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- [00:01]
A
You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We're going to talk about two cases today, one on public accommodation laws and discrimination laws at the state and another on first amendment for first graders. See first and first. It works out really well. Let me provide a little warning though, especially for those who are not already familiar with the en banc Korean spa case that we're going to talk about. The first part of our conversation is going to be like every other ao if you've got kids in the car, please enjoy when we go to that first commercial break. If you have kids near you, we are going to be talking with language that you may not want your kids hearing. So after that commercial break, feel free to put on headphones or wait until school drop off has occurred. And sorry about that, but there was no other way to talk about this without doing that. So we hope you enjoy. You know, David, on this podcast, we have spent a lot of time recently on the fifth Circuit and we have made the point, in fact, that really one of the ways you can judge the Supreme Court is by which circuits they are granting cert to because as we've noted, when the Supreme Court grants cert, it is likely to reverse 70% of the time. And so in the days of your when it was most likely to take 9th Circuit cases, you could think of the Supreme Court as having a more conservative bent. But of late it has been taking more 5th Circuit cases from the most conservative court. And that, that maybe pushes back on the idea that it is coming from a more conservative bent. Now the pushback to that, of course, is. No, no, no. It's just that the fifth Circuit is so, so, so conservative that even a conservative Supreme Court is reversing the fifth Circuit. And indeed, last term the fifth Circuit had the most reversals of any circuit court. So perhaps it is meaningful today, David, that we are dedicating the whole podcast to reviewing cases from the 9th Circuit. We're back in the 9th, everyone.
- [02:26]
B
It just couldn't stand to be out of the public eye. You know, it was, it had been, it had been sidelined for a while and we'd had a generation with the ninth at center stage and they just had, they just had to exert themselves.
- [02:40]
A
We even had that whole spat of there were, I said it, there were writings about it, that the fourth was the new ninth. No, no, the ninth is the old ninth. If you are a lawyer listening to this podcast, you already know where we're starting because you've gotten emails and texts from your friends. Legal Twitter is talking about nothing else. So we're not hiding the ball from you to say we are talking about the Korean spa case. What I will note is that, David, we've talked about this case a lot already on the podcast when we read large portions of Judge Ken Lee's dissent in the panel opinion. And so not surprisingly, there was a motion for en banc rehearing that was denied and we have 105 pages of opinions over whether it should have been denied. I actually still want to start with Judge Lee's dissental because I think it, you know, lays out the facts in a clear way though I'm going to reread different versions of different judges facts before we get to why we're here today, which is not actually the facts as it will turn out. But here's Judge Lee Korean spas are not like spas at the Four Seasons of Ritz Carlton, with their soothing ambient music and lavender aroma in private lounges steeped in centuries old tradition, Korean spas require their patrons to be fully naked as they sit in communal saunas and undergo deep tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons. Given this intimate environment, Korean spas separate patrons as well as employees by their sex. The State of Washington, however, threatened prosecution against Olympus Spa, a female only Korean spa, because it denied entry to a preoperative transgender female, I. E. A biological male who identifies as female but has not undergone sex reassignment surgery. Now, under edict from the state, women and even girls as young as 13 years old must be nude alongside patrons with exposed male genitalia as they receive treatment. And female spa employees must provide full body massages to naked, preoperative transgender women with intact male sexual organs. This is not what Washington State law requires. While the Washington Law Against Discrimination forbids discrimination based on, among other things, sex and sexual orientation, its text and structure make clear that it does not cover transgender status. Washington has perversely distorted a law that was enacted to safeguard women's rights to strip women of protections. The women and girls of Washington State deserve better. Olympus Spa, an immigrant founded business run by a Korean family, also deserves better. The spa's owners pleaded with the Washington Human Rights Commission that they wanted to provide privacy to women and girls, some of whom had complained years ago about seeing a naked person with male genitalia there. They also begged the government not to force them to violate their Christian belief in modesty between men and women. Those pleas fell on deaf Ears. One would think that the Washington Human Rights Commission would be sympathetic to the spa's owners, members of a racial minority group who want to share their cultural heritage and provide a safe space for women and girls. Instead, it threatened prosecution for defying that state's contorted reading of its anti discrimination law. Okay, so that is Judge Lee who was on the panel. He dissented from the panel opinion. This is his dissent from denial of rehearing on Banc. That is one version of events. David, can I provide you a different version of events? Okay, this is now on one of the statements respecting the denial of rehearing on Bancroft. It has 1, 2, 3, 4, 5, 6, 7 judges on this one. We're going to be counting judges a lot. So here's seven judges. The lead dissent's crass language serves at most to distract from what this case is about. As the majority opinion explained, this case is about the application of Washington's entirely unexceptional public accommodation law, the Washington law against discrimination. That law prohibits discrimination on the basis of sexual orientation, which Washington law defines to include gender identity. The Washington legislature, not the panel, set out this controlling definition. The majority simply held that the Washington law against discrimination applied to Olympus spa, a commercial establishment, when it purported to deny admission to certain transgender women, and that the Washington law against discrimination survived the rational basis scrutiny applicable to such laws under the First Amendment. Here's what the case is not about. COVID gathering restrictions, exemptions that the SPA never claimed related to private clubs and religious institutions. An establishment clause theory that the SPA never presented. It is certainly not a case involving woke regulators and complicit judges out to harm women and young girls, or in the words of the second dissent, a ruling that places the public peace at risk. Those assertions describe a case entirely different from the one presented to the panel. So, David, I will say that one of the problems with this case is that we don't have actually a lot of agreement over what the case is about or how what doctrines even correctly apply to this case. And in the narrowest sense, now that I think you have some feel for, like, the facts of the case, in the narrowest sense, you have a anti discrimination law. We're not sure whether it covers transgender status. That is something dividing a lot of the judges. We have an anti discrimination law that, let's say, does cover transgender status. And we don't know whether rational basis review or intermediate scrutiny applies in the context of gender. We can't agree on that either. And then if we agree, it covers transgender Status and we agree it's rational basis review, then we can't decide whether in fact this should be seen through a is it neutrally applicable or in fact are they applying it differently to different types of groups in which case you might in this specific context trigger strict scrutiny or a different free exercise analysis that David, to me is part. Well, would have been why we would have so much disagreement in the ninth Circuit about this case because we can't actually even agree on what it is and what doctrines apply. Let's just. Can we start there for a moment?
