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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, and I think we've got a pretty full pod, David. We're gonna do a little cert grant on voir dire, or as we say in Texas, voir dar and domestic violence clause, bill of attainder clause. We've got some deep cuts to go through in the Constitution today. Pretty pumped about that. As well as distortion effects, there's abortion distortion, there's drug distortion. Is there a trump distortion effect? And last, that conversation between Ross Douthat and Chase Strangio, which is. We've got it all here at Advisory Opinions. So good, so good, so good. Score holiday gifts. Everyone wants for way less at your Nordstrom Rack store. Save on Ugg, Nike, Rag and Bone, Vince Frame, Kurt Geiger, London, and more. Cause there's always something new. I'm giving all the gifts this year with that extra 5% off when I use my Nordstrom credit card. Santa who join the Nordy Club at Nordstrom Rack to unlock our best deals. It's easy. Big gifts, big perks. That's why you rack toast the holidays in a new way and raise a glass of Rumchata, a delicious creamy blend of horchata with rum. Enjoy it over ice or in your coffee. Rumchata. Your holiday cocktails just got sweeter. Tap or click the banner for more drink responsibly. Caribbean rum with real dairy cream. Natural and artificial flavors. Alcohol 13.75% by volume 27.5. Proof. Copyright 2025 Agave Loco Brands, Pojoaquee, Wisconsin. All rights reserved. All right, David, lots to go over today. First of all, we have a cert grant that on first blush looked pretty interesting and on second and third blush got less interesting. But nevertheless, let's go through it. It's a little Batson claim. So Batson for our listeners at home, is about striking jurors based on race and how you determine whether a juror was struck based on race and what a defendant has to do to show that. So the Batson framework is one, a defendant must make a prima facie showing that a prosecutor made racially discriminatory strikes from the jury pool. Two, if he does, the state must then present race neutral reasons for the strikes. And three, the trial court must then determine whether the defendant has proved purposeful discrimination. Okay, so what happens in this case? The trial court narrowed the pool of potential jurors to 36 white potential jurors and five Black potential jurors. The defendant used all of his 12 peremptory strikes on white potential jurors, the state used three peremptory strikes on White potential jurors and four on Black potential jurors. But of course, remember, there's only five black potential jurors, so the state struck four of them. There's no question that the attorney, the defense attorney objects and they have this little come up to the bench like you've seen in Law and Order. But. And I actually need to read you the transcript here, David. Defense attorney, at some point the defense is going to want to reserve both its batson objection and a straight for 10th Amendment racial discrimination court. You have already made it in the record, so I am of the opinion it is in the record. Defense attorney, I don't want to let the paneling of the jury go by without having those objections. Court, I think you already made those and they are clear in the record for the reasons previously stated. First, the court finds there to be no. Well, all the reasons were race neutral as to members that were struck by the district attorney's office. And so the court finds there to be no bats in violation. And then as to the other issue, the court has already ruled that based on prior rulings from the United States Supreme Court and the state of Mississippi that jury selection was appropriate. As I say, they are noted for the record. Defense attorney, allow us to state into the record that there is one of 12 of 14 jurors are non white, whereas this county is approximately what, 40%. County is 40% black. The court. I don't know about the racial makeup, but I will note for the record there is one regular member of the panel that is black, African American race defense attorney and only one court. Right. There is one period. Defense attorney. Right. Thank you. Okay, so stipulate, by the way, that the prosecutor gave their race neutral reasons for striking each one of the for black jurors. Carlos Ward had no opinion on the death penalty, had several speeding violations and had shared similarities with the defendant such as age and marital status. Linda Lee had mental problems, according to police chief. Police had been dispatched to her home and she was late returning to Voir Deer. Christopher Tillman had a brother convicted of similar offense as the defendant. Patricia Tidewell was a known drug user and her brother had been convicted of battery in the same court and was currently facing charges in a shooting case in the county. Okay, so remember our Batson, you know, shifting framework here. One, no question the defense attorney made a prima facie showing that the prosecutor made racially discriminatory strikes. Two, then the prosecutor gave their racially neutral reasons. Three. Then the trial court determined whether the defendant had proved purposeful discrimination. That is, the trial court said, no, you have not. The question in this case, though, is not what we think of those race neutral reasons or whether this was a batson violation. It is under the federal law governing post conviction claims for relief. Did the Mississippi court's determination that the defendant had waived his right to rebut the prosecutor's asserted race neutral reasons for exercising peremptory strikes against floor black jurors was unreasonable? Okay, so to break that apart a little bit, the Mississippi supreme court said, basically, you didn't follow all the batson steps because after the prosecutor gave race neutral reasons, in that little transcript that I read you, David, the defense attorney never says those are pretextual. And so the Mississippi supreme court's like, so you waived it. We're done here. So then you go to federal court on habeas. The district court was like, yeah, you didn't waive it. The fifth circuit's like, nah, the supreme court said they waived it. And we don't get to review that, like, for funsies. We only can determine whether that was unreasonable. So all the supreme court's doing is deciding whether the Mississippi supreme court's decision that they waived their batson claim by not saying that the the race neutral reasons were pretextual was unreasonable given that transcript. Or she keeps saying, we want to preserve our bats and claim. And the court keeps saying, yeah, yeah, it's preserved. Let's move on.
