C (4:58)

Oh, it was delicious, too. It was so good. So thank you for that.

A (5:02)

And this is like a big deal to me. David, someone who worked on the Artemis 2 team third stage attended and gave us crew patches.

C (5:15)

Oh, I love it.

A (5:17)

How incredible was that?

C (5:18)

I know. That was so, so incredible. So thank you for that.

A (5:22)

All right, but now we're going to talk about Nathan v. Alamo. This case was decided nine, eight, super close for the fifth Circuit en banc question over Texas law requiring the Ten Commandments to be displayed in classrooms. The nine judge majority said that the law did not violate the First Amendment's establishment clause. Well, David, I guess before we jump in, there's One case, like precedent wise, that I think we should tell people about so they can feel like they're, you know, swimming in this lake with us. And that is Stone versus Graham. That was decided in 1980, in which the Supreme Court ruled that a Kentucky statute that required the posting of the Ten Commandments in each public classroom in the state violated the establishment clause of the First Amendment. This was back in the Warren Court. Sorry, the Burger. The Warren Burger court days. He was Chief Justice. It was a per curiam decision with four justices dissenting. Five. Four. So in that way, it looks a lot like the Fifth Circuit case. It just comes out the other way. And it's from 1980, and it applies the Lemon test and basically says there's no non religious reason to. To require the posting of the Ten Commandments and therefore it violates the Establishment Clause. But, David, as you have pointed out recently, Lemon is a zombie.

C (6:53)

Yep, it's gone. It's dead. They shot this zombie in the head in the Kennedy case.

A (6:58)

Yeah, good point. Okay, so Lemon, no longer even zombie Lemon is just dead. But as with the Loper Bright case that killed off the Chevron zombie, the Chief justice said something really important in Loper Bright that is somehow applicable in this First Amendment case to me. And he said, basically, just because previous decisions used Chevron deference to get to the decision does not mean that those decisions are going to be revisited. As in the methodology doesn't matter. The precedent still holds because of the facts and the outcome of the case. So on the one hand, you have this 1980 case about the Ten Commandments being required to be posted in public classrooms. Seems totally on point. And on the other hand, the reasoning was based on a precedent that no longer is followed by the Supreme Court. So what is the 5th Circuit supposed to do? The majority says Lemon test is dead. We're applying the new Kennedy vs. Bremerton test to this and applying that test, we think this law is fine. And the dissent is like, no, no, no, you don't get to do that. It doesn't matter why the Stone case came out the way that it did. The facts are exactly on point here. And therefore we are bound by this Supreme Court precedent. David, without getting into the weeds yet of you know exactly how the Kennedy test works and how to apply that here. Let's just go at the highest levels. Who's right on what a Supreme Court precedent is.

C (8:35)

It is a fascinating issue. When you strip out. When you. When you destroy a precedent that has been used an awful lot of times, do you Essentially destroy all of those cases before all of them. They're all gone. And it would be very clear if in the. In the majority opinion, you know, overruling, if in Kennedy, they said all previous establishment clause cases relying on Lemon, essentially just vacate them, they're done without that. I. Sarah, can I give the most unsatisfactory answer ever, which is it's going to have to be case by case, because it does feel like if you have a decision that the entire basis of it was the limit test, that that's just. You have nothing else that you can hang on to. In the absence of a clear statement to the contrary, it feels like that case has got to be reevaluated.

A (9:29)

We've also got another difference between, for instance, Loper Bright and Chevron deference. And this line of cases which goes to like, again, sort of the. What Justice Barrett has called the. What is it? What are the different Starbucks sizes? Venti, grande, whatever. Anyway, she says there's, you know, venti stare decisis and grande stare decisis. The point being that when it's statutory that Congress could jump in at any time and therefore precedent, Stare decisis has a very important role to play with stability, because if Congress hasn't stepped in and it's been a long time and they're very aware of it, then we can kind of presume that they're intentionally not stepping in congressional acquiescence of sorts. Now, she was clear that that applies to Supreme Court decisions and probably not to circuit decisions. We shouldn't presume Congress is all up on every circuit decision in the country. But she's noted that when it comes to constitutional questions, stare decisis is at kind of its weakest point. Of course, there is still stare decisis to be applied, but since nobody else can touch it except through constitutional amendment, the Supreme Court should be very careful about that. So while the Chief justice was very clear that the end of Chevron deference should mean nothing for previous cases decided using Chevron deference, again, much harder to say in a Kennedy v. Bremerton situation where it was constitutional and they were changing the test. But, David, I do have an opinion on this. I think the circuit court has to apply the Supreme Court precedent, even if the underlying reasoning has been overturned, and they have to then say this is directly on point, we have no choice but to apply it. Here's all the reasons, though, that we think that under the Kennedy v. Bremerton test, the Supreme Court would come out differently. Unfortunately, only the Supreme Court can Do that, our hands are tied.

C (11:24)

Interesting. I think that's a very valid way of approaching this and throw it up to the court and they could summarily GVR it and send it back in light of Kennedy and make it up to them. No, that's very valid. I don't have a concrete answer to this at all. I mean, at all. It's, you know, that's one thing I appreciated about Loper Bright is they gave some guidance going forward.

A (11:48)

And of course in a 9 to 8 en banc decision, it looks like nobody else thought there was clear guidance either. So now let's ditch Stone. Let's assume that Stone doesn't exist for our purposes. We have no stare decisis problem here. We have just a Kennedy v. Bremerton is your guidance. So Ken Kennedy v. Bremerton, according to the majority in this 5th Circuit en banc case, requires courts to ask whether the challenged law resembles a founding era establishment of religion. For instance, government control of doctrine or clergy, compulsory church attendance, punishment of dissenters, religious taxes, use of churches for civil functions and political disabilities for non adherence. Well, this SB10, SB10, I mean there's just numbers all over the place here. SB 10 is the law requiring the Ten Commandments in public schools in Texas. The law does not control religious doctrine, force attendance, punish dissent, tax people to support the clergy, regulate churches, assign civic functions to religious institution. It is a poster far removed from the legal machinery of founding era establishments. There is no coercion. They note establishment style coercion would compel religious exercise such as prayer, worship or recitation. SB10 does not even require students to read aloud, pray, affirm, venerate or obey the commandments. They're just up there, David. They're just sitting there looking at you. What did you think of these sort of text, history and tradition in the establishment clause context arguments as applied?