- [09:07]
B
Yeah. And I'm very glad we're starting there because it's very important for what comes next because I think one thing that a lot of people don't realize is that the intersection between public accommodation law and the First Amendment is messy. It is messy. So we have some Supreme Court authority that is essentially saying if your public accommodation law is overcoming your free expression rights, in other words, you have a, you have a parade that is, you know, Hurley versus Irish American gay and lesbian group, which is this parade is around particular ideas and particular expression. Well then the expression is going to be protected over the association. 303 creative. In other words, there's actual a message, words on a website that are being created. That's expression. It's not just providing a service like, you know, like serving a hamburger. Then you have Newman versus Piggy park, which is a civil rights era case that basically says, and I think the quote is patently frivolous, that says that putting forward a religious liberty argument to justify refusing to serve black customers barbecue in that case was patently frivolous. You just cannot use a religious liberty argument to overcome a public accommodation law that is aimed at eliminating racial discrimination. And you also have other cases around freedom of association and gender spaces and everything. And so basically you get to this point where if the freedom of association or if the First Amendment interest you can tie to expression, specific expression coming from the institution or coming from the business, then that's going to tend to trump your public accommodation or non discrimination law. But if it is inclusion, say as an employee in a public accommodation, or if it is a provision of services like making hamburgers, et cetera, then in that circumstance the public accommodation law is going to trump the freedom of association interest. But here is just a very different situation because they're not claiming necessarily that our expressive like our rights to express ourselves are being interfered with. What they're talking about is the very nature of the service itself. Is sex exclusive, that just by its Very, very nature. And that if you're going to require us to violate that, then you have, you're asking us, you're overcoming our freedom of association interest and then also this religious liberty interest. And then that gets us, Sarah, to what is the State of Employment Division v. Smith? Are we, is this a neutral law of general applicability or not? And, and so it's just a confused area of law to some degree. This isn't super bright lines. And I think that that is a, an important background to this. So, for example, I disagree with a majority opinion here. I think in the circumstances you're talking about, these specific circumstances that the First Amendment interest do should trump the public accommodation statute. But I also have to acknowledge that the case law around this is kind of a mess. It's, it is, it isn't super clear in this kind of context. And so I think that that's part of why you're seeing so many different competing opinions describing the legal environment here in just strikingly different ways.
- [12:53]
A
I have a confession to make, David. When we talk about textualism and originalism and we try to explain, I think, where the liberal, you know, jurisprudence or theories of law are, we've struggled at times to come up with any better explanation than like pragmatism or living constitutionalism, which now is such a bad name, it sounds like we're being pejorative. And one of the pushbacks, though, that you will hear is legal realism, this idea that all judges are doing. They know which, what the outcome of the case is, and then they fill in doctrines to pave the road to, to that outcome, but they know the outcome first. And I've used Loving v. Virginia as an example. If you're an originalist and a textualist, I think that case is really hard for you. But if you know the outcome of the case, that is we need to strike down any state law that bans interracial marriage, then you can just fill in some originalism and textualism on the way to get there, even if it's a little difficult to get to. But if you squint real hard, you whatever, and that there are certain outcomes that are just deal breakers such that it almost, it's like a math proof that it would disprove your jurisprudence if it didn't come out correctly because we have such a strong moral intuition about how it needs to come out. And that's bad for originalism and textualism because. Right. You should just follow the yellow brick road wherever it leads and you shouldn't know necessarily where it's leading when you start out with Toto in your basket. David, I can lay all the bricks down to get to the fact that the en banc denial is wrong. But I have to confess to you that for me at least, this is not a. I just follow the process wherever it goes. The outcome, I have to have the outcome here. And that's a problem for me as an originalist, which I actually don't think I am, and a textualist, which I do think I am. But I want to be really honest. I know what my brain is doing here. It is saying that there cannot be an outcome under any version of my jurisprudence where we say a female only space where 13 year old girls are naked communally, that the treatment happens in that communal space, and that the employees who are also female must be with naked men who simply incant the magic words, I am a woman and demand entry to that space, demand treatment from female employees around their male genitalia, and insist on sitting next to, let's say, a 13 year old naked girl. Like, I can't have any other outcome. And therefore, I will just confess I'm not being a textualist about this case because I know the outcome that I need.
- [15:36]
B
When you talk about this case and I talked about the constitutional collision between public accommodation law and the First Amendment, which is a mess. It is a mess. Let's move it over here and just say this. The state's interpretation of its own law in this circumstance is bonkers town. Bonkers town. So that's not a constitutional argument, because what we're dealing with here is an interpretation of their own public accommodation law that results in sexual harassment. Okay? So here, here's what I mean. What they're essentially saying is that their interpretation of the law requires women and girls to potentially be around naked male genitalia without their consent. Now when you say girls, there's even a question of whether you would even permit girls, underage girls, to consent. Like, is there such a thing as a 13 year old who can say, yeah, okay, I'm fine seeing male genitalia in this establishment? No, no. So what they've done is they've taken their public accommodation law and interpreted it in such a way that perversely enough, they're requiring businesses in this particular business, which is in a very unique situation, this is not the normal public establishment where you walk in with an expectation of nudity. Okay? But they've taken a business and they've essentially required it to sexually harass their own employees and customers under certain circumstances. Because, Sarah, there is no universe in which somebody walking into a public accommodation in any other circumstance would be required to see nudity from the opposite sex. I mean, this, this would be textbook sexual harassment, plus, and in some circumstances it would be indecent exposure. So here you have a situation in which the state itself has interpreted its own law in ways that are against itself. Now, what is the constitutional remedy there? That's the weird question here, because it's a state's interpretation of its own law. Now, are there some public accommodation issues that might come up under federal law where you could flip it around and sort of use federal law to protect customers from harassment in a way that trumps state law? Perhaps. But that's the genesis of this case, Sarah, which is an absolute bonkers state interpretation of their own law. It's just wild. And so I think that that's one of the things that's overlaying all of this, is the judges are being presented with a state interpretation of a state law in a way that really, when you sit down and think about it, makes no sense.
