Guns, Gays, and Birthright Citizenship

Summary

Advisory Opinions – "Guns, Gays, and Birthright Citizenship"

Date: July 31, 2025
Hosts: Sarah Isgur and David French
Podcast: Advisory Opinions by The Dispatch

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Episode Overview

In this episode, Sarah Isgur and David French dissect three significant and divided Ninth Circuit decisions, representing legal flashpoints related to the First, Second, and Fourteenth Amendments. They examine a challenge to Oregon’s foster care policy and religious freedom, California’s ammunition background checks under the Second Amendment, and the ongoing legal saga over birthright citizenship and state standing. The conversation is remarkably lively, mixing legal analysis with cultural asides—such as comparing Supreme Court Justices to heavy metal bands (a segment inspired by a SCOTUSblog essay)—and listener emails that touch on both jurisprudence and internet culture.

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I. Foster Care, Religious Liberty, and LGBTQ+ Rights

(9th Cir. – Bates v. Oregon DHS)
Segment starts: [02:22]

Key Discussion Points

• Case Summary:
  Jessica Bates, a Christian widow and single mother, was denied participation in Oregon’s foster program because she would not agree to required policies regarding LGBTQ+ issues—especially on using preferred pronouns, attending pride events, or facilitating gender transition healthcare. These were program-wide prerequisites, not tailored to specific child placements.

• Majority Opinion:
  Ruled for Bates:

  “No one thinks, for example, that a state could exclude parents from adopting foster children based on those parents' political views, race, or religious affiliations. Adoption is not a constitutional law dead zone, and a state's general conception of the child's best interest does not create a force field against the valid operation of other constitutional rights.” ([03:48])

• Discussion & Analysis:

  • David: Strongly agrees the state cannot exclude on blanket bases (race, religion); but in actual placements, matching a child’s background may be legitimate.

    “You could not have an adoption regime that says Catholics only or Protestants only...as far as blanket prohibitions.” ([04:31])

  • Sarah: Focuses on a nuanced distinction between adoption and fostering. Notes fostering retains state custody and payments, drawing analogies to government speech and increased state discretion.

    “Fostering is different because they remain wards of the state and the state is in fact, paying for the child.” ([07:52])

  • Dissent’s Focus:
    The state is acting in loco parentis and must prioritize “best interests”—including respecting a child’s gender identity—over the applicant’s beliefs or speech. It claims religious liberty isn’t as implicated because only the treatment of children, not beliefs or worship, are at issue ([05:36]).

• Key Questions Explored:

  • Can the government exclude applicants from foster programs solely because of their beliefs or only when those beliefs translate into conduct contrary to policy?
  • Does the state’s parental status over foster children justify greater latitude in screening and placement decisions, akin to government speech rationales?

• Memorable Quotes:

  • Sarah:

    "If you adopt the child, you don't get more money from the state, but if you're fostering, you do. That does make it more like government speech." ([07:52])

  • David:

    "If the question is I can't adopt unless I also foster, then the ban on fostering is a ban on adoption." ([08:35])

  • Sarah:

    "I think the state's gonna get an enormous amount of leeway for the best interest of an individualized assessed child." ([16:42])

• Assessment of Supreme Court Interest:
  Both hosts doubt SCOTUS will take the case due to the facial nature of the program and its potentially limited impact on individualized constitutional questions.

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II. Gun Rights & California’s Ammunition Background Check Law

(9th Cir. – Rhode v. Becerra)
Segment starts: [21:01]

Key Discussion Points

• Case Overview:
  Kim Rhode, an Olympic shooter and six-time medalist, challenged California’s requirement for background checks and in-person sales for each ammunition purchase. The system incurred fees and allegedly caused high erroneous denials (16% at one point).

• Majority (Akuta) Ruling:
  Background checks for ammo violate the Second Amendment.

  • Judge Akuta (Bush appointee) wrote the majority; dissent by Judge Bybee (also Bush appointee), showing that even similarly-situated judges can diverge deeply on contemporary “culture war” issues ([27:41]).

• Critical Factors Debated:

  • Is the burden minimal or severe? Dissent: it’s quick and cheap ($1 and a minute), Majority: the system’s malfunctions and high false denials make it problematic.

    “If it takes a minute and it costs a dollar, then I would say a background check requirement would be entirely consistent... But if the background check system is broken and ... wrongly denying [people], then I could easily see, for example, an injunction until they fix it.” — David ([24:08])

  • Does a background check for ammunition lack any historical analogues, as required by the Bruen test (text/history/tradition)?

• Tension in Judicial Approach:

  • Lower courts struggle with what level of generality to use in applying Bruen. Majority reads history narrowly (“nothing like this at ratification”); Dissent urges a higher-altitude comparison (laws ensuring safe/responsible weapon ownership in general).

    “Once again ... there hasn't been enough guidance from the Supreme Court. These lower courts clearly feel bound by precedent. ... They just can't figure it out.” — Sarah ([30:03])

• Mockery of "History":

  • David: derides reliance on obscure 19th-century ordinances (e.g., “an 1835 City of Cincinnati ordinance is now interpreting the Constitution...”) ([31:53])
    • Sarah: notes conflict within Supreme Court itself about what historical periods are relevant ([32:29])
    • David: sarcastically cites increasingly esoteric local rules: “I raise you an 1871 Portland, Oregon ordinance...” ([33:22])

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III. Birthright Citizenship & State Standing

(9th Cir. – States v. U.S.; challenge to changes in citizenship status/EO)
Segment starts: [33:45]

Key Discussion Points

• Ninth Circuit Ruling:
  States were granted standing and a nationwide injunction against changes to birthright citizenship statutes/orders, on grounds that such rules would directly affect their citizens and administrative regimes.

• Judicial Dynamics:

  • Judges were broadly in agreement about the constitutionality of birthright citizenship itself, but deeply divided on state standing and the scope for nationwide injunctions.
  • Dissent (Judge Bumatay, “Boom Boom,” a Sarah acquaintance) argues standing is speculative and that nationwide relief is overbroad, especially in light of recent SCOTUS skepticism toward “universal” injunctions.

• State Standing is "a hot mess":

  • When, if ever, can a state sue to protect its citizens from federal law effects?
  • Precedents allow state standing where fiscal harm is alleged (e.g., Texas vs. DAPA for driver’s licenses), but future path is unclear and muddled.

    “Standing is a mess. … It is a mess.” — David ([37:28])

• Insightful Quote from Dissent:

  • Judge Bumatay:

    “Standing is another separation of powers mechanism to guard against judicial overreach... prevents the judicial process from being used to usurp the powers of the political branches.” ([40:03])

  • Sarah's take:

    “The balloon is still intact and it still has the same amount of air in it that it ever had.” ([41:39])

• Lingering Issues:
  Post-Trump v. CASA, there are workarounds (class actions, APA suits, state standing) that render the impact of universal injunction restrictions ambiguous.

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IV. Cultural Segment – Supreme Court Justices as Metal Bands

(Inspired by Zach Shemtob’s SCOTUSblog piece)
Segment starts: [43:22]

Memorable Moments and Quotes

• Sarah: Admits near-total ignorance of heavy metal; David gleefully reveals ‘80s Kentucky hair-band roots and gives an impromptu tour of metal’s subgenres ([43:53]).

  “You could not grow up in the hair band era in rural Kentucky in the 1980s without having full exposure to the entire spectrum of heavy metal...” ([43:53])

• Selections & Reactions:

  • Chief Justice Roberts = Judas Priest (the court’s ultimate “institutionalist”)
  • Clarence Thomas = Bolt Thrower (for “mechanical consistency”) — David dissents: Iron Maiden, the “historical metal band.” ([46:01])
  • Sotomayor = Rage Against the Machine (genre-bending, “not really metal,” but it fits)
  • Most/least metal: Gorsuch = Celtic Frost (deep cut, “the most metal justice”), Barrett = Megadeth (parental protests always make a band cooler), Kavanaugh = Deafheaven (“Not very metal and Death Haven isn’t either, so close enough.”)