C (13:34)

The problem that I had with them is some of the problem that I have with immediately stampeding away from text to tradition. So there is insufficient attention in my mind paid to the meaning of the word establishment. Just does the word establish. What does the word establishment mean? And instead it's a, it's. We're immediately heading to what were the historical practices at the time, at a time when Sarah they didn't have compulsory public education. This wasn't a, or compulsory education with a public, you know, I'm sure you know, Texas has lots of private schools, but overwhelming majority of kids are in public schools. So you don't even have this kind of institution at all. And so it's very hard to pour into it a founding era construction because a lot of these other constructs are dealing with adults. For example, they're, they're dealing with, you know, legislators. They're dealing with, as I said, adults. And so here you have compulsory education involving children where there is a requirement to post a very specific religious text. And it's a, you know, Protestant version of the Ten Commandments. So it's specific to one religion, it's specific to the Protestant side of that religion because it's the Protestant recitation of the Ten Commandments, and it's mandatory and it's everywhere in this public institution. And insufficient attendance to. Is that just, what is that an establishment? And it strikes me that there's a pretty good argument that it is. And the historic and historical analogies are only going to get you so far when you don't have a historical analogy for the very institution that you're evaluating. So that that was, although I will say, just exposure to something you don't like as an American and exposure to a public acknowledgment of religion that you don't like, that does not equal establishment. There has to be more than just exposure. And, and I do question when you're talking about, again, you have a mandatory education for kids, and these are kids, is are you crossing a line from exposure to establishment? Especially, you know, and in light of the factors I mentioned before, So I had some problem with immediately stampeding historically when you don't have a historical analog.

A (16:01)

Okay, there's another side of this, right? We've talked about the establishment clause side. There was also a free exercise clause challenge under Mahmud. The plaintiffs argued that, you know, in Mahmud, teachers used required curriculum to challenge children's religiously grounded beliefs. The majority held, yes, but in SB10, it creates no religious curriculum, directs no teacher speech, and gives no lesson plan aimed at correcting or undermining students beliefs. You know, the dissent obviously disagreed with that and are like, yeah, you're kidding, right? Like, you have to send your kid to this public school. You're literally required, you know, compulsory school attendance unless you can afford private school. And one Protestant denomination's version of the Ten Commandments is in the classroom. How is that not a Mahmood violation? So, David, let's spend a few minutes on the Mahmood side of this. And parental rights. Do you have a right for your child not to have in their classroom one Protestant denomination's Ten Commandments in the classroom?

C (17:08)

You know, I found the Mahmood part of this to be actually in some ways more interesting than the establishment clause part of it, because I was sitting there and imagining, let's suppose you had Montgomery county public schools, and as part of sort of a diverse religious diversity initiative, they said for a year, we're going to put the five pillars of Islam in every classroom. And you're going to get. You're going to look up and you're going to see an explanation of the five pillars of Islam. Ancient faith, immensely influential throughout much of the world. So there's historical reason to put it up there, just like there's a historical reason for the Ten Commandments. What would the approach be? And that would seem to me in that circumstance, a lot of people who are right now saying the Ten Commandments are totally fine would be saying, mahmoud, Mahmoud, how dare you indoctrinate my child into the Islamic faith? That would seem to be, to some people more. More egregious than indoctrinating somebody into a different version. Or, you know, at least the argument is it's indoctrination and they're not indoctrinating people into a particular view of sexuality. And there's this interesting double game here that I think some of the advocates of the Ten Commandments play and they turn around into the voters and they feed into this notion that's like, well, you know, we didn't have all these problems in society when we had the Ten Commandments up on the walls and we had public prayer in schools. And so they're turning to their constituency and sort of saying, look what I'm doing to bring God back. And then they turn around to the court and they go, it's just a poster. No, it's. Obviously you don't think it's just a poster. I mean, obviously you don't think it's just a poster. Obviously you think this has real meaning. And then to sort of turn around and to denigrate that meaning in court. Don't love it. And I guarantee you, if it's the five pillars of Islam, you would be. A lot of you guys would be running around absolutely magnifying the importance of it, that this is an absolute indoctrination. It's super woke. It's a dei. It's all of this stuff. And so I just, I'm very uncomfortable with that double game that seems to be played in these cases.

A (19:22)

I wish we had had a challenge to this law from Jehovah's Witnesses. First of all, like Gobitis and Barnett are both Jehovah's Witnesses. Cases about not wanting to stand for the Pledge of Allegiance because of their specific faith. Those were First Amendment cases here. And again, I'm, I'm not a Witness. I don't want to pretend that I know their entire religion. I don't. But my understanding is that they believe that with the New Covenant, everything that was like Old Testament is no longer valid. So the Ten Commandments, they believe like God gave them to Moses, but they also believe they're no longer binding precedent, if you will. And so if you're a Jehovah Witness family, sending your child to public school, there are these religious documents on the wall that specifically contradict your religion. You think those aren't valid anymore? So I think the free exercise, like you, David, is actually a really interesting part of this because of Mahmoud. I thought, you know, as we talked about Mahmoud, David, that the actual opinion in Mahmoud, and remember that's about these books being read to students is in elementary school and not having a religious opt out. We, I thought at least that that case would get decided very easily on the fact that they had other opt outs and that it was just not neutral. They had had a religious opt out, then they stopped having the religious opt out. They had opt outs for other reasons that you might not want your kid to read those books. But that's not how they decided it. They decided it in a much bigger fashion and like, well, hope you like that little nest you built for yourself because now I think you got a pickle. Here's your pickle.

C (21:06)

I distinctly remember this conversation because I was shocked at how broad Mahmoud was. We're not surprised often with chord outcomes, not because we're, you know, have super prophetic powers, but we look at this stuff really closely and we're not often super surprised. I wouldn't say I was super surprised, but I was definitely surprised at the breadth of, of Mahmoud. And we both said, this will have repercussions. It will grant parents a much broader right to sort of veto what's in front of their kids. And you know, it's again, going back to this. Is it really less intrusive to be exposed to a religious point of view that you may not agree with? Is that less intrusive to be exposed to that every single day in classroom than going through a, you know, a temporary curriculum module? It's not so obvious to me because again, you have to go back. Why is this stuff put up there? It is put up there because people argue that it has real and profound meaning to put it up there. And then to turn around and say, well, it's just a poster. No, that cannot, that cannot be how this works. And so, yeah, I think Mahmoud is going to be a real stumbling block for the school district or for Texas in this case.