- [18:34]
A
Also to Judge Lee's point about the irony or whatever, that like the state discrimination law is being used to punish an immigrant minority community of women in favor of a white man. And again, I know, like, I'm a conservative and that shouldn't matter to me, but it does. Like, I, I find the whole thing so offensive. This is a white man who has not undergone surgery, has been married to women twice, is still attracted to women, and is demanding entrance to a female only space that is primarily used by a minority immigrant community. And like, you think you're the good guy here. Like, to the gorsuch, who's the bully? Question, that is not a close call for me in terms of who is the bully here? And maybe that's overriding my legal sense. And I don't like admitting that, by the way. I would much rather show you how I can get there using all of our little legal tools and doctrines. But I know what my brain is doing and I felt like I had to be really honest about that. David, this has been the legal portion of the conversation about this case. When we get back from the break, we will determine whether I make David read the now infamous dissental and we will turn to the more explicit R rated portion of the conversation about this podcast. And if you don't know what I'm talking about, well, you're about to. All right, David, I've threatened you all weekend that I was going to make you read the Dissental by Judge Lawrence Van Dyke. Are you up for it? You're already turning red.
- [20:14]
B
This is a case about swinging dicks. The Christian owners of Olympus Spa, a traditional Korean women only nude spa, understandably don't want them in their spa. Their female employees and female clients don't want them in their spa either. But Washington State insists on them and now so does the Ninth Circuit. You may think that swinging dicks shouldn't appear in a judicial opinion. You're not wrong. But as much as you might understandably be shocked and displeased to merely encounter that phrase in this opinion, I hope we all can agree that it is far more jarring for the unsuspected and exposed women at Olympus Spa, some as young as 13, to be visually assaulted by the real thing.
- [20:57]
A
Well, David, it's the dissental that launched a thousand ships. I want to touch on a piece by Adrian Vermeule, a piece by Mike Fragoso. But first, let's see. Stay in the 9th Circuit here because this has, well, I was going to say really divided the 9th Circuit judges, but it actually hasn't. It has united the 9th Circuit judges by and large. So here is an opinion joined by Judge Owens, who is an Obama nominee, and Judge Forrest, a Trump nominee, regarding the dissenting opinion of Judge Van Dyke Colon, we are better than this. There is also an opinion joined by 27 judges of the Ninth Circuit, which by the way, is far more judges than like any other circuit even has, by the way, One of those 27 judges, David, is Judge Eric Miller on the 9th Circuit, a Trump appointee with the most conservative clerkship pedigree that you can have. He is a Silberman Thomas clerk. That's like it, guys. I don't think you can outdo yourself for conservative pedigree. Then Judge silberman on the D.C. circuit, and then of course, Justice Clarence Thomas. And that guy is one of the 27 judges who has joined this. The American legal system has long been regarded as a place to resolve disputes in a dignified and civil manner, or, as Justice o' Connor put it, to disagree without being disagreeable. It is not a place for vulgar barroom talk. Nor is it a place to suggest that fellow judges have, quote, collectively lost their minds or, or that they are, quote, woke judges, quote, complicit in a scheme to harm ordinary Americans. That language makes us sound like juveniles, not judges, and it undermines public trust in the courts. The lead dissent's use of such coarse language and invective may make for publicity or Entertainment value, but it has no place in a judicial opinion. The lead dissent ignores ordinary principles of dignity and civility and demeans this court. Neither the parties nor the panel dissent found it necessary to invoke such crude and vitriolic language. Decorum and collegiality demand more. Okay, before I bring in some of our outside thoughts on this, David, the point, according to Judge Van Dyke, as you read, is to show how absurd it is that you are forcing these women to do something and to be part of something so vulgar that you would not be willing to do. Not you, David, like that these judges would not be willing to do. And yet you are so offended by language describing it, but you're not offended by the actual thing. You're not offended by naked 13 year old girl sitting next to a naked adult man and receiving treatment? Or that the female minority, usually immigrant employees, have to scrub down a man around his genitalia. And by the way, for those of you who had not been to a Korean spa, like, no, you're not scrubbing the penis, but you're like right there, right? You've gotta like go all around it. Sorry, David. David is uncomfortable. And again, like the 13 year old is being having this treatment done sitting next to the man who says, I identify as a woman, but I haven't actually done any surgeries, no hormone treatment required, simply the words I am a woman now. Get you entrance into this space or else you are prosecuted under this anti discrimination law. And Judge Van Dyke's point is that is the vulgarity. Anything that you do with language can't be as vulgar as what you are forcing them to do in action. David, does he have a point?
