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- [00:01]
Sarah Isgur
Ready. I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And today we're going to review some of the top cases that are left from OT25, guns, religious liberty, campaign finance reform, transgender athletes, and all of the executive power cases. We're going to touch on all of them, give you a little update so that you know what we're expecting for the rest of the month. Coming up on Advisory Opinions. So good, so good, so good. New markdowns up to 70% off are at Nordstrom Rack stores. Now stock up and save. Big shoes, tops, dresses, accessories and more must haves for summer. Join the NordicLub to unlock exclusive discounts. Shop new arrivals first and more. Plus buy online and pick up at your favorite rack store for free. Great brands, great prices. That's why you rack ready. To soundtrack your summer with Red Bull Summer All Day Play, you choose a playlist that fits your summer vibe the best. Are you a festival fanatic, a deep end dj, a road dog, or a trail mixer? Just add a song to your chosen playlist and put your summer on track. Red Bull Summer All Day Play. Red Bull gives you wings. Visit red bull.com brightsummerahead to learn more. See you this summer. Well, David, it's that time of year. We're in June. The opinions are coming down like so many fragrant flowers. I'll be honest, I think this is our last podcast where we're not playing catch up. So I want to like put in the work now to talk a little bit about the cases that are remaining and to explain to listeners who may be new to the podcast or new to SCOTUS blog what Supreme Court bingo is. So if you go to scotusblog.com, and at the very top, you'll see a little pull down called statistics. And if you hit term statistics, you will see October term 2025. Remember ot2025 October term. That refers to when the term started. So 2025 runs 25 through basically the end of June 2026, although again, technically it actually runs October to October. You will see if you go to that page that there are about a little over 20 cases left for this term to be decided. But and here's the fun part, if you go to the November 2025 column, only one case is left to be decided. That's the Landor case and we'll describe it in a second. But then if you go down to majority opinions authored by sitting and go to November, there are only two Justices that have not written for November. This is called Supreme Court bingo, because generally every justice writes one majority opinion per sitting. So if you've only got one case left and you've got two justices left, one of the two of them is most likely writing that opinion. Kavanaugh or Jackson. But here's the annoying part, David. For January, February, there's only seven cases. So it's really impossible to play Supreme Court bingo because even if there's only one case outstanding, you will have three justices who haven't written anything, which doesn't help you very much decide how the case is going to come out or any sort of, you know, fun crystal ball reading. So, David, with 58 arguments this term, I don't know, we might be close to declaring Supreme Court bingo dead or
- [03:53]
David French
that it happens so late in the game that it, it's essentially meaningless.
- [03:59]
Sarah Isgur
Yeah, one more reason that they should be taking more cases. David, let's walk through a few of these. Let's start with Landor, because that is the case that has been outstanding the longest. As I said, it's the only case left for November. There's three cases left for December, three for January, because two were consolidated, et cetera, et cetera. So we really are expecting Landor at this point. In fact, we expected Landor last week, maybe even the week before. Now, what that kind of tells me is that we're definitely getting some writing here and it's taking a little while. So Landor vs. Louisiana Department of Corrections. David, our listeners will remember this case as the most egregious facts case, but a relatively hard, slash nuanced legal question. So Mr. Landor is Rastafarian and believes in growing his hair out long. He had served the majority of his prison sentence, but was transferred for the last few months to another prison in Louisiana. At that point, he, he showed up to the prison and they were like, we're going to shave your head because those are our prison policies. And he said, oh, but this is actually part of my religion. And he hands them physically the 5th Circuit opinion holding that it was his free exercise right, guaranteed by the First Amendment to be able to practice his Rastafarian religion by not having his head shaved in prison, like it was directly on point. They grab it from him, crumple it and throw it in the trash, physically restrain him and shave his head. Now, David, nobody is contesting that this was a violation of his rights. The question is whether he can get damages for this violation of his rights. Because we have two statues here, Rfra and RI lupa. And this is a RIUPA question. Under rfra, you can get damages if a state officer violates your RFRA rights, but they've never held that you can get damages if a state officer violates your RI Lubra rights. Okay, so David, you're going to talk about this because you're our RFRA R. LUPA expert. But I have to say, the fact that it's taking this long, I've got a prediction which is there's going to be a whole lot about how egregious this is, and he's not going to get damages.
- [06:18]
David French
The facts are so egregious that you almost have trouble in a country in which the idea that you get compensated for harm done to you, that's sort of a bedrock notion. It's a common law notion. It's been existing for a thousand years almost. This goes back to origins of common law, if not before, of course, that when somebody does something wrong to you, you're, you deserve recompense in some way. I mean, obviously this goes back much further than common law. And so when you have something where the wrong done is so blatant, in
- [06:51]
Sarah Isgur
fact, the state of Louisiana's brief didn't have a facts section. How great is that? They're just like, yeah, yeah, we know, we know it was bad. We're not, there's no need for facts
- [07:00]
David French
here because there are creative ways to write stories in which I mean, write fact sections that minimize wrongdoing at. One of my favorite classes in law school was the Ethics of the Criminal Defense Lawyer with Alan Dershowitz, which was literally nothing but Alan Dershowitz bringing in his various celebrity friends to guest lecture.
- [07:19]
Sarah Isgur
I had that class.
- [07:20]
David French
You had. Oh, did he do the same thing?
- [07:22]
Sarah Isgur
Oh, yeah.