• Listener amusement:

  • Sarah: “Tell me about Megadeth.”
  • David: Stories of Striper, the evangelical-friendly “Christian hair metal” alternative. ([48:13])

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V. Law as a Profession, and “The Great Professionalization Shift”

Segment starts: [49:36]

• Discussion Prompted by David Lat’s Clerk Demographics Piece:
  • More women as clerks, but older average age and more multiple-clerkship trajectories—an increasingly elite and specialized path to legal “success.”
  • Law schools are more elite than ever; path towards justiceship more narrow and academic.
  • Sarah’s thesis: SCOTUS, once a body for “impressive lawyers, governors, senators,” is now “like one of those progressive executive agencies”—experts drawn from an ultra-narrow band.

    “There is a path, a much more narrow path to becoming a Supreme Court justice... and now there is a path, a much more narrow path to becoming a Supreme Court clerk.” ([53:12])

  • David: Mild dissent—current professionalization yields higher quality opinions, more rigorous reasoning, perhaps prevents some maladies of other government branches.

    “If you read an opinion that comes out of the court now and you read an opinion ... 40 to 50 years ago, you're going to notice a qualitative difference.” ([53:12])

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VI. Listener Emails – Internet Nihilism and Morality

Segment starts: [55:04]

• Favorite Listener Shout-outs:

  • A workout group practicing the Thucydides maxim:

    “The society that separates its scholars from its warriors will have its thinking done by cowards and its fighting done by fools...” ([55:05])

• Discussion on ‘Nihilist Young Men’ and Morality (prompted from previous episode):

  • Listener pushes back on Sarah’s thesis that people usually see themselves as “the good guys.”
  • Emailer describes how, in edgy online spaces, alt-right/nihilist young men “aren’t even thinking in moral terms...the point is the reaction...it’s all about the lulz.”* ([55:36])
    • “There isn't a higher purpose, there's not a thought out worldview operating here. The point, point is the reaction. The point is the outrage. And it's fundamentally nihilistic.” — David ([58:55])

• Sarah and David digress into Joker film analogies:

  • Is Joker’s revenge-driven nihilism itself a kind of morality? Does extremism online contain a value system, or is it “all for the lulz”?

    “Do you think that nihilism has its own morality? ... You're trying to show everyone that their morality is stupid and pointless and wrong, and that is in of itself a morality.” — Sarah ([61:18])

• Meta-Reflection:

  • Even tiny online nihilist subgroups have outsized effects on public discourse due to online amplification.
  • Sarah circles back to original thesis: for most, the good/bad self-conception still dominates—dangerous when it leads to overreach.

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Notable Quotes (with Timestamps)

• David (re the foster case):

  “You could not have an adoption regime that says Catholics only or Protestants only or Jews only, Muslims only...” ([04:31])

• Sarah (on judicial overreach):

  “The balloon is still intact and it still has the same amount of air in it that it ever had.” ([41:39])

• Judge Bumatay (quoted):

  “Standing is another separation of powers mechanism to guard against judicial overreach...” ([40:03])

• David (on historical analogy searches in gun litigation):

  “For instance, an 1835 City of Cincinnati ordinance established that... Oh, wait, the 1835 City of Cincinnati Town Council is now interpreting the Constitution in a way that should be binding on us in 2025 or at least influential.” ([31:53])

• Sarah (on SCOTUS professionalization):

  “It used to be, you were a governor like Earl Warren, or your party's presidential nominee, like Chief Justice Charles Evan Hughes... But now there is a path, a much more narrow path to becoming a Supreme Court justice.” ([53:12])

• Listener email (read by Sarah):

  “Thank you for keeping our minds thinking as these four dudes try to cut their dad bod down to a father figure.” ([55:05])

• David (on online nihilism):

  “There isn't a higher purpose, there's not a thought out worldview operating here. The point, point is the reaction. The point is the outrage. And it's fundamentally nihilistic.” ([58:55])

• Sarah (Joker analogy):

  “Do we think that the Joker thinks he's the bad guy morally and that that's the point, or does he think that they've made him the bad guy and so by doing this he is adding value to society...?” ([59:05])

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Timestamps of Major Segments

• Foster care/LGBTQ/religious liberty: [02:22]–[21:01]
• Ammunition background checks/2nd Amendment: [21:01]–[33:45]
• Birthright citizenship/state standing: [33:45]–[43:22]
• Justices as metal bands & legal culture: [43:22]–[49:36]
• Professionalization of SCOTUS/legal elite: [49:36]–[55:04]
• Listener emails—morality, nihilism, and online culture: [55:04]–end

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Tone and Style

The tone is characteristically witty, conversational, and erudite. Sarah and David maneuver deftly between legal intricacies and pop-cultural digressions, never losing sight of the import of the cases but also injecting humor and humanity—especially as they engage in analogies, musical metaphors, and reader correspondence.

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Final Note

Teaser:
The next episode will feature Harvard and Yale law school admissions deans—promising insight into evolving standards for legal academia’s gatekeepers.

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This summary encapsulates the core legal issues, the hosts’ thoughtful (and at times playful) analysis, critical direct quotations, and navigational timestamps to guide listeners or readers seeking out particular themes or discussions.

Transcript

[A]

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we've got three divided ninth Circuit opinions to talk to you about today. The First Amendment, the Second Amendment, and then we skip some and go to the 14th Amendment. Also, which heavy metal band is each Supreme Court justice? And are we seeing the great professionalization shift of the 21st century? Finally, we're going to read a few listener emails because it's about that time. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing bluebooking tables, appendix assembly, bait stamping, or would you rather focus on your argument type? Law can take your draft and exhibits and transform them into a court ready, rule compliant E brief and appendix Overnight. They've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn [e-mail] and use referral code advisory to save 10% on your first order. That's TypeLaw.com Mike and Alyssa are always.

[B]

Trying to outdo each other. When Alyssa got a small water bottle, Mike showed up with a 4 liter ju. When Mike started gardening, Alyssa started beekeeping.

[C]

Oh, come on.

[B]

They called a truce for their holiday and used Expedia Trip Planner to collaborate on all the details of their trip. Once there, Mike still did more laps around the pool.

[A]

Whatever.

[B]

You were made to outdo your holidays. We were made to help organize the competition. Expedia Made to Travel this episode is brought to you by Progressive Insurance. Fiscally responsible financial geniuses, Monetary magicians. These are things people say about drivers who switch their car insurance to Progressive and save hundreds. Visit progressive.com to see if you could save Progressive Casualty Insurance Company and affiliates. Potential savings will vary. Not available in all states or situations.

[A]

So, David, let's start with some meat and potatoes. I have three entrees for you today, all from the ninth Circuit and all of them, I mean, incredibly interesting cases. One of the things we'll have to discuss with each of them is whether we think the Supreme Court will be interested in them all divided cases as well from the ninth Circuit. So let's dive right in. I'll start with Jessica Bates, a devout Christian widow and single mother of five children who applied to Oregon's Department of Human Services to become certified to adopt children from foster care, specifically seeking to adopt two children under age nine or a sibling pair. Oregon denied her application because Bates could not agree to use preferred pronouns for transgender children, or take children to pride parades. The state's policy requires prospective adoptive parents to respect, accept and support a child's sexual orientation, gender identity and gender expression. Training materials outline expectations that parents must use a child's preferred pronouns, bring children to events such as pride parades, and take children to medical appointments for gender transition if desired. Although Bates told these officials that she would happily love and accept any child placed with her, officials rejected her application, making her ineligible to adopt any child, even infants or children who share her religious beliefs. All right, this was a 2:1, David.