- [24:37]
B
No, he does not have a point. And so I will tell you why. One of the reasons why you saw so many judges united on this and this included Trump appointees, et cetera, is. Let's just zoom out for a minute. The legal system and I. I could do what you just did, Sarah, with infinity cases. In the legal system, you are dealing every day with outrage after outrage after outrage, many outrages far worse than this one because they might involve people getting killed or getting assaulted. Or you have. The legal system takes the most outrageous things that occur in our entire country and channel them through a dispute resolution process bounded by rules and norms of civility. And one of the reasons why, to quote a particular esteemed legal analyst and podcaster, this is the last branch standing, is because this legal system has continued to maintain the rules and the regulations and the norms that have allowed that allow us to peacefully resolve the most outrageous disputes in our entire country. And so I could tell you, you know, when I was a young lawyer, I remember one of the best pieces of advice that I got was from a retired federal judge who told me, david, when you write, write with regret, not outrage. And I thought that was really interesting. I asked him more about it, and he said, there's a few reasons for it. Number one, when you write with regret, you just sound more serious. It's persuasive. It's inherently persuasive. If you write with outrage, it's polemics, and you're really going to be bringing on side only the people who already agreed with you. Everyone else is going to feel scorned or mocked or shamed, and they're not going to necessarily appreciate that, he said. But there's also deeper reasons, and that is that the legal system is just full of outrageous facts and outrageous incidents that are being adjudicated. And if we indulged our emotional response to all of those outrageous things, the judicial system and the legal system would begin to crack and crumble under the strain of it all. And, you know, I, I just like, I like what Nancy's quote. When I, when I told her that this had happened and I read it, her first thing that she said was, oh, no, not the judges, too. And in other words, are they going to act like Marjorie Taylor Greene and Jasmine Crockett now? Is. Is that what they're going to do? Because trust me, guys, if you're, if you're a judge, if you're a law clerk, if you're litigating, and if you have any experience in litigation, you have in your memory bank countless outrageous cases that you've litigated or adjudicated. And is this what we're going to do now? Well, you're going to put the whole system under strain. And one of the things why civility has been such an important norm in the law is because we deal with such outrageous things not in spite of the fact, but because of the fact that we deal with these outrageous things. And so that's why I had such a strong reaction to it. Not because I disagree that the, the facts of the case aren't outrageous. I think they're so outrageous. As I just said, Washington is essentially compelling. Sexual harassment. That's outrageous. It's compelling, you know, vulnerability to indecent exposure. That's outrageous. And you know what? I just communicated that. I just communicated it. And, and so if we're going to open this can of Worms, guys. You think Congress gets crazy? Come on. Wait till, you know your just routine day in state court and some of the fact patterns that become before judges on a routine day in state court more outrageous than this. More outrageous than this. So, yeah, I had, like, zilch sympathy for it, Sarah.
- [28:46]
A
This was a test, David. I just wanted to see if you'd get the right answer. So, David, I agree with you that the whole point. The whole point of this podcast, for what it's worth, is to talk about highly emotionally charged culture of War center or adjacent issues and find a way to talk about them. Lowering the temperature and that it's not hard to raise the temperature. That, like, you can do that any number of places. But the law and the rule of law is about finding ways to lower that temperature. Be able to talk about these issues and come into a space where you can talk about these issues and resolve conflict through the process of lowering the temperature and agreeing on, you know, we agree on the facts first, and then we, like, try to agree on what legal doctrines apply, then we try to apply those legal doctrines, and maybe that's where we're going to find out that we disagree. You know, you, like, you keep sort of starting through the areas of agreement until you get to the nut of the disagreement, and then that is the area where you sort of, like, battle it out. But it should be so localized, you know, instead of general anesthesia and like open surgery, where we just slice you open and go look for organs, we're like, no, no, no. We find this specific thing and then we do the laparoscopic. You know, like, that's what the point is. It's not hard to raise the temperature, and it's not hard to do outrage when it comes to these types of questions, which, as you know, David, applies to so much more than this. Okay, so I want to bring in some of our outside folks, and in particular, Adrian Vermeule, who, you know, David, you and I, I don't think we've ever agreed with Adrian Vermeule on this podcast, not once. And that being said, it's not that Adrian Vermeule is always wrong. That would not be fair either. Adrian Vermeule is a brilliant legal professor with lots of, you know, very smart thoughts that sometimes are hard when I disagree with them to. To articulate why. Because he is very smart. And so I think it's important to highlight a time where, like, I disagree with him a lot. I disagree with him often. Here's a time where I actually don't totally agree with him, but we end up in the same place. And that itself is really interesting. So let me read you some of what Professor Adrian Vermeule, the sort of father of common good constitutionalism, who, like us, David, believes he knows exactly what the outcome of this case should be. And this is where I think I sort of am self conscious because, like, clearly what I'm doing is something much closer to common good constitutionalism. I know what the outcome needs to be. And so, like, by God, we'd better get there. So maybe I'm closer to Professor Vermeule than I'd like to be in this case. Unlike Judge Van Dyke's colleagues, I don't think the real objection to his language is that it is, quote, uncivil. Sometimes the demand for civility is just an attempt to make certain subjects undiscussable, that very much ought to be discussed. And the skillful rhetorician on the bench or elsewhere, and knows when to follow the politess of society and when to break from it. For effect. The better objection is that Judge Van Dyke's rhetoric is clumsy, even self defeating. Rather than causing the audience to empathize with the party opposed to transgender access requirements, the judge's stated goal, the controversy this language provoked itself becomes the topic. Skillful rhetoric first establishes the credibility of the rhetor and then conceals its own art, fading into the background, so that the attention of the audience is focused not on the rhetor's art or his motives, but only on whatever it is that the rhetor wants the audience to think and feel. One might wonder cynically whether the judge's stated goal is not his real goal. One might wonder, in other words, whether Judge Van Dyke is auditioning for a Supreme Court appointment and thinks that a display of willingness to bring from judicial norms is just the way to recommend himself to a norm breaking president. Far be it from me to cast aspersions of that