- [07:23]
David French
My favorite was a mob lawyer who told the story of using the Dr. Kean's words from Letters from a Birmingham Jail to describe the feeling of betrayal when a mob hitman is turned in by his friends. And I was thinking, I, I, I don't know that that was an intended use of that, but you, you have this. So this criminal defense lawyer comes in and he talks about how to use language to minimize wrongdoing. And he joked and he said, you know, you don't want to assign agency. So it'd be like wounds appeared as if they just came out of nowhere. You know, you couldn't even, they couldn't even wordsmith it like that. It was so egregious.
- [08:10]
Sarah Isgur
Remember, this is also a very red state. Like this is Louisiana. So they also don't want to cast shade on religious liberty issues. They're kind of between a rock and a hard place there, politically and legally. And it's the right. It's Republican states that are really into the Religious Freedom Restoration act, which, again, that's rfra, that does have damages, versus rlupa, Religious Land Use and Institutionalized Persons act, which at this point, well, we don't know yet.
- [08:40]
David French
Well, let's put it this way. In a red state, they're going to write. They're going to like the. If it was just R. LUA Religious Land Use act, like Bible studies in the home. I had a bunch of RLUIPA cases in my career. You know, Bible studies in the home, punitive zoning regulations that prevent the formation of new churches, things like this. So there were two areas in which there was an enormous stress on religious liberty, and that was land use, and that was in prisons. And. And here we have the institutionalized persons aspect and the language of the statutes there is just tough. It's just hard. And so you do have a situation where you have a blatant violation of this man's rights, but not a clear statutory compensatory remedy for it. So I'm with you. I think that they're waiting, they're taking time, and there's going to be a lot of writing. And when that is the case, it feels like the lot of writing is going to be, we are not minimizing the religious liberty violation here, but our hands are tied by Congress.
- [09:41]
Sarah Isgur
All right, next up, NRSC versus fec. This is on coordinated campaign contribution limits between a political party and its candidate. So right now, a political party is limited in how much money it can spend on an ad where you, you know, talk to the campaign and are like, hey, we're thinking of, you know, emphasizing this part of his biography or attacking your opponent for this. But campaign committees, parties can spend unlimited amounts as independent expenditures. So the question in this case is, as Judge Thapar wrote in his opinion in the 6th Circuit, is this a prophylactic on a prophylactic on a prophylactic when it comes to the fact that the only one way that you're allowed to have these sort of limitations is either to prevent actual quid pro quo corruption or the appearance of quid pro quo corruption. So, for instance, David, giving $10 million to a candidate may not be quid pro quo corruption, but it sure looks bad. And so they've said, okay, so we can have campaign donation limits between an individual and a candidate to prevent that kind of appearance. Now lots of people are like, yeah, that's not actually a First Amendment interest, but we live in a world where that is currently legally a First Amendment interest. So David gives money to the political party and then the political party spends money on behalf of its candidates. That's what we're really looking at here, David. And this will overturn a precedent from about 25 years ago at this point, but I don't think anyone's betting that they're not going to do that. This looks like it's a pretty done deal that in fact political parties will be able to spend money, unlimited amounts of money for their candidates, with their candidates.
- [11:36]
David French
Let me put it this way, Sarah, and I think some listeners might not like what I'm about to say. My general view is that anything that is going to be lifting restraints on giving while retaining requirements of transparency when you're giving to candidates and parties, I'm going to be moving in that, I'm moving in that direction. I think it's not super arguable that really the political speech is at the core of the First Amendment and the core of the free speech clause of the First Amendment, as in if it protects anything, it protects political speech. And if it was enacted for any purpose, if it has any meaning, public meaning, it means protecting political speech. Certainly not only political speech. Certainly not. But it definitely means political speech and it's definitely core to the First Amendment and how we allowed a labyrinth of regulations so intensive that, you know, believe me, you've got, you've been looking at it and working at it from the standpoint of I'm a part of a campaign and you've had to put every brain cell in that Harvard Law educated brain into making sure your campaigns remain in compliance. I've been looking at it from the standpoint of like an interested citizen who wants to contribute to the political process by more than just like writing a check. So when Nancy and I did Evangelicals for Mitt and created this group called Evangelicals for Mitt all the way back in 2006, guys, that's carrying a torch right there, that was a sick six year doomed effort to help Mitt Romney become president. But when we did it, the amount of legal knowledge that we had to have to do that safely was absurd. Was absolutely absurd. And I remember when Time magazine years and years and years ago today, a story about us. I felt like it was a typical thing, like trying to figure out if we were astroturfed or whatever. And at least in their mind, we Were not astroturfed, by the way. This was just, we're genuinely trying to do this. And they said evangelicals from it seems to have received good legal counsel. And I was like, thank you, thank you for that, acknowledging that. But I had to do research as a, you know, as a trained attorney with extreme anxiety to make sure that we were doing, participating in the political process in all the legal ways. I mean, that's kind of absurd when you think about it. And so I want to see less regulation of political giving to candidates and parties with retaining transparency so that, you know, this interest, quid pro quo, a bribe should remain illegal. But this appearance stuff, make it transparent and let people hammer them and, you know, hammer them politically in public. You took $5 million from Elon Musk. This guy's in Elon Musk's pocket. This guy. You're electing Elon Musk. Let him say it. Let him make that case to the public and make it a part of the campaign, not just dramatically limit public participation in political campaigns.