- [07:35]
B
Yeah. So can I just say from the standpoint of a former litigator that this case gives me hives because here you have the trial court, as you were saying, Sarah? Basically, yeah, preserved, noted. Let's go a little bit annoyed by it. And you're sitting there thinking, if the trial court says preserved, you know, I'm feeling pretty good about the fact that I've preserved it, that I have done it. So it's honestly hard for me to see the court in a death penalty case saying that that was reasonable for the Supreme. The Mississippi Supreme Court, when a litigant has been told it is preserved, because, I mean, the person who determines whether the litigator has followed the proper steps to preserve a batson challenge is the person who determines that is not the litigator, it's the trial judge. And if the trial judge says, you've done it, and then what are you supposed to do as a litigator? No, no, no, no, that's going to be overturned on appeal. Judge. So I need to do some extra things that you don't want me to do right now that you're telling me not to do because we're wanting. You're wanting to move on. I'm not quite sure how that works. Now, I could imagine a situation where a judge does something so very obviously at odds with a binding precedent that a litigator would want to dot some I's and cross some T's, but this doesn't strike me as that. So very interesting case, Sarah. I know it's niche, super niche. But this is one of those cases where, like, the inner litigator in me is shuddering from head to toe so much that I'm unusually interested in this.
- [09:24]
A
Okay, so here's a fun parlor game. This was held over eight times. It was relisted, which, remember, basically, if you don't get relisted, that's not good. You're going to, you know, very likely to get denied relisting once or twice. Your chances of getting granted shoot up. Once you get past twice, though, your chances start to tick down. And the more you get relisted, the more your chances tick down. So by 8, it's looking like someone's just writing something about, like, why, you know, probably a statement on the denial. Frankly, not even a dissent on the denial of cert. But after eight relists, they grant. So either some law clerk was spending a lot of time digging through this record. And granted, like, death penalty cases have extensive records, and it might take a really long time to get through all of the record you would want to get through. Then again, this is just for a deer. So, like, that record isn't actually that long. Maybe that's why it took so long. Or are we seeing a little resurgence of the join three. Sorry, the courtesy fourth. And, like, it just took a little while to convince someone, like, hey, let's take this. Or was it just to make sure all of the vehicle questions were perfect? There wasn't a problem here. There wasn't some other waiver issue. Probably the latter.
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B
One other point about this case that is interesting, and the Washington Post reported this when the case was granted, that the prosecutor has a history of excluding black jurors. This particular prosecutor in a separate case involving Evans. I'm reading from the Post now. The high court reversed the conviction of a man named Curtis Flowers, whom a Mississippi jury convicted of quadruple murder in 1996. In the 7, 2 decision, Justice Brett Kavanaugh wrote for the majority that Evans struck an overwhelming number of black prospective Juries, jurors, during jury selection. So this was a Kavanaugh case. Seven two against this particular prosecutor? The very same prosecutor, yes.
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A
Yeah, I gotta say, the race neutral reasons, some of those did strike me as race neutral.
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B
Some, yes. The first one laughably. No, no.
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A
You're leaving off one similarity that I think was more rele to the prosecutor.
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B
I don't know. I don't know. That married, middle aged man solidarity that I feel when I'm walking the streets. It's a bond you can't really describe with words. Sarah.
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A
All right, speaking of the Supreme Court, there was an interesting change to the transcript in the Slaughter case. David.
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B
Right.
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A
This is our unitary executive FTC case. Okay. So Justice Alito is talking about like, you know, could you turn all of these cabinet positions into multi member advisory boards and then refuse to let the president, you know, fire people from, you know, the Department of Defense or whatever. And Alito says, I mean, I could go down the list with you of the cabinet officers and ask you whether you think they could be headed by a multi member commission whose members are not subject to at rule at will removal by the president. Shall we do that? How about Veterans Affairs? How about Interior, labor, epa, Commerce, Education? What am I missing? And the transcript read, justice Gorsuch says agriculture and there is laughter in the room. Well, this all makes sense, David, because Justice Gorsuch, as you would know from our previous SCOTUS blog reporting, is the funniest justice currently on the bench. Now that Justice Scalia has left, there's a whole piece on SCOTUS blog where you can look at the current laugh tracker of these justices. But David, the transcript has been changed. SCOTUS blog, the newsletter that they have SCOTUS today, which by the way, if you're not subscribing to, you should. It's pretty fun, has a quote each day. And after the Slaughter argument, they had this quote and it said Gorsuch. And I didn't think much of it except like, oh, hi, I must be going crazy because like I could have sworn it was Kavanaugh. I literally went on with my life. But then SCOTUS blog issues a correction. The transcript had been wrong, David. Justice Kavanaugh now is reflected in the transcript as being the one who got the laugh. And this will change everything, of course, because now we subtract one from the Gorsuch laugh tally and add one to the Kavanaugh laugh tally. Although in truth, Kavanaugh's not, he's not in the running to overtake Gorsuch at this point, I'll tell you that, David, we have been waiting since October 29th for the Trump v. Illinois interim docket decision. This is the question of whether Donald Trump can lawfully move the National Guard into Chicago. So on October 29th, we get that question for additional briefing. I'm not even counting how long it's been pending at the court pre question for additional briefing. And if you remember, it was whether the term regular forces refers to the regular forces of the United States military and if so, how that interpretation affects the operation of the statute at question. That statute 10 USC 124 06. Whenever the United States or any of the commonwealths or possessions is invaded or in danger of invasion by a foreign nation, there is a rebellion or danger of a rebellion against the authority of the government of the United States or at issue here, the president is unable with the regular forces to execute the laws of the United states. So on October 29, they were like, hey, what's up with the unable with the regular forces? Because we had all been focused on unable to execute the laws of the United States. Well, we now basically have three dockets and I feel like no one's talking about that. So we have the merits docket. Okay. Then we have the interim equity, whatever we're calling it docket. But David, now we have an even earlier docket and we're going to need a name for that too, which is what happens while the interim docket question is pending because it's been since October when they first appeal this to the Supreme Court. And by the way, that first comes in October 17th. So from October 17th to now, the court has had to decide what the law is going to be while they're deciding what the law is going to be while the case is pending in the lower courts. So now we have three dockets, two of which are temporary, one of which is super temporary.
