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- [00:01]
A
Ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm Sarah Isger, that's David French and we are live at the University of Denver du. Hey guys. Well, we've got plenty to talk about today. A cert grant from the court. Another religious liberty case. David is hot to trot. Also the fesic principle. Should the Supreme Court care if it's popular? And is Ted Cruz a great option for the Supreme Court? It's gonna be a more interesting conversation than you think. And lastly, what's the best major if you want to go to law school? Seemed appropriate to do at this campus. Okay, I do wanna announce that we will have an Advisory Opinions newsletter starting on April 28th. This will include video transcript, a summary of everything we talk about. You know those little chapter headings where you can get just to the topic you want to find you. You can sign up on SCOTUS blog starting today to sign up for the Advisory Opinions newsletter. We'll see you out there April 28th. And now let's do some Advisory Opinions. Ready to soundtrack your summer with Red Bull Summer All Day Play. You choose a playlist that fits your summer vibe the best. Are you a festival fanatic, a deep end dj, a road dog, or a trail mixer? Just add a song to your chosen playlist and put your summer on track. Red Bull Summer All Day Play. Red Bull gives you wings. Visit red bull.com brightsummerahead to learn more. See you this summer.
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B
Some Follow the noise. Bloomberg follows the money. Because behind every headline is a bottom line. Whether it's the funds fueling AI or crypto's trillion dollar swings. There's a money side to every story. And when you understand what others miss, get the money side of the story. Subscribe now@bloomberg.com
- [02:32]
A
David let's start with the CERT grant. I will now read to you from John Elwood at SCOTUS blog who predicted this cert grant after several relists. Two Catholic parish preschools alike in no, just kidding. That's first From Romeo and Juliet. Two Catholic parish preschools in the Denver area, Denver how appropriate and the Archdiocese of Denver Challenge Colorado's Universal Preschool Program which offers free publicly funded preschool to 4 year old Coloradans through a mixed delivery system that includes both public and private providers, including religious ones. The catch? To participate and receive public funding, all providers must ensure that children have an equal opportunity to enroll and and receive services regardless of their or their parents, sexual orientation, gender identity, religious affiliation, race, ethnicity, disability, lack of housing or income level. The Catholic Preschool sought an exemption to allow them to turn away children of LGBT parents or children who do not conform to the church's teaching on gender on the grounds that admitting such children would require them to to violate their religious convictions. When Colorado's Department of Early Childhood denied that request, they sued. The district court ruled for Colorado, finding the state's conditions to be neutral and generally applicable. The U.S. court of Appeals for the 10th Circuit affirmed. But David, as one Twitterati said, Attorney, may it please the court, this case arises out of a challenge to Colorado law. Chief Justice Roberts, thank you, counsel. Duly noted. Please proceed to your second argument. David, we have just seen so many of these Colorado laws on these exact issues in all the different contexts, be they bakers or candlestick makers challenged. And here we are with a preschool challenge. I did want to note something that was interesting in the cert petition that is actually disputed a little bit, at least by the two parties from the preschool's suing. Colorado nonetheless permits numerous exemptions from their non discrimination requirement, both categorical and discretionary, allowing preschools to admit only children of color, only gender nonconforming children, and only the LGBTQ community, only low income families and only children with disabilities. But Colorado excludes Catholic preschools because they admit only families who support Catholic beliefs, including on sex and gender. Now again, the state disputes this somewhat, but this is based on testimony from one of their employees who they know is not a lawyer and maybe didn't know what she was saying. Something, something, something. But to me that's the ball game. If you can have a preschool that only has students of color, I mean that's obviously that's not even a first amendment violation. That's an equal protection violation.
- [05:41]
B
Yeah. By the way, we're passing the microphone back and forth. I think this is an emergency measure by Sarah to prevent me from interrupting, but so you'll see us passing the microphone back and forth. Okay, in one world this is a fascinating case. And here's the world that it's a fascinating case. It's a fascinating case. If Colorado has essentially an all comers rule that says that if you're going to participate in the state program, you have to be open to every family, to every student, that would be an interesting case because that would be in theory a neutral law of general applicability. And that would be really putting to the test. Is Employment Division v. Smith still going to be good law, but based on this testimony, maybe that's not the case at all. And if the case is really. Wait a minute, you're going to allow, for example, a school to be exclusively LGBTQ parents or you're going to allow a school to be, say, exclusively black or Hispanic or exclusively low income. And then you're going to say, well, you can't have a school that is exclusively dedicated to Catholic values. You're losing that case. You're losing it. 90 in all likelihood. I mean, this is, this is more egregious than Fulton v. City of Philadelphia, which was a 90 case. So I keep waiting for the actual case that is going to put Employment Division v. Smith just squarely in the crosshairs and just asks is this still real? Is this case still real? And the case that's going to do that is the one that has the actual all comers policy, that has an actual non discrimination policy that has been considered consistently applied. And that case outcome I'm not 100% sure of, Sarah.
- [07:24]
A
So the court nixed the question presented that would have put Employment Division versus Smith in the crosshairs. And on the one hand, I hear you that like maybe they will jump onto this testimony from the state employee and just get rid of this. This, by the way, will get argued in the fall. So we'll talk about this case plenty in the future. So David, for our purposes today, let's ditch that testimony. Let's assume there are no exceptions, except let's say, of course, they allow schools to specialize in students with disabilities, for instance. That I think is a more interesting exception to have. So my new case, Colorado does not have any exceptions except a school can specialize in students with disabilities. It is private and public schools that can apply for funding, but they must agree to non discrimination. They can't turn away students with disabilities and they can't turn away students based on their religious beliefs or conforming to the school's religious beliefs. Walk us through Employment Division versus Smith, which this court has already said they're not interested in overturning in this case and how it would work in this case with those facts only.
- [08:34]
B
That's a really great question. So Employment Division v. Smith, just to give a little bit of history lesson and if we were allowed to rip off from Jonah every time, Jonah Goldberg, our friend and colleague, every time I'd say Employment Division v. Smith, we'd have the theme from the Uruk Hai from the Two Towers playing because I don't like Employment Division v. Smith. But here is essentially just a very brief history lesson prior to this case, which It's a late 80s, early 90s case. The test that applied to religious liberty was not that different from the test that applies to, say, free speech when there's viewpoint discrimination or content discrimination, that if you were able to show a government initiative or a government regulation, a government, a statute, a regulation, a rule, et cetera, substantially burdened your religious free exercise. The government could only win in that case if they could satisfy strict scrutiny. They had to show a compelling governmental interest. Least restrictive means very much similar to the free speech First Amendment context. Well, then Employment Division v. Smith comes along and Justice Scalia basically eviscerates the Free Exercise Clause. He turns it away from something that's more analogous to the Free Speech Clause and creates its own thing. And what he essentially says, you have
- [09:51]
A
to give the facts.