- [14:41]
Sarah Isgur
And of course, this is even one step removed from that. So. Right, just to be clear, quid pro quo corruption is illegal, will always be illegal. You can arrest someone for that. That has nothing to do with, not nothing to do with campaign finance limits, but the campaign finance limits are to try to prevent that from happening in the first place. Okay, so that's your first prophylactic. Now, even if it's not to prevent the actual quid pro quo corruption, the appearance of it. So that's your second prophylactic. But again, we're talking David giving directly to Mitt Romney here. So this is. Now David can't give directly to the party who could give directly to Mitt Romney. So that's your third prophylactic because of this idea of circumvention, right, that if you just don't let David give directly to Mitt Romney, but you can give directly to the party and the party can give to Mitt Romney. Like, you'd have to be a total moron not to figure out that you could do that. But under another precedent of the court, the Federal Election Commission must provide record evidence or legislative findings demonstrating that coordinated party expenditure limits further a permissible anti corruption goal. They need to identify an instance of quid pro quo corruption in this context. An instance in which one, a donor gave money to a political party, two, the party coordinated the spending of that money with a candidate, and three, the furtherance of a bribery scheme between the donor and the candidate. This is from the PAR. Now in the 6th Circuit opinion. Despite having decades to look for such examples, the FEC identifies only one case that comes close to meeting these criteria. This is kind of fun though, David. Specifically, it points to an incident in which an Ohio school board member allegedly helped a construction company secure a $96,000 government contract. In exchange, the construction company made a $6,000 earmarked contribution to the county level Democratic Party. The party then allegedly, this fact is notably absent from the plea agreement, used $4,000 of that money to pay for the board members campaign ads. To be sure this example fits the bill, a donor used coordinated party spending to facilitate a quid pro quo. At the same time, this loan example is a rather thin read on which to hinge a nationwide limit on party's core political speech. After all, federal anti bribery laws address the corruption in that case. So David, we'll see. I'm. I actually totally get both sides of this. On the one hand, the side that you and I, I think are generally on is, look, this whole thing isn't working. Money finds a way. It's like Jurassic Park. And so get rid of all of this. Go to the same thing that, you know, Virginia, Pennsylvania, Texas have, which is no limits, full disclosure, and you will actually have a better system without these distortions. On the other hand, if you're only chipping away at like one piece of this at a time and you get rid of these party coordination limits, like you haven't fixed the distortion problem, you've just created a bubble in the balloon over there so that yes, people suddenly can flood the political parties with money and the political parties will be flush with cash to give to candidates. Now it is worth noting you are still limited in how much money you can give to a political party. So that's your fourth prophylactic, by the way. So you, David is limited in how much he can give to the party. This is only a question of how much the party can give to the candidate, can work with the candidate to spend that money. So yeah, I think the PAR counted five, five prophylactics here. I'm at four, so I'm missing one. But you know, and think about this.
- [18:17]
David French
I mean, I don't want to divert our whole podcast into a campaign finance discussion when we've had a lot of them. Is the system better now? I feel like I'm singing from your songbook here, Sarah. Small dollar donors are not better. There's this romanticization of the small dollar donor. And I will admit when I was young and dumb, I was young and Dumb, as George W. Bush said. And I thought, oh, this small dollar donor, what a sign of popular acceptance. Then you realize it's what, you know, what tiny percentage of Americans give to political campaigns. It's a very small percentage, probably disproportionately high amongst advisory opinions listeners, but it's still a very small percentage. And who are they? Less than 2%. And who are the two. Less than 2%? Are they the scholars, the sages? No. No. Why? To know who is giving. Read the fundraising pitches, okay? That will tell you who is giving the most alarmed, the most angry, the most furious people. And so you really have created a system. And this is a classic law of unintended consequences that we thought we could shape this and socially engineer this to where you've got this sort of spontaneous grassroots funding through these great informed America, the great informed American citizenry, propelling their chosen representatives. And instead, what we have is in many ways, often the angriest fringe has a massively disproportionate influence on American politics now. And look, that's on us. That's on the LAR. The 98% who. Who don't write the check. Just as when it comes to a primary campaign, I was doing some of the math, you know, on Ken Paxton wins in Texas with a small fraction of the votes, small fraction that he would need to actually win the general election. And so you're going to have millions of Texans going to the polls, going, why did we get these two guys? And you'll say, did you vote in the primary? No. Okay, well, your answer is, well, one of the reasons why we have these two is you didn't show up. You didn't bother to show up. And so we, we keep through the law of unintended consequences, delegating our politics to the angriest fringe and then wondering why it's so toxic. There you have it. That's the reason. It's the key reason. And then guess what? When you delegate to the anger's French on either side, they just get angrier and angrier because they always give each other ammunition for more fury. I mean, it's been wild to watch the Graham Platner, Ken Paxton fights break out all over Twitter with the two sides angry at Paxton and Platner for the same corruption reasons and wrapping their arms around them for the same vengeance and anger reasons, and it's just awful.