A (22:34)

Okay, last point on this, and this is the nerds point, but maybe some of you were thinking we would skip it and no way we're skipping standing, you guys. So at least three of the nine judges who were in the majority thought that the merits question on establishment clause and free exercise allowed Texas to require the posting of the Ten Commandments in public schools. But they nevertheless thought, in addition, that the plaintiffs in this case did not have standing to bring the case, that it wasn't a justiciable case. Let me read from Judge Oldham's concurrence. This case is a textbook offended observer case. The plaintiff's complaint objects to the fact that, quote, the act is designed to and will ensure that students are more likely to observe, absorb, accept, follow and live by the religious directives in the Ten Commandments. It alleges the displays will send a marginalizing message and pressure school children to observe, meditate on, venerate, and follow the state's favored response, religious text. Various plaintiffs call the text deeply offensive from top to bottom. The idea is that the plaintiffs, one, worry that they will one day see a poster, Two, worry that they might find that poster offensive. And so three, they invoke federal jurisdiction for protection from potential hypothetical future offenses. David, I actually think the standing question here is super interesting for these plaintiffs, but again, Mahmoud is wandering around your lockers and your hallways, you know, saying boo at a bunch of conservatives who loved the Mahmoud decision. And I get it. There is a difference between the record in that case. Not only were teachers reading books that parents thought, you know, violated their religious tenets, but the teachers curriculum around those books were deeply troubling. David, you know, if your religion doesn't believe this, then you're a bad person. They're teaching you hate. I'm getting the quotes totally wrong, but that was sort of the, the gist of what the objecting parents said was being taught to their kids, that it was undermining their religious education at home. Not just that, there was something on the wall. I get the difference, don't get me wrong. But when you actually get down to like standing doctrine, I don't know.

C (25:05)

In Mahmoud, essentially what the argument is is you're receiving information you don't want to receive that is offensive to you on the basis of your religious viewpoint. And they had standing to challenge that curriculum. And I'm with you. I think that, you know, if you're talking one of the. I actually won an establishment clause case during my practice, Sarah. I sued Georgia Tech for establishing a religion at Georgia Tech, and very similar to Mahmoud, except my plaintiffs weren't. They were adults who were receiving the establishment clause violation. Georgia Tech had these orientation materials that literally were ranking denominations by their acceptance of, you know, LGBT sexuality and were getting very explicit in urging people, you know, so at Georgia Tech, it was far superior to be a Buddhist than a Baptist. And. And this was quite sectarian in. In its advocacy. Now, it was two adults, but it was absolutely sectarian in its advocacy. And. And we won that case. We won that case. And so I think that it. There's a lot of precedent, or there is, you know, Mahmoud and other cases, there's precedent that when you are instructing people, this would be a form of instruction that's mandatory classroom material. Every single day, you're going to walk in and you're going to see this material again. It either matters or it doesn't. You pass the law because it matters, and. And you look in and you're going to see it. It's instruction. It is instruction. Sure. The court could say, well, there's a level of instruction that is more intrusive or less intrusive, and we're going to draw that line. But it's not obvious to me that they drew a line like that in Mahmoud.

A (26:46)

Okay, so here's my prediction after our conversation. One, I think the Supreme Court has no choice but to take this case now because it directly contradicts Stone, the 1980 pre. Two, I think they have to take it because of Mahmoud and Kennedy v. Bremerton. But three, David, here's my, you know, my prediction that I have low confidence in, if that makes sense. I think this is a free exercise case, and I think that the court will have a new way to explain something like the coercion problem that we have talked about in the establishment clause context. It was always sort of like muddy, mushy stuff. I thought they gave it short shrift in Kennedy v. Bremerton. I am really, really against religion in public schools. I feel very strongly about it. And I thought that the dissent in Kennedy had all these great coercion points that the majority just was, like me, we're not going to do coercion. It's in the middle of a football field, like, whatever. I thought they should have talked more about coercion in that case. But fine, they didn't here. I now am starting to understand that the coercion test just doesn't do you any good. It has no limiting restraint on judges. So, okay, maybe we need to ditch the coercion test and maybe Mahmoud can actually do me some good work here, because this is actually now explicitly religious stuff in the classroom. Unlike Mahmoud, by the way, that was never explicitly religious. But no teacher was reading a book that said, if your religion doesn't believe this, your religion is wrong, for instance. And like, here we have a thing on the wall that actually, literally, the words on it are, you know, if you don't believe in this God, you're wrong. Which, you know, it's a very specific Protestant version of the ten Commandments. So I think they take this. I think they take it as a free exercise case. I think Mahmud is applied here. And there is more about sort of parental rights to be free in a mandatory public school, to be free from contradictory religious teaching, even if it is passive. Because the sort of logical conclusion of the majority is that, like, if you get detention, we can lock you in a room for 45 minutes after school. There'll be a Bible on every desk. You're not allowed to do homework, and you're not allowed to, you know, have your phones or anything else. You don't have to read the Bible, but it's there on your desk. That's all, like, according to their logic, that's just fine. Not an establishment clause problem, not a Mahmoud problem whatsoever, because it's passively in the room and nobody's demanding instruction on it. But, like, we all know that's insane, right?

C (29:33)

I also, I don't like this on a policy basis, but for some different reasons. I feel like it's very performative with religion, which I hate. I hate that. Okay, I'm going to be. I'm going to walk into office, and I'm going to be the most Christian office holder through performative legislation rather than through personal virtue. So it's very performative. And it also has echoes of something that, you know, for lack of a better term, I'd call it something like Christian superstition, that if you just put the ten commandments up, they have sort of their own power. It would be the Christian version of, like, putting crystals in the room to change the energies that, you know, you would have the ten commandments going to, like, change the. Change the place. And I'm old enough, Sarah. So I was in Kentucky. I was in Kentucky in elementary school all the way through high school, until I graduated in 87. And let me just say the Ten Commandments case was not complied with immediately and that prohibitions against prayer in school and Bible reading were not complied with. And so I grew up with the Ten Commandments on the walls, a reading from the Bible every morning and a prayer all through a bunch of my elementary school, like a bunch of it and into middle school. Some of this would still kind of cling to. And I was not growing up in some sort of religious paradise. Let me just say that it was compulsory religious exercise. It does not have the effect on a society that its advocates believe it does. So but that's irrelevant to that policy approach to this is irrelevant to the constitutional outcome. On the constitutional outcome it does. I'm in 100% agreement with you. The strongest argument, interestingly enough, is Mahmoud.

A (31:21)