[C]

Yep.

[A]

So this is Judge Dan Bress out on the ninth Circuit, and two to one, I mean, this is the ninth Circuit, David. They struck this down. They ruled for Bates, the widow mother, that Oregon does have to allow her into the foster care program. So here's some key language from the majority opinion. No one thinks, for example, that a state could exclude parents from adopting foster children based on those parents political views, race, or religious affiliations. Adoption is not a constitutional law dead zone, and a state's general conception of the child's best interest does not create a force field against the valid operation of other constitutional rights rights. David, let's start there.

[C]

I think that's just absolutely plainly correct. I mean, you could not have an adoption regime that says Catholics only or Protestants only or Jews only, Muslims only. You could not have an adoption regime that discriminated on the basis of race. Now, does that mean that when you're actually, that's as far as blanket prohibitions. Now, does that mean that when you're in the actual adoption process that, for example, you might want to place Christian kids with Christian parents and Muslim kids, you know, out of that foster process. Muslim kids with Muslim parents, that would be, that would make a lot of sense. And in fact, that's what often people try to do. When we adopted internationally, I know it's international. It's not the same thing. We had Muslim parents in our parent group and they adopted kids from. Born from Muslim families, and we adopted a child born from a Christian family. And so I think when you're talking about the specific placement, that is one thing, but if you're talking about a blanket regulation, then that I think that statement is just plainly correct.

[A]

Okay, let me read you then, this paragraph from the dissent. The only limitation imposed by the state in declining to approve Bates application to foster a child concerns her treatment of the child, not what she personally believes, how she speaks to the world, or. Or how she practices her faith. Oregon should be permitted to put the best interest of the child for which it is responsible paramount in making the decision to place one of its children in the custody of a foster applicant. Parents would not be expected to entrust their children to caregivers who volunteer that they will not respect the child's self determined gender identity if that is something the parents have decided is important. Oregon should not be powerless to protect children for whom it has parental responsibility and for whom it has decided respect should be given. David, this to me almost is like a government speech argument.

[C]

It is, yeah, very similar.

[A]

Children have been placed as wards of the state. Right. So like first, you know, sort of follow a chain of custody here, literally in this case. But I don't mean it that way. The child is placed in the custody of the state. They are wards of the state. Now it is up to the state, if they want to, instead of keeping the child in an orphanage, let's say to let the child go live with foster parents with a family. But what the dissent is saying is like, like government speech. The government gets to choose that. They get to think about the best interest of their ward. And yes, they can make discriminatory choices about that as long as it is in the best interest of the child. Isn't it almost like a rational basis test, if you will? Race would not be a rational basis, perhaps, although certainly plenty of people have argued that black children are better with black families, for instance. So you can go down that path if you want. But nevertheless, I do take this pretty seriously that like her speech isn't being affected, it is her treatment of the child. As in this is conduct, not speech or free exercise.

[C]

Well, I would say it's very difficult, as we just saw in the Mahmoud case, to separate the raising and treatment of the child from free exercise. So when you're talking about, you know, how you raise your child, because we're again, we're talking adoption here. And when adoption occurs, they're not wards of the state anymore.

[A]

Well, I think that's really interesting because we're talking fostering here. Now she says she wants to foster, to adopt, but she is not an adoption applicant. She is a foster applicant. And I think that's very different because I agree, David. Once those adoption papers are signed, they're not words of the state. And therefore to get to sign those adoption papers, no, you can't discriminate on probably any basis, I think, because, you know, with, with all the caveats and everything. But fostering is different because they remain wards of the state and the state is in Fact, paying for the child. Right. If you adopt the child, you don't get more money from the state, but if you're fostering, you do. That does make it more like government speech.

[C]

Yeah. Now one of the questions though is can you adopt a child out of foster care without a foster period? So in other words, is this actually a ban on the adoption through a ban on fostering? Because the states have a lot of different ways that, in which people are adopted out of that foster process. It can be a harrowing, harrowing and nail biting kind of experience when you're in the adoptive parent community. One of the things, you know, like when you meet somebody who's gone through a lengthy foster adopt process, you almost like, it's like meeting a war vet. You're like, tell, tell us about all of the, you know, everything that happened. Because it is, it can be a, a pretty gnarly process. So I, I hear the point about fostering as a different situation. It is different from adoption. I hear the point about that. But if the question is I can't adopt unless I also foster, then the ban on fostering is a ban on adoption.

[A]

Have you seen the TV show Trying, David?

[C]

Oh, have I seen the TV show Trying, Sarah? I have watched the TV show Trying all the way through. Twice. It is, it is so phenomenal. It is so heartwarming. It is. I'm so glad you brought that up. If for no other reason, listeners, this podcast is going to be the highlight of your day because you've just discovered an obscure British family drama called Trying that is maybe one of the most heartwarming things you've ever seen in your life. Proceed.

[A]

I totally agree. I just wanted to like go down this cul de sac that generally, like, the people in my life tend to be like me on paper and in person, but I have one Nicky person in my life. And every time, like, it's a totally different way of seeing the world. It's a totally different way of interacting with the world. I loved the show Trying because Nikki is so different from me. I think I do like people who are really different from me. Maybe that's like a self loathing characteristic. But the show Trying is about a couple that is trying to have a kid, are basically told that that's not gonna happen after lots of sadness and grief and then they're going through this adoption process in a different country. But still, to your point, David, Harrowing. So harrowing, in fact, it makes several seasons of a TV show. This is a fictional show, by the way. Not a documentary, but, like, it's not, not accurate.

[C]

No, it, it actually echoes the experience some of my own friends have had in the foster adopt process where, you know, at one point I had a friend in the foster adopt process where the biological parent made a bid for custody in the middle of the foster process and reabused the child.

[A]

I don't think that's very uncommon, unfortunately. God bless the people who work in this system because it is so important and so hard.

[C]

So, yeah, the foster adopt process can be incredibly grueling. And so, yeah, I hear the point. Foster parenting is different from adoptive parenting.

[A]

So imagine we could separate the two. Do you agree that fostering might be more like government speech and that the government has a lot more leeway to decide where its wards go, Adoption being totally different? Or do you like, let's just narrow it to only fostering. Do you still think that there are limitations on the government's choice of best interest in the child? Like for instance, let's say that we know the child is transgender. Now, this woman says she doesn't want a child over the age of nine, but let's say it's a nine year old who identifies as the other gender. Can the state decline to place that child with her?

[C]

Well, she acknowledged yes. She said yes. She conceded that. And so I would agree. In that fostering system, if you have a person who's coming forward as foster parent and they're saying, no, I, you know, I have strong objections to LGBT status and the kid is known to be lgbt, place them with a different family than that family. I agree with that.

[A]

No different than a fostering parent saying, I'm Christian, I don't want a Muslim child, I want a Christian child. You couldn't reject them from the whole fostering program, but on a child by child basis, you could say, we don't have any Christian children, so you can't. We just don't have any kids for you right now. But you can't reject them from the program. That's what I'm hearing.

[C]

I'm going to. Yeah, well, it, it depends. Age matters a lot. So if you're talking about a 2 year old, you know, that's a different from a 14 year old. So a 14 year old who's a Muslim child is fully practicing an 18 month old. When you say Muslim child, you mean they were born from a Muslim family. Right? So the way I would put it is the state has more leeway when it's in the pure foster situation. They do not have unlimited Leeway, they could not say, for example, no Christian foster parents, no Muslim foster parents, no white, no black, whatever. Now they would have more leeway, I would think, in the individual placements if it's purely foster.