- [21:06]
Sarah Isgur
All right, David, when we get back, we've got seven more big cases left this term, at least to discuss. Let's go with gun ban for drug users. When we get back, I want to tell you about a new podcast. It's called In Dissent and it's hosted by Anastasia Boden. She's an attorney at Pacific Legal Foundation. We've had her on the show before. She writes a column at SCOTUS Blog that digs into the stories behind Supreme Court dissents. So here's the premise of her new podcast. The Declaration of Independence was America's first great dissent. I love it. The story of American liberty begins with a minority standing against a majority power. In six episodes, Anastasia traces the thread of American defiance from the Declaration to the Constitution to Supreme Court battles over the Declaration's promise. You'll hear interviews with Pulitzer Prize winning historian Joseph Ellis, author Richard Brookheiser, journalist Jesse Wegman, and more. They have fantastic stories you can listen to in Descent wherever you get your podcast or visit indesent.org Aren't we all drawn to brands that care about how something is made, not just how it's marketed? And that's one of the reasons I'm impressed with Brooklyn Betting. We just got a Sedona Elite from Brooklyn Betting for our guest room and it's been quite the upgrade for our guests. It feels sturdy and supportive, the kind of mattress that's clearly built to last. Every Brooklyn Bedding mattress is carefully designed and assembled in Arizona, cutting out the middleman while focused on craftsmanship at a fair price. With cooling features, a 120 night comfort trial and award winning designs recognized by CNET and Wirecutter, Brooklyn Bedding is an easy choice for better sleep. Go to BrooklynBetting.com and use promo code ADVISORY at checkout to get 30% off site wide. This offer is not available anywhere else. That's brooklynbetting.com and promo code advisory for 30% off site wide Support our show and let them know we sent you after checkout brooklynbetting.com, promo code advisory Life insurance is something many of us tend to avoid thinking about, but we've all personally seen why it matters. Someone close to you passes away suddenly, leaving behind a spouse and children, their lives changed overnight and the financial burden added another layer to an already heartbreaking loss. It can show how quickly life can take an unexpected turn and why it's so important to have a safety net in place. Ethos simplifies getting life insurance with a fully online process. Get a quote quickly, apply in minutes, and potentially be covered the same day, all without a medical examination. With just a few health questions online, you can access coverage up to $3 million with plans starting at around $30 a month. 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 apply. All right, David. This is US Versus Hamani is a ban on possession of firearms by a person who is an unlawful user of or addicted to any controlled substance. A violation of the Second Amendment. Thousands of Americans are denied gun purchases every year because of drug use records. Many more denied because of medical marijuana cards. There are hundreds of prosecutions each year where gun possession by drug users is the lead charge. Ooh, David, is this more like Rahimi, where bad man does not get his gun back, or is this more like Bruin, the state overstepping itself in some ways? Right. It's. I don't know. I could compare it even to our campaign finance case. Is this a prophylactic on a prophylactic that therefore violates the Second Amendment?
- [25:03]
David French
Let's put the text, history and tradition test by the side for just a moment. Although it's going to, it's going to decide this case. But just bear with me for half a second. If you zoom back and look at the 30,000 foot level, it really has been. We're moving towards regulating dangerous people and dangerous weapons. Unusually dangerous people and unusually dangerous weapons. That's what we're moving towards. If it's not an unusually dangerous weapon, if you're not a dangerous person, you can you, the two of you can. There can be a meeting of, of hand and gun.
- [25:37]
Sarah Isgur
And this is the Bruin case about the shall issue versus may issue. Licensing that dealt neither with the type of gun nor with the type of person they were doing may issue. And you had to show that you had a special need for self defense. So that had nothing to do with like you being an un. A dangerous person.
- [25:56]
David French
Bruin moving into Rahimi, they take great pains to say we don't want to get rid of all regulations for sure. So if you look at Heller, then Bruin, then Rahimi as sort of the trilogy, Fellowship of the Ring, Two Towers, Return of the King, it is essentially adds up to very dangerous people cannot have weapons. Very dangerous weapons cannot be possessed by any people. The question is what category is this going to fit in? And if you had a case, a what you would call, I would say maybe the, the cleanest possible case would be a person who is arrested with a medical marijuana card with the otherwise clean record and they have a hunting rifle in their closet because they deer hunt. This ain't that case. So that is what makes me think that's a long wind up to say, I'm not so sure. Even if what you're talking about is, say, marijuana usage, I'm not so sure that that's a winning case.
- [26:56]
Sarah Isgur
Respondent Hamani is a dual citizen of the United States in Pakistan whose actions have drawn the attention of the Federal Bureau of investigation. In 2019, a search of his phone at a border crossing revealed communications suggesting that he was poised to commit fraud at the direction of suspected affiliates of the Iranian Revolutionary Guard Corps, a designated foreign terrorist organization. In 2020, respondent and his parents traveled to Iran to participate in celebration of the life of Qasem Soleimani, an Iranian general and terrorist who had been killed by American drone strikes the month before. Respondent's mother was captured on video telling an Iranian news agency that she prayed that her two sons, including respondent, would become martyrs like Soleimani. Respondent also maintains weekly contact with his brother, who attends an Iranian university that the US Government has designated as having ties to terrorism. And respondent has told law enforcement officials that if he knew about an imminent terrorist attack by a Shia brother that would kill innocent people, he would not report it to authorities. But don't worry. Respondent is also a drug dealer who uses illegal drugs. Text messages recovered from his phone. Text messages recovered from his phone showed that he used and sold promethazine and that he found that substance addictive. He also used cocaine and marijuana. The FBI obtained a warrant to search his home. They found a Glock 9 millimeter, 60 grams of marijuana, and 4.7 grams of cocaine. He told the FBI that he used marijuana about every other day. He also told the FBI that the cocaine which had been found in his mother's room belonged to him. So, David, if we're again, take out text history and tradition, take out any law, because that's what bad man stays in jail is. Actually, that's sort of the point of the made up doctrine, which is the Supreme Court can decide what vehicle to take. If they're taking a vehicle with a really bad dude, the bad man stays in jail doctrine is a prediction for how the case will come out. This is not grandma with a medical marijuana card.