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B
So can I interject with a theory about the weight? I don't think the court wants this case at all. Okay. And, and what part of I do wonder if part of the wait is to see if the National Guard gets withdrawn because there the situations in in some of these places seem to be pretty calm. There's and I'm not exactly sure of the status of each and every deployment right now, but part of me wonders if because you do have some orders in place that are draw some limits around Trump. The Supreme Court has not weighed in yet. As we know, the Supreme Court does not necessarily like to constrain executive power over the executive, although this is not exactly that situation. It also really doesn't like to constrain, through judicial determinations, the president's use of force. So my question is this, Sarah. Is there kind of like one eye on the streets going? We kind of like what the circuit courts have done, but we don't really want to put a stamp on it. And Mr. President, just go ahead and withdraw them and we'll moot out this whole thing and pretend this never happened. We don't have to get engaged. That's a theory I've got going at the moment.
- [17:24]
A
I don't know. But I'll tell you, it really undermines the. The emergency docket label when we've been waiting since October 17th. And I think it creates a much more robust first docket. I'm going to start calling it so first docket, interim docket merits docket, I don't know. But now there's like a clear delineation between the three, even though in almost all of these cases, we've had something from the first docket where the court has said, like, this person is or isn't reinstated into their job or whatever, you know, on the immigration cases, et cetera, there's been, you know, that initial burst, and then usually a week later, we get something from the interim docket. So, you know, first docket and interim docket sort of collapse into each other when we're only talking 48 hours, maybe a week. At the point, though, that the first docket is in effect for six weeks, we're going on two months. I think it's its own docket, and we probably need to start talking about that and labeling that cough, cough Professor Will Bode, who was the one who initially labeled the shadow docket and brought it out of the shadows into the light. But, David, we're not the only ones who've noticed that this case has been pending. Judge bybee of the 9th Circuit has noticed as well, and he did something that I haven't really seen before. So weeks after the 9th Circuit takes their en banc vote, Judge Bybee wanted to add a statement in support of en banc review. And he's basically just like, hey, I've been thinking a lot about this, and I want to talk about the domestic violence clause, Article four, Section four. Okay, so first of all, let's back up to Article 1, Section 8, Clause 15. Congress shall have power to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions. So that's where Congress gets the authority to Pass that statute that we read about the regular forces, David. But here's Judge Bibes coming in hot with that domestic violence clause. In Article 4, Section 4, it says, the United States shall guarantee to every state in the Union a republican form of government and shall protect each of them against invasion and on application of the legislature or of the executive, when the legislature cannot be convened against domestic violence. So he's saying that last part. And on application of the legislature or of the executive, when the legislature can't be convened against domestic violence is a limitation on that other clause. So, yeah, you can call forth the militia to suppress insurrections and rebel invasions, but, like, all of a sudden, everything's going to be an insurrection and an invasion, exactly like what people are talking about here. And that's why you have this limitation of the domestic violence clause. It's like, when it's about domestic violence, it has to be on application of the legislature.
- [20:30]
B
First, just let me preface this by saying I love that he did this so much for a couple of reasons. One, you know, a lot of this stuff is coming up through, you know, as we've said before, it seemed to be coming up very quickly through an emergency process. But if it's slowing down dramatically, why the heck not write the kind of opinion that you would write if this thing were in regular order to begin with? Second, what do I love about this? My goodness, Sarah. What a master class in this aspect of early American history. I learned things. There are things I learned. And some of those things, you know, some of the listeners might say, well, I knew that, David, come on. I mean, I can't know. We can't know everything about American legal history, guys. Among the things that I learned, and this is something that some of the listeners might roll their eyes at, that I should have known was I did not realize that George Washington sought judicial advice before responding to the Whiskey Rebellion. And that which was fascinating to me, and the close cooperation was between state and local authorities. And so many of these early American insurrections and armed disputes was very interesting. He did walk through the process in such a way where it seemed like there was a principle that absolutely emerged. And that principle was, if what you were dealing with was what you might call disorder or lawlessness, then time and time again, the feds would only intervene when the state governments asked them to intervene. Say, we can't handle this. However, obviously we know from history that there are times when the federal government has intervened without the state asking in those times, what was the distinguishing characteristic? The distinguishing characteristic was the State officials were actively engaged in the insurrectionary or defiant activity. In other words, the state officials, such as, you know, talking about desegregation, were actually deploying force, the National Guard to block enforcement of federal law. So he was saying, wait, when the state governments are actively participating in impeding the enforcement of federal law, then obviously the federal government can exert itself in that circumstance. But when the state isn't participating, the historical record is really clear that this is a cooperative process. And I thought that was all very, very interesting, Sarah, and a lot of elements of the history that I did not know and by the way, have real implications for the Insurrection act, if his interpretation is correct, because the Insurrection act leaves deployment of the troops in several sections entirely up to the President entirely. And it would seem to me that Bibby would be saying, nope, can't do that. It's still going to have to be consistent with Article 4. I found the argument, especially when married to the historical record of how Washington, Adams and Madison acted, very interesting and pretty persuasive. I don't know. What'd you think, Sarah?