sort. The reader must decide what he or she thinks. I will only add that even if that was the real goal, indeed especially if that was the goal, the attempt was still clumsily done. The skillful auditioner for the court must send the right signals on two margins, not just one. Must show not merely that he is ideologically aligned with the appointing president, but also that he is more persuasive, intelligent and compelling than the competing candidates. The resort to vulgarity may help on the first margin, but hurt on the second, for it always raises a suspicion that the rhetor cannot think of any more subtle and clever way to make his point. Vulgarity is the recourse of dull minds. Whatever the judge's motivations may have been, his opinion is worse than an incivility. It is a blunder. To put this in other words, David, the rhetoric here doesn't have us talking about the legal challenge and the incorrect legal analysis of the majority that voted not to take this case en banc. It has us talking about what he wrote, which, by the way, and sorry for the footnote here, everyone, this actually case isn't about swinging dicks. And I guess I'm confused why the swinging comes into it at all. I don't mind highlighting that it is about male genitalia and there's various words for that and I won't list them here. I don't know why, because generally I have no problem with that. But whatever. Perhaps it is Professor Vermeule's chastisement that vulgarity is the recourse of dull minds. But the swinging part is itself not actually what the case is about. So even to the extent you're trying to use vulgarity to highlight what the case is about, I guess I'm at a loss for like, why that when it caused me to think like. But there was no swinging. There wasn't like slapping people around with like a rubber chicken. David's losing it now. Okay, end footnote. So Professor Vermeule's point is two part. One, the vulgarity doesn't prove the point, it distracts from the point. And two, and this is the part that I find really interesting to the extent you are trying to audition for anything. And by the way, I don't think Lawrence Van Dyke is trying to get on the Supreme Court showing that you have united very conservative judges against you and that you can't bring people on board, that you're not like forming coalitions for a smart president. That's the last thing you want to do for a Supreme Court pick. Because the whole point is to get to 5 on the Supreme Court. And one of the main reasons, I think that people in legal world were heralding the pick of Justice Kavanaugh, for instance, one of them, not the only one, was that they believed that Justice Kavanaugh was the chief whisperer, that he could bring the Chief over on some of the harder cases. And remember, this is before Justice Ginsburg is replaced by Justice Barrett. So it is a five vote court with the Chief as the swing vote. And so you pick someone who can get that fifth vote who is a chief whisperer. Clearly this is not whispering to anyone, David. And so you're, you're not only not going to bring over a fifth vote, you are potentially going to repel a fifth vote who now doesn't want to be associated with EU opinions. And I thought that was well done by Professor Vermeule. And I was like, oh, yeah, that's a really good point. David. Do you also agree for the first time in our podcast, at least with
- [36:05]
B
Professor Vermeule, I mean, I definitely agree that this was all clumsily done. Uh, no, no question about it. Uh, and you know, I, I agree with the bottom line idea that this was a bad idea. I think the, the interesting question is how and when should you outrage and, and under what circumstances? Because the other part of that judge's advice to me was there are times, however, when outrage is necessary. And by the way, if you've characterized yourself by writing with regret, not outrage, people will pay attention to you when you are outraged, as opposed to if you just have a habit and a pattern of everything goes to 11 all of the time, nobody's going to listen when it's actually at 11. Right. And so there is a part of this that's just sort of instrumental and about instrumental effectiveness as well. And so I do understand that. I think actually though, the best use I've ever seen of outrage did not use outrageous language at all. It was written in almost clinical terms. But this was in the partial birth abortion case where an actual partial birth abortion is described and it's described not in lurid words, but in descriptive words. It wasn't made intentionally more lurid. It's just that the whole process itself is awful, is horrible. And writing out what the process involves, even using basic language, is still awful. It's still terrible. And people are very angry that that process was described. And, but to me, that's a, that's an environment where, yeah, actually telling the truth about what the underlying facts are about is very, very important. And you don't have to use excessive, you don't have to use words, slang terms, words that are border, you know, bordering on not, I'm not going to say obscene, but indecent, etc. You just don't even have to do it at all to actually make people's eyes sometimes pop out of their head when you actually describe what occurred and what it means. And, and so, yeah, I do think there are circumstances where outrage, creating outrage is important, but the way in which you do it, the how you go for that sort of outraged jugular. So to speak is very, very, very important.
- [38:31]
A
All right, next one is by Mike Fragoso over at National Review. Mike was the chief counsel to Senate Republican leader Mitch McConnell. He ran the confirmation process for over 80 federal judges when he was chief noms over at Senate Judiciary, including for Justice Barrett, by the way. So this is a guy who he knows picking judges and he knows a lot about the judicial philosophy of those who do get picked and why they get picked. He, by the way, agrees that he does not think this is auditioning behavior. He thinks it's something else. So again, reading here from his National Review piece in this Year of our Lord 2026, there are many ways to approach a text, even a legal text. That's where Lawrence Van dyke of the U.S. court of Appeals for the Ninth Circuit comes in. Through a series of separate writings, Van Dyck has adopted a post modern approach to the circuit court opinion genre that ironically turns the text against itself. He has embraced the fact that an opinion as opinion can have meaning beyond the arguments it presents. His is an ironical approach to the practice of judging deployed in support of deeply sincere normative legal views. It's an approach that can be disturbing to those with a traditional view of the judicial enterprise and that is truly unique in the federal judiciary. This most recently caused an unusually large stir in legal circles when he penned a dissent from denial of en banc review in Olympus Spa vs Armstrong. The case involved the religious rights of traditional Korean spa owners to forbid biological men from patronizing their all nude, all female facility. Or as Van Dyke put it, this is a case about swinging dicks. A total of 27 active and senior judges joined a statement denouncing his indecorous language. Judges Owen and Forrest, on the center left and center right said of it, we are better than this. Van Dyke's point was that being confronted with the words swinging dicks is not nearly as offensive as the actual male genitals that the ladies of the Olympus Spa will need to confront, thanks to the Ninth Circuit. Yes, he also went on to make sound constitutional arguments in his opinion, but those are almost secondary. The real point of the opinion was not to make a legal argument, but