- [29:02]
David French
So the question I have, this is so much more reminiscent of Rahimi, which, if you remember, this was a guy who just liked to shoot guns. He goes full Yosemite Sam when he doesn't like his fast food order. The guy was not getting his Guns back. Right. Who would you rather hand a gun to? A guy who goes Yosemite Sam, a drive through or a guy who loves the irgc? My answer is neither. Neither. Right. And to lock it into text, history and tradition. I think what the judge justices would say is if you look at the big sweep of American law, that's what they were trying to do again and again and again. If you look at the relevant historical periods, they're trying to decide what was unusually dangerous and who was unusually dangerous. That was what they're trying to do. Which is one of the reasons why, for example text, history and tradition briefs will sometimes bring up knife regulations to bolster the argument for gun regulations because there are circumstances when you have very slow reload on a gun that a knife was actually a weapon of mass destruction or mass killing, more precisely more so than a gun and regulations on knives and also that they could be more easily concealed, et cetera. And so I think that that is, you know, if you're going to have a justice here and they were going to talk about how they're reading the history and they're not doing the precise match that Thomas is much closer towards and more the analogy that the other, most of the conservative judges are thinking of that the analogy is related to the dangerousness of the person and the weapon.
- [30:35]
Sarah Isgur
Another sort of point on this vehicle, and I still think they'll take this case at some point is the fact that felon in possession aspect of it when it's a tax crime. And again I could argue that both ways. On the one hand you were unwilling to conform your activities to the law. So if you are not a law abiding citizen, then yeah, you don't get the privilege, you will note of having a gun. But of course the second amendment being a right and the whole argument of is this a second class right, et cetera, you could see someone with a 30 year old tax evasion felony arguing that it violates their second amendment rights not to be able to get those back. But again that ain't their case and you'll know how they're going to decide that case. I would argue of whether it's like the really nice guy who didn't pay his taxes one year 30 years ago or whether it's a mafioso who didn't pay his taxes while killing people as his business. David, we have another gun case. This one's much harder. Wolford v. Lopez. Ken, States presumptively prohibit the carry of handguns by permit holders on private property. Open to the public unless the property owner gives express permission. So this is the Hawaii statute that says that you may not carry your weapon onto a public accommodation, hotel, restaurant, Chipotle, whatever, you name it, unless they specifically put a sign up allowing you to. So in most states you have to put a sign up saying guns are not allowed on this premises. But in Hawaii you'd have to put a sign up that says guns are allowed on this premises. And David, what makes this hard? And it kind of, I think, turns your previous test on its head. This isn't about dangerous persons, this isn't about dangerous weapons. And so on the one hand that would mean that these get struck down, but it is about property rights and it is about sort of a state being able to control the defaults on property rights. I don't know, I find this one hard, Sarah.
- [32:37]
David French
I find this very interesting from a property rights standpoint and sort of how can the state set a default on property rights? So let's take an extreme example. An extreme example is you don't go into somebody's home thinking that you're exercising constitutional rights in their home. And similarly, even though, you know the first amendment is a first class right, nobody would call it a second class right. I don't get to walk into a Starbucks and start a no Kings rally, for example, even though no Kings rallies are absolutely core protected constitutional activity. Or I can't walk into a Walmart, I can't interrupt a movie, I can't. There's a lot of things I cannot do from a first amendment basis which no one says is a second class right on private property. Now the real question is how free is the state to set defaults? Because I think a lot of defaults are kind of set by custom and more. You don't have a, there's no statute that says you don't have a right to mount a protest in a Walmart. But you do have statutes saying, for example, that there's trespass rules and once a private property owner asks you to leave, you've got to leave things like this. But the default position is not that I walk into private property possessing all of my bundle of rights against the private property owner. So that's what makes this difficult.
- [34:03]
Sarah Isgur
Yeah. And yet, so it's, it's both, right, it's private property, but it's also places of, you know, public accommodation who are limited in their bundle of sticks for their property rights. So for instance, they can't discriminate against people coming onto their property on the basis of race for instance. So it's both ways. This is sort of a lesser property rights situation, but it's still private property. But also the state is the one just setting the default for the property. Yeah. Okay. Next up, David, let's do late arriving ballots. Can a state choose to accept late arriving mail in ballots? So the state of Mississippi says we accept mail in ballots five days after election day. Can Mississippi do that? Or has Congress by saying that there is an election day mandated that states consummate the election on election day so they don't have to have counted all the ballots, but you have to have done the election. All the ballots need to have been voted and received by the end of election day. David, I got. So this is first of all just a question for Congress. This isn't a constitutional question. Congress can pass a law tomorrow saying yes, you can accept ballots up to two weeks after election day. No, you're not allowed, you know, to accept any ballots after 7pm on election day. So to be clear, don't blame the court for this one, but I think they're going to say that no, the state, it's not up to the state. They can't accept ballots 30 days after election day. And we talked about this before, the problem is not the accepting the ballots necessarily. It's more that someone could decide whether to vote a day after the election based on those early returns if they've got five days. Or a state that chooses to have seven day late arriving ballots, you could change your vote for someone and then turn it, you know, put it in the mail. You could decide not to turn it in after all. And so you actually are changing the results of the election by allowing this. And maybe, David, this is the reverse. I'm coming out the opposite way as our quid pro quo corruption case because I've got two reasons for this. One, I, I think having an election day means the election has to be consummated. So I do think it's a matter of statutory construction. Two, as we've seen in California, I really do think it undermines people's faith in elections. This is an appearance of corruption problem and that that's not good for democracy. That being said, for those of you who are listeners and remember everything I say, I don't, but I think that after this, after the argument, I actually came out the other way and was like, ah, I kind of think this should be up to the states. Like Congress didn't speak clearly to this and therefore the states get to decide until Congress speaks clearly. And that this is sort of a major questions doctrine for state power. And I can make that argument just as persuasively. But I think the court's going to come out to say that Mississippi can't do this, even though I think, me personally, I might argue that this is, there should be a major questions doctrine for taking power away for states from states.