And with that we'll take a break. And when we get back, Lisa Blatt, y', all, you know that satisfying feeling when you finally get everything organized after it's been piling up? That's what using Gusto feels like for your business. Bringing payroll, HR and benefits into one place and clearing out the day to day admin clutter so you can focus more on business growth. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly and incredibly easy to use so you can pay, hire onboard and support your team from anywhere and get direct access to certified HR experts who can support you through any tough situation and enjoy a quick, seamless switch to Gusto by simply transferring your existing data. Plus, you won't pay a cent until you run your first payroll. Try Gusto today@gusto.com advisory and get three months free when you run your first payroll. That's three months of free payroll@gusto.com advisory one more time. Gusto.com advisory. You know, I've gotten lots of questions from you guys based on our Christmas Aura Frames ad where I sent an aura frame to my sister in law fully loaded with pictures of her two nephews to try to coax her to come for Christmas, many of you want to know if it worked. Of course it worked. This is an aura frame you guys. So when you're thinking about Mother's Day and you're trying to get your wife or mom something special, preload the pictures of yourself and then have an ask in mind because nobody can say no. Once you've given them an aura frame named Number one by Wirecutter. You can save on the gifts moms love by visiting auraframes.com for a limited time, listeners can get $25 off their bestselling Carver Mat frame with code advisory. That's a U R A frames.com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. And good luck out there, guys. But seriously, you can't go wrong with an aura frame. Becoming a parent really shifts your perspective. I felt how suddenly everything isn't just about me anymore. It's amazing, but also it comes with a lot of responsibility and plenty of unexpected moments you can't plan for. You start thinking more about the future and what would happen in situations you hope never come. That's why having some kind of safety net matters. Just knowing your family would be protected brings a different kind of peace of mind. Ethos makes life insurance fast and simple. With a fully online process. Get a quote in seconds, apply in minutes, and even secure same day coverage with no medical exam, just a few health questions. Online, you can get up to $3 million in coverage with plans starting around $30 a month from a network of trusted carriers. Take 10 minutes to get covered today with life insurance through Ethos. Get your free quote@ethos.com ao that's e t h o s.com ao Application times may vary. Rates may vary. David we are about to introduce our guest, Lisa Blatt. She is the chair of the Supreme Court in appellate practice at Williams and Connolly. Previously served in the Office of the Solicitor General and worked as an assistant to the solicitor general from 1996 to 2009. She clerked for then Judge Ruth Bader ginsburg on the D.C. circuit. She has argued a gazillion cases before the supreme court. I believe 57, but frankly, that number might be getting higher. More than any woman in U.S. history. She has an absurd win rate. Some websites will say she has the highest win percentage among private practice lawyers with more than 15 arguments. That's what I always like to say. And here's a key quote from Lisa Blatt. Oral argument is like truth serum. Under the stress of their questioning, you can't become someone you aren't. And with that, David, let's introduce the woman who can never be someone who she's not. Lisa Vlatt.

B (35:33)

Hi, David. Hi, Sarah. Thank you, thank you, thank you.

A (35:36)

So I felt like in this last week there was episode, you know, 247 things Lisa Blatt can say that us mere mortals cannot at the Supreme Court. And we'll play just a little clip of that right now here.

B (35:51)

So no, you're not Going to overrule Rooker. I mean, I'm sorry, I don't think you're going to do that. Not in an April case.

A (36:04)

Not happening.

B (36:09)

Don't dare. My colleagues. Okay, I'm sorry.

A (36:13)

So here's my question. How does one become Lisa Blatt? Did it happen all in a day? Did you wake up this way one morning and is there something in the water at the University of Texas? You know, not an Ivy League school. We don't even consider UT Ivy adjacent, and yet we've got David, Frederick, Scott Keller, and the Lisa Blatt all coming from the University of Texas. How interesting.

B (36:40)

I mean, I do think the University of Texas background tells you pretty much everything you want to know about sort of my style. I think the only reason the court finds me funny and I'm not funny is I'm not trying to be funny. I think sometimes truth is extremely hysterical, and not everybody is willing to tell the truth and to just sort of say it like it is. And I think when you're from Texas, you know, you're not wrapped up in the clouds with fancy doctrinal principles, and it's important to know all that. But sometimes you just need to tell the court, you know, there are two parties here. Someone's going to win, someone's going to lose, and make sure you know what you're doing. And so some of that sort of straight talk, I think, can be effective as opposed to just always being so fancy, is the best way I can say it.

C (37:26)

After hearing that clip, I want to ask you a question that, like a sideline reporter would ask LeBron. What were you thinking as that play was unfolding? When you're walking into that kind of exchange, what is going through your mind as far as this is setting me up for, you know, as I'm. As you're in the moment, are you prepping for a memorable comment, or is just that this just happening in the flow?

B (37:52)

Absolutely not. Absolutely not, though. There's no way, because again, anytime you attempt humor, it's a disaster. It just. It falls flat. It's not. It's so such a bad idea. And also, especially if you're not an experienced advocate, you just. You just don't ever want to be funny, really. No, I think I was just staring at them, and it was more talking out loud. I think that's what happened. Obviously, I was talking out loud. It was not an argument.

A (38:15)

But I think.

B (38:16)

And I did apologize. I said, sorry, maybe that was too much. I think one of the things we've Talked about this before. When you're not in the courtroom, you don't see what I'm seeing. I'm seeing their faces. I'm seeing a very comfortable court, a happy court, a good mood court, a playful court. They're not always like that. Sometimes they're a little more, you know. But this was a fun little precedent, and I didn't see it as. As impactful as the right to, you know, reproductive control over one's body, a la Dobbs and Row. So it just seemed like what, you know, oral argument. You tend to try to win the case on the brief, but oral argument is just sort of your last chance to remind them of. Of some real talk. And sometimes that calls for nice recitation and analytical discussion of precedent, and that's all fine. But sometimes in certain kind of cases, you do want to talk about the effects and real people. And so it's, you know, I tend to try to leave every oral argument with something a little different than what was in the brief. Yeah. No, I don't know why. I mean, I would say I've had a lot of fun this term, and I'm not sure why. And it may be just I'm getting old. I'm growing old with them, but. Or I had cases that lended themselves to, you know, I like seeing smiles on their faces.

A (39:33)

What is it like to moot Lisa Blatt, or maybe what is your, you know, prep ritual?

B (39:41)

Well, it's changed over the years, but it's pretty much pretty typical with other Supreme Court advocates. We do two moots. You ask people who don't have a lot of familiarity with the case to moot you. I tend to use moots to get out all my aggression and inappropriate things. So I try to.

A (39:57)

So we're actually seeing toned down Lisa at the argument.

B (40:00)

Oh, yeah. Yes. We have this famous. I was talking to a client, and they said, we don't want 100% Lisa Blatt, maybe 40 to 60% Lisa Blatt. And I was like, so we try to go. We shoot for 80% Lisa Blatt always at oral argument. Only with append. I will say with appendices, I always go 100% Lisa Blatt.

A (40:22)

Oh, are we allowed to talk about the appendix?

B (40:25)

Any appendix? I mean, I did an appendix in the TAM case. That was all porn, and it was probably the most fun I've ever had, ever. So I just, you know, appendices are time to really take the clothes off.

A (40:36)

And as it were. Yeah. David, in the. Let's go Brandon, 6th Circuit case. There's a 45 page appendix and each page has like what, nine 12T shirts on it that are differently offensive about politics. So like I'll give you an example, David. This is on page, I don't know, let's call it 12. Just to tell you, like, we're not even halfway through this 45 page appendix. When you hit all of the T shirts that have variations of I love Bush, not the President, I like Bush, not George, et cetera, et cetera, there's a whole bunch of Clinton ones.

B (41:16)

Yeah, no, I like, I'm not a gynecologist, but I'll take a look. I just think there's a lot of. I think, you know, your humor is not as deep for me. All I'm going to say, Sarah, is if I could have gotten it to 69 pages, I would have. And so I think that's next if there's another appendix.