- [09:52]
B
Employment Division v. Smith was an individual who had been fired for smoking peyote, a hallucinogenic drug, and he was seeking unemployment benefits, and he was claiming that he had a religious liberty interest in the smoking of peyote. Now, I have long thought. I have long thought that if the employee was fired because, say, they missed a shift because of confession, maybe it would be different. But this was. They missed they had been caught using a hallucinogenic drug. Case goes all the way to the Supreme Court. And what Justice Scalia does with the majority of the Court, it's not all on him, is he overturns this old test, the Sherbert v. Verner test, the strict scrutiny test, and basically says that if a law is neutral on its face and it's generally applicable, in other words, it's the same law applies to everybody, then the Free Exercise Clause is not going to protect you. The Free Exercise Clause only protects you, really, truly, when there is evidence that your religion has been targeted. So that the Free Exercise Clause isn't a broad grant of a free exercise right so much as it's a narrow protection against religious discrimination. So in other words, whereas the Free Speech Clause is a very broad, like you, American citizen, go forth and speak. That's the way Free Speech Clause has been interpreted. It is not the same in religion. It is not the same in religion. It is essentially, the government shall regulate you, but the government shall not target you is the difference. And so for years and years after, Employment Division v. Smith, Employment Division v. Smith has been sort of chipped away at. And so it came. Well, wait a minute. What if I can marry a free speech claim to a free exercise claim or marry a due process claim to a free exercise claim? Well, then you would create a hybrid claim that would give us strict scrutiny. Or what is the definition of neutral and generally applicable. It could be a narrow definition of that or a big definition of that. And we're going to sort of make it to where it's very harder to have a neutral law. And so as a result, even though Employment Division v. Smith eviscerated the free exercise clause over the course of the years, Employment Division v. Smith got so eviscerated that there hasn't been a significant free exercise loss at the Supreme Court in 16 years. I don't think so. There's a real question as to how alive is Employment Division v. Smith. Is this a zombie precedent that we sometimes talk about on the podcast, just kind of walking around the, roaming the land moaning, looking for somebody to bite. But you can easily outrun it. It's not a running zombie, it's a walking, shuffling zombie. Is that what it is? And so, however, if it's viable, if it is still viable, I think an actual uniformly applied all comers policy would pass muster. If you create a, let's say you create a state program and you say anyone from any religious background can participate, any educational institution from any religious background, you can even teach your faith, you can teach the precepts of your religion. But to participate in this state program, you have to be open to everybody attending, all students. I think under Employment Division v. Smith, that would pass muster.
- [13:19]
A
I think you're spot on on this one. But by virtue of them granting cert in the case, that will not be the outcome in the case. Right. Like that's not where this is going. I think that Twitter person, who by the way is a lawyer as well, Eric Niffin, you know, attorney, may it please the court, this case arises out of a challenge to a Colorado law like, oh, and we're done. Thank you for standing up. We can move on now. I think that whether in these past cases that we've had, we've had like a whole little drumbeat of these cases. Carson v. Macken, I don't even know if I'm saying that last part right. This was Maine's non sectarian requirement for otherwise generally available tuition assistant payments to parents who live in school districts that do not operate a secondary school of their own. They said that did violate the free exercise clause of the First Amendment. So having these types of religious exclusions, do they need to be explicit or can they be implicit? Like, you knew the school wasn't going to take students that don't abide by certain religious tenets. So while you didn't explicitly exclude religious schools, you knew you Were in fact excluding religious schools by having this policy, does that matter? Or will they simply show that the state itself has so much discretion to give these exemptions, as that state employee, unfortunately for them, said under oath, when where you could have the school that is just students of color or the school that is just LGBTQ parents, while those schools don't exist right now in Colorado, which I think is important, what they were saying is if those schools applied, we would have the discretion to grant them exemptions. Therefore we are not granting an exemption to the Catholic school for their request and that that's religiously discriminatory. Clearly they're deciding it on those grounds because this is not getting upheld.
- [15:21]
B
I look at this case and this is one of those cases where again, depending on how much that testimony is really going to matter about that, this is somebody who that a school can be for all LGBT parents or I can't even imagine legally how such a school could exist in the world. But there is testimony to this effect that they had the discretion to grant these kinds of exemptions. This case has already been decided, Sarah. It was Fulton versus City of Philadelphia and then Fulton versus City of Philadelphia. This is a case where there was a Catholic adoption foster agency that would not place children with same sex parents and it was cut out of the City of Philadelphia's foster and adoption system. Even though in the whole course of the Catholic Charities operation in fostering adoption, they had never turned away a same sex couple. And there were other alternatives for same sex couples. They could go through other age foster adoption agencies. And this went up to the Supreme Court and there was a lot of speculation that this case would be the one that ended Employment Division v. Smith. And there was an Alito concurring opinion in there that reads an awful lot like it was originally the majority opinion overturning Employment Division v. Smith. But Justice Amy Coney Barrett in all of her independence and glory and Justice Kavanaugh and all of his independents said we're not really ready to get rid of Employment Division v. Smith yet. We're not really ready in part because we don't know what will replace it. But they got all nine members of the court to agree that granting there was a provision in the Philadelphia law that granted a right, a discretion to eliminate the non discrimination provisions. They granted government officials discretion to allow opt outs. And because of that discretion, it wasn't neutral and generally applicable. And so therefore City of Philadelphia lost. It seems to me there's a version of this case that is. Did you not read Fulton vs City of Philadelphia please read reversed remanded and that's it.
- [17:37]
A
I will say the biggest surprise in this case is that they didn't sum rev it meaning that's the like no thank you. This is so wrong you dumb dumbs version and instead they're granting certain actually hearing the case. So more to come on that this fall. Don't worry, we've got plenty to do this term. But David, I want to talk about Jesse Wegman's Fesic principle so when we get back the Physic principle. Should the court care about its popularity? You know that satisfying feeling when you finally get everything organized after it's been piling up? That's what using Gusto feels like for your business. Bringing payroll, HR and benefits into one place and clearing out the day to day admin clutter so you can focus more on business growth. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly and incredibly easy to use so you can pay, hire onboard and support your team from anywhere. 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Once you've given them an aura frame named number one by Wirecutter. You can save on the gifts moms love by visiting auraframes.com for a limited time. Listeners can get $25 off their bestselling Carver Matte frame with Code advisory. That's a U R A frames.com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. And good luck out there guys. But seriously, you can't go wrong with an Aura frame becoming a parent really shifts your perspective. I felt how suddenly everything isn't just about me anymore. It's. It's amazing. But also it comes with a lot of responsibility and plenty of unexpected moments you can't plan for. You start thinking more about the future and what would happen in situations you hope never come. That's why having some kind of safety net matters. Just knowing your family would be protected brings a different kind of peace of mind. Ethos makes life insurance fast and simple with a fully online process. Get a quote in seconds, apply in minutes, and even secure same day coverage with no medical exam, just a few health questions. Online, you can get up to $3 million in coverage with plans starting around $30 a month from a network of trusted carriers. Take 10 minutes to get covered today with life insurance through Ethos. Get your free quote@ethos.com ao that's e t h o s.com ao Application times may vary. Rates may vary. Jesse Wegman is a senior fellow at the Brennan center and he wrote a newsletter about the Physic Principle and I just want to tell everyone what the physic principle is before we start. If you have not seen the Princess Bride, there is no amount of explaining that will really help you here. But I am assuming a certain amount of cultural literacy from everyone listening and in the audience today. Okay, this is the scene where Wesley our good guy, Inigo Montoyo, our Good Guy's sidekick, and Fezzik the Giant, our sidekick's sidekick, approach the castle on their quest to free Princess Buttercup. At the entrance, they encounter a guard. Give us the gate key, Westley demands. I have no gate key. The guard responds flatly and Ego Montoyo turns to the giant Fesik tear his arms off. Oh, you mean this gate key? The guard replies. So this is the fesic principle. It's the idea of having someone to back up your threat. Now let me back up to explain Jesse Wegman's physic principle for the Supreme Court. Reading here from his newsletter. One of the more common misconceptions about the Court is that it should pay no heed to the political wins, that the justices should be monkishly devoted to ascertaining this objective thing called quote, law. It's a nice sounding notion that justices have encouraged over the years, as Justice John Paul Stevens did when he wrote in a 2002 case, quote, it is the business of judges to be indifferent to unpopularity. End quote. To paraphrase Joe Biden, that's some premium grade malarkey. And then he talks about the Court's popularity over the years and that sometimes it does have to spend down that popularity on certain cases, he says. For example, the rulings in Brown vs Board of Education and the one person won vote cases of the 1960s did not have broad public support at the time, but they are now widely considered among the greatest in the Court's history. In contrast, Dobbs vs Jackson Women's Health Organization, which overturned Roe v. Wade in 2022 by a 6 to 3 vote, is unlikely and ever to attain that status then, he says. Even when the Justices hand down broadly popular rulings, like in the Trump tariffs case, or what is widely expected to be the result in the birthright citizenship case, a majority of the public continues to disapprove of them. A historian he cites looked at historical instances where the Court drifted too far from the public and found that the most important factor in dragging it back was that any threat the Justices faced had to be credible. You have to have a physic. Franklin Roosevelt's court packing plan in the 1930s did not ultimately succeed, but it was credible enough to force the intransigent Justices to reverse themselves and begin to uphold his New Deal legislation. In the mid-1950s, the Warren Court ruled a dozen times in a short period in favor of the civil liberties of Communists, infuriating a broad swath of cold era Americans living in fear of Russian infiltration. After legislation to strip the Court of jurisdiction over national security cases came within a few votes of getting through Congress, the Court suddenly started voting against the Communists. Message received, he writes. We can threaten all kinds of good and necessary reforms, but if we want the Court to become aligned with the popular will again, those threats need to be credible. All right, this is the summary of his argument, and this is what I want to talk about with you, because there's several pieces here to break apart. One is the very premise of the piece that the Court being aligned with the American people is both its job and historically an accurate description of what it has done for the last 230 years or so. Another part of this is if we think that it should maintain some amount of popularity to maintain its legitimacy and to have its rulings enforced, what happens when it rather, is it doing that still today, or is it not? And then what do you do if it's not? For example, you know, Roosevelt's threat of court packing and Congress's threat to strip jurisdiction I find to be interesting examples, because in both cases they don't do the thing. And so it's the fezzic threat of tearing the arms off, which Fezzik did
- [25:42]
B
not tear any arms off.