- [37:21]
David French
You know, I'm with you, that Congress has not spoken particularly clearly and then that gives the states some ability to figure this out for themselves. But I am 100% with you on this California nonsense. And in ordinary times, if you're in an ordinary period in American life where there is at least some degree of trust that existed, there would be, it would just be annoying. Like you gotta wait two weeks, three weeks, four weeks to figure out when every other jurisdiction in America knows who their representatives are a long time ago. And it's not as if these other jurisdictions are violating the voting rights of their citizens. Like there's not voter suppression in the 49 states and California's figured out how to get measurably, you know, significantly more people to vote. No, no, no. This is so annoying. And it's also in a low trust time, a breeding ground for conspiracy.
- [38:14]
Sarah Isgur
California also has ballot harvesting. And we've talked about this before, David, and we talked about the Carter Baker Commission. And one of the things that the Carter Baker Commission recommended in 2005 was to have a national ban on ballot harvesting. This is the idea that someone can collect your ballot for you. So for instance, go to a nursing home and take all of those ballots and turn them in on behalf of the people in the nursing home. It causes it. So again, it's two things. Right. It itself can cause real problems and it certainly has the appearance of potential corruption. So that North Carolina criminal case was a violation of the ballot harvesting, the anti ballot harvesting law in North Carolina. But what that person went and did was collected ballots from people in his opponent's area. I think it was like 1100 ballots, up to 1100 ballots and then threw them in the trash. That's ballot harvesting. And so you can play a lot of games with that in a literal sense, but also it can give the appearance of people being able to play games. And so in California, having a ballot harvesting state not knowing who won the election for up to, what are they, six days. I think it took six days. Yeah. So I, you know, the Supreme Court reads the news.
- [39:32]
David French
Yeah. And by the way, guys, if you're being, if you're flirting with the idea that Spencer Pratt was wrongly, wrongly denied a place in the runoff. Okay, I hate the California system, but the idea that one of the bluest jurisdictions in America would advance to the final two. A former reality TV star with a checkered past in one of the bluest jurisdictions in the United States and you're just absolutely convinced of it because you thought it was AI video were clever. If that's your conspiracy theory, log off, guys, log off. Because what gets traction on very right dominated Twitter is not the same thing as what get. What gets traction in the real world. This is the blue red equivalent of when the blue world nominates, say somebody with AOC's policies, but they were a fighter pilot and then wonders why they lose in a red jurisdiction. You know, guys, it's not just the identity as a vet or it's not the ability to drive a pickup truck or whatever that makes red state voters like you. It's what kind of policies do you have in addition to. I'm not saying the personality doesn't matter, but in addition to the policies, I
- [40:48]
Sarah Isgur
agree that Karen Bass would rather run against a right wing challenger in a general election, in a blue wave election in the general right than she would against a far left challenger. But this is presuming again that the person doing the corruption is Karen Bass. I think it is a harder argument, David, if you come up with a theory by which the progressives in the state who do have lots of the groups, right, that they want to make sure that their candidate gets into the runoff and ends up making the runoff by fewer than 3,000 votes. I've talked to people about this that like, it's really hard to steal a statewide election. Like, I haven't come up with a good way to do it because. And you look at that North Carolina congressional race, even when you're sort of doing your darndest, you're talking about about a thousand votes that you harvest and then toss in the trash. It's not that hard to do 3000. This is not a statewide election. So I just, I've told people so many times that it's basically impossible to steal a presidential election, a statewide election. And there's just 50 of them for presidential elections. I have seen no evidence, actual evidence, not like, well, these numbers came in looking weird. That's not evidence. I've seen no actual evidence that this election was stolen. But I just do want to be clear that in a ballot harvesting state, I can no longer like promise people that you can't get 3,000 ballots for your opponent and throw Them in the trash if it's coming down to that. And when you take five days to count and so you know how much your margin is that you have to make up. This is a big problem. I will not actually believe though that the election was stolen from Spencer Pratt by the progressives of California until you actually show me someone who did something. The numbers alone will not be enough because we would expect late arriving ballots to pull more far left. And we're going to get so much mail about this. I already feel it. And like, I get it, guys.
- [42:43]
David French
Oh, I know. Well, and one of the things is there would also, if you're talking about thousands of ballots and the easiest way to influence the outcome is by throwing away harvested ballots.
- [42:55]
Sarah Isgur
It's very hard to change ballots. You do have to have the signature. Now some people are arguing that they weren't really checking the signature. Whatever, whatever. That system is relatively hard to mess with if you don't have ballot harvesting. But when you have ballot harvesting. Yep. People can help you fill out the ballot. There's, there are shenanigans, David. They take the ballot for you. They know who you voted for. Based on that. It can be a real mess in ballot harvesting jurisdictions, you know, and one
- [43:22]
David French
of the things you might look for. Let's suppose you are worried about corruption. And let's, you know, take your nursing home example. MAGA Nursing Home of la. Whatever. You look and you see, no votes were cast out of MAGA Nursing Home. I thought, what's the first thing I'm going to do if I see like out of that precinct, no votes cast? I'm going to go and interview members of MAGA Nursing Home. Did you vote? Why didn't you vote? And if they say, well, I gave my ballot, we all gave our ballots to this nice young man, well then you go, you know, you've got a rabbit trail to go down. But what we're seeing online is Spencer Pratt. How on earth could these Los Angeles residents, looking at all the homeless hellscape that they live in, vote for these candidates over Spencer Pratt, whose AI videos were so compelling.