to use the opinion itself to lay bare the hypocrisy of his colleagues legal enterprise. How can the opinion mandating violative nudity that they endorse be taken seriously when they have the fastidious sensibilities of a Victorian nun? Their reaction shows their unseriousness. They can't possibly believe what they claim to believe because their posture is vulgarity. For thee, but not for me. What sets the opinion apart is not that the logic of his arguments reduces the court's majority to the absurd, but rather that the opinion itself does so. It's possessed of a knowing and ironic detachment. The opinion isn't about the Olympus spa, it's an opinion about the opinion about the Olympus spa. It's a kind of caustic meta analysis that is unique to Van Dyke. This is not the first time he has taken this approach. And then he walks through several of Van Dyke's other opinions where for instance, in one of them he observed that having issued a pro second amendment opinion, he knew it would be taken en banc. So he would save the eventual en banc court the trouble of writing an opinion and just write it himself. Van Dyck proceeded to lay out a perfectly passable anti gun opinion, overruling what he just wrote. He plays the opinion straight so it doesn't fight the joke. Because as with Olympus spa, it's not about the legal arguments, but about the absurdity of their use. It was the existence of his draft future opinion, not its arguments, that exposed the court's real power structure. One of the smartest lawyers I know called me after reading his concurrence and called it brilliant. It's checkmate, he explained. How are they going to write the Anbach opinion now? It's going to look just like his and prove his point. There was of course his recent the Circuit of Wackadoo wherein he describes the internal operating procedures of a lunatic court of appeals that incentivized open manipulation of the legal system by by aliens and removal proceedings. Obviously he was describing those of his own court. Then there was the video dissent again. In a gun case he argued that the majority got wrong basic facts about whether magazines are accessories or arms, which he demonstrated in a video by disassembling and reassembling some of his firearms in chambers. It's not every day you get a multi genre pastiche in judicial opinion. But as with Van Dyck's other interventions, it's not about the specifics of the particular gun assembly. It's the fact that he did it. The panel majority didn't because they couldn't. Van Dyck's point is that they're opining on something they don't understand. And he's making the point by showing he does understand. All of these separate writings are not about particular laws, but about the law. It's not about using the text of his opinions to argue doctrinal points, but about using the Opinions as text to critique, one is tempted to say, problematize the Ninth Circuit's judicial enterprise. This is a uniquely postmodern approach to judging. DAVID Postmodernism is very unconservative, very non Burkean, very not Scalia esque, not even Bork esque. And it feels to me, and this is where I perhaps again betray a certain unfairness to Professor Adrian Vermeule and his common good constitutionalism. I agree with common good constitutionalism on its face and by itself, but in fairness, I've also been lumping in a lot of what Mike Fragoso here calls postmodern legal judicial philosophy on the right. I've been lumping that in with common good constitutionalism. And I think Professor Vermeule has done a pretty good job over the last few months of trying to have a crowbar separation between his project and this postmodern legal right project. So I apologize to the extent I've been lumping them together. I will try now to separate them, as I think we now have two different pillars and they are moving farther apart and we can identify them separately. This is postmodernism, and I don't like it.
- [44:32]
B
David yeah, I thought that was a very interesting piece and I think you know it. What you keep what I keep running into in this and I like that phrase that sort of the postmodern right is exactly the arguments that I saw deployed by some of the most radical left scholars when I was in law school for right wing ends. I can't remember the first time I heard derisively heard the term respectability politics, which is sort of a term, I believe the origin, and some listeners can correct me if I get some of this wrong, but the origin is sort of around this idea that black Americans needed to really dot their I's and cross their T's if they were going to enter into the public square and sort of went over the larger public by really moving forward with extreme versions of like sophistication. In other words, you had to have it together if you're going to be entering into the public square and arguing and that this could become a trap. In other words, that you are going to be constantly essentially told to sit down and shut up because the way in which you were entering the public square was not going to comport with whatever norms is in essence established by the majority viewpoint. And so to heck with all of that and just attack frontally attack, get rid of respectability to politics and and begin your just your frontal assault on injustice and I think I've seen a lot of that in the new Right. It's all, you know, these norms, these, these rules of civility and decorum. Look where they got us. They've just gotten us a sort of very polite slow decline. And so what you have to do is you just got to smash all of that. You smash all of that, expose all the hypocrites. And that's the way to achieve change. And it's, I mean, this is horseshoe theory. It's horseshoe theory. It is that when you get to extreme right and extreme left, in many ways, their approach, their outlook, their view of the world is even though they might have sort of different in state ideologies, the means that they choose are going to eventually merge. This is where you sort of get into the Pre World War II brown shirts versus red shirts, where you're like, can they both lose? Please? Can neither one of them win? And so I thought that was a very insightful essay, sort of exposing that he is kind of an instrument against what, you know, people on the left would call respectability politics and people on the right would call the second order value of civility or decency.
- [47:12]
A
David, when we get back, we're going to talk about whether first graders have first amendment rights. In one of the cases that has made me sadder than any case I can think of in the last few months. I'm just sad. We'll be right back. Eczema is unpredictable, but you can flare less with ebglis, a once monthly treatment for moderate to severe eczema. After an initial four month or longer dosing phase, about 4 in 10 people taking EPGLIS achieved itch relief and clear or almost clear skin at 16 weeks. And most of those people maintain skin that's still more clear at one year with monthly dosing.
- [47:47]
B
Empglis Lebricizumab LBKZ a 250mg per 2ml injection is a prescription medicine used to treat adults and children 12 years of age and older who weigh at least 88 pounds or 40 kilograms with moderate to severe eczema, also called atopic dermatitis, that is not well controlled with presence. Prescription therapies used on the skin or topicals or who cannot use topical therapies. EBGLIS can be used with or without topical corticosteroids. Don't use if you're allergic to ebglis. Allergic reactions can occur that can be severe eye problems can occur. Tell your doctor if you have new or worsening eye problems. You should not receive a live vaccine when treated with Ebglis. Before starting Ebglis, tell your doctor if you have a parasitic infection.