[A]

But like when in about, in this case where again, let's use the 9 year old because with religion or self identity, that's a pretty weird age in a lot of ways. So the nine year old is a totally normal nine year old, but in three years they start identifying as the other gender or LGBTQ in some way. Well, now the state's in a bit of a pickle, right. And again, this is only fostering we're talking about. So this is a foster home that the child lives in. Can they remove the child?

[C]

I would say if you're doing something where essentially a child, let's say a child is 12 instead of 9 and self identifies as, you know, opposites of opposite sex, self identifies as trans or whatever. The idea that you could just sort of move in and swoop in and preemptively, as soon as that identification is made, the child and take that child away. No, I think you'd need an individualized determination because there's so many factors here. Like the. Let's suppose a child has been with this family or been with the woman or a family whatever since they were 4, 5, 6, long term foster relationship, six years into it, this is the parents, this is the parent or parents that they know and they have a conflict over gender identity and then have this date just swoop in and take them away. What kind of damage, extra damage is done there? So a lot of this is a heck of a lot more complicated than this sort of straight and narrow culture war analysis that on this one aspect of parenting there might be parent child conflicts. I think you really have to dive in and to see, ask a lot deeper questions about the relationship.

[A]

So I think we are in agreement that when it comes to facially whether someone can enter the program, that this decision is just correct. The questions of discrimination, if you will, if you want to call it that, for individual child placement, I think gets pretty interesting, the question of discrimination on the front end of whether you're allowed to even get into the program and at least according to her declaration, they require you to take your child to a pride parade. It sounds like regardless of whether the child is lgbtq, like you have to say, like at least the trainer said you must take your child to a pride parade to get into the foster program. I'm a no on that one. Do I Think the Supreme Court will take this? No. Because of the sort of facial ness of the program. I think it would be way more interesting, again for the Supreme Court purposes, about an individual child and an individual foster parent who's in the program and the state saying no. But I kind of think, David, you're on the losing side of that one. I think the state's gonna get an enormous amount of leeway for the best interest of an individualized assessed child.

[C]

Yeah, I mean, I'm very shaky on what would the constitutional outcome be on an individually assessed foster child if the individual assessment was made on the basis of an actual conflict and not a theoretical conflict, an actual conflict. In that circumstance, I would say probably the state will win. Probably the state will win.

[A]

And it's something to me more like that government speech analysis then, because they are a word of the state and we're not an adoption. So this is one of the things I found really interesting about this case. Like, you sort of are handed this, you know, big bundle of stuff and you've got to kind of pull out all of these other extraneous points to get to like, the nut of the legal question, at least for me. And I like cases like that.

[C]

One other thing on that case, which is it's a good reason why you read both the majority and the dissent. You should always do that because the majority in the dissent, even if they're looking at the same record, are going to pull out different things to emphasize. And I think one thing that was interesting was how much the descent took a lot of the training materials that were very super 20, 20 ish, maybe like super ridiculous. I mean, way over the top, just way over the top, extreme gender ideology stuff. Like, you know, even at one point talking about how you don't want to impose like a pronoun on a child until they've had like a chance to. What, what are you, what are we talking about here? And, and then the dissents. Like, guys, that was all like minor stuff in the appendices. It's the kind of, you know, the, the sort of, the tone of the dissent was, well, this is the stuff we all roll our eyes at during diversity training. You know, like this was just stuff you just, you absorb, you hear it and you disregard it and you go on. And he was saying, no, no, no, no, we're not going to focus on that because that actually wasn't what was required. That was just a diversity trainer or a trainer coming in and articulating a set of ideas. What's actually Required is what we need to focus on. I thought that was an interesting contrast because you read the majority and you would think, well, unless I am actually not using pronouns when they're four, I'm out of compliance with the state. Right. And what the descendant seems to be saying is, no, come on, this is whack. But it's just a few slides. Come on, give us a break. And the majority is really circling that and saying, this is what Oregon wants out of parents. And so you could see the real contrast there.

[A]

There was also, in the majority, they were sort of implying that she was tricked into telling them that she wasn't going to use pronouns because the diversity trainer sent her an email that was basically like, hey, I haven't done this a ton. I'd love your feedback on what work worked and what didn't. Let me know what, you know, thoughts you had. And that's when she wrote back about the pronoun stuff. And then that's how she gets rejected, I gotta say. Don't know if that's intentional. Love it as an idea, though, to, like, send every potential foster parent, like, hey, what'd you think of the training? Anything like, you think I should change? Because you're gonna get some really honest and potentially troubling answers. Like, you know the part where you said not to hit the child, like, my mom hit me a ton. And I think it's really helpful. Yeah. You're, like, great to know that's a no in the foster program. And I've heard of other companies and asking questions like that that are in some ways totally unrelated to what they're trying to get at. And it's getting really clever. And the majority made it sound like it was a bad thing. To me, that was actually totally fine. Like a tricksy way to get them to tell you what they disagree with from the training. As long as the training is constitutional. Good with me.

[C]

Right. As long as it's constitutional and they're not applying an unconstitutional litmus test to the answer, which they seem to be doing here, which was like, unless you have now fully adopted a gender ideology that only existed nine minutes ago, historically speaking, what. I think there's a simpler reason why the Court is. Supreme Court's not going to take this. There's nothing for them to reverse. Yeah. Why would they take it?

[A]

And remember, listeners, the Supreme Court, they take whatever, 60 cases a year. 70% of those are reversals. So most of the time, the Supreme Court's taking a case to reverse it. And then sometimes you change their minds along the way. All right, when we come back, we're going to talk about an Olympic track and skeet shooter who won medals in six consecutive Olympics. As the days cool down, the coffee routine around here shifts. Comforting warm mugs in the crisp mornings, refreshing iced coffee in the sunny afternoons. No matter the season, hot or cold, Trade recommends beans you'll love. Roast them to order and delivers them right to your door. It's like having your favorite cafe on standby without ever leaving home. Trade is the number one coffee destination in the United States for both hot and cold coffee drinkers. They've sourced the best beans from over 50 top roasters across the United States. For cold brew lovers, they've teamed up with food 15 roasters to create a special collection made just for cold brew. So every cup comes out smooth and delicious every time. Take their quiz and in under a minute, they'll recommend coffees you'll love. If that first bag isn't quite right, no problem. Trade will replace it for free until they nail it. Right now, Trade is offering 50% off a one month [e-mail] advisory. That's drinktrade.com advisory to get 50% off your first month drinktrade.com advisory. All right, David, so Kim Rhode, the Olympic trap and skeet shooter who won medals in six consecutive Olympics and is a six time Olympic medal winner. She's a Californian who needs to practice extensively for competition and requires large quantities of ammunition. Well, California passed a law restricting the sale of ammunition so specifically requiring background checks for each purchase of ammunition. It went into effect in 2019. All ammunition purchases are to be conducted through licensed vendors in face to face transactions with a background check mandated. It's a dollar fee per transaction. Sometimes it could be up to $19 for a basic ammunition eligibility check, $22 for a certification of eligibility, which required annual renewal and fingerprinting. Additionally, the law prohibited out of state ammunition purchases and bringing them into California without first delivering that ammunition to a licensed vendor and going through the California process to get your ammunition even if you purchased it out of state. So by the way, some facts from Rhode. She said that in 2019, 100,000 law abiding citizens were wrongly denied a rejection rate of 16%. That number had since gone down to about 11%. But that basically the background check system wasn't working particularly well. So we've got a divided 9th Circuit panel, Judge Akuta, ruling that the ammunition background check violates the second Amendment. David, thoughts? Feelings right off the bat.