- [25:43]
A
That's correct. And nevertheless, this is an interesting thing for a Brennan center senior fellow to say because he's basically saying we shouldn't actually pack the court, but we need to make the court believe that we would actually pack the court, even though I'm saying we would never pack the court. Because that's the actual physic principle. You don't tear the arms off. In the end, David, there's like so much here. I'm just going to let you weigh in on any piece of this.
- [26:09]
B
So first, shout out Jesse, my former Times colleague, I know him, good guy. So here's what I found very interesting about this. The supreme no question the Supreme Court's legitimacy as measured by popular support for the institution is declining. Now, I don't think that's the proper measure of legitimacy, but I do wonder how much of this is actually due to the Supreme Court versus sort of the Supreme Court swimming in the same pool as every other institution in America which has declining popular support. So there's part of this that I think is just, there's. It is just very difficult for any institution, especially any governmental institution, to have widespread support. Number two, why is it declining? Is it declining because one whole side of the American population has just rejected the Supreme Court? Or is it because actually if you're a hyper partisan, it's just not with you and that means a hyper partisans on the right and the left. So Jesse's more on the left and he's going to look at things like the Dobbs decision or Trump v. United States, the immunity decision, and say, well, this has made me angry. These are decisions that a lot of people don't like. They have impacted the legitimacy on the court. But then if I have like Johnny Maga coming up here, if Johnny Maga's Johnny Maga, Esquire, the lawyer, and I say, what do you think about the Supreme Court? He's going to be pissed. We just lost on tariffs. We just lost on the Illinois and the National Guard deployment to Illinois. It looks like we're going to lose on birthright citizenship. This Supreme Court is out of control. I mean, we had Ron DeSantis running for president saying no more mistakes like Neil Gorsuch and Amy Coney Barrett. And I'm like, I've said this before, if I'm a justice ever, my name is Neil Cony Bersuch. Like I'm a combination of these two people jurisprudentially. And so you do have a lot of people on the right who are very angry at the court, and that's pulling things down because the court is not giving either base what it wants. But here's something that might really surprise you guys. I've talked about this, like, once, I think on the podcast, if you look at the Times did a summary of all the major supreme court decisions in 2025, and you would think if the Supreme Court lost public support that decision after decision after decision of all of the big important decisions, that they were going to be out of step with the public. No. Okay, let me read to you some of the polling. So parental opt outs. This is the Mahmoud case. Mahmoud v. Taylor. Parental opt outs from classroom discussion of LGBTQ themes. Big culture war case. I mean, this is one that might have been really, really controversial at one point in American life. All respondents, if you they polled Democrats, Republicans and independents, the public support for that supreme court opinion was 77% in favor. You can't get 77% in favor of Project Hail Mary. And that's like the most unifi. You might can get 77% in favor of Artemis 2. Like the most unifying thing that's happened in a long time. Age verification for porn sites. What's the percentage approval of the. Of the Supreme Court's decision allowing age verification of porn sites? 80%. 80%. Just skipping down transition care for transgender youths. Upheld the Tennessee ban on. On medical care for transgender minors. 64% in favor. Guys, I can do this all day. A reverse discrimination case that they decided 70% in favor. Gun maker liability is. Should gun makers be financially responsible for crimes committed by Mexican cartels? Supreme court says no. 64% of Americans agree. I mean, the closest. The closest. In every one of these cases, the Supreme Court had the popular position. It had the publicly popular position. In case the only one that was even close was the religious charter school decision, which was happened to be 4. 4 at the Supreme Court, which then resulted in affirming an Oklahoma Supreme Court decision saying that the charter school and the religious charter school in Oklahoma violated the Oklahoma constitution and the federal establishment clause. That was 5,149 in favor of the Supreme Court. And so part of me is saying, okay, we're just having the wrong conversation here, that your remedy isn't really. I want the Supreme Court to rule in a way that Americans find popular because it's doing it constantly. It seems to be much more that I want the Supreme Court to rule in my direction all of the time. And when it is not ruling in my direction all of the time, especially if it's one or two of the really big issues that I care about a lot, then we've got a legitimacy issue. And I know that's not Jesse's position, but when I hear arguments about legitimacy, what I'm just consistently hearing is when I will say, okay, but what about this ruling that you liked? What about this ruling that you liked? What about this ruling that you liked? What about this ruling that you liked? Well, then the answer is, but then there's this other one I didn't. And I'm like, is the real test here? Is the real test here? That's the legitimacy is. I just want them to agree with me constantly. That's what I want. And I think the answer is for some folks, again, I'm not saying this about Jesse, but for some folks, that's exactly right. Or it can boil down to a single issue. I would just really like the court a whole lot better if it reversed Dobbs and reinstituted Roe and Casey. If it does that, then it's legitimate to me. Again, even if it's going to disagree with me on lesser issues. But, Sarah, and this kind of sticks with a lot of the theme of your book, which is, look, the test of the court is not going to be, does it agree with you all the time. The test of the court is, is it independent? Is it operating with integrity and independence according to a coherent and philosophically sound judicial, judicial philosophy? And I think the answer there is yes. And a lot of the I just keep being unconvinced by the contrary arguments.