C (41:34)

This was an appendix to a brief filed at the 6th Circuit.

B (41:38)

Yes.

A (41:38)

About the let's Go Brandon case. Remember, this is a kid who wears a let's. He gets let's go Brandon. They both get let's Go Brandon sweatshirts for Christmas. They wear them to school. And the school says this violates our policy against obscene clothing. And they're like, but it's not obscene. And they're like, yeah, but it stands for something lewd because let's Go Brandon is a stand in. And so the question is, like, how far are you willing to go? Because like all of our, you know, not curse words sort of derive from curse words. Dang. I mean, obviously the Good Place has

C (42:09)

a whole network TV show about holy forking shirt balls.

A (42:13)

That's right. So like, can you wear a holy forking shirt balls to school? School. And so the appendices are supposed to like show you how absurd it would have to get humor.

B (42:25)

Again, can be effective. You just have to be very careful with it and you have to know

A (42:30)

what you're doing as you do. Okay, going to the. Totally. There's no real humor to be found here. Perhaps we have had two cases have been decided and advisory opinions has not talked about them. And they're business docket cases. And so I really thought maybe you could help us. So we have the Cox vs. Sony case on secondary copyright liability. Everyone's sexiest topic where unanimous opinion. Justice Thomas says no, the Internet service provider cannot be held liable for its users, you know, doing Napster type stuff and ripping off movies and other copyrighted material because, you know, this is overturning a jury verdict, by the way, a big one, because, like, they didn't. They weren't encouraging their users to do this. Just because their product allows illegal use doesn't mean that, like, we hold them liable for it. I'm curious. You are at Williams and Connolly, you know, the. The top of the top. Presumably you have to go, then brief clients on the outcome of this case. Is there anything that you told them that was, like, interesting, where you're like, ah, this will have ramifications for this. Meant this to me. Here was an interesting nugget. Anything.

B (43:50)

Cox is a huge case for, I guess, two reasons, regardless of how it comes out. It's a case about aiding and abetting, which just comes up all the time in various areas of the law, and it's a case about the Internet. To me, the outcome in Cox proves and confirms that the Internet almost always wins. If it's a case about the Internet, just the Internet wins, and we'll see how that plays out with AI. But right now, the Internet just wins. The aiding and abetting one, though, is just harder. And that is a very important case for businesses more generally, even though the Internet's important to a lot of clients. The other thing I would say about Cox that I watched was the government's position. So very significant when the government files in these aiding and abetting cases and Internet cases, because they're not necessarily political things like preemption. This is very important to watch what the government's doing in these type of cases. I don't think the outcome was surprising at all because of, you know, the minute you start talking about a university and a bunch of kids on the Internet and trying to hold someone liable for what a frat house is doing, it's a. It was a great case to watch and like I said, very important for aiding and abetting liability. Extremely important.

C (44:59)

I think it's interesting because this is one of the cases that's. I think we'll call it like pre AI because there's this interesting paradox here because, you know, it says nothing. You know, nothing showed that Cox encouraged or promoted piracy. So it had warnings. So the corporate entity didn't encourage or promote piracy. But in the AI context, as we were talking about the other day, there's evidence, for example, that, you know, the Attorney General of Florida is investigating ChatGPT's relationship to mass shooting, because he said if you look at the chat logs and the. And the communication between the chat bot and the person, if that chat bot were a person, he'd already have charged them for their participation in it. So obviously OpenAI is not trying institutionally, is not trying to encourage murder, but they create a product that quite literally on its face encourages murder. It strikes me that the current case law just isn't able to really wrap its mind around that.

B (45:57)

Right Now I represent OpenAI, certainly in all their appeals. And the subject of AI came up in the Google argument in 230. So the court is, you know, it's learning about AI. Justice Thomas, I think recently said he needs to learn how to use it. But AI just think raises a whole new set of issues. But so did the Internet. And the court had to adopt a lot. So, you know, from my standpoint, hopefully AI will always win, but we'll see how. You know, it's one of these things that we can, I think Sarah's book talks about on how we, how we view the court. And when you look at cases involving technology, it does take you past politics or ideology or like what, what you think about originalism kind of is irrelevant when it comes to how to resolve cases like Cox. And I think that maybe the Chevron case is another case you're going to talk about. So for somebody who watches the court, these kind of cases are very interesting as opposed to how they're going to rule in Dobbs or how they're going to rule in the Birthright case.

A (46:53)

Okay, well then let's do Chevron. So this is a case also. I mean, peak sexiness, Federal removal. Woo. Show some ankle, right? And the idea is that Chevron has a federal government contract back in World War II to provide oil for the war effort. But here, you know, a gazillion years later, Louisiana and several of its parishes so sue for damage that Chevron did to its coastline while trying to extract oil in state court. And Chevron's like, meh, we have a federal contract. When we did some of this, we were acting as private but federal officers. We were acting at the direction of the federal government. Therefore we have this removal ability. And the Supreme Court's like, yup, unanimously. Again, my question to you. Did you advise any of your clients about this was relevant in some new fun way?

B (47:53)

No. I do think they had this tobacco case many years ago where someone tried this acting as a federal kind of officer. And the court nine zero said no. And here nine zero said yes. It may make it easier to remove in certain cases, but I don't see that this case, I mean, yes, it arose in the climate change, but it's just such a Procedural. It's a procedural case, so I don't think any about this was particularly surprising.

A (48:19)

Fair enough. Okay, so nothing in the Chevron case, Plaquemines, that you were like, aha, this is, this is worth pulling out for the business docket, folks.

B (48:28)

Maybe we'll cover it at the Fifth Circuit Judicial Conference. I don't know. We'll see. I mean, Paul Clement argued both, so my guess is, since I'm doing it with Paul, we will be covering both cases.

A (48:37)

Any big surprises this term thus far for you?

B (48:39)

I mean, the tariff case was not a surprise after oral argument, but, yeah, I was surprised by the tariff case.

A (48:46)

You thought they were going to uphold the tariffs?

B (48:48)

Yeah. Well, when the government comes in and says, you know, the, the. The government will, the world will explode and, you know, we're going to go bankrupt and turn into a country. Yes. You think that that's gonna. I'm not sure he said that exactly, but.

A (49:01)

Oh, no, I think he did.

B (49:04)

So, yeah, I thought the government and I thought they were good textual arguments for, but they were good arguments in favor of the tariffs. I think the chief just had had enough. That was. Was like, too much. It was one of those points. I mean, it's one of the, you know, we want to talk about your book, too, but it's an interesting. It's a little something that, you know, thought I had about your book. But the tariff case is one of these cases that reminds me of every once in a while, the court just does something that is surprising, but they don't do it out of institutional institutionalists. They don't do it out of ideology. They just do it because they're a little bit fed up.