- [23:43]
A
First of all, I just want to agree with you that him writing this in the first place and doing this research and putting, you know, basically amending the en banc vote later to add, this was really great. But I also want to say it highlights the problem with these emergency docket things and why everyone is like, yeah, I wish they would write more. It's like, literally there's not time if you want a decision. Writing and a decision are contradictory things that you want. You can't have the writing quickly or we take a really long time to make the decision. And we're seeing the Supreme Court take the writing option. We saw the 9th Circuit take the decision option. But here's what you lose. In the meantime, you lose. Judge Bybee doing the research that it would take to write such an interesting opinion. Okay, on the merits, here's a line from his opinion. This case is not about whether the United States has the power to enforce its own laws. It surely does. It is about the circumstances under which the United States can do so by calling forth the militia. Whether the President has the authority to deploy troops into states against their wishes, or whether the judiciary can determine if the President is intermeddling on pretext. David I guess the part that I found pretty important and also was like, oh, this is why we do text history and tradition. This case in particular struck me as a very good candidate for that kind of investigation. So he has George Mason warning the Virginia ratifying convention, the meeting of three or four persons might be called an insurrection and the militia might be called out to disperse them. And again, referring to Article 1, Section 8, that Congress shall have the power to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions. So the very thing that we potentially have here and then inciting the domestic violence clause, he's like, this is directly to those grievances listed in the Declaration of Independence that the king kept among us standing armies without the consent of our legislatures. And you know, David, I am a sucker for tying in the Declaration of Independence and not just the pretty part, but the actual grievances, because that is what should sort of inform us from an originalist perspective on what we were trying to import in terms of the rights of Englishmen versus the things we were trying to say. This is why we're fighting a war and laying down our lives to prevent the importation of. And so I think the Declaration of Independence is really important for reading the Constitution. And then he has this line about the domestic militia and domestic violence clause from St. George Tucker. Every pretext for intermeddling with the domestic concerns of any state under color of protecting it against domestic violence is taken away by that part of the provision which renders an application from the legislature or executive authority of the state endangered, necessary to be made to the federal government before its interference can be at all proper. By the way, that was, I mean, Joseph Story talked about this. I guess this is put into Blackstone's Commentaries. This was a pretty like well known thought about the domestic violence clause, checking that invasion and rebellion clause, limiting it. Yeah, I found it important that he added this to the conversation and really well done. We'll put this in show notes because he obviously, as you say, David, has a lot more history in here. And yeah, I dare say everyone will learn something.
- [27:24]
B
As an aside, can I just say there's multiple historical events that I wish I could have a front row seat to. And as we've moved into this current era where the conflict between the executive and the other branches of the government has become so salient, where we're looking at a lot of the concerns of the Antifederalists sort of being made manifest in our era, I'm adding to my list of things I would like to have been at historically. And I'm now adding the Virginia ratification debate because I don't. I can't tell you how many times I've gone back to the accounts of the Virginia ratification debate in the last several years to talk about this. George Mason, really, it's like Mason v. Madison. Right. And it's just fascinating how salient those discussions are. And they really do show. Look, it is absolutely the case that there are aspects of our modern lives, never going to dispute this, that the Founders would have trouble imagining. At the same time, we really can also overestimate how different we are. We're still people, and we're still subject to all the same temptations and all of the same concerns that manifest themselves often in different ways, say, technologically. But as far as, like, our human impulses and our human motivations and all of that, it's still pretty much the same. And, you know, when you. When you look at some of the slippery slope type arguments, you know, they feel ripped from current headlines. And so those who roll their eyes at history are rolling their eyes at a lot of wisdom.