- [32:33]
A
So there was one line that I read that I found the most intellectually galling, which is when he talks about how Brown versus Board of Education and the one person, one vote cases of the 1960s did not have broad public support, but they are now widely considered among the greatest in the court's history. And I'm thinking to myself, yeah, pumping fist in the air. So doesn't that teach us all an important lesson about intellectual humility and whether we are wrong about something important and that maybe only time can tell us the things that we hold as being so right and that future generations will say we're so wrong about? And then his next line is, in contrast, Dobbs v. Jackson, women's health is unlikely ever to attain that status based on. That's like literally the opposite of what you just said. Like, you're like, well, the unpopular decisions that later became popular. I will now judge with today's opinions that the unpopular Decisions that I don't like will never become popular based on my magic eight ball and I shook it and it said unlikely. That is not how we do this. And I think it goes to your point, David, that it's like, oh, we're not doing real history here. We're not doing real sort of humility on the popularity of decisions because like you don't want to do that with the Supreme Court. Dred Scott, reasonably popular at the time. Plessy v. Ferguson, very popular at the time. Korematsu, pretty popular at the time. I do not want to base the Supreme Court decisions that I think are correct based on public polling. That might be the worst possible thing you can do with Supreme Court decisions. I think you would do less. You know, like when you take a multiple choice test and you actually do worse than 25% like that's what I think you're doing if you try to poll these things. I think it is interesting, David, that the cases that you mention all poll really well right now. That makes me nervous. Right. This is supposed to be a counter majoritarian branch of government that is a lagging indicator of our politics. So if on all of these culture war issues, the American people, the majority agrees with the decisions, I start questioning my own takes on them because eee. But David, here's my question. It is nevertheless an interesting point that Jesse is making about the Court's long term ability to have its decisions enforced. Let's say the court only, you know, they have full discretion over their caseload. Now let's say from now on they only take cases to be counter majoritarian. They only take the cases where they believe they have the votes to strike down presidential actions and acts of Congress, popular state laws that were passed by state legislatures. So on your thing that you're looking at, they are just like, nope, but they're only taking very few cases. They're taking 20 cases a year, but they're striking down the majority of Americans every single time. And so when you poll the questions, all of them are in the extreme minority. But let's say with our Magic 8 Ball, they're all correct under the law. They are all, you know, constitutional decisions but that the majority of Americans hate. Doesn't Jesse have a point that that would in a different way end the Supreme Court as an independent branch of government?
- [35:57]
B
I think it likely would because ultimately, ultimately in this country, the people are sovereign. Ultimately, at the very end of the day, when you're actually going down and you're just drilling down at the end of the day we are the final measures of accountability. And the Supreme Court is sort of the, the most counter majoritarian. But at the end of the day, again, the Justices are selected by an elected official. The Justices decisions can be overturned by, by constitutional amendment at popular will, or members of Congress if they've, if the judge Justices have interpreted a statute incorrectly in their view, the people can change that. So it's absolutely the case.
- [36:37]
A
Ahaha. You passed my trick question. All of the examples you just gave are baked into the system already and none of them are the ones that Jesse Wegman is proposing on packing the court, jurisdiction stripping, actually making the Supreme Court bend to your will and make the decisions you want, the outcomes that you want at the Court. All of the examples you just gave are the people using the tools at their disposal, voting to ratify a constitutional amendment, putting members in Congress that will change the laws that the Supreme Court misinterpreted, or picking presidents who over time will appoint different Justices to the court a la FDR or when the court had eight Republican appointees in 1992. So David, I hand you the mic again. Now I have revealed my trick question. Okay, but what if the Court keeps doing unpopular things? Should you actually change the Supreme Court?
- [37:36]
B
Well that. No, no, absolutely not. Because you have many alternative ways of dealing with the Supreme Court as I just outlined, aside from jurisdiction stripping, aside from threatening these, you know, the Justices with court packing, et cetera. But you know, there is something interesting I think about in the discussion of Brown B. Ford. I think Brown v. Board itself shows how the Justices are aware of the limits of their power because Brown v. Board struck down segregation. But it did not provide for a timetable. It did not provide for really anything that a. Let's just put it this way, 54 Brown v. Board has decided we're not seeing large scale desegregation until the 1960s. It keeps going until the 70s into the 80s. Brown 2 says do it with all deliberate stuff, speed. And so I think the Supreme Court has been aware for a long time as just as Judge Sutton told me when I interviewed him, gosh, at the early, the very beginning of the second Trump term. We don't have a police force, we don't have an army. Our rulings depend on voluntary compliance from the other branches of government by and large. So there is a reason why Sarah, you know, you've talked for a long time about this institutional axis. The institutional axis is taking into consideration these sort of questions. And you know, Justice Ginsburg, when she was critiquing Roe. I think one of the reasons why she critiqued roe in the 1990s for its, quote, breathtaking scope is she realized how destabilizing to sort of the larger body politic Roe had been. And she expressed a preference for what she called interstitial incremental changes. Why do we liars create words just totally unnecessarily? Incremental is fine. Right? Interstitial anyway. So interstitial incremental rulings she saw as being more legitimate publicly, having greater, having less of a big splash into the public and more of like ripples through the public. And so I don't think it's inappropriate for judges to think of justices to think of these institutional issues and concerns. I definitely do think it's inappropriate for Congress at any given moment just to look at an opinion or set of opinions it doesn't like and indulge in jurisdiction stripping fantasies or court packing.
- [40:04]
A
It would seem to me to be the most hilarious thing in the world when the vast majority of the decisions that the Brennan center, for instance, doesn't like are based on statutory construction. For Congress to threaten the Supreme Court with court packing instead of passing a new law. I mean, my God, we're going out of our way not to do our jobs at that point. So I think David and Sarah are a thumbs down on the Fezzik Principle. Is that fair? David nodding. He's nodding. Okay. When we get back, we'll talk about Justice Ted Cruz and questions from the audience. We'll be right back. Chronic migraine is 15 or more headache days a month, each lasting four hours or more. Botox Onobachulinum toxin A prevents headaches in adults with chronic migraine before they start. It's not for those with 14 or fewer headache days a month. It prevents on average eight to nine headache days a month versus six to seven for placebo.
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Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same Premium Wireless for $15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do@mintmobile.com
- [42:04]
A
Switch upfront payment of $45 for 3 month plan equivalent to $15 per month required intro rate first 3 months only, then full price plan options available, taxes and fees extra. See full terms@mintmobile.com okay David, I have talked about something I think is wrong with today's Supreme Court. This great professionalization of the court, the narrowing of what it means to get on the Supreme Court. And I've compared this court where six clerked on the Supreme Court, three clerked for the justice they replaced in some sort of hereditary peerage situation. You know, they've almost all worked in the executive branch. All but one attended an Ivy League institution. I mean, it is getting really specific out there and I think it's changed the court in terms of what cases that they take because it's changed how people think of their job on the Supreme Court because they've gone through this very narrow channel. And I've compared it to, for instance, the Brown versus Board of Education where you had five justices who attended public universities. One didn't go to law school at all. Five had held elected office, two had been attorneys general, eight had been in the military, for instance. They'd come from all over the flippin place. These guys would never be on a short list today. So as I compare those two courts, should it not be the case that then I should be like, yay, Ted Cruz for Supreme Court Justice. Finally, we'd have someone who looks almost identical to many of the members of the Brown Court, someone who was a rival for the Republican nomination, who is then shelved into life tenure on the Supreme Court with significant congressional experience. And I'm like, do you know that meme where the girl's like no? And then she's like maybe? And then she's like no. And then she's like, I don't know, like I am that meme about having Senator Ted Cruz. But Mike Fragoso over at National Review made some very good points. Justice Senator and he basically points out that this is the trade off. Many of the problems with the Warren Court almost certainly come from the fact that there are five previously elected officials who saw their jobs in political terms, had run for office many times, and therefore were at the Supreme Court basically acting out their dream of being a Senate of 9 instead of 100. What a treat that would be. And that this of course causes the backlash to the Warren Court. I mean, Nixon arguably gets elected because of the decisions of the Warren Court. It certainly creates the Federalist Society in 1982. And like here we're off to this like pendulum swinging back and forth. And maybe it's all because we put these elected guys on the court. And yet, and yet I still feel like having someone who represents significant experience of how Congress operates, how laws are actually made, versus this many members of the court who have only worked in the executive branch at very senior levels. But to the extent any of them have had jobs in Congress, they have been super temporary or very junior. Like Elena Kagan worked on the confirmation of Ruth Bader Ginsburg in the Senate Judiciary Committee, not counting that. But Ted Cruz would represent a real shift. And David, I guess I'm Cruz curious.