- [48:21]
A
Ask your doctor about eglis and visit ebgliss.lilly.com or call 1-800-LilyRx or 1-800-545-5979. All right, David, we're going to jump right into the facts. This is another 9th Circuit case. Now we're just at the panel opinion stage in March 2021 when BB because remember, these are first graders, they're minor, so we're going to use their initials. When BB was a first grade student at Viejo Elementary School in the Capistrano Unified School District, her teacher read the class a story about Dr. Martin Luther King Jr. After the story, Bebe felt bad because, quote, black people were put in a worse position and made a drawing showing, quote, all her friends holding hands. Bebe gave the drawing to her classmate mc, who is African American. MC thanked BB. There is a picture of the drawing, David. It says Black Lives Matter. M A T E R. They put sick in the judicial opinion. And that kind of made me mad because I was like, don't sic the first grader. That's impressive. It says Black Lives Matter. And then in a different color and smaller writing, it says any life. And then it has four little circles they're drawn in with various colors. And I mean, this is very first grade, right? This is not sophisticated. It is hard to discern the exact message as it is with my kindergartner, soon to be first grader. I will continue reading now. Bebe did not know that Black Lives Matter had any particular meaning, but included the phrase because it was at the end of the book her teacher read to the class. She stated that she included the phrase any life in her drawing because all lives matter. MC took the drawing home where her mother found it in her backpack. MC asked her mother what the drawing meant and her mother told her not to worry about it as it was not part of the curriculum. However, MC's mother was concerned that MC was the only black child in her grade to receive such a drawing. She emailed the school's principal, Becerra, stating in part, while we can appreciate the sentiment of Black Lives Matter, my husband and I do not trust the place where the any life is coming from. We do not want this to become a larger issue. My husband and I will not tolerate any more messages given to our daughter because of her skin color. We do not send MC to school with Flyers or propaganda. We only send her to school to learn the curriculum, and that is it. As the administrator, we trust you know the actions that need to be taken to address this issue. If you want to further discuss, my husband and I will be happy to meet you in person. The next day at school, Principal Becerra took BB Aside and told her that the drawing was not appropriate. She was not to give drawings to other students, and she should apologize to mc. BB Thought the principal Visera used the word racist to describe the drawing, but could not remember for sure. Bebe did not understand why the drawing was inappropriate or racist, but twice apologized to MC in addition, Bebe testified that she was barred from recess for two weeks. So, David, this ends up in federal court. Can we just, for a moment, before we get to the law, talk about why I'm so sad about this case? I actually do understand why the mother wrote what she wrote. She sends her child to school to learn not to be given something because of the child's race, which you can certainly infer that that is why BB Gave it to this Black Lives Matter. Any life. And a, you know, drawing of all of her classmates holding hands. Yeah. And so I get why a mother would be annoyed with that, that she's having to explain all of this to her child who didn't understand it. Of course the child who made it didn't understand it. And this is why I am sad slash mad. David, you read a book to children about race. You read the phrase Black Lives Matter, and then you punished the child for trying to repeat what they learned, what you taught them. You didn't then make sure the child understood what you taught them. You didn't take responsibility for the fact that now you believe they didn't understand it and then said something which you believed you called racist based on what you taught them. This drawing doesn't exist, but for what you taught in class, and then you punished her for it. How are you expecting these children to learn if you're not doing a good job teaching? And then when you punish them for trying to use what they've learned, that will apply just as much in math class and science class and every other part of the class. Because what she learned from this is that when you learn something in class, you can't repeat it because you don't know. And you could get punished even though you don't know what you learned. You don't know what you did wrong. It wasn't explained why it was racist. Of course it wasn't explained what it meant in the first place, you were simply kept out of recess for two weeks. David, that breaks my heart that this little girl was trying to do something nice for her classmate and was punished for it with no explanation on either side, the front end or the back end. Makes me really, really sad.
- [53:16]
B
Yeah. What's frustrating about this is there's no evidence that the kids themselves were upset in either direction. All of the evidence was that this was a loving gesture from one. One classmate to another and received in that spirit as well, the two kids had no beef. What happened is the adults created the beef. This was an adult created beef. Now along with you, I am sympathetic to the parent who sent in the email because one of the questions might be, this is first grade. How much are we introducing Black Lives Matter and the reason for all of that into first grade? Like, what. What's the curriculum going on here? What. What's happening here? Which is, I think, a very fair question. And if your sense is that my daughter got something from a classmate solely and only because she's black, I could see how that would raise alarms. But then for the principal to turn around and take that, which the teacher. I mean, the parent made it very clear she didn't want this to be a big issue. Like in the message was like, I don't want this to be a big issue. What the principal do. The principal goes to the first grader and punishes the first grader. What are we even doing here? You know, a lot of this stuff. There's a. There is a consistent theme here between the Washington law and this law. And that consistent theme here is there was this period of time in America where people began to absolutely lose it ideologically. Just lose it ideologically. And. And we are still dealing with the overhang from that. We're still. Still dealing with the federal litigation that has resulted from all of that. I'm with you 100%. It makes me sad. These kids, you know, what they were educated into? They were educated into the dysfunction of the adults around them. That's what they were educated into. They behaved with greater maturity at the. At age six than the principal did at whatever age. And that is a shame. That is a shame. And this goes back to a longer running argument that I've been having for a long time about, like, why are the kids having so many mental health issues around phones, et cetera? Well, part of it's the phones, and part of it is because they've grown up around, guess what? Adults who are struggling with their own mental health issues because they can't handle their phones, and they can't handle ideological disagreement. They can't model in any way a civil disagreement. And so we're just infecting first graders with our own unreason and our own instability. And it's just. It's. I'm with you, Sarah. It's very, very sad, I think.