[C]

So right off the bat. I'm thinking I need to know some answers to some factual questions to which to me are utterly dispositive here. So one of them is how. How burdensome is the background check really? So the dissent makes a big, you know, makes a big deal out of the idea that it really takes about a minute and costs a dollar. Okay, if that is the case, if it takes a minute and it costs a dollar, then I would say a background check requirement would be entirely consistent with this sort of idea that, you know, as we've seen and we've talked about a million times, what text, history and tradition seems to be boiling down to is dangerous. People can't have guns, and super dangerous guns aren't going to be lawful. And this, a background check on ammunition is quite reasonable if it is not a burden and a dollar and a minute is not a burden. However, if the background check system is broken and it is rejecting a hundred thousand people wrongly, then I could easily see, for example, an injunction until they fix it. You know that because you have. Although in theory the system works seamlessly, in reality, the system is broken and is violating people's constitutional rights at scale. So that's. This is one of those cases where I thought the facts really, really matter here. I mean, as a gun owner and somebody who's bought a lot of ammunition over the course of my life, the idea that I had a dollar and a minute extra burden, it wouldn't even strike me as a factor, is not an issue. And so I think the facts really matter here.

[A]

The last time you bought a gun, how long did the background check take?

[C]

That was on. Right on the verge of Christmas. Cause you know, you need the Christmas gun, Sarah. Right. And so I think it took about 15 minutes, was the longest I've ever waited.

[A]

My last purchase was last year. And yeah, 10 to 15. I think that's probably about what mine was. I guess my curiosity is stemming from the fact that I don't understand why the background check for ammunition would be any different a process than the background check for buying the gun. So I'm wondering why it's only a minute for ammunition. But everyone I know, it takes about 10 to 15 minutes for the gun. Like it's the same system. Right.

[C]

It has been. I think it's been five years since I bought a gun. So it was not only did I buy a gun when, you know, a few years ago. So maybe the system is faster now.

[A]

Oh, it wasn't this Christmas.

[C]

No, this was five years ago. Height of the pandemic lots of people were buying firearms and ammunition. It was so hard to even get any ammunition. So, yeah, 15, 20 minutes, sometimes longer with some people I've known, people have waited in an hour, two hours.

[A]

They told me that mine took so long because of my previous security clearance, if that makes sense. Like, because I had a security clearance, it triggered like, okay, but why doesn't she have it anymore? And like, the answer to that is because I'm no longer in federal employment. But yeah, so they said that mine took a little bit longer than it was supposed to at that 10 to 15 minutes that it did take. But I also, like, 10 minutes seemed like a pretty minimal wait time to me. But not if it's every time I go buy ammunition.

[C]

Right. Well, and that's why, as I said, facts matter. If it really is a dollar and a minute, if that's really the truth, that's one thing. If it is A dollar and 15 minutes, 20 minutes, half an hour, whatever, that begins to change the calculus.

[A]

Some other interesting things about this case. One, Judge Acuta was an appointee of George W. Bush. The dissent was written by Judge Bybee, who was an appointee of George W. Bush. And I really like when we have judges who were presumably picked with reasonably similar judicial ideologies now, 20 years ago, who are on opposite sides of a culture war question, that is, I mean, guns were a culture war issue back in the early aughts, but we don't get Heller till 2008. So while it was a culture war issue to some extent, it was not a legally, ideologically dividing issue. So a, that's interesting. Also, just like footnote on Judge Bybee, I invited him to come speak at Harvard Law School when I was Federalist Society president, and he was the judge that we got the most protests from other students dressed up in orange jumpsuits with hoods a la Guantanamo Bay and Abu Ghraib. So like, he's the one saying that this restriction on buying ammunitions is lawful. It just, it reminded me, I was reading recently about when Souter got nominated, huge protests from the left and including the National Organization of Women, which said that he would absolutely overturn Roe v. Wade and blah, blah, blah. And of course, in fact, Souter was probably the most liberal member of the court by the time he retired, certainly flanking Breyer from the left, arguably flanking Ginsburg from the left as well. So you never know when you give someone life tenure how it's going to go down. Exactly. Especially as the issues change.

[C]

Well, and especially if you're Talking about pre filibuster or pre ending filibuster judges who are given life tenure because the ethos at the time is you play those cards close to the best and, and now it's totally changed. You just flip them around. You just flip the cards around. Look at them. Got a, it's a king and a jack here, you know, but yeah, but you're exactly right. I mean, look, over the course of life tenure issues change, people change. No question about that. But it's particularly easy to point out those examples of unexpected judges in the pre ending of the filibuster era.

[A]

I think that's true. Second, interesting thing about this case to me is we once again see the lower court struggling with text, history and tradition. Yes, there's the factual, or at least the absorption of the factual record, David, that was different between the majority and the cent. But there's also the application of the text, history and tradition test from Bruen onto this. And remember, Bruen was a may issue licensing regime in the state of New York. And they're deciding whether there were historical analogs at the founding to that kind of law. Rahimi is going to follow up on that with domestic violence, restraining orders and taking people's guns away for their dangerous city. That's a word I just made up for. Sure. So you have the majority saying, yeah, there's just nothing like background checks for ammunition. And of course you have the dissent saying, too specific. You've got to go up at that level of generality. You're like, you know, hovering five feet above it. You need to be at 20,000ft. And of course we were ensuring that people were safe and responsible citizens to have guns. And set aside which side you agree with on that. It's just once again that there hasn't been enough guidance from the Supreme Court. These lower courts clearly feel bound by precedent. They're all citing the same cases. They just can't figure it out. And that was one of the things highlighted in the dissenters dissent in Bruen and in the concurrence in Rahimi that was like, if we can't agree, how in the world do you expect the lower courts to understand what the test is? And yeah, this is just the latest of many examples that we've seen in these gun cases where text, history and tradition has confused.

[C]

Sarah, I was reading the majority opinion and I'm. Look, I do not blame the majority or the dissent here for what's in this opinion regarding history because they're doing exactly what they're required to do here, which is do things like this nonsense. For instance, an 1835 City of Cincinnati ordinance established that. Oh, wait, the 1835 City of Cincinnati Town Council is now interpreting the Constitution in a way that should be binding on us in 2025 or at least influential.

[A]

Well, and two problems with that right. Post ratification history. Justice Barrett doesn't like that. And you've got the problem of states, of course, not being bound by the Second Amendment. So you have to find that the state had its own analog to the Second Amendment. But then what if that is just somehow different than the federal Second Amendment because they were not bound by the federal second Amendment. So even setting aside that it's the Cincinnati City Council or whatever it is, even within the Supreme Court, those concurrences in Rahimi couldn't agree on whether that would be relevant or not. Are you looking at 1868 where the 14th Amendment, again, only in theory, applies the Second Amendment to the states. It's not going to be applied to the states until McDonald in 2012. And the post ratification history problem that Justice Barrett pointed out in her concurrence. Got a lot of questions left on this text, history and tradition thing.

[C]

I see your 1835 City of Cincinnati ordinance, and I raise you an 1871 Portland, Oregon ordinance. And if that isn't compelling enough to you, we have an 1869 act to incorporate cities of the first class in the state of Nebraska to consider those noted constitutional scholars there. I mean, what are we doing here? What are we doing?

[A]

All right, let's move on to our last ninth Circuit case. David, this is once again on birthright citizenship.

[C]

Oh, man. Yep.