- [45:27]
B
Well, when you first proposed this topic, Ted Cruz for scotus, I thought you were literally talking Ted Cruz for scotus, like Ted Cruz, the Ted Cruz. And I was loaded with what might be a counterintuitive take on this. But then I realize you're also talking about Ted Cruz as in just a senator, a stand in for a senator. That was a good argument about, okay, if you have five elected officials, but there's a happy medium between zero and five, just adding one, would that be maybe better? And I do think that have someone coming out of the legislative branch. We have seen, I think maybe some subtle distortions in our jurisprudence given to the fact that a majority of the court has come from the executive branch. They tend to be more solicitous of the executive branch. Often. Well, we need some people who've come out of the legislative branch. I'm not saying a majority, but one is not too many. One is. So I could easily, easily get behind the nomination of a super qualified senator or even a super qualified experienced senior member of the House. I could absolutely get behind that. But can I give you my Ted Cruz take? Like on the actual Ted Cruz part of me thinks, and hang with me here guys on this. It could actually work out a lot better than you think. And here's why I'm going to say that if I had to say How I perceive Ted Cruz, it would be this potentially apocryphal French revolutionary quote, there go the people. I must follow them, for I am their leader. And so Ted Cruz, very constitutionalist, tea party conservative when it was cool to be constitutionalist, Tea Party conservative, very maga when it was cool to be very maga. What would be cool if you're Ted Cruz as a justice of the Supreme Court? Well, it's no longer winning a Republican primary in Texas. It is being subject to a three volume leather bound, like three leather bound volumes called the Constitutional Jurisprudence of Raphael Edward Cruz. And so no longer is the incentive structure for him to sort of pander to a base. Now the incident structure becomes to get the respect of mom and dad again. And mom and dad are your fellow justices on the court. It is your esteemed law professors. It is the verdict in the judgment of legal history. And so all of a sudden you would see, in my view, the very, very best version of a Ted Cruz, a constitutional scholar with one eye on history. That's not what we have in the Senate right now. So that's my counter. Now, I'm not urging that. I'm not. Just to be clear, I have a whole list before Ted Cruz, a whole list of people that I would prefer. But I would say I think my counterintuitive take on it is that Justice Cruz would be a more serious figure than a lot of people think he would be.
- [48:25]
A
And with that, let's take some questions. While you guys line up and think of your questions, I'm going to give us a question from a listener who graduated from undergrad and is now in law school and is reflecting on his choices. And he would like us to discuss what is the best undergraduate major. If you are going to ignore Sarah entirely and definitely 100% go to law school. And just for our listeners who have not heard us go off on this, I will just note that the appendix in my book is titled don't go to Law School and Other Advice for a would be Lawyer in it. It includes not only my take and David French's take. I think I present it very fairly. Right. I sent it to you in advance. You approved it. I also include the takes of 10 other lawyers, including Justice Gorsuch and Justice Breyer, some circuit judges, some district judges, a US Attorney, the admissions dean at Harvard Law School, all of these people answering the question, should I go to law school? But this is an interesting twist. I'm going to law school. What should I major in? David, I'm not going to tell you what our now law student did major in until the end, because I want to hear your answer.
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B
Mathematics. That is my answer. And it's popular. We've got a math nerd crowd here. I like it. Okay. And the reason why, There's a very simple reason why math is just. It's logic. It's just pure logic. And I know that's an insufficient explanation of what mathematics is, but there's logic in it, lots of logic. And if you're going to take the lsat, it's a logic test. If you're going to be rewiring how your brain thinks in law school, logic is indispensable. Also, I will say that mathematics tends to be very difficult even in the era of grade inflation. So, you know, even in the era of grade inflation. You might all be getting 97s and 98s now, but you are learning differential equations. You do know them after you've had these courses. And so it's rigorous, it's trained your brain in exactly the kind of thinking that's necessary. And I also think, like, just doubling back down on the rigorous. A rigorous undergraduate degree is actually going to help you prepare for the shock of actually studying in law school. Because for me now, I do not want to cast aspersions on my undergraduate experience at all. I had so much fun. I had so much fun as a political science major. I really did. And I honestly, at one point, I think it was September of my 1L year, I was sitting there on like hour nine on a marathon study session going, have I just exceeded in the first month of law school all of the studying I did in all four years of college combined? And I think the answer was yes with a bullet. And so if you can come in with a major with a habit of study that is very rigorous and a lot of these STEM degrees, you are out. You got to be you. You got to do the work. You just got to do the work. And that's a great prep for being a 1 liter.
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A
David is both wrong and unrealistic. But before I tell him why, will you also give us your worst major for going to law school?
- [51:48]
B
Marketing.
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A
Interesting. Okay, here's why David's wrong. That is a too specialized. So for instance, I don't know if there's a major in statistics. If there were a major in statistics, that I think would be a good major before law school. I think general mathematics actually takes you too far away from reading, which will also be something you need to be quite practiced in before going to law School. So, like, yeah, you got the logic, but you spent all of this time doing, like, formulas and things with computers and whatever other math. I mean, I was a math major for like two months, so what do I know?
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B
I was a math major also for like two months. And then I realized, like, Barbie, math is hard,
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okay? So statistics I could get on board with. I actually think that the in between of what we're saying is probably something more like a classics major or a philosophy major. It's still going to involve a lot of logic, but it's going to involve a lot of reading logic. And I think you actually will end up using a lot of it in law school itself. I did not have that major, but husband of the POD did, and it annoys me greatly when he pulls out various philosophy things to use against me. I will also say that I think the worst major for someone going to law school, marketing's a great choice. Don't get me wrong, Political science is going to be my choice because it is the most common major going to law school. I think that is a disaster of an undergraduate degree for a few reasons.
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I.
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One, you're learning something that will be wrong in a few years. Like, I was a poli sci history major with a comms minor, and everything I learned in poli sci is literally no longer useful anymore. Like, we used, you know, we were learning about the different coalitions that belong to the two parties. Like, I had all of that memorized, you know, where Catholics were voting in 1998. What good is that to me now? Nothing. So it also poisons the mind, if you will, going into law school. If everything has been presented to you in four years as one party versus another party, as right versus left, and as the partisan fight, and then you go into law school, you're going to be primed to see everything as a partisan fight. And that, of course, is the problem that we have in law. So all you poli sci majors listening, drop it now. Drop it hard. I get the other majors we're talking about might be hard, but you know what wasn't that hard? History. History was a fine major for the somewhat lazy like me. Okay, we have questions from the audience. Hi, thanks so much. I'm not a lawyer, so this was really interesting and I really appreciate how you made it understandable to all of us. And I feel really obligated as a media studies professor to mention this other institution that hasn't really been engaged today as part of the problem of the Supreme Court. Right. So you mentioned how the Justices all went to the same Ivy League institutions. They work very closely together in a bubble. I feel like we could say the same for a lot of the folks at the New York Times, at the New Yorker, at the Washington Post, the people covering these justices, but also having gone to the same schools, maybe attending each other's weddings, et cetera. Right. So how do you kind of think of the media as part of the problem and hopefully someday solution? David, I'm gonna have you answer this. But before that, we had this interesting conversation at lunch about the difference in the culture, potentially of the political media, which can be quite contentious and maybe not the most fun cocktail hour, maybe, I don't know, versus the legal media and the reporters who cover the Supreme Court. And I was just reflecting on my experience with this book launch and how absolutely welcomed and embraced and kind everyone was to me, to the point that I actually feel an enormous amount of guilt because I don't think I can show enough gratitude to all of the people who have gone out of their way to say nice things, do nice things, send me little notes. And while I really don't believe in sharing private communication, I don't think it would be a violation to say, Nina Totenberg reached out to congratulate me and say wonderfully nice things. Joan Biskupic, Jan Crawford. These larger than life figures were like right there holding my hand at various points. And one wonders whether perhaps the legal media reflects the institution it covers in a similar way that the political media might reflect the institution it covers and how grateful I am to be in the legal media side of things. But David, there is a really important point there. Absolutely, the media. You go back again to the Brown versus Board of Education era. We talked about what was happening at the court. And for the journalists that were covering that, very few of them would have had college degrees. It was a blue collar job. You know, these were like the sort of paunchy bros sitting at some Chicago bar is how I picture them. You know, drinking whiskey at 2pm and kind of being ne' er do wells. And now there are all these iv, IV adjacent, all sort of run with the same people, have the same friends, come from the same background. Very unlikely there would have been a gun in their home growing up. Very unlikely that they would have gone hunting or attended an evangelical church. All of these things well documented for the narrowness and the elitism of journalism. So what of it?
