constitution, and considers how our debate about them reflects our society's broader debate about what we want the United States to be. 

Sixth Street in Austin is one of the nation's most famous "party streets." But is also the location of a Texas-style showdown between the governor, on the one hand, and the local mayor and county judge, on the other, about the regulation of bars and restaurants during the COVID-19 pandemic. This episode looks at the laws underlying their dispute (which just reached the Texas Supreme Court in its first case of 2021), and examines how those laws help explain the broader structure of our modern local governments. 

The Supreme Court's recent rejection of the Texas v. Pennsylvania lawsuit has produced some muttering on the far right wing about the concept of secession.

This episode examines Texas v. White, the 1869 Supreme Court case that held -- once and for all -- that a state cannot secede from the United States. The case arose from shady dealings by the Confederate government of Texas involving millions of dollars (1860 dollars, mind you) in U.S. bonds. 

The desperation of the Texas government in 1865 shows the real danger of secession: that while it can be entertaining to idly discuss, the real work of building a government is not something that should be approached as a start-up venture. 

The Presidential election of 1876 was spectacularly fouled up.

Three states certified dueling slates of electors; Congress resolved the resulting confusion with a political compromise about the end of Reconstruction, and then passed laws to try to avoid a similar crisis in future years.

While we have been lucky since 1876 to not have another election with so many technical problems, the laws passed by Congress are not imperfect. Many of their nuances are very much alive today, and form a big part of the still-running dialogue about finalizing the 2020 Presidential election process.

To fully understand the end of this election, you need to channel "The Spirit of 1876"  . . . .

(This PowerPoint presentation contains more information about the 1876 election and its consequences, prepared for a recent talk I did for a fundraiser for the New York City Urban Debate League.) 

The issue in Roman Catholic Diocese of Brooklyn v. Cuomo  was whether a governor's order about maximum gathering size unfairly restricted religious liberty; by a 5-4 margin, the Supreme Court found that it likely did. The reasoning of the Court, and the concurring and dissenting Justices, suggests ways that the Court may examine future cases about COVID restrictions. It also shows the immediate impact that Justice Barrett's appointment has had on the Court, particularly on the issue of protecting religious liberty. 

President Trump's die-hard supporters are calling on his lawyers to "Release the Kraken," in the form of (as-yet-unknown) evidence showing alleged election fraud. 

This episode looks at the history of the mythic Kraken, and notes that the sailors who created the myth were afraid to say its name because it was such an alien and powerful force. 

Accordingly, the Kraken may not be the wisest myth to incorporate (or "syncretize") into our modern Constitutional dialogue about election law. 

This episode looks at Bogert v. Secretary,  the first U.S. Circuit-level case to result from the aftermath of the 2020 election. The case focuses on the concept of "standing"--a limit on judicial power that flows from the words "case or controversy" in the Constitution--to find that two important election-related issues had not been presented in a manner that the federal court system could address. 

In 1603, Sir Walter Raleigh was convicted of treason and executed based on an out-of-court statement by Lord Cobham -- despite Sir Walter's objection that "[Lord Cobham] is in the house hard by, and may soon be brought hither." The result of Raleigh's trial is a rule against "hearsay" testimony, and that rule was dispositive of a vote-counting case in Michigan last week. Raleigh is best known for introducing tobacco-smoking to Europe, but his legacy is also directly relevant to our ongoing election about the 2020 vote count. 

Last week in Pool v. City of Houston, the Fifth Circuit confronted a "zombie statute"--a law that nominally remain in the law books even though they are unenforceable after having been found unconstitutional. (There are dozens of such laws across the country, including many old Jim  Crow-era segregation laws, as well as the ordinance against same-sex marriage that was struck down in Obergefell v. Hodges.) 

The plaintiffs, who wanted to circulate petitions in Houston to begin the citizen referendum process, had standing to sue about an unconstitutional restriction on their rights even though the Supreme Court had struck down a similar law 20 years ago. 

In the words of the Court, given Houston's actions towards the plaintiffs: "This zombie shows signs of life." 

Abbott and Costello struggled to answer, "Who's on first?" In election cases today about the COVID-19 pandemic, that same question--applied to the specific defendants who have been sued--can resolve the case, and implicates basic principles about how our government is organized.

This episode considers Mi Familia Vota v. Abbott, a recent Fifth Circuit case about election law, in which the Court concluded that the plaintiffs had sued the wrong defendants (Texas's Governor and Secretary of State)--and reviews why that question is fundamental to the organization of our government under the Constitution.

The episode also honors the spectacular moustache of Edward Young, the Attorney General of Minnesota in 1908 and the namesake of the landmark case of Ex parte Young. 

A Texas statute allows registered voters, age 65 or older, to request an early-voting ballot that may be returned by mail. In a 2-1 decision, the Fifth Circuit recently rejected a claim that this statute impermissibly "abridged" the rights of younger voters in violation of the 26th Amendment. 

The majority and dissent used the same basic approach to review the case--first, identifying a baseline level of protection for the right to vote, and then, measuring whether the Texas law was an "abridgement" of that protection. But despite starting with the same basic framework, they reached opposite conclusions, showing how slippery the concept of "abridgment" can be in this setting. 

For many years, state legislatures chose the Presidential electors, and popular vote played no role. Since the 1830s, though, legislatures have chosen to allocate electors based on the results of the popular vote for President. The Constitution still gives state legislatures broad power to appoint electors, however, and the COVID-19 pandemic could create situations where a legislature will want to intervene in the elector-appointment process. This podcasts considers the source of that power, the legal constraints on it, and how a state legislature could potentially act within the bounds of the law in this area--particularly if a Presidential or Vice-Presidential candidate became incapacitated by COVID-19. 

Are Judge Amy Coney Barrett's religious beliefs off-limits for her upcoming confirmation hearings?

At first blush, yes, particularly given the long and unpleasant history of anti-Catholicism on the national political stage. But on a second look, and considering the well-settled concept from trial practice about "opening the door" to evidence on a particular issue, there is a distinct and important role for questions about religion.

Judge Barrett's first law review article as an academic suggested that Catholic trial judges should recuse themselves from death penalty cases. Is her distinction between trial judges and appellate judges (such as a Supreme Court Justice) a meaningful one? The Senate will have to tread carefully to explore that important topic while maintaining appropriate boundaries between church and state. 

How does the Constitution limit the power to appoint a Supreme Court justice in the last year of a Presidential term? By putting one-third of the Senate, which must consent to the new appointment, up for re-election. 

If the electorate in the key Senate races believes that no nomination should be made to replace Ruth Bader Ginsburg in 2020, the voters can exercise their power and even deny the President's party a Senate majority. And if the voters are unpersuaded that the issue is important, then the Senate majority will control the decision. 

The Constitution makes this question intensely political, precisely because it is of such critical political importance to the country. 

A Presidential election in the United States is a process, not a date. The Constitution and federal statutes set six key dates for that process in 2020. This episode reviews their history, and considers how each date could lead to conflict in a highly polarized climate:

• November 3, 2020. Election Day -- the end of vote collection, but the start of vote counting;
• December 8, 2020. "Safe Harbor Day" -- the day a state's resolution of a dispute about electors becomes binding (the date that drove the fast pace of Bush v. Gore);
• December 14, 2020. The day electors formally vote in each state;
• December 23, 2020. The deadline to transmit a state's electoral vote to Congress; 
• January 6, 2021. "Counting Day" -- usually ceremonial, but potentially the start of a  brand-new election in the House if no candidate has an electoral majority; and
• January 20, 2021. Inauguration Day. The President's term ends.