- [44:08]
Sarah Isgur
Yeah, go do the work. Go find someone who's voted in every mayor election for the last 10 years who didn't vote this time. Go figure out why. Did they just forget or did do they believe that they voted? Like those are the ways to actually find voter fraud. All right, David, we get back, we've got Birthright. We've got the Federal Reserve, trans athletes and independent agencies. We'll be right back. Your next chapter in Healthcare starts at Carrington College's School of Nursing in Portland. Join us for our open house on Tuesday, January 13th from 4 to 7pm you'll tour our campus, see live demos, meet instructors, and learn about our associate degree in nursing program that prepares you to become a registered nurse. Take the first step toward your nursing career. Save your spot now at your Visit Carrington. Edu events. For information on program outcomes, visit carrington.
- [44:58]
David French
Edu Sci Some Follow the noise, Bloomberg follows the money.
- [45:05]
Sarah Isgur
Whether it's the funds fueling AI or
- [45:07]
David French
crypto's trillion dollar swings, there's a money side to every story. Get the money side of the story. Subscribe now@bloomberg.com.
- [45:21]
Sarah Isgur
Next up, birthright citizenship. Does President Trump's executive order limiting citizenship only to children born to a U.S. citizen or legal permanent resident violate the 14th Amendment? Feel like we've talked about this one plenty?
- [45:34]
David French
Yeah. I mean, the only question I have is as every day slash week passes and we don't get the outcome or get the opinion, does that mean that we've got some pretty strong dissents?
- [45:47]
Sarah Isgur
Yeah, but David, this was argued at the end, right, when all these other cases were stacked up before it. So, you know, opinions were already flying around. I'm not worried about this one taking until the very last day of the term because when you're argued, you know, the last day of the march sitting, you're behind in the queue, you know.
- [46:04]
David French
Well, and also, there's no sense of urgency here because birthright citizenship order is blocked. So they could take all the time that they need. So I'm just going to hereby completely revise what I said. I was wrong. Don't worry about anything. All is well. Let's just wait for the opinion.
- [46:22]
Sarah Isgur
Okay. The firing of Lisa Cook. Trump versus Cook. Can a president remove a member of the Federal Board of Governors under the for cause provision when he created the four cause? So, David, this one's kind of tough. Like on the one hand, this is a criminal referral, not an indictment. Do you need to wait for an indictment? Do you need to wait for a conviction? They argued at one point that it needed to be post confirmation behavior. That seems crazy to me. Like, what if we didn't know about this majorly illegal thing that they did pre confirmation? You know, there's hookers in the freezer and like we just found out about it and like this person gets to keep their job until we go all the way to conviction. That seems crazy to me. And you know, somewhere out in the multiverse there is another version where an administration has, you know, brought a criminal referral to something really egregious against sort of a member of their own political party. And it's like, with deep regret, I have to inform you that John had hookers in his freezer. And so while this is now moving forward into the criminal process, we're going to remove John from his, you know, position on some independent agency. And everyone's like, yeah, obviously, but this is why we can't have nice things. And this is the, like, crazy hypothetical that they would give during that oral argument, David. And everyone would be like, well, I mean, that's pretty far fetched that a president would create a criminal referral just to be able to remove someone. Like, they'd have to find the crime and blah, blah, blah. But here we are.
- [47:54]
David French
David, it was very obvious from the oral argument that the justices were not buying that this was a serious criminal referral. That when you cut corners, when you do things like, you know, provide. What was this notice of removal by social media post, kind of, you know, there was a formal letter, but, you know, there, there's a lot of atmospherics here that say, pretext, pretext, pretext, pretext. And so when you're walking into a courtroom and all the atmospherics are saying, pretext, pretext, pretext, it's very hard to say no. But justices, forget all the evidence of your eyes and ears. Let's just talk about this as an academic exercise. There's been a criminal referral. Do you want someone who's had a criminal referral against them on the board of governors of the Fed? And so all of the surrounding facts, I think, really prevent the court from grappling with the very serious underlying series of questions that you raise, which is, well, how much do we need before it's for cause?
- [48:58]
Sarah Isgur
Jim Comey has been indicted. Like, is that enough? Even though we don't think that that indictment, you know, is worth much, nevertheless, a grand jury actually did the indictment. So is that all that the Trump administration is missing? They just need to find a really friendly grand jury and then once the indictment's there, they can remove Lisa Cook. That doesn't feel like much protection.
- [49:18]
David French
Not at all. But it's more protection than the referral.
- [49:21]
Sarah Isgur
Yeah. This case is almost too easy. I want to see the, like the, I want to see them indict Lisa Cook and then see where this goes.
- [49:30]
David French
That would be different. That would be absolutely different.
- [49:32]
Sarah Isgur
Because then I don't see how you say you can't remove her once a grand jury has said that there's probable cause to believe that someone has committed a crime. I think that probably counts for four cause.
- [49:42]
David French
But fortunately, Sarah, under the leadership of Acting Attorney General Todd Blanche, no such abuse is imminent. Right. I mean, there's no way.
- [49:52]
Sarah Isgur
Well, it's interesting that they haven't gone to a grand jury with this.
- [49:55]
David French
Yeah, it is interesting. It is interesting.
- [49:58]
Sarah Isgur
All right, David, let's continue with our presidential power. Trump versus Slaughter. Can a president fire members of an independent executive branch agency for any reason? So this is like the other side of the coin. They're not challenging whether they can remove Lisa Cook for any reason. They're challenging that they're well within the current statutory scheme which says you need cause to remove her from the Federal Reserve. And they're like, we have cause because Bill Pulte tweeted something there. See, criminal referral, mind you. Anyone like you and I can send in a criminal referral about someone. David, for what that's worth, this is the other version that the Federal Trade Commission act says that you need cause to remove members, commissioners, and the administration is saying, no, we don't, because that is an unconstitutional limitation on the president's removal power of people who are supposed to work at the executive branch for him. So this is Rebecca Slaughter at the Federal Trade Commission. And again, David, think about that emergency docket, right? The Supreme Court prevents the administration from removing Lisa Cook on the interim docket, but they allow them to remove Rebecca Slaughter on the interim docket. I think that's actually going to be the outcome in both of these cases.