- [29:05]
A
In late August 1787, Delaware's John Dickinson made one last attempt to delete the requirement that a state's legislature must request federal intervention. By a vote of 8 to 3, the delegates refused to drop the condition. We have debates on this. We know what they were trying to do. So yay for Judge Bybee. Thanks for pointing that all out. When we get back, David, we're going to go to another deep cut in the Constitution, a bill of attainder. Hold on to your britches, David. We're going to do Article 1, Section 9, Clause 3, on bills of attainder and Planned Parenthood. Let's start with the text. No bill of attainder shall be passed. Okay, well, that's pretty easy. But nobody knows what those terms mean. Bill of attainders prohibit congressional acts that determine guilt and inflict punishment without a judicial trial. The Supreme Court has struck down statutes on bill of attainder grounds only five times in the nation's history. So that's kind of a fun fact. So Congress, as you know, this year, David, passed a statute that in effect, defunded Planned Parenthood clinics around the country. The actual clinics themselves were defunded on specific grounds that they could meet. But then any other clinics affiliated with them, even if they did not meet those statutory grounds, would also be defunded. As affiliates, some of those affiliates sued and argued that this was a bill of attainder. The district court said that it was and put the law enjoined the law from going into effect. The First Circuit, which, by the way, has all appointees from Democratic presidents, which makes it kind of an interesting bellwether circuit in a lot of ways reversed and was like no, this is not of a bill of attainder. I thought I'd just read some stuff on bills of attainder that they wrote about that I thought was interesting. Of those five cases where the Supreme Court has struck down statutes on bill of attainder grounds, all involve statutes imposing on individuals or groups of individuals severe non contingent disabilities from and restraints on participating in certain employments or professions because of past associations or conduct. David A lot of these were red scare laws. You know, if you've ever been a member of the Communist party, now you can't, I don't know, breathe oxygen with the rest of us. In contrast, they said this section of this statute looks ahead. It imposes no fine or other penalty for past conduct and instead it establishes new conditions on the receipt of appropriated funds in service of a new policy goal favored by Congress. And it does so by imposing conditions that appellees can satisfy by halting abortion services. Thus, whatever else might be said about section 71113, it simply does not impose punishment as the term has historically been understood. They also noted the problem, David, that all those past cases were about individuals. This is about a corporate entity. Can you do a bill of attainder against a corporate entity? What does punishment look like in that case? You know, I, I think they left open the possibility that of course you could punish a corporate entity and maybe it could rise to that level, but not a lot of historical precedent for that. When Congress employs its constitutional power to tax and spend for the general welfare of the United States, it has broad discretion to place limits on the use of such funds to ensure they are used in the manner it intends to. For this reason, judicial review of distinctions that Congress draws in order to make allocations from a finite pool of resources must be deferential for the discretion about how best to spend money to improve the general welfare is lodged in Congress rather than the courts. So David, bill of attainder, that's kind of fun to get to talk about it all. But when I said that the First Circuit was a bellwether. What I mean by that and why that's interesting in this case is because, you know, in the 1980s and 90s, we were all worried about, like Congress out of control and doing things with its commerce clause powers or necessary improper powers or general welfare powers. And like, there was no limitation on the federal government versus the state government. And so you saw a lot of side eye to Congress. Obviously now Congress has failed as a branch. And so I think you're seeing the courts more deferential when Congress actually Does something and they're like, yay, good for you, Congress. Oh my God. Good.
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B
Yay.
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A
Aw, look at that.
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B
What a pretty picture you painted.
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A
This feels like, wow, that's some really great artwork. We're definitely gonna put that on the fridge.
- [33:46]
B
The bottom line is, is that the First Circuit rejected Planned Parenthood's challenge to the law ending Medicaid funding and allowed the law to go into effect overturning a preliminary injunction. And what's interesting about this to me, one is I feel like the reasoning is just pretty airtight here. The idea that a forward looking loss of federal funding is a bill of attainder, wow, that would be an extension. That'd be big. But for a long time we have talked about something called an abortion distortion, which meant that there was the law and then there was the law when abortion was involved. And for a long time there seemed to be this sort of special deference given to abortion in such a way that even First Amendment rights would sometimes fade away if they were seen to have collided with a right of access to abortion. And here you have, as you were talking about, Sarah, the First Circuit, most liberal circuit in the United States, and they reject Planned Parenthood's challenge pretty summarily. I mean, it was not that difficult. I mean, it was a pretty straight ahead kind of opinion. And the fewer distortions we can have in the law, the better off we are. We've talked about an abortion distortion. We've talked about the possibility that there's a drug war distortion that exists. I think that Employment Division B. Smith is a product of that. We just need fewer distortions. And I think this is a, you know, it's a good, it's a good sign that you can, that you're just simply cannot determine how a case is going to come out by looking at the issue and looking at the composition of the court and then just making your conclusions.