[A]

I mean, I feel like every week we could do a birthright citizenship case. Guys. We're actually skipping several of them as they come because there's just too many and it's kind of repetitive at some point. But because this had made it to the 9th Circuit, I thought it was worth mentioning. So two judges on the panel strike down the birthright citizenship order, slash, uphold the lower court's injunction on the birthright citizenship order, finding that the states had standing, first of all, and that their interests spanned, if you will, nationwide, as in to prevent the harm, you need a nationwide injunction, not a universal injunction, because it doesn't apply to non parties, but the states. You know, the state of California has an interest in not having a different law for its citizens if they travel to Texas, for instance. So nationwide injunction against the Birthright citizenship Order based on the states that sued you had Judge Bhumite in dissent. Judge Bhumite noted shortlister for the Supreme Court Trump appointee and full disclosure, both a friend in law school and we work together at doj. And I don't call him Boom Boom on this podcast. That would be so inappropriate, except that.

[C]

You have noted that you don't call him Boom Boom on this podcast. Every time we've mentioned him, he's in dissent.

[A]

And I mean, I think everyone knows at this point where we stand on the constitutionality, the underlying merits issue of birthright citizenship. And really we haven't heard from any judge really disagreeing with that. So that discussion gets boring. But the standing issue is really interesting still, because state standing affects everything, right? It's not just birthright citizenship. It's not just Trump, it's not just Biden. Like basically anything you can think of that the federal government can do. The question is, do the states have like a special solicitude, as the Supreme Court wrote in Massachusetts v. EPA back in what is that, 0405? Something like that, to bring cases that are like the state interest versus the the state on behalf of its citizens. Right? Versus the federal government trying to do something to its citizens. Now, you certainly had the states arguing something a little more specific, like the amount of money they would have to spend to implement a system that would distinguish between what would now be citizens at birth and non citizens at birth. But as Judge Bhumate says, that's not based on the presidential executive order. You don't have how that would work. So we don't know. That's very speculative and basically just highlighting, I think, overall, David, if you'd agree that state standing is a mess and once again, they need guidance from the Supreme Court on what is state standing. When can states bring these types of challenges? Because here's one example of blue states bringing a challenge where they're again arguing it will take them money to create a regime for this. Lower courts did find that, for instance, Texas had standing to sue the Obama administration over dapa. That was the deferred action for parents of dreamers because they would have to give licenses, for instance, and that was going to cost money to change their driver's license regime. That was considered enough for state standing. It was an injury to the state's treasury. But this idea that, like you're going to injure my citizens of the state, is that enough? Hot mess, David. Standing hot mess.

[C]

It's a mess. It's a mess. I mean, Hawaii had standing to challenge the travel ban back in Trump 1.0. I mean, we've seen a lot of decisions. It's been hard for us to really parse out clear through lines. And we have long promised the probably what might be the sexiest AO podcast in history that we just withheld from people for no reason, which is an entire AO podcast dedicated to standing, hosted with a standing expert. But I don't think people are ready for that kind of excitement. You know, even, even six years into the podcast, they're not ready for that. So we're just left with these half measures of 15 minute snippets. But yeah, it is a mess. It is a mess. But here's the interesting question to me, Sarah, this is one of the cases post birthright citizenship Supreme Court case revolving around the universal injunctions. I find a class action injunction a lot more compelling than a state standing based nationwide injunction. So I don't know about you.

[A]

Absolutely. Although going down that road of course brings its own challenges and maybe just moves the same problem into a different football field, which is what are the issues of fact and law that must be similar? How similar? How big is the class? Do you have to define the class on the front end? How does a putative class work versus the actual class for remedies on the back end? Listeners who aren't lawyers don't need to worry about anything I just said, except to take away like you don't solve all your problems by moving into class action world. And that's because that's why I was so into the Kavanaugh descent from the dig and LabCorp, because I like to see the fracturing of the class action agreements and a rare. I mean, I know I said this, but like you just don't see Kavanaugh in dissent or writing a solo dissent, like ever.

[C]

I think the class action undeniably has messy elements to it, but it is a pre existing mechanism for providing relief to a group of people who have similar and legal interests. And it exists, it is a process that exists that we understand that we can wrap our arms around. It's not without its own problems and not without its own complexities, but it seems a heck of a lot more rational than a state walking in and saying, well, I just kind of have this freestanding interest protecting my citizens sort of like wherever they go in the wider American world. I don't know, there's some real limiting principle questions there. I, I would say can I read.

[A]

You this part from Bhumite's dissent? And by the way, technically it was a concurring in part and dissenting in part. But don't worry about that. For our purposes it was a dissent because I thought this actually was a good lodestar for why we care about standing so much and why that sexy sexy podcast would be actually a good idea. Standing is another separation of powers mechanism to guard against judicial overreach. Standing keeps courts in their place. Deciding only concrete disputes between an injured plaintiff and a defendant according to the law requiring an injury in fact, before exercising jurisdiction prevents the judicial process from being used to usurp the powers of the political branches. Courts then can't be used to strike down disfavored laws on a whim. Instead, to invoke the judicial power, plaintiffs must establish actual harm traceable to the law. Otherwise we risk transforming the judiciary into roving commissions for the free floating review of executive and congressional action expressly rejected by the Founders. The Founders left non particularized challenges to disfavored policy to the ballot box, not the courts. And these two guardrailsparty specific relief and standing must work in tandem. We can't tighten one, but loosen the other. That would be like squeezing one end of the balloon. It just pushes all the air to the other end. The net result is the same inflated power for the judiciary. So with our authority to issue universal injunctions sharply curtailed, we must resist the temptation to expand our authority by reflexively granting third party standing, indulging speculative harms, or allowing other jurisdictional end runs straight into my veins. This is the problem with the Trump because the decision that everyone freaked out that Trump because did all this stuff as you and I said, David, we don't think it maybe did anything at all because of this balloon issue, if you will, that like yeah, they squeezed one end of the balloon. But if class actions and third party standing are fine, third party standing for states in particular, but also for casa, which was a third party standing argument on behalf of an organization, then it's still a balloon. The balloon is still intact and it still has the same amount of air in it that it ever had.

[C]

Yeah, I mean as soon as, as soon as I read Trump v. Casa, one of my first thoughts was in the real Watch watch the next week to 10 days to figure out how quickly attorneys reading this will adjust and adjust their tactics and how quickly judges reading this will accept alternatives to the universal injunction, such as class actions or such as state standing as we've seen here. But that doesn't mean that Trump Picasso was a meaningless case, because I do think it was a barrier to sort of extreme District court activism where you kind of, you know, any old Tom, Dick and Harry walks in, asserts an interest, gets a nationwide injunction. It did normalize and regulate the process a bit. But you're exactly right. I mean, you read this and you knew immediately, ha. Here's some workarounds. Administrative Procedures Act. Here's another workaround. Class actions. Here's another potential workaround states. So you had all of these alternatives that presented themselves just instantly.

[A]

David when we return from this break, we will talk about whether Justice Kavanaugh is the least death metal justice on the Supreme Court. All right, David, a piece went up on SCOTUS blog by Zach Shemtaub entitled what heavy metal Band is each Supreme Court justice? And David, we need to start this by me acknowledging that I am not a heavy metal person. I know nearly nothing about heavy metal. Do you?

[C]

Oh, Sarah, Sarah. Okay, now, my, my knowledge of heavy metal is dated, but you could not grow up in the hair band era in rural Kentucky in the 1980s without having full exposure to the entire spectrum of heavy metal from death metal to, you know, like the glam rock, like your, your Poisons, now Bon Jovi. I never really considered metal. It's more like just, you know, classic American rock and roll, but from Megadeth, wasp, Raven, Slayer, to the other side, you know, like your Cinderella, acdc, somewhere in the middle there. Oh, yeah, yeah, absolutely. That's where I saw my interim youth pastor smoking weed was at a Van Halen concert in the mid-80s.