C (49:45)

What was your, what was your analysis? Or do you have any surprising takes on the birthright citizenship oral argument?

B (49:52)

I mean, obviously, I will say this. It seemed like preposterous to begin with, and the government did a great job of making it seem like, oh, okay, there's some arguments here. So kudos to the government. Kudos to the government. But let's hope reality sets in when they went back to vote.

A (50:08)

Been a lot of talk about the interim docket, emergency docket, shadow docket this whole term, but especially in these last few weeks, I have a whole, like, album side that I would like to rant about for 30 seconds and make you guys listen to, which is that the reason. Part of the reason that we are having to deal with the interim docket so much, that the court is having to deal with the interim docket so much is, yes, presidential Power, David, like we have talked about, presidents are doing all these things through executive order. They used to be done through Congress. So we would expect to see more and more landing on the emergency docket. We've talked about that check. What I don't think we've talked about enough is tying the interim docket and the rise of the interim docket to the rise of forum shopping. That post filibuster, when you have these single judge divisions or districts that are filled with judges who are all appointed by one political party, maybe post filibuster, where I've talked about. Right. Instead of it being a general election where you have to have votes from the other side, it's now a primary election. And so we're getting judges that represent sort of further and further south, standards of deviation away from the center of even their own judicial ideologies. You are going to be more likely to have outlier district judges making outlier injunction decisions. And that is going to then land at the Supreme Court's door in a way that previously, yeah, the Supreme Court could just ignore those because they were all going to be again within a standard deviation of what the Supreme Court would decide. But because of forum shopping, that's no longer the case. It's then putting that pressure on the Supreme Court that is bad for the court, it's bad for the judiciary. This is a post filibuster exacerbated problem. And forum shopping would be so easy to shut down tomorrow. The circuits could do it themselves. Congress could do it. Like, the only people who can't actually fix this problem are basically on this podcast. But everyone else can, like many people listening to this podcast, have the power to fix this.

B (52:19)

I think it's actually brilliant what you said. Really, like worth its money in gold. I think it used to be when I was growing up to sort of be a judge, you moved to the middle. Being a moderate got you appointed, and now being a moderate makes you a loser. So you just aren't getting anywhere unless you have either a very woke resume or a very solid, reliably right resume. That's not how you become a judge. Doesn't mean there aren't brilliant judges who fit that. But you're just getting extreme. The form shopping is just so obvious. I mean, you're looking at the fifth, the first and the ninth, a little bit of the fourth, but those are where all the action is. Out of executive orders. It doesn't matter which administration. In terms of form shopping, I mean, I don't really necessarily like that word of course, I would advise clients to file, and if they can, and they have kind of universal venue, you should.

A (53:17)

As you should. Yes. Like lawyers should do. Should get the best forum for their client. It is up to the judiciary to prevent, you know, making themselves look more partisan, because if everyone knows that one side picked that judge, that judge could be the most fair guy in the entire world. But he's not gonna look very fair to the country if everyone knows that one side picked him.

B (53:39)

Yeah, but, I mean, we can't pick the panels. Yes. The district court, for sure. I'm thinking more court of appeals. But, yes, the district court situation is pretty drastic. And that used to happen, I think, a lot in the patent context. And I'm not sure how they fixed that.

A (53:53)

Yeah, In Texas. Right.

B (53:55)

They were all filing in one. Yeah, they were all filing in Texas, which was great, I think, for that. That neighborhood where they all built skating rings. It's like a Taylor Swift concert.

A (54:05)

Yes. Yes. The Rocket docket was the Taylor Swift of East Texas.

B (54:09)

I do think the. Just more broadly on the interim docket, I do think it. It's not great for the court. It's just. It's changing the vibe. It changed the schedules. It changes their mood. It changes the types of cases they take. It's bad. I don't. I wish they had less of it. And I think the court is finally getting a little exhausted. It doesn't mean that they won't keep taking cases because they're just so, sorry, court, but you're very into your power, so there's. There's no way they will ever resist not taking a case if it's important enough. They. They're just not willing to kind of sit on the sidelines. And I think the leaks. Kind of. The leaks on the West Virginia case, I think it kind of confirms all that. But so they. A little bit. They don't have much of a choice, but I think they would be very happy if it decreased a little bit so they could maybe go on some summer vacations, relax a little bit, take the temperature down. My guess is they're kind of like little exhausted from the shadow. Shadow. Sorry, Emergency, interim, whatever they want to call it. Docket.

C (55:08)

Sarah, I think that that contrast in how, you know. And what Lisa's also saying, that contrast and sort of how you become a judge now, people really haven't appreciated that. I mean, when I was coming up, if somebody was wanting to be a judge, it was known. They were almost sphinx. Like, you know, they had this sort of kind of already Almost like a prejudicial temperament kind of above it. They would write scholarly articles about obscure issues that demonstrate that they have exquisite grasp of the law, but you can't know too much about them. And, you know, that was that had its downsides, no doubt about it. But I think that we're seeing that if you just, you know, knock down Chesterton's fence impulsively, you're not always going to love the outcome here. And the I think that polarization in, in some of these district court rulings, as you were saying, Sarah, it you're talking about people are further from that legal median than we've had in the past.

B (56:08)

I just wouldn't blame it all on Trump. I think Obama and Biden did the exact same thing.

C (56:12)

Oh, yeah, this all unfolded over, you know, it was the lower court filibuster that was abolished in Obama's second term, and then it was not until Trump's first term that the Supreme Court filibuster was abolished. So this goes back.

A (56:27)

I mean, I think this also has led to the proliferation of concurrences because, Lisa, as you're noting, what constitutes auditioning behavior for a lower court judge looks really different with the filibuster. The last thing you wanted to do was weigh in on stuff you didn't need to. Like, why create a paper trail when you don't have one? I have this paragraph in the book, by the way, about the Chief Justice's nomination. And I say when John Roberts was nominated back in 2005, Democrats were baffled. Here was a man who had served in the Reagan and Bush administration, and there was barely a paper trail. Was he a member of the Federalist Society? Who knows? What were his thoughts on Roe v. Wade? No way to tell. What was his favorite color. He couldn't comment on an issue that could potentially come before the court. Like that was auditioning behavior back then, but now, when again, it's a primary of sorts without the filibuster, you only want votes from your side. Otherwise you would be a squish and would get outflanked by someone else from your side. Auditioning behavior is going to be commenting on everything, having lots of concurrences on every major issue because you want your side to know you are sufficiently on the team and know the songbook and the lyrics. And Lisa, I've asked you about the proliferation of concurrences and that. I thought, you know, they were muddying the waters. They were sort of advisory opinions oftentimes. Do you remember what you told me,

B (57:55)

I think I said, nobody reads them, so who cares?

A (57:57)

That's exactly what you said. That's what you said. Correct.