- [35:35]
A
One more piece of artwork that's getting put on the fridge with a magnet. Out of the 11th Circuit, you had a pretty conservative panel uphold the Corporate Transparency act, which is like the reverse of the First Circuit, David, defunding Planned Parenthood, not popular among Democrats, obviously. Yet you have the First Circuit uphold that, the Corporate Transparency act, not popular among conservatives. But you have two Trump appointees on this panel upholding that this was the law that required small businesses to file information about their beneficial owners, those with significant control or 25% plus ownership with FinCEN, the financial crimes enforcement network to fight financial crime like money laundering and fraud. This was challenged on Commerce Clause grounds. David and the 11th Circuit. Naw, dogged that one pretty hard and was like hey look, Congress actually did something this feels substantially to affect interstate commerce. Close enough. Congress. That piece of artwork also going on the refrigerator. David when we get back I want to talk about that interview with with Chase Strangio and Ross Douthet. Chase Strangio, who argued Scremetti the case about medical intervention for transgender minors and got a lot of flack for it. Like had he set back transgender rights. He and Ross Douthit have one of the best conversations I've heard in 2025. So when we get back we'll dive into that and a few other little, you know, potpourris if you will. David the best Way to Spread Holiday Cheer sure, singing works, but gifting an aura frame might be even better. It's the gift that keeps families feeling close, no matter how far apart they are. This year I'm trying to convince my sister in law to come hang out with us for Christmas. And you know how I did it? I sent her an Aura frame stocked full of pictures of her two nephews. How can she resist their faces of Christmases past knowing that she could be a part of this year's festivities? With Aura Frames, you can share unlimited photos and videos for free all through the easy to use Aura app and before it's even delivered, you can personalize your gift with a message that makes it truly yours. You can't wrap togetherness, but you can frame it for a limited time. Save on the perfect gift by visiting auraframes.com to get $35 off Aura's best selling Carver mat frames and named number one by Wirecutter by using Promo Code Advisory at checkout. That's a U R A frames.com promo code advisory. The deal is exclusive to listeners and frames sell out fast, so order yours now to get it in time for the holidays. Support the show by mentioning us at checkout. Terms and conditions apply. I'll report back on what my sister in law chooses to do. A quick word from today's sponsor, the foundation for Individual Rights and Expression. Fire. As more people grow afraid to speak their minds, FIRE is standing up for students, teachers, journalists, parents, anyone being silenced this season. Join FIRE in protecting the First Amendment by making a donation at the fire.org dispatch. As a nonpartisan nonprofit organization, FIRE relies entirely on supporters like us. And every contribution, no matter the size, helps protect the free speech rights of of all. If you're listening to advisory opinions, you know why free speech matters. Support Fire's fight to protect it at the fire.org dispatch today. Okay, David, why don't you introduce this conversation and why you and I have been like. We've been texting back and forth about it quite a bit.
- [39:21]
B
Yeah. So this conversation, Ross has a wonderful podcast. Interesting times, where he has talked to very interesting people in this very interesting time, both on the right and on the left. And he just does a really great job of it. Can't recommend it enough. So he had Chase Strangio on, and Strangio is a very interesting guest because you said Strangio argued the cases, argued that at least was in part of this Scarmetti oral argument. But also Strangio has been a really big part of sort of formulating the legal and public relations strategy of the trans rights movement for. For years. And I would say, wouldn't you say it's fair to say that Strangio did not develop a reputation for tolerance for dissent. Strangio was very, very much a part of this movement that not only sort of sought a very dramatic expansion of trans rights. Minors having a right to access medical, both surgical or pharmaceutical interventions before they're 18. Also very aggressive on trans participation, biological male participation in female sports, and then very aggressive in trying to suppress the speech of people who disagree. You know, really was a part of that online world in the late 2000 teens and the early 2000s that was just so incredibly vicious. So this conversation, Astrangio, was extremely reasonable, very open to critical feedback. At one point, you know, talked about like adults sit down and talk to each other. And I just was having. And I think one of the reasons we were texting is we were both experiencing a kind of whiplash here because it was so tonally different from everything that had gone before that it was really stunning. And I remember thinking as I was watching that conversation unfolding, how different the conversation around trans rights would be right now, how different sort of the overall cultural posture towards trans rights would be right now if sort of the Strangio 2.0 approach had been the Strangio 1.0 approach. Because I think people, it doesn't even take a historian to make this assessment. We can already make it in sort of draft number two of history, which is the trans rights movement in the 2000 and tens and early 2000 and twenties just overreached in this incredibly vicious way. And they didn't just lose on some of the key issues that they were sort of the reach goal issues like biological male participation in female sports or youth, pharmaceutical and surgical Gender transition. They didn't just lose on those core goals, they lost just an enormous amount of background goodwill. Which by the way, is a lesson for basically every major political, social, cultural, religious movement right now. That bullying, I think creates a kind of sugar high, especially when it first launches because it's often quite successful. But over time, people really don't like it, they really hate it and they're going to get built in resentment and anger. And when the anger finally comes, when that storm comes, then it's not that you lose your reach goal that you were going for. You often lose a lot of the sort of basic background underlying goodwill. And I think a lot of folks have now realized that this is kind of unrelenting, hostile bullying that happened was deeply harmful and destructive. And you know, I for one looked at that conversation and there's kind of a couple of ways to respond to it. One response would be to say, now you're civil, you know, to be kind of, you know, kind of negative and snarky about it. Another way to look at it would be to say, now you're civil, like to welcome it, to be happy about it. And I choose to approach, I choose to use approach two, Sarah, that however we got here, I'm glad we're here.