[A]

To let you know where I am in our 90s alternative, I went to the Goo Goo Dolls concert on Saturday night and it was incredible. But, yeah, there's no Goo Goo Dolls here. So I'm going to read you. First of all, listeners, y' all gotta go read this piece because it's really well executed. But, David, I'm gonna read you a few of my favorites and get your reaction. Chief Justice John Roberts. The Chief is above all an institutionalist. Roberts cares deeply for the reputation of the court, and he has been responsible for navigating it through extremely difficult times. Given his position, Roberts has also had to endure all the slings and arrows that come with being first among equals. What metal band comes most to mind here? Judas Priest, of course.

[C]

I don't hate it. I don't hate it.

[A]

Clarence Thomas. Throughout his 34 years on the court, Thomas has stood as its arch originalist, attempting to ground his constitutional interpretations in the historical record. But two other things also stand out about the Justice. His unwavering consistency and his unwillingness to Bend in the face of criticism. Although the choice wasn't easy, I settled on Bolt Thrower. The name alone is nearly enough to seal the deal. But there's more. Like Thomas, Bolt Thrower has been around for some time now, having formed in 1986. And bolt thrower is known, perhaps above all else, for its almost mechanical consistency.

[C]

I'm going to dissent. Okay, I'm going to dissent here. So, okay, you've got the judge most steeped in history, right? You've got the judge who is going to throw out a, you know, a concurrence or dissent of however long he wants it to be. I'm going here with Iron Maiden, Sarah. And here's why I'm going with Iron maiden. So now, classic 80s band is also the kind of band that will unspool a nine minute song about Alexander the Great, one of the classic Iron Maiden songs. So you're getting. It's like halfway between like prog rock with their like 15 minute songs and real metal. And so Iron Maiden, the historical heavy metal band.

[A]

All right, Sonia Sotomayor. Now we're in my territory because he went with Rage against the Machine. This is perhaps my most controversial pick. He wrote not because I believe this ban doesn't fit the senior, most democratic appointed justice, but because it's contestable whether Rage is even a metal band or even worse if they qualify as new metal. So the fact that I'm a Rage against the Machine fan is probably a good sign that it's not metal and shouldn't count, but that it is awesome.

[C]

I like that. I like that. I also like the. You know, the thing I like about this, there was some real work done here because he goes with Justice. Neil Gorsuch with Celtic Frost, like, that is a deep cut.

[A]

He also calls Justice Gorsuch the most metal justice, which I totally agree with.

[C]

I'm interested in this Amy Coney Barrett Megadeth.

[A]

Well, we have to go. We have to go in order here, from most metal to least metal and in seniority, rank Justice Kavanaugh, he said, was the least metal justice, so he went with Death Haven. Deaf Haven is a so called post metal band, which means it composes lots of songs with intricately textured soundscapes that quite frankly bore me to tears. Kavanaugh's opinions, which are generally short and concise, do not bore me to tears. But Kavanaugh isn't very metal and Death Haven isn't either, so close enough. Okay, Justice Barrett, as you said, got Megadeth. Tell me about Megadeth you know, it's.

[C]

Interesting, he talks about David Mustaine as being pretty religious guy, but Megadeth was one of the bands that my friend's parents who were pretty laissez faire, would ban their kids from listening to, which then meant that they could not stop listening to Mega Death. But it is interesting, somebody who has had a successful career despite alienating part of the fan base. That also applies to Metallica. Remember the Napster controversy where Metallica was taking the lead against sort of free streaming music online. And that really ticked a lot of people off. But if we're going. If we're going to introduce the religion element. Okay, Sarah, have you ever heard of Striper? There's about 1/10 of 1% of our fan base right now who is like fist pumping like you would not believe. And they were the kids who grew up evangelical in the 80s and who were not allowed to listen to heavy metal and so were desperate for a Christian alternative. And then came Striper with such albums as To Hell with the Devil. And they're really not metal at all. I mean, it's like kind of glam rock. I mean, you should Google look them up, Sarah. Like, look up Striper. And I don't want to insult Justice Barrett because Justice Barrett is a very thoughtful scholar of the law, and nobody would describe Striper as scholars of anything. But if we're going to include religion into the equation, we need some striper representation here.

[A]

Justice Jackson with Brutal Truth. Again, not even sure if that's a real band, but what a great name for a Justice League Jackson. Metal band just all by itself there, Zach. Thanks for the awesome piece. Y' all can read that. What heavy metal band is each Supreme Court justice? Over at SCOTUS blog, next up, Zach's husband, David Latt, had a piece over on original Jurisdiction that I wanted to expand broadly on. David. So he compared Supreme Court clerks demographically from 2000 to 2025. So a quarter century later, have those clerking on the Supreme Court changed? And like, here's the bottom line up front, there's a lot more women than there were. The age of the average clerk has increased pretty dramatically. The average time out of law school in 2000 was 18 months. The average now is close to four years. And this is that whole multiple clerkships thing, which is another big thing that has changed. Clerks in 2000 were most likely to have one clerkship. And now, of course, multiple clerkships are all the rage. Law schools remained incredibly elite, so that part hasn't changed much at all. David, though this gets to a thesis that I have. I'm calling it the great professionalization shift of the 21st century on the Supreme Court, although arguably it starts closer to 1990, which is basically that the court itself, who is to become a justice, used to be, you know, you were a governor like Earl Warren, or your party's presidential nominee, like Chief Justice Charles Evan Hughes. We've had lots of senators and congressmen or just like impressive lawyers who become Supreme Court justices. But now there is a path to becoming a Supreme Court justice. You have to have led a certain type of professional life and academic life to be considered to be a Supreme Court justice, such that Harriet Myers, someone who was, of course, White House counsel to George W. Bush, a trailblazer in Texas litigation, I mean, by any measure, a very impressive lawyer in the country, was soundly rejected because she didn't fit what we were now looking for as a Supreme court justice in 2005. By that point, and you're seeing it reflected in everything else, right? The clerks are becoming more professionalized. They're older, they're having multiple clerkships. There's now a path, a much more narrow path to becoming a Supreme Court clerk. And by the way, remember, there's the same number of judges. So if it's multiple clerkships, that means way fewer people are getting to become appellate clerks in the first place. If they're, you know, sort of collecting these clerkships like easter eggs, which I've said is a terrible trend in the law, but only one that Supreme Court justices can do anything about. And none of them seem to care right now. And even those arguing before the Supreme Court, David, that is getting narrowed. They're becoming more specialized, more elite. So here's my metaphor for you, David. Has the Supreme Court become like one of those progressive executive agencies? And here, I mean, progressive in the progressive era sense, not the current political sense, progressive era administrative agencies, where the whole point was to, like, get all these experts into one place to solve the world's problems. And you can tell by how I'm describing this that maybe I think it's not the best trend.

[C]

So I would I'm going to offer a mild dissent. Look, and I'm going to say this right after we kind of bitched and moaned a bit about the Supreme Court not providing sufficient guidance in gun litigation and in standing. But I would say if you read an opinion that comes out of the court now and you read an opinion that came out of the court 40 to 50 years ago, you're going to notice A qualitative difference. So I think the actual proof in the pudding, and I'm not just talking about is the Supreme Court in 2025 coming out more often the way I like than it did in, say, 19, 1965 or 1975. No, I think the quality of the reasoning, the quality of the opinions, it's just better. So aside from the taking fewer cases, which is an issue and might bear on the quality point, by the way, I think the quality of what is occurring at the Supreme Court is better than it has been. And it is one reason, I think, why professionalization is one reason why I think the judiciary has sort of escaped a lot of the maladies affecting the other two branches of government and actually kind of fits with sort of a founding era notion that there actually should be maybe some version of an American elite that are a collection of wise individuals who intervene into the democratic process. Constrained, of course. So I'm going to offer a mild dissent from that.