B (58:01)

And I'm still like that too. I don't read them. I just am like, come on. Unless it's Justice Kavanaugh and it's like, oh, I feel so bad I voted this way. So let me tell you why I just don't read them.

A (58:11)

We call those the don't hate me concurrences.

B (58:14)

Don't hate me. I just don't read them. And I always tell lower court judges I wouldn't read them either. And I'm just, I'm also, you know, slightly being playful, but there is a little bit of truth to that. It's almost too much information. I don't need your therapy session. Talk to your therapist. Don't write a concurrence.

C (58:32)

So, but here, here's the interesting twist on all of this. In this era, we've not had an extensive extended period of time. In this, like, auditioning era, this partisan auditioning era, we've not had an extended period of time where there's divided control between the President and the Senate. So at what point we're going to hit a point where there's a two full two year Runway where the opposing party controls the Senate. And what's going to happen then? Is it going to be a complete shutdown of the process, or are you going to go back to the Sphinx, like, figure to try to like, get some people through during those circumstances? Because we've just not had that yet.

B (59:12)

Well, we'll see when. Yeah, I mean, we'll see if and when the two justices people talk about retire and what happens. It'll be interesting, but I think most of us are more curious about who the President will nominate than how the confirmational hearing will go.

A (59:27)

All right, I have a question from a listener for all of us. But I thought with Lisa here, we could actually have someone who knows what they're talking about. So here's the hypo. Lisa, a daughter from a conservative Muslim family, leaves the house every morning wearing a hijab, but takes it off when she gets to school. She requests that her teachers do not tell her parents. Could the school district create a rule that prohibits teachers from informing her parents without her consent? Could the school district create a rule that requires teachers inform to inform her parents?

B (60:01)

I mean, I could talk about this forever because I do a lot of school cases. But A, I'm not giving legal advice. B, I'm not forming an attorney client relationship. But c, school districts can do whatever they want as long as it doesn't violate a constitutional provision. And in your example, I'm pretty sure schools can either tell parents what they want or not tell parents what they want. Unless they did something like based on race, I think they couldn't say. You can discuss any topic with teachers and parents can discuss anything except don't express an opinion that's pro black people. That would be like just a facially discriminatory policy. But generally schools have, I don't know, I think schools can pretty much do what they want.

A (60:43)

You think after Mahmoud, the school could have a rule forbidding teachers from telling parents about their child's religious observance at school?

B (60:55)

Again, it would have to be whether that violates. Whether that violates something doesn't seem like it violates the establishment clause. So I don't know if it violates the free exercise clause of home. I don't know.

A (61:06)

It's like a mahmood, you know, parental rights thing. Anytime a school district saying that you can't tell parents something, that seems like a problem to me.

B (61:14)

I mean, I don't know. I don't know what the parental right is. I'd have to think through it. If the school, I mean, again, you add the religion thing. But if the school, school just said we're not going to tell parents grades, I'm not sure what parents can do about it except try to fire the school board people. When you mix religion in it, you know, it gets more complicated. But if you just said we're not going to have a rule where school districts can talk about the, you know, what kids are wearing at school facially. Okay. But if you wrap it into religion, you know, I just have to figure out what the free exercise issue would be and then they should hire Paul Clement.

A (61:50)

David, what's your take?

C (61:52)

So my take is they could not tell the school, could not ban the teacher from telling the parents, and the school could compel the teacher to tell the parents because there is a religious liberty right that the parents have in the raising of their children. Post Mahmoud on the on Lisa's point about the grades. You know, that's an interesting thing to think about because my initial blink reaction is that you would have to be able to tell parents grades, that there would be no right of a minor child to withhold grades from parents. But all of that is caveated with. If there is concrete evidence of abuse, then there would be, you know, there would be an, have to be an exception, a Carve out, et cetera. But there couldn't be, like, she couldn't say, well, I'm Muslim if I take off my hijab. Muslim parents generally beat kids in that circumstance. Like, in other words, you couldn't presume, you could not presume the violation. Right.

A (62:55)

What about Lisa's though content neutral rule that the school board adopts? Teachers are prohibited from telling parents about their students, activities at school. School with the exception of grades and classroom performance, because they've been. And the reason is, by the way, in my hypo, they've been flooded with all these helicopter parents. Is Johnny getting along with Susie? What's going on at the playground? Is my kid getting isolated? Did anyone call my kid, you know, ugly? And they're like, nope, you know what, we're not doing that anymore. So teachers are prohibited from talking about anything except class performance. That includes grades, nothing else. And so that would include that your daughter's taking off her hijab, but it is not directed at religious observance at school. What about that? It would have a effect on religious, you know, not telling parents about religious observance. But it would not be the point.

C (63:50)

Right. I don't, I think that would pass muster under the First Amendment. But remember, when we're talking about there's two rights here. There's the religious liberty. Right. And then there's also the substitute due process raising of your children. Right. And I think that that would implicate the second one, not the free exercise, because it would not be aimed at religion, et cetera, but on the, on the substantive due process. Right.

B (64:16)

Can you imagine, you send a note to the school saying, I want to make sure my kid is praying during the, you know, playground time and please tell me if she's not. I can't imagine I want to throw that in the trash can or the school. It's like, I can't really. I got to, I got to now make sure your kid is religious. I got. So I got to try to keep these kids from shooting each other, like, how much? But anyway, I just. Okay, whatever. Well, well, I'm happy to brief the case.

A (64:41)

I also feel like Lisa, you know better than anyone the rules of the school board or the school district, et cetera. And like, we have these high minded conversations about theory and, you know, constitutional rights. And in practice, the teachers are or are not telling the parents, whatever.

B (64:58)

I'm definitely, yeah, I love school. I love school. School cases make me just want to, like, nothing makes me happier than when you talk about schools. The Ten Commandments case is so interesting, but I love everything. Let's go, Brandon. Everything dealing with schools, I love. Schools I love. Because you know why? Everybody went to school. Everybody went to school. You don't need to go to law school to decide anything that we're talking about Mahmoud Schmood. You just need to figure out how you want this case to come out.

A (65:25)

Lisa Blatt, that is not how we do law.

B (65:30)

That's how you do law with schools.

A (65:32)

This actually raises a good question. What are you, Lisa Blatt? Are you an originalist, a textualist, a legal realist, a briar practicalist?

B (65:42)

So I don't know what any of those words mean. I had to ask Sarah Harris, like, what is this originalist shit? Do you really believe it? And she's like, yes, Lisa. And I'm like, okay, I don't know what it means. And she tried to explain it to me and I just tuned out. I don't know what realism means. I teach with Paul Clement and I've taught with David Cole. We teach constitutional law, separation of powers in the fall. We teach religious liberty, guns. I call it a conservative wet dream in the spring. So I do teach law and I teach First Amendment with David Cole. So I do purport to teach. I do not consider myself to have any philosophy other than, you know, your job as a lawyer to win and let the, you know, the justices, I think decide cases based on more than just doctrine. And I think that is definitely not the views of people like Paul Clement and David Cole, which are teaching the kids doctrine. So I would say I'm anti doctrinal.