- [43:48]
A
It really struck me, David, because if you listen to it, there's like a certain sort of wounding sound in the actual conversation. To me it brought up an analogy. It reminded me of when Republicans and the right stood against civil unions. So not just gay marriage, but the compromise of civil unions. And then Windsor happens in 2013 and the Supreme Court by a 5, 4 vote. We don't talk about Windsor a whole lot, but strikes down the part of DOMA that banned federal recognition of states that had allowed same sex marriage. I think it would be like after 2013, but before Oberge fell, the right saying, okay, let's go back to civil unions. We why is no one compromising with me? And I think the left at that point would have said, because for 15 years we were open to compromise when we weren't sure who was gonna win this. But now that the tide turned against you, that's when you wanna compromise? No, because we think like we look like we're gonna win now, so now we're gonna take the win. And so I always think of the right's stance against civil unions as being a really interesting cultural political moment. What would have happened? Would it have just like ended up in same sex marriage anyway and all of that? Like, I'm, I'm open to that. But from a political standpoint, it was a huge strategic mistake for the right not to be the one pushing for civil unions. If they cared, you know, so much about sort of the term and religiosity around marriage, but they refused. And so the answer to the question, why is it every time we now offer a compromise, we're met with bans? It's too late. The time to actually come to the table and compromise is when there's uncertainty on both sides. It's the same in litigation, right? You're not going to settle the case when you already, like, know how the jury's been pulled or something like that. But yet at the same time, like, I felt that hurt of feeling like, okay, well, now I'm coming to the table. Why won't anyone compromise with me? And like, everything is turning against us. And culturally, my own side is turning against me because they're saying, if I hadn't brought these cases, like, I have actually personally hurt the cause because I brought these cases. And this is on me, like, strategically. And I guess in the end, I was like, don't assume you're always gonna win just because the tide has turned this way now, but also, like, you need to show a lot of good faith if you're the side who was being the bully and now wants the compromises. Okay, David, before we go, I wanted to talk about two separate incidents where I thought there was some Trump distortion, if you will. Since this administration has come into office in the Solicitor General's office, we've seen introductions to the Solicitor General's brief that have been cough, cough aggressive. Is that a fair way to put it? They don't sound like they were written by lawyers for the administration. And they've gotten a lot of heat. And so there's been a whole lot of, like, side eye towards introductions. I thought it was so interesting that we then got a letter from Judge Kevin Newsom and Chief Judge William PRYOR from the 11th Circuit to the Advisory Committee on Appellate Rules. We write to urge the committee to consider an amendment to Federal Rule of appellate procedure 28. In particular, we recommend that the rule be amended to permit and perhaps subtly encourage lawyers to include brief introduction sections in their appellate briefs. We were chagrined to read a recent New York Times article suggesting, we think, ill advisedly that the Solicitor General's practice of including introductions and briefs filed at the Supreme Court has become a point of contention, quote, unquote, as matters currently stand. Rule 28 says nothing about introductions one way or the other. But savvy lawyers often use them, we think, to great effect. A well crafted introduction allows a lawyer to orient the court to what Seth Waxman once called the kernel of his or her case. It is, in effect, the lawyer's elevator pitch. It briefly introduces the dispute, tees up the key issues, and explains why they should be resolved in a particular way. Another way of thinking about it, it's how a lawyer might explain his or her case to a family member over Thanksgiving dinner. An introduction can also refresh a busy appellate judge's recollection of a case, oftentimes right before he or she takes the bench. Good for the lawyer, good for the judge. An amendment along the lines we're recommending should probably aim to communicate that an introduction is not just a warmed over statement of the issues, nor is it a slimmed down summary of the argument. To that end, the rule, if adopted, should provide at least some minimal guidance about a proper introduction's purpose and content. So, David, here I think we have what I will call Trump distortion. Introductions are bad because Trump introductions are bad. But David, that's not true. Introductions are great. And I have to say, as much as I've sort of rolled my eyes at some of the Solicitor General's introductions, the judges here aren't wrong in terms of when I pull up the brief, it sure reminds me what we're talking about. And it actually serves its intended effect, which is to sort of give me that quick elevator pitch of like, oh, yeah, that was this case. Now I remember. And then I can go on to the legal arguments if I want, or if you're not a lawyer, you don't have to, but you're getting the flavor, you know, the smell wafting from the kitchen, if you will, of what's being cooked.
- [49:23]
B
I have never, I don't think I've ever written an appellate brief without an introduction. Sarah, I don't think I've ever written a SCOTUS brief without an introduction. I would teach the younger attorneys who worked for me, if you can't write a good introduction, you can't write a good brief.
- [49:36]
A
But David, what do you think? What is the difference in your mind between a summary of the argument and an introduction? Because I do think those can collapse.
- [49:48]
B
I don't think there's much difference at all in summary of an argument in the introduction. I do think if you have both of them, the introduction is a great way to essentially do what you might call the elevator pitch for your case. You know, you've got that one minute ride in the elevator how are you going to describe your case? I think the introduction is the place for the elevator pitch. And, you know, look, I don't want to be too rigid and doctrinaire about it, but I. I think if you're a litigator, you got to come up with your elevator pitch because judges are busy people. You're one of hundreds, if not thousands of cases that are currently on their docket. You jurors need to be able to understand things quickly and easily. And often the side that actually has the advantage is the side that's most clear, that you want to be the model of clarity. So I do think that there is a place for both. But I, too, totally take the point that depending on how you draft a summary of argument, it can essentially serve the same function. But I think a true summary of argument is going to be a little bit denser than a true introduction.
- [50:59]
A
I think that's right. I mean, to me, a summary of the argument is section 101 does not apply in a case, whereas here the defendant did X, Y, and Z, but not A, B, and C. The introduction would be more like, this case is about fundamental fairness. Justice is not served by blah, blah, blah. Like, again, you're talking to a lay audience, not lawyers. Not. You're talking to. You are making a case that could be easily understood by. And, David, as someone who kind of does TV or any of this radio, whatever else, I have often found that if I have not prepared enough, I will be giving a summary of the argument. But if I've done my job before I go on TV or anything else, I should be giving an introduction because it means I've talked it out enough, I've argued enough with husband of the POD or you or whoever else that I have moved from summary of the argument to introduction because that means I really understand what I'm trying to say.