[A]

Two things. It sounds like you're agreeing with my descriptive thesis of the great professionalization shift. You are disagreeing with me that it's a bad thing, correct?

[C]

No, I'm agreeing with your professionalization. I'm disagreeing.

[A]

Concurring in part. Dissenting in part.

[C]

Exactly. Exactly.

[A]

All right, last up, David, you got an email from a listener. I mean, I got an email from a listener that I wanted to read. And, you know, host privilege. I'm gonna go first because it was awesome. My workout group listens to y' all every Wednesday as we try to practice the Thucydides quote. The society that separates its scholars from its warriors will have its thinking done by cowards and its fighting done by fools. So thank you for keeping our minds thinking as these four dudes try to cut their dad bod down to a father figure.

[C]

I love that. That is a great email. That is fantastic. Okay, so I'm reading this one for three reasons. One, right in the first paragraph, he says, I consider AO the best legal podcast I've listened to. So you. Right away, you get my attention there. Number two, it's super thoughtful. And number three, he says I'm right. So it's got, like, all the ingredients, but I think it's very interesting. So he was wanting to talk about the young man question that we talked about, where we were making the point that some, like, people are outright Nazis or some people, some young men who have really dived into this online Internet culture. Do they think they're good or are they past good and bad? Do they? Is that Not a equation that they're, that they're really engaging in at this sort of end stage. So there's what he says for some background. I'm a young man born in early 2000s, and because of my hobbies in my teens I was really into gaming history, edgy humor. I like this guy. And was generally online a lot. I was brought into pretty close proximity with a lot of the kinds of young men who had reasonably described as alt right trolls, incels, misogynists, and even neo Nazis. Never fell in with these people, though I'm ashamed to say in my younger years, some nasty behavior rubbed off on me in a way that I've worked hard to leave behind. Love, love, growth, maturation. From my experience, it was painfully obvious that Sarah has not been around these types of young men and is being generous in assuming that these kinds of people view themselves as the good guys. I think you, David, nailed it. We can just stop there, right? We can just stop by pointing out moral morality isn't even really a part of the equation and they're being cruel on purpose. I'd honestly go even further in saying that to the extent that they think of their actions in any moral light, a significant chunk would probably view themselves as bad guys by their own standards. From my experience, these spaces are both incredibly nihilistic, but also incredibly self loathing with a lot of talk of suicide, also very scary. Moral consideration is very low on the totem pole of thought in contrast to comedy at the top. And that is a point, Sarah, that I had as soon as I read it. I wish I'd made that. A lot of people are in it for the lulz. They just find this funny. A lot of the young men I interacted with entered less these spaces because they joined for fun, like getting a link to a discord. Or they interacted, entered these spaces because they joined for fun, or they liked the kind of humor in south park, or if Sam Hyde was on Comedy Central. And these spaces just attract them like magnets. And even when the humor isn't quite the cup of tea when you start, it's usually normalized pretty quickly because these groups only talk to themselves and they constantly try to one up their jokes while having fun. And the edge escalates really quickly. I won't go the whole thing, but he tells some stories about this, about that Howie experience where people just enter into these spaces and wreck, just wreck them. And it was all about the laughs, it was all about the humor. And so I, I thought that was a really interesting Email because I do think it is capturing something that has occurred which is, it's just the, the point is the reaction. There isn't a higher purpose, there's not a thought out worldview operating here. The point, point is the reaction. The point is the outrage. And it's fundamentally nihilistic. And so I thought that that was a really interesting email and kind of capturing what I was trying to capture. And I don't think I did it as well as this email did.

[A]

All of those are points well made and well taken, I think. As you said, David, great description. I don't disagree with his descriptive analysis at all. I think he, he's nailed it. I need to think more about whether I think it disproves my theory, at least as far as this group is concerned. I think a better. Can we back out for a second from these specific real people? So the Joker, the movie with Joaquin Phoenix, I think what he's describing is the Joker in many ways. And do we think that the Joker thinks he's the bad guy morally and that that's the point, or does he think that they've made him the bad guy and so by doing this he is adding value to society, teaching them a lesson which is in the grand scheme of things, the good thing. And I know that's a little bit meta and maybe circular in some ways as well. What do you take of my Joker comparison?

[C]

I love it. And I'm going to talk about, okay, Joaquin Phoenix Joker is different from Heath Ledger Joker. And I think Joaquin Phoenix Joker is more your original thesis. He's a guy who's beat down by the system, a guy who aspires to something. And if you remember, there's this pivotal moment in the, in the Joaquin Phoenix joke or there was a moment in the Joaquin Phoenix Joker, forgive me if I screwed this up, but the scene is he kills somebody brutally in front of another person who is much more vulnerable and kind of Joker's friend. And he spares that. He spares that person and he kills another person and which demonstrates a kind of moral compass that the Heath Ledger Joker does not demonstrate at all. Any way, shape or form. The Heath Ledger Joker seems to be in it for the anarchy, for the destruction, whereas the Joaquin Phoenix Joker seems to be acting out a kind of revenge fantasy against the people that he hates and who've harmed him. And that's why in the Joaquin Phoenix Joker, he has the fever dream where he is inspiring a movement.

[A]

So let me ask you this then. Do you think that nihilism has its own morality. I know that's a little contradictory, but, like, if you're a true nihilist, that, like, that is the point. You're trying to show everyone that their morality is stupid and pointless and wrong, and that is in of itself a morality.

[C]

I mean, it's an ethos, to quote the big Lebowski.

[A]

Yeah. I mean, at some point, it's like we're arguing over semantics. I agree with the emailer's whole point, his whole thesis. I agree with you that it is about the lulz, and we're pretty far afield from my point of, like, Taney thinking he's the good guy and that it's very dangerous when judges or justices think that they can, like, step outside of their role. As Judge Bhumite was describing in his dissent in this birthright citizenship case, if you don't care about that narrow role and that lane that you're supposed to stay in, you become a roving commission of righteousness. And because you're gonna be so convinced you're the good guy, you can often stumble into, you know, Dred Scott, and that your point was like, well, what about this group? So, like, I get it. We're off on, like, kind of a big tangent here, but it's an interesting tangent.

[C]

It is a very interesting tangent because this subgroup of people, as small as it is, punches way above its weight online. It sort of. It's because they're so dedicated. They're. They're so online all the time. You get a sense that they're bigger than they really are. And it has this sort of warping effect on discourse. It has a warping effect on what people think about young men, for example. It has. So it's a very small segment, but it's a very important segment. But for the larger group of people, I think your point is exactly right. Very few people are sitting there going, you know, Mr. Burns, excellent. You know, they. They are absolutely committed into believing what. That what they're doing is the right thing. And you. And you can sometimes see it very, very clearly when you do things like, say, critique the conditions at sea Cot, for example, or you critique Alligator Alcatraz, you'll immediately get a bunch of people who are very indignant saying, but what about this other. How. What about how this serves this other larger in their mind, moral goal of, say, deterring immigration or punishing law breaking? Because they're thinking in a moral frame. It's just very different from mine.

[A]

All right, David. That will conclude this episode. But next time on Advisory Opinions. Hold on to your britches. We've got the Deans of Admission from Harvard Law School and Yale Law School joining our podcast to talk about what it takes to get into these law schools these days. Spoiler alert. You and I aren't getting in. And second of all, what law students are like. I mean, how they've changed in the last 10, 20, 30 years. So more to come on advisory opinions.

[C]

SA.