A (66:36)

How do you think the justices are deciding cases?

B (66:39)

They have no choice with some stuff. I think they try their best. Obviously they look at the text because why wouldn't you? But I don't call that textualism. It's like there's a piece of paper that's telling you how to apply the law. So yeah, you're going to start there.

A (66:52)

I think it depends on the case.

B (66:54)

I think where they're talking, a business case, a constitutional law case, a case about race, a case about. So I would say I break it down to what type of case it is. I'd break it down to whether it's going to be driven by ideology, the facts of the case, the law, more general, how the law is developing in this area. So I think it's just depends on the case. But I, I, I think about the law in terms of an advocate. My only job is to try to win a case for a client. I don't. That's all that really matters.

A (67:20)

You'll apply whatever you need to.

B (67:22)

Just got to get to five and win. If you can get to nine, great. I don't. Yeah. I mean, I started watching the court, started doing this when it was Chief Justice Rank. I don't think any of them are the same except for Thomas when I started. And I don't think my approach to law has changed, even though the court has entirely turned over.

A (67:41)

All right, Lisa, you get to give advice, one piece of advice to our listeners who are often law students or undergrads thinking about law school. What's your advice to them?

B (67:53)

Well, so I do give a lot of different advice. My strongest advice that, you know, I wish somebody had told me and I've written about this a little bit in the Reflections of a Lady Lawyer, is to don't let other people's, you know, perceptions of you define you. Don't. Don't you know, you decide what your strengths and weaknesses are. I always tell people, don't follow your passion. Do what you're good at. You know, passion is for sex. Jobs are for what you're good at. And try to learn what your strengths and weaknesses are and go into that line of work because that's the only way you're going to get control of your life and ultimately be happy. I think just following your passion leads to a lot of disappointment and quitting too early. So. And women, I would just, you know, I always tell women, stand up straight, chest out.

A (68:39)

I'm bad at that.

B (68:41)

No, it helps you in any party. Just stand up straight.

A (68:43)

No, I know I have terrible posture.

B (68:45)

I know. But if you're at a party, if you're at a party or you're talking, you need to stand up. You want to give that. You want to project confidence.

A (68:53)

Lisa Blatt, the Lisa Blatt. Thank you for bringing us Peak Lisa time.

B (68:59)

Thank you. I learned so much from this. Both of you are brilliant and everything you say is gospel.

A (69:08)

We'll be right back. Lowe's has the brand's pros trust to get the job done. You can now shop new Catalyst Fencing Solutions and save big when you do 10% off when you buy in bulk. Plus save $180 on a DeWalt 12 inch dual bevel sliding compound miter saw. Now just $449. Our best lineup is here at Lowe's, valid through 5, 6, while supplies last selection varies by location. Well, David, that was a treat.

C (69:44)

Oh, absolutely. I'm so Glad we got into the Supreme Court cases at the end because I was feeling bad that we hadn't talked about them. They did matter. They happened. So I was very happy to get into that at the end and also to kind of end where we began talking about parental rights again. A really. I have a feeling we're going to be talking about that a lot over the next few years.

A (70:05)

Yeah. You know, I find Lisa. Lisa's a role model for me. She blurbed my book, by the way. Like, I'm so in awe of her and indebted to her, but, you know, there's something about her that, like, I can't help but mimic. And it's this idea that I have no filter. It's not, like, well thought out. And sometimes that means I say things that I regret saying or they come out the wrong way. I also make a lot of sexual jokes, I think, much to David's chagrin. And it's just so comforting seeing someone else who has this problem or solution, I don't know which. But David, like, asking her to explain it was so interesting, because she's really not able to. Is the answer right? She's just like, I don't know. I just tell the truth. Sometimes that's going to turn out well, sometimes it's going to turn out poorly. But overall, I think telling the truth the best I can and in the simplest, bluntest way is good overall. And it's like, yeah, isn't that. Yes. And the justices do seem to be. To look forward to it. They have so many dry arguments. And I just think when they see Lisa Black get to the podium, they're like, well, at least we're gonna have fun for a few minutes.

C (71:26)

Yeah. I think that I was. That's what I was trying to get at when I was sort of thinking through, like, the. The conversational side of it. It does feel like she's literally having a conversation with people she knows, which that just comes through in the argument. And the other thing is. And I think I fumbled sort of the question, but, like, you know, when you're talking about, like, LeBron on a dramatic play, he does come up and he decides he has to decide in a millisecond. Shooter, pass. Right. Shooter pass. And what makes her decide to shoot? Because these words are shooting, they're not passing. And I felt like the answer is just, that's me.

A (72:03)

I guess something I would want to get at in the future. But again, I'm not sure she's going to be able to explain it. Obviously, she couldn't be like that when she was, you know, a law student or a baby lawyer starting out. And like, you're in the room with the client, like, that's not your job. And I just wonder at what point she decided, like, oh, I'm free now. I can do the full. Lisa?

C (72:26)

Yeah, that would be a really good question because you're 57 arguments in, and I mean, you know, that's hard for me to put. Wrap my mind around. Like, I spent 21 years litigating, and I don't think. I mean, I would be hard pressed to list 57 substantive, like summary judgment appeal, like big dispositive open court arguments, because you spend so much time working on cases that often never have that dramatic moment. Now, that's what she's hired to do. She's not litigating a case necessarily all the way from start to finish, which can really, I mean, that, that you talk about a time investment, so it's different scenario, but 57 times at that point, you know, it's. At that point, you're LeBron. To continue on your. On your 11th finals appearance, you probably still have butterflies before the game. You know, you've got some tension, but been there, done that with a capital B and a capital D. All right,

A (73:35)

next time on Advisory Opinions. I have no idea. We're just gonna make it up as we go along because we're finally back on sort of our normal schedule, David, now that I'm back from book shenanigans and stuff and so I don't know, will it be a circuit extravaganza? God knows we've got enough of those piled up. The Supreme Court has its oral argument in that GEO fencing case on Monday, so we'll have that to talk about. And it's opinion hand downs on Wednesday morning. We'll see if we get anything good. Frankly, I'm not holding my breath. Not feeling it this week, but you never know, David. You never know.

C (74:09)

Yeah. But no matter what the content is, it's going to be a spectacular podcast.

A (74:14)

And of course, on Wednesday, they are having their oral argument on the temporary protected status. This is the interim docket case that was then put on for oral argument. We will probably save that for the next one so that you get all the full thoughts on the TPS oral argument. So that will not be on the next episode.

B (74:36)

Ha.

A (74:36)

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