- [51:09]
David French
I think we can talk about this one for about 43 seconds because. Or in the spirit of It's President Trump, 47 seconds. Okay, so this is one. I think it's going to be six, three. The conservative six, the more liberal three. And this is where, if you're a conservative and originalist, this is where unitary executive theory is going to be at its most persuasive to you, which is the president gets to run the executive branch. You don't get to create a structure outside of one of the three branches of government or quasi connected to one of the three branches of government. Now, of course, everyone listening is going to talk about the Federal Reserve. No, no, I'm going to punt on that for now. No. But in this context, with these independent agencies, the idea that there is going to be a agency head who is not truly accountable to the President and at the same time also not truly accountable to Congress and sort of has a fiefdom within limits, but outside of the direct supervisory authority of any of the elected branches of government. It's just going down. It's just not happening. It's done. It's over.
- [52:25]
Sarah Isgur
At the same time, David, if they win Trump versus Slaughter, I actually think they've potentially undone their quote, unquote settlement in the Trump versus IRS case. Right. Either it's a unitary executive or it's not. Either you have full hiring and firing, and it is a single. All of the power of the executive branch is vested in a single person, the person who holds the office of the presidency, or not. And so if all of that power is held in a single person and he's simply delegating it to anyone else who works in the executive branch, then there is no such thing as doing a settlement with yourself, no adversarial parties, no case or controversy. So there's no pardon of any kind, immunity of any kind. All right, David, I don't know why I saved this one for last, but this is the transgender athletes and whether states can prohibit transgender girls from participating in girls sports leagues under Title 9 and the Equal Protection Clause, 29 states have banned trans athletes from girls sports, effectively excluding an estimated 122,000 trans teen athletes from competing on teams consistent with their gender identity. And David, I also think it's worth noting, as I've noted before, there's also the reverse case. May a state mandate that trans girls be allowed to participate on girls teams without violating Title 9. But this is only may a state ban trans athletes, not must they ban trans athletes? And I think that case will be coming up right behind this one. David, you said that, like in any other year, you know, 10 years ago, this would be the number one case that everyone's waiting for. That would be the reason it's last on our list to talk about today. But instead, you know, people will sort of mention it on the list, but it's all executive power this term.
- [54:22]
David French
I would just say I've. I have not been asked, like out in the wild, you know, when you meet people out in the real world and everything, when you touch grass and you're not looking at Twitter, what are people talking and asking you about? Not the trans athlete case, Is it six' three? That was gonna be my question to you, Sarah.
- [54:40]
Sarah Isgur
Haha, I beat you.
- [54:41]
David French
I think it's 7:2.
- [54:43]
Sarah Isgur
And that Justice Kagan uses her power to narrow the decision. Nothing about whether this is a protected class potentially.
- [54:50]
David French
We don't have time to talk about it, but in a future podcast, we'll talk about the, the transgender service members case, which is coming up in a very different factual posture. Very different factual posture. And, and so I do think that one of the things that, like a Justice Kagan might do is try to get a consensus but narrow ruling that preserves the ability for animosity to be a factor in the legal analysis. And so that, that is going to be. I think that's going to be one of the key questions going forward is how much can a court take into account expressed animosity against a group as a grounds for granting legal constitutional protection? And this goes back to the. Oh gosh. The Romer case from in Colorado involving the state had specifically decided to override any protections against discrimination on the basis of sexual orientation. And the Supreme Court, I believe is 5, 4, I can't remember exactly, but said, no, you did this for one reason and you did it to single out gay people. And so if you're going to do that, that's going to be an equal protection violation. And I could imagine that Justice Kagan is trying and other justices would be trying to preserve as much of that sort of framework as possible.
- [56:15]
Sarah Isgur
All right, you take 7281, I'll take 6. 3.
- [56:18]
David French
Okay. You're probably right.
- [56:20]
Sarah Isgur
There are other sexy cases out there. Peng versus Isabella County, Michigan. Remember, this is where the government takes the whole house to satisfy the $2,000 debt. That one's fun for me. And there's chatry whether the geofence warrant violated the fourth Amendment. So don't worry, folks. It's gonna be very hard for the Supreme Court to hand down opinions on Thursday morning and give us only duds. There's very, very few duds left out of these 20 plus cases. And we expect the term to finish up by the end of June. So I don't know, things are going to get hot to trot here soon enough, David. They may be adding decision days. We may be doing emergency podcasts. Woo hoo. Well, David, thanks for joining me for this. You know what we have left? Term in. Pre. Term. Pre. In review. What? I don't know. What do we call this?
- [57:15]
David French
Pre. Preview. Preview. Well, anyway, whatever we call it, we did it. And I will say, Sarah, I enjoyed this because it was a great refresher for me to sort of bring me back up to speed on. I mean, we've got a lot of weighty stuff coming. I mean, this is.
- [57:35]
Sarah Isgur
Yeah, oh, I forgot TPS status because we'd covered it so recently. But the TPS temporary protected status for Syrian nationals is also. It was. It was the last. Last.
- [57:45]
David French
Yeah. I mean, so, so much that's going to be consequential. And yeah, I'm. Buckle up, guys. Buckle up.
- [57:53]
Sarah Isgur
All right. Next time on Advisory Opinions, we'll have opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can 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.
- [59:17]
David French
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- [59:35]
Sarah Isgur
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