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B
That's a very good question in which I think part of the answer to the question is contained in the question. So Is it a problem when you talk about the New Yorker, the New York Times, the Washington Post? What's in common with those? New York, New York, Washington? And so what we've seen happen over the course of the last 25 years is essentially the extinction of local media in many ways, and the total consolidation of what you might call the hard news reporting, the big hard news institutions have been much more consolidated at that national level. And they're located in New York and they're located in Washington and to a lesser extent, places like Boston. And that just means you're gonna draw from that community. The people you're gonna be hiring are gonna be much more people come from these New York institutions and the Northeastern institutions. Right now, I think this is correct. So I'm sure somebody will correct me if I'm wrong about this, but I do believe the New York Times right now is the most widely read newspaper in California. The New York Times, California. So it's much more than the LA Times, much more than the San Francisco Chronicle, for example. And if you rewind the clock not too many years ago, I mean, I'm old enough to very much remember this, that you could have a national platform writing from the Chicago Sun Times, or you could have a national platform writing from the San Francisco Chronicle through syndication, you could be known all over the country because all the local newspapers that were very vibrant had the same syndicated columnists. So I'm reading the Lexington Herald Leader every day in Georgetown, Kentucky, where I grew up. And I'm reading Cal Thomas, and I'm reading George Will, and I'm reading Bill Safire all there in my local paper, as well as the local columnists who would write about national and local events. And I felt like I had a nice mix of local and national coverage. And so right now, what we're getting is almost exclusively national coverage that is consolidated in certain institutions that, as Sarah said, are drawing from particular schools, backgrounds, et cetera. And, you know, so when I was hired at the Times, you know, one of the reasons why I was hired is I wasn't a New Yorker. I'm this evangelical living in outside of Nashville, Tennessee. I'm a vet. There aren't too many veterans who serve as columnists, for example. And so, you know, part of my hiring was about some of these different perspectives. And so I will tell you that I know for a fact that national media like the Times is very keenly aware of this bubble problem. We're super, super aware of this bubble problem and trying to do something about it. But we can only do so much when local media has been just decimated. Just decimated. And it's the decimation of local media that has really narrowed the media voices that we get. And it's a big problem, I think, for all of us, man, if just a fraction of the money that is poured into like a median Senate race was put into local media and trying to foster and rebirth local media, that would be so much better for our country. Because right now, if you're a politically interested American and you're living in a smaller town, there's a very great chance that all of your focus is on national political issues. It's not on local issues. And I remember when I wrote my book in 2020, one of the things I really called for, and this is, I didn't see this coming. And this is my bad that I didn't see this coming. I really called for people to get involved more locally. Well, then in 21, 22, 23, people got involved a lot more locally. And I was like, at first, yay. But no, it was to fight the national culture war. Like, so when people are running in Franklin, Tennessee for school board to fight national culture war fights over dei, when I'm telling you in Franklin, Tennessee, we don't have a lot of dei, it's not overrun with wokeness, guys, you know? And so it was okay. We need local involvement on local issues. And that's one thing that's going to help sort of rebalance us and recenter us, because each one of us, I think we should have. Except in very unusual times like war and constitutional crises, our focus really should be more in our field of vision, like what's happening in our neighborhood around us and with our neighbors, and how can we work for the good of our neighbor. That should be much more of our focus than what's happening in Washington. Because in Washington, that's the area where we have the least ability to influence it. And if we have our most emotional investment in the institutions where we have the least influence, that is a recipe for massive frustration, which is where we are right now. Hi, my name is Seth Maskett. I'm a professor of political science here at du. So I definitely have thoughts on your last conversation. However, I actually wanted to ask about the Fezzik conversation. You had talked about the perceived problem of the Supreme Court being unpopular, being potentially illegitimate, because it was issuing rulings that were out of touch with the American public. And I think you did a nice job showing that's not really the case. But I'm wondering what if the problems for the Court come more from maybe stories of corruption, bribe stories that have been coming out over the last few years? Or what if the problem is it's just perceived as part of the federal government, which is overwhelmingly unpopular right now, as are most political institutions, just in general, what would be the appropriate way to address the Court to deal with reform under those circumstances? That's a great question. I mean, I think that having a transparently understandable and enforceable code of ethics is an important element of accountability. I think if people think that Supreme Court justices are going on junkets and doing things like this with a privileged few, I do think that that undermines public confidence in the Court in a way that any given number of judicial decisions are tough to. It's just tough to address. So I do think that accountability is incredibly important and the perception that nobody is above the law is incredibly important for the entire concept of our small r Republican form of government. So if you have any individual, if it's a president, or individuals who are justices, or individuals who are members of Congress who are perceived to either be above the law entirely or more accurately, especially when it comes to Congress, have the ability to get away with more bad stuff than basically any other class of employee in the United States of America. Like if you behaved like a lot of these members of Congress while working at Walmart, you're out, you're gone, right? If you're a mid level executive at an insurance firm and you behave like many of these members of Congress, you are out and unemployable in the industry. Members of Congress can be indicted and enjoy an extended period of time still in power. They can have multiple, multiple credible sexual harassment allegations and they're going to hang around for a while until maybe there's another person who's accused of sexual harassment on the other side of the aisle. So you can do the one for one right until it's even politically. And so I do think that that creates any perception, and this is why I absolutely am constantly on the immunity hobby horse. Any perception that says that the people who are in power over me have to comply with a lower standard of conduct that I have to comply with undermines faith in an institution. It just does. And it does so rightfully. And I think we need to reverse that equation. The more power and authority you have, the greater accountability you face.
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A
Also, an enforceable ethics code would protect the justices from false allegations of unethical behavior because not all of these allegations were created equal. Some of them were quite Silly, actually. Love seeing you guys.
- [65:57]
B
I've been listening since day one.
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A
So we have a 333 court.
- [66:01]
B
You've been saying that from the beginning.
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A
And the vertical axis is institutionalism.
- [66:07]
B
Consequentialism.
- [66:09]
A
Both, either. I would love for you to just hang out there for a minute and maybe talk about is there a difference? Because as a math major and my other math nerds, you can't have two axes going vertical.
- [66:21]
B
The other one has to come out from the page.
- [66:23]
A
I think that probably the best explanation of this Y axis is something like the difference between Gorsuch and Kavanaugh, where Gorsuch sees his role as a single vote on the court. He likes skiing and biking and running. They are all solo activities. He writes more concurrences than any justice in US History. It is a solo endeavor. Justice Kavanaugh is the team captain guy. Right. He is very athletic also, but he likes basketball and baseball. Oh, gosh. What are those about? Oh, they're team sports. And so his is all about speaking, you know, as a single institution. He is but one contributor to that single voice. And I don't have a great word to describe the difference between that, but institutionalism is the best that I came up with for it. Meh. Sort of. Okay, that was my quick answer. Yes.
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B
Hi.
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A
Thank you so much.
- [67:24]
B
I'm a second year student here at University of Denver and I'm wondering if you have any thoughts on the recent New York Times article regarding the Court's transition to the shadow docket and some of those internal memos.