- [52:04]
B
I think for young lawyers in particular, learning to write a good introduction is really a big part of honing your craft.
- [52:11]
A
My second Trump distortion, David, involves a judicial complaint that was filed against Judge Amel Beauvais of the Third Circuit. Now, David, recently Judge Bove attended a Trump speech in Pennsylvania that was an official White House event, but as is often the case with President Trump, he said a lot of really partisan stuff. And in the judicial complaint, it basically says, like, at the point, he was saying a bunch of partisan stuff. Judge Bove should have left the event. And, David, I have feelings about this because to me, I want a bright line rule for judges. You know, if it's a Campaign event, bright line rule, you can't go to it. Judges. If it's an official government event, bright line rule, you can go to it. What I don't want is a rule that says if it's an official event, you can go to it. But you need to listen really carefully, because if someone says something that's too this or that or offensive or wrong or whatever, you. You have to stand up and leave. And if you zone out or check your phone or you only think about it later or you don't realize in the moment that then we file judicial complaints against you for it. I think just like official events, if it's the State of the Union, obviously justices attend that we don't expect them to stand up and leave if the president starts going off the rails. And in fact, I think we would say that would be subject to a judicial ethics complaint, because that itself would show a certain partisanship. Now, we expect them to sit there with their hands in their laps, neither clapping nor standing and things like that. But the idea that they should leave if it crosses some magical, not yet determined line to me feels like Trump distortion, that, like President Trump has crossed all these norms, and so now everyone else needs to build their worlds around that. And I just like, guys, it's three more years. I would much rather have rules that we keep into place and that we still apply before, during, and after than come up with these special pleadings during this administration that I think will be bad moving forward.
- [54:30]
B
I couldn't agree more. Bright lines infinitely preferable. Would I want Beauvais to leave if an event becomes partisan? Yeah, totally. Leave. Just go. Do I want it to be a matter of judicial ethics complaint where we are got? Where you're sitting there going, oh, has this crossed the threshold? Is this crossing the threshold? How bad is it getting? How many critiques of Democrats does he get before I leave? Is it the first hint? Too vague. Too vague. So, yeah. I mean, not every should. Is a must. Not everyone. So should he leave? Yeah. Must he leave? An official. Why does. No. So I think that's. To me, I think you hit the nail on the head, that we need real clarity. We need bright lines. Anything that is. When you're talking about an official event, a federal judge attending an official event. That's going to be okay. That. That's going to be okay. And now there might be a point where the moral equation changes, but I think the legal equation must remain the same.
- [55:38]
A
I don't like the weaponization of judicial complaints. I don't like the weaponization of bar complaints. I think the bar complaints are harder to police because there's not a whole lot of bright lines there. But again, like, you're going to see where it goes. Once one side uses it in what looks to be a way to punish their political enemies, believe you me, the other side will be happy to take up that mantle. And I really hate the excuse of we're gonna do it now because we know that they would do it if they were the ones sitting in my shoes. No, that's not how this works. Preemptive strikes. I don't like it, David. But here we are, and I think we're gonna see a lot more judicial complaints now and in the future because YOLO or something.
- [56:25]
B
Yeah, the weaponization of complaint is well underway. It's well underway. And, you know, there's. There is a circle back to the Strangio conversation in that there are decisions that we need to make in which we have to give people a bit of room to maneuver and to live and to breathe. And when you don't give people that room, when you don't give your opponents that consideration at all, you unlock forces that are very difficult to contain. And people like us sitting here saying, hey, look, if someone treats you in extremely bad way, you should not radicalize. Which I hate the term radicalize. Don't radicalize. Just do what's right.
- [57:07]
A
Unless it's about severability. Then you should radicalize.
- [57:10]
B
Then radicalize. Yeah, don't radicalize. Do what's right. However, it's just human reality that when you mistreat people, people will often radicalize in response to that, even if radicalizing is wrong. And so, you know, if you don't want further radicalization in our politics, how about this? Don't mistreat people and then somehow demand that they act better than you did. That's not how this works.
- [57:38]
A
Well, David, I just want to tell you, I have a certain. I just feel that we're gonna get this National Guard Trump v. Illinois case, like, soon. Cause who wants to work over the Christmas New Year's, that break? So I think we'll get it before our next episode. I don't know. I have no reason to think that, except I just. If it were me, I would feel it's like finals. Right. Like, let's get that paper turned in.
- [58:05]
B
I feel you might be right. And it might happen, like, right before we're wanting to just have our own break for the holidays.
- [58:12]
A
Right, Right. So if we could maybe hurry this up a little bit, But David, on our next episode, if we don't get that, I've got a really fun church autonomy question for you. We missed this one back in November, but I want to go back to it because this has been percolating. Ninth Circuit now, the D.C. circuit. What exactly is this church autonomy doctrine? Or we're not going to talk about that at all because we'll have Trump feel annoy. Let's find out. 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 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@the dispatch.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 gonna do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [59:57]
B
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