- [56:02]
A
I. I don't know if I told you this, David, but for Martin Luther King Day this year, I was really touched. The school read Brad Meltzer's little biography of Martin Luther King Jr. To the students, and Nate came home five years old and said, mommy, we read about Martha Luther King today and his speech I have a Hope. And did you know, mommy, that he gave the speech at the Lincoln Memorial? And we've been there. Could we go and see where he gave the speech? And he was so into it. And that's what we did for Martin Luther King Day. And we invited all of his classmates to come with us to study, stand on the little stone. And then I played the YouTube, you know, video of the I have a dream speech where it pans out. And so, like, they're standing in his shoes looking out at a, you know, a mall filled with people. It's, you know, it was one of my favorite parenting memories to date. And he told me, he's like. And, you know, people had to sit in the back of the bus based on how they looked, and they didn't even get snacks back there. That's the level of understanding that a kindergartner have had one year before these first graders. And on the one hand, I find it funny, like, what he didn't understand or what he emphasized. At the same time, he is clearly starting to pick up the seeds of what is important there. And it brought me a lot of joy. It was this teaching moment as a parent, and it breaks my heart that these parents didn't get to have that moment with their children for no good reason. None at all. And. And David, we haven't even said how this case has turned out, because while we obviously disagree with the denial of en banc rehearing in the Korean Spa case, don't worry. The ninth Circuit has their act together here. This was a three judge, as far as we can tell, unanimous decision. They wrote it as a per curiam opinion. And I'll just read you a piece of this. The Supreme Court has recognized three specific categories of student speech that schools may regulate in certain circumstances. One, indecent, lewd, or vulgar speech uttered during a school assembly on school grounds. Two, Speech uttered during a class trip that promotes illegal drug use. Bong heads for Jesus, anyone? And three, speech that others may reasonably perceive as bearing the imprimatur of the school, such as that appearing in a school sponsored newspaper. Speech that does not fall into one of these categories is nonetheless subject to the balancing test. In Tinker, the court noted that under Tinker, schools have a special interest in regulating speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others. And these special characteristics call for special leeway when schools regulate speech that occurs under its supervision. Thus, a student always has rights under the First Amendment. But the degree to which a school may restrict those rights varies according to a number of things factors. So David, what the judges said in this case is there is a dispute as to the facts of, for instance, whether the principal actually used the word racist and whether Bibi was kept out of recess for two weeks. It's not that those are disputable facts, like we'll just never know. But because of how this was done at the district court, we didn't have findings as to whether that in fact happened. And so this was remanded to go find for the facts to see whether there was actual harm. Because if there's no harm, right, you don't actually have a case but that first graders have First Amendment rights, that there was clearly no disruption here, that in the Tinker balancing test the student wins and that the school was wrong. And so it's remanded just for the question of whether there in fact was punishment for the student in this case. David thought it was great. Yes. And yes from me, absolutely.
- [59:42]
B
And I also liked how the opinion did deal with the age issue. That in other words, you know, look, if you've got first graders, you gotta sort of think through like what it would be disruptive in that first grade sense, what would be improper in the first grade sense, which is going to be different from a senior in high school, for example. So. But I think they got this exactly right because whatever measure you're going to use, if you were going to say that this, that this was not protected by the First Amendment, you would almost have to be saying no Tinker for first graders. Like, no, it just doesn't, it doesn't exist. Like there's no real First Amendment right that exists at all here. But this would be the ideal paradigm for when you would acknowledge First Amendment rights. Zero disruption, zero disruption. All of the disruption to the extent there is any of all, such as like holding somebody out of Recess comes from the authority figures imposing punishment for a non existent offense. And so that is just purely related to speech. So, you know, I like the way the panel came out on this, and I like that they walked us through the age issue, which I think is the number one thing that comes to someone's mind is, okay, I'm with you on First Amendment rights in general for students, but we're talking about a first grader here. What. What does this even mean?
- [61:07]
A
Well, to use an example, David, that I think is important. If you wear a T shirt in high school that makes your fellow students uncomfortable, but doesn't disrupt class, but they don't like it, that's fine because they're high school students and we can expose them to uncomfortable ideas that they don't agree with. That's going to be different in first grade. We're not going to make first graders uncomfortable based on what their fellow students wear. That will be considered disruptive to wear a T shirt that makes a fellow student feel uncomfortable because first graders don't have the words and the emotional speech space to work through their discomfort to be able to talk about it with adults. So, like, it is going to be shrunken down pretty tightly. And yet we have found an example that falls outside of that. We're like, nope, this is protected. Like, you've got to be kidding me.
- [61:51]
B
Yeah, yeah, absolutely. I mean, this is not even a close call. Not even a close call. And I. But I think it was very worth highlighting and spending some time on because what it's revealing about this sort of dysfunction, the larger dysfunction in our society and culture that I feel like. I feel like some parts of our culture are healing from that right now. Some parts of us are turning away from it. And then as we saw with Judge Van Dyke, some parts are not.
- [62:24]
A
Well, David, just to end on bringing it back to the Supreme Court, do you think either of these cases are cert worthy?
- [62:33]
B
Not this one. I think this one is. So, you know, there's no error to correct. You know, I don't think that. I think this ends here.
- [62:41]
A
There are facts in dispute, so the court never likes to mess with that.
- [62:44]
B
Yeah, facts and dispute. Yeah, exactly. You know, the Washington case, I do wonder, and I do wonder mainly from the sense of, okay, what is the Supreme Court going to do with deployment Division v. Smith? We had a circumstance with the Fulton versus City of Philadelphia case where the court kind of punted on overturning Smith because Kavanaugh and Barrett basically wrote, what's the alternative here? So I do wonder. But also, this is, as I said earlier, it's a mess of a case. I mean, what you had and the majority was saying very clearly was, wait, what this case was, was just a pure First Amendment challenge to a public accommodation law. It wasn't all the other things that the dissent said it was. And so, as we were saying earlier, there's a lot of confusion when you read the opinions about what was the actual legal issue at hand, what were the legal issues? And that's not necessarily the kind of case that's just properly teed up for the Supreme Court.
- [63:43]
A
I know, yeah, they're going to hate the outcome, but I don't think it's a good vehicle nevertheless. So we'll see. I bet there'll be a statement on the denial of cert. That's my prediction. All right, David. Our next advisory opinions will be live from the University of Pennsylvania Law School with special guest Judge Bebis. Get excited.
- [64:09]
B
I already am.
- [64:10]
A
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 on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders, and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at advisory Opinions, the Dispatch. Com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time. Sam.