- [67:36]
A
We talked about our opinions on the last podcast that came out this morning for the purposes of us recording this here in Denver, but I would like to share some things that Professor Will Bode and Professor Jack Goldsmith both wrote about it. This actually goes to the previous question as well. This is Professor Bode. Some people seem to be scandalized somehow by Chief Justice Roberts role in this, but he is the Circuit justice for the D.C. circuit, so he would normally be the first person to circulate his views about the application and propose a resolution. And we have already known for over a decade that the Chief justice supported granting the application. The fact that he wrote a memo saying so for somewhat obvious reasons, isn't that much of a revelation. Relatedly, while everybody likes to describe Chief Justice Roberts as a committed institutionalist, I think people regularly overread their own label or at least misunderstand what it means. Remember who Will Bode clerked for? Eddie Guesses, the Chief Justice. So when he says we're over reading it, I take that pretty seriously. Continuing with what he wrote, institutionalism does not necessarily mean foregoing one's own views of the law, and it certainly does not mean adopting the reader's and the critics views instead of one's own. And in any event, surely acting on the concern that the executive branch is openly circumventing the federal courts should count as institutionalist. I absolutely agree with every part of that. Now let me read you from Professor Goldsmith. The Clean Power Plan Order was novel at the time, I believe, because it temporarily shut down a presidential program even before the Court had had a chance to rule on the issue. The Court did something similar last year in adjoining President Trump's Alien Enemies act deportations. Viewed from the perspective of 2026, this order fairly marks the beginning of the Court's modern active engagement with presidential initiatives via interim orders. Sorry, real quick. For those editing this podcast, I want to skip this, but now I need to find where I'm going. But I simply want to flag what I view as unfortunately tenditious reporting about the memoranda, especially but not exclusively about the Chief justice without any support in the documents. Cantor and Liptak say the Chief justice seemed quote, angry and quote, irritated in the memos, and they portray him as an almost bad faith actor. Cantor and Liptak framed the order as part of a larger personal battle between the Chief justice and President Obama, even though the Chief justice wrote two opinions that saved Obamacare and also voted to uphold a different Obama EPA initiative. Cantor and Liptak say the Chief justice and the other conservative Justices have repeatedly empowered the President through their shadow docket rulings without mentioning the very consequential rulings against Trump on the shadow docket. So you can listen to the earlier podcast for our opinions, but I thought those were two important takes as well that unfortunately the New York Times write up just chose not to remotely tell the whole story and and the parts that they left out seem very one sided to me, as in all of the parts they left out, whether it's the fact that a year earlier they had used the interim docket to stop Texas's anti abortion laws from going into effect seems relevant to me about whether it's the birth of the shadow docket, characterizing it as a battle between the Chief and Obama when the Chief had been the main conservative justice voting for Obama's other EPA initiative. That seems like a weird thing to leave out. But again, it would hurt this narrative of it's the conservative Court against the liberal causes and in Fact, the real story is a lot more complicated than that. And it's an awesome question. Thank you. And that was not a short answer. I suck at this.
- [71:30]
B
Real quick on it. Let me do. Yeah, yeah, no, I appreciate it. Let me again perform the role that I performed in the podcast yesterday that came out this morning. Well, yesterday, whatever. When you're listening the previous podcast, you know, I do think that there would a. This was a tremendous scoop, getting these memoranda. And so the memoranda, you can read them all for yourself and make your own judgment. My own judgment, as I read them was that these were actually remarkably even, Remarkably even keeled, sophisticated arguments back and forth. I did not detect, detect a lot of anger, heat, et cetera. I detected a lot of, you know, what I thought was good faith, intellectual wrestling with a tough situation. And I do think that there was elements of. Not a feud between Obama and Roberts. But it's very obvious that the Obama administration had said some things that made an impact on Roberts. And I thought that was a very interesting part of the story. And without belaboring it too much, what happened is the Obama administration, in response to negative rulings from the Supreme Court, had come out and essentially said, well, we still accomplished what we wanted to accomplish even though the court ruled against us, we got this done anyway because people were forced to comply with the law for a while, et cetera, et cetera. And so what that did is it essentially tells the court, your ruling didn't matter. We got our way anyway. And if one of the reasons why you issue a ruling is because what they're trying to do was unconstitutional or violated the language of the statute, and you say, we got to do it anyway, what's one of the first things a judge is going to do? A judge is going to say, well, obviously our prior method of ruling was not effective at preventing the legal harm that our ruling was designed to prevent. So what are we going to do? We're going to change our approach to prevent the legal harms our rulings are designed to prevent. And so from that standpoint, I think it was very directionally true that essentially, as I was reading it, it was almost as if the Obama administration had thrown down a gauntlet and said, we're going to do this, we're going to go in this direction. And guess what? Even if you rule against us, when you rule against us, in the normal course of business, we get to do what we want to do, even if it's unlawful for several years. And I think that that was. I wouldn't call it Obama versus Roberts. I would call it Obama administration sort of, I'm not saying defying the Supreme Court because they obviously complied with the rules, but the Obama administration sort of minimizing the Supreme Court and the role of the Supreme Court and the Supreme Court then reasserting itself as an independent branch of government.
- [74:18]
A
We are going to be fast. Watch us.
- [74:20]
B
I'm a recently invented law school graduate. You guys got me through con Law with Dean Chemerinsky over in Berkeley. So thank you. Much appreciated. And again, apologies. I'm going to return to David French's favorite topic over the last couple weeks, which is AI depictions of certain activities. How do you square your view with Free Speech Coalition v. Ashcroft, which basically holds that virtual child pornography is not regulable as CSAM because there's no predicate act? Are we relying on this sort of Miller Community standards? And if so, how do we deal with the fun things like your right to have obscene materials for your private possession, that sort of thing? Yeah, it's a good question. So there's a couple of things here. One is if one of the problems that we've seen with AI is they're trying to take actual real people and created images that are indistinguishable to the naked eye of the real person and putting them in various stages of undress. And so this is something that is a new technological change and derivation, but it's very much related to pre existing common law concepts regarding rights of privacy, et cetera. And so I think that that's actually if you're going to be depicting, trying to depict real people in indistinguishable images that are indistinguishable from an actual image and real people in various stages of undress, especially if they're children, ultimately you're going to have a major legal problem with that, in my view. Now if it's a plainly simulated like you're asking AI to create anime or something like that, then I think you're going to have a different kind of situation that's much more related to your question. But I will say this, I will say this, that we've gotten so many responses to AI and a lot of people just seem to be unwilling to wrap their minds around the idea that AI operating independently should be held accountable for what it creates when it operates independent. Well, it's not purely independently, but much more independently than your standard software. And we have a very interesting case. There's a criminal investigation just announced in Florida that obviously they're listening to AO because the basic fact pattern here is that you had the Florida State shooter, the person who recently killed, I think it was two people on Florida State campus. Horrible, horrible incident. And they went back and they looked at his interactions with ChatGPT. And as the Florida public officials said, if I read this from a person, I'm charging the person. So if I read it, if I read this communication, I am charging the human being that was engaged in this communication. The fact that it's ChatGPT and had the same influence on him that it had a real person would have had. Does that mean there's no legal accountability or is there going to be legal accountability for the people who created the chatbot that helped spur a shooting? And so this is really getting down to that exact point that I've been trying to drill down on forever, which is to the extent that the AI is operating, quote, unquote, independently, there are still going to be human beings who are going to have to be liable for what it does, quote, unquote, independently.
- [77:36]
A
I swear we're going to be fast. No, it wasn't. Hi, I'm Laura. I took your advice not to go to law school 25 years ago and I stand behind that. While I was reading your book this weekend, I was really enjoying the profile profile of the justices. And it made me wonder, especially with the news about Alito potentially retiring. Sort of the Z axis, which I'd call like soft skills, stylistic. And I'm curious if you could have your way for the next Supreme Court pick. What sort of Z axis style would you want to see? Would I want more of the Kavanaugh team captain or of the Gorsuch? You know, I do double black diamonds going skiing. This is interesting, David, because I actually think I totally ascribe to your Ted Cruz model of the Supreme Court. Maybe 5 is too many gorsuches, but 0 would be too few. I want a little bit of a mix. That being said, we have a Justice Gorsuch and I would probably want overall more team sports oriented justices.
- [78:43]
B
That is a. You know, this is the first question I've ever gotten at AO that I've literally never thought of the answer to before. Now, like what temperament? But which is something I think about all the time in politics because I think one of the things that we need in this moment is a temperament. Temperaments in politics oriented more towards grace and decency and that, you know, one of the challenges we face isn't so much right versus left, but decent versus indecent and so in the judiciary, we don't have that problem nearly as much. What temperament? Off the top of my head, and this might sound a little strange, somebody who's extremely gregarious with the public. In other words, somebody who is very accessible and touchable by the public.
- [79:29]
A
You want a brand ambassador, you want Scalia and Ginsburg back writing elephants in India and putting the pictures in every newspaper. Because that was really good for the Supreme Court.
- [79:38]
B
Yeah, I mean, yeah, Scalia and Ginsburg who go and they do a live, they're guests on a live podcast or you know, something like that where we. You just humanize the justices and there's a balance between sort of this kind of respect that you get by a bit of mystery. But I think we get enough of that with no cameras in the courtroom and things like that. But getting out there and humanizing, and I think this for judges in general, and I know it's difficult when you're a public figure, you're getting out there, and especially judges, there's this very delicate way, like lawyers are rarely going to interact with judges like real people. But getting out there, showing you're a real human being, demystifying the law. I would like to see more of that.
- [80:23]
A
Hi, I'm Nick.
- [80:24]
B
I'm also a second year DU student.
- [80:26]
A
I'm curious in the conversation about historical
- [80:29]
B
Supreme Court cases that were popular then and unpopular now. I think Dred Scott is obviously a very conservative decision. It was popular then, it's unpopular now. You see, Brown versus Board is the opposite. It was liberal decision, it was unpopular then, popular now.
- [80:47]
A
Do you think that's a pattern that exists?
- [80:50]
B
And then, if so, what do you make of that with Dobbs, which is conservative and unpopular? I think there's a great way to consider, to know what's going to be popular over time and not popular over time. Popular over time is are those cases that are consistent with the profound moral declaration in the Declaration of Independence that we're all create, you know, we're endowed by our creator with certain inalienable rights, among them life, liberty and the pursuit of happiness. You know, we're created equal, all of this. And so these popular cases from the past that have become unpopular like a Korematsu, like a Plessy, like a Dred Scott, all of those were ratifying popular failures in America, popular failures to comply with the spirit of the Declaration. Because America's always been in tension between sort of the darker parts of our human nature and the marvelous ideals of the founding. And so sometimes the darker parts of our human nature win in court. And those were the ones that tend to fail out over the time, and the ones that, like Brown v. Board, unpopular in the moment in large parts of the country, but very popular now because it's consistent with the great themes of the declaration on Dobbs. The jury is out. I mean, the jury's kind of in on its current popularity. But the long term popularity, I think, will depend a lot on whether 50 years from now, 100 years from now, the salient story of Dobbs is, is it, A, unborn children are brought into the American family, meaning life, liberty, and the pursuit of happiness, or is it going to be, B, this was a blow against women's rights, excluding them from the concept of life, liberty, and the pursuit of happiness, or diminishing their ability to enjoy life, liberty, and the pursuit of happiness? And I think that that question is going to be the one that will define Dobbs over the next 50 to 100 years. Thank you for coming to Denver. I am not a lawyer. I'm a psychiatrist. And I've been very interested in your analysis of the child's decision. So I need a little bit of more. I need more from you.
- [82:55]
A
Where's the catch?
- [82:56]
B
Okay, so on one of the last podcasts, you said, of course, a medical board or some other regulatory agency could tell its practitioners that it oversees, that they can't encourage patients to kill themselves. That seems obvious, but I recall at the early days of COVID that medical boards were investigating providers and pulling licenses when those providers were not encouraging patients to get vaccinations or, in fact, telling people not to get vaccinations. So I guess my question is, is the only stopgap against words given by a helping professional to a patient whether or not the patient does something that ends up in a bad outcome, and then they go sue the provider? Like what? To what extent can a regulatory agency regulate its practitioner's speech? Because I'm sure it stops somewhere before telling your patients to kill themselves. But we also have things like psychedelic psychotherapy coming online where there is no standard of care, and frankly, some of those practitioners are nuts. And telling patients that their memories that are coming up while they're high on psilocybin are real. And yes, you were sexually abused as a child. I've heard lots of crazy stories. So where is the line where you can regulate practitioner speech?
- [84:20]
A
Okay, let's get the other question, though. It's not like that was a quick, light one. Yeah, no, mine's a lot less heavy than that. As someone Else who has not chosen to so far go down a path to law school. I'm a second year at Colorado State just up the road. What do you, what are your like, top few things you would recommend reading, watching, doing that, kind of simulate a little bit of that intellectual experience without that life decision. First question, I think so.
- [84:48]
B
For example, if somebody. I'm not a doctor, so this just is an absurd example. Let's suppose you say, doctor, I have a headache. And he goes, well, you know, there's a new experimental treatment, it's called drinking bleach. If you go ahead and do that, your headache will be fine. And I do it and it does cure my headache because I'm dead. In that circumstance, obviously there would be a lawsuit, there would be medical malpractice. There's no standard of care here that's opposite of the standard of care and the duty of care. And. But all he did was give words that's like the speech incident to the provision of facilities. It's like walking into a bank and saying, your money or your life. Those are words, but those words are actually part of the commission of the crime. And I actually think, and I'm just gonna keep going back to this. Some of these, some of the. So for example, the suicide situation, that would be a situation where if you had, even if it was just a very viewpoint restrictive, flat out viewpoint restrictive regulation, it would meet strict scrutiny depending on how it's drafted, compelling governmental interest, least restrictive means, it would meet the highest level of scrutiny to pass that. But when it comes to the. Again, on the question of conversion therapy in Colorado, there are a lot of fascinating questions about where you draw the line. And I think that that is something that's actually going to be hashed out in litigation the way it has been hashed out in litigation around other forms of medical treatment and therapy. You will see uniform standards of care emerging through litigation. And then those standards of care can then be codified legislatively. However, at the same time, the statute was so bad, it was so poorly written, we didn't even have to get to any of these line drawing questions. And so the statute was just a layup. 8:1 on striking it down. And what's unfortunate about it is the law was so poorly written. Sorry, Colorado, you just really just screwed up here. It was so poorly written. The case itself is totally unilluminating. Totally unilluminating in all those really thorny questions that have been raised.
- [86:58]
A
Okay, last question. An undergraduate who does not want to go to law school but would like to read some things, watch, listen to some things that might give a flavor of law school a vibe, if you will. What would you recommend a second year undergrad do this summer with her free reading hours?
- [87:18]
B
Oh, man, that's a great question. So I know what to do with the free listening hours and you're already doing it, so that's very key on the reading. That's a really good question. I would read. I think it would be very interesting and fun. And I'm gonna do this for a lifelong learner's class in Nashville this fall. I'm going to pick out five underappreciated Supreme Court cases that changed America and teach those five cases and why they're underappreciated and why they changed America, but finding like five cases or six cases that are in an area where you have a passionate interest and read those cases. If there's books written about those cases, read those books. And my prediction is you'll catch the fever. You're gonna catch the fever. And you're gonna come to my side of the aisle. Yes, yes. You're coming. It's coming. It's happening. It is happening.
- [88:13]
A
And that is why I give the advice I give. Because reading an awesome con law Supreme Court case and then being like, I wanna go to law school and then three years later you're doing DOC review for 20 hours of your life is not going to lend to happy people. Do not give that advice.
- [88:32]
B
Listen, everybody pays dues before the glorious times comes. So yeah, everybody's gotta spend some time in document review. But it gets better. Can you please give one very warm round of applause for Sarah and David.
- [88:50]
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 show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free. And help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders, and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisoryopinionsthedispatch.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, RA.