Guest/Expert (likely a legal analyst or commentator) (3:29)

Yeah. 303Creative was a case brought by a woman who owned a website design company and was essentially saying, look, I'm going to design websites for any person who comes to me and asks for me to design a website, but I'm not going to design a website that advances a message with which I disagree. And the salient message here in that case that people were worried about was would she design a wedding website for a gay couple? And what the Supreme Court said was when she refuses to design a wedding website, she's not discriminating against anyone on the basis of their sexual orientation because she said she has customers of all sexual orientations and would be willing to serve a person of all races, all sexes, all sexual orientations. It's just that she does not agree with same sex marriage and isn't going to use her company to advance that message. And the Supreme Court 63 said that's a free speech issue. That's not a discrimination issue on the basis of status. This is compelled speech. You are using your resources, your talents to produce speech. In the purest sense, a website is absolutely speech. And so that's the background. And this is an issue that percolated for a long time. I mean, this was at the heart of the Masterpiece Cakeshop case involving a person who would not custom design a cake for a gay wedding. That case was decided on the basis of hostility to religion, not on the basis of free speech. But then 303 creative was decided on the basis of free speech. And as early as what, five minutes ago, Sarah, it was celebrated as one of the great victories of the conservative.

Sarah Isger (5:11)

Legal movement to break this down, if you walk into a nail salon, they cannot refuse to serve you because you're white, but they can refuse to paint Confederate flags on your nails. And you can't say you're just doing that because I'm white. No, no. I just don't want to paint Confederate flags. So there's a difference between sort of the person and the message the person wants you to be a part of. And so, for instance, if you walk into a Home Depot, they can't turn you away because you're Protestant or Jewish or black or white or anything else, but they can refuse to allow you to use their printer to make a Charlie Kirk rest in peace sign. Now that's Indeed, what happened. As a matter of fact, Home Depot fired the manager who refused to let them print that sign. So there's also an important distinction here that just always bears repeating when we talk about the First Amendment and free speech and hate speech not being a thing. We're talking about the government censuring someone, either prosecuting them, fining them, punishing them in somehow some way for their speech. And again, if you want the government to prosecute people for hate speech because you think they said something that they should be prosecuted for, just you have to be okay with your worst enemy getting to choose what the definition of hate speech is. And I think the last 10 years, certainly the last week, has shown us that we're not willing to agree to that deal, which is why we don't prosecute hate speech. We only prosecute incitement. Now, there's defamation. There's certain things that aren't considered speech, like pornography, for instance, isn't protected speech. But we talked about incitement last time, which is probably the closest that you get here. And I think in the most generous, totally rewriting what she said version, Attorney General Pam Bondi was trying to talk about incitement, but I would just say that her definition of incitement is like, nowhere near the Brandenburg definition. It's. People say things I don't like, which. That's literally the opposite of Brandenburg.

Guest/Expert (likely a legal analyst or commentator) (7:29)

She did backtrack. She. She issued a statement that said, if you want to be a hateful person and simply say hateful things, that is your right to do so. So there was this immediate, ultimate, overwhelming response that I was actually glad to see, Sarah. Including from maybe some surprising quarters.

Sarah Isger (7:45)

I was gonna say it was universal, left, right, conservative maga. I mean, there were hardcore supporters of the President calling for her to be fired because of what she said.

Guest/Expert (likely a legal analyst or commentator) (7:55)

But then this gets to the dichotomy of the moment, because Bondi said this gets a hurricane of backlash and backtracks. Then Donald Trump says stuff worse, and he's the President, he's her boss. And now I think there is one thing that a dynamic that I think we'll understand, maybe only for years later, how much of Bondi's public statements are being influenced by, not by, this is my considered legal opinion versus this is what I want my boss to hear. Because Jonathan Karl at ABC asked Donald Trump what he thought about Pam Bondi statement, and he said, well, she would probably go after people like you. Speaking of Jonathan Carl from abc, and he says, you have a lot of hate in your Heart. Okay, so again, if you're thinking for half a second that a hate speech prosecution would be a reasonably good or defensible idea and allowing the Trump administration to define what hate speech is, just listen to the man himself. It's not some antifa person. It's Jonathan Karl.

Sarah Isger (9:05)

Okay, so we can't have hate speech laws unless you're willing to have your worst enemy define hate speech, which no one's willing to do. But I guess I am curious, David, what your thoughts are on social censure for hateful speech. Not by the government, but, you know, somewhere in between me telling you I don't like what you said, you're a bad person. And the sort of online mob getting people fired from their jobs for saying something the mob doesn't like, which we've been doing now for five years. The left did it to the right for totally reasonable statements, and it got out of hand. Right? And then the right, I think is like, turnabout is fair play. And of course, it's hard to critique the turnabout is fair play because, like, that sort of human nature, it is what it is. But what do you make of social censure? Is that a good part of how we police speech?

Guest/Expert (likely a legal analyst or commentator) (10:03)

I wrote something in the Washington Post. This was years ago after we went through the wave of cancellation. Remember, you had the James Damore situation at Google where he writes this controversial, but I don't think anyone could read it and think that he was some sort of sheet wearing white supremacists about, hey, here's how Google could increase diversity without discriminating on the basis of sex. And it was essentially sort of the Damore thesis. And he was trying to explore reasons why there were disparities in programming between male and female employees. And he gets hounded out of the place. Right? You had situations even back then where you had cancel culture on the right. You know, you have Colin Kaepernick kneeling at football games. The next thing you know, he's out of the NFL. And you had a lot of people cheering both of those cancellations. And then you had Roseanne Barr helpfully weighing into the chat. Do you remember this? Where? So she basically does this Twitter, unbelievably racist rant against Valerie Jarrett. We're not talking like racist in the sense of like critical race theorist professor at Oberlin describing it as racist. We're just like, it was just flat out, like gross racism. And ABC fires her, which she then later blames it on Ambien, leading to one of the great tweets in history, which is Ambien tweeting that racism is not a known side effect of Ambien. And I wrote this piece and I said, look, it is absolutely the case that private employers have a right to fire somebody if they think that what that person says or does is vile, even if it is not at the workplace. I said, however, my view is they should default in favor of greater tolerance. However, we should not chain people to obviously vile, bad faith employees. That there's a good faith, bad faith distinction here. And we can't take leave of our senses and sort of say, okay, because we want to end cancel culture. That means that we're going to chain private employers to some of the worst people in America.

Sarah Isger (12:18)

No, not just worst morally, by the way, because there's like, the thing you said that was bad. Okay. There was also the fact that you were so stupid and showed such poor judgment as to think that everyone needed to hear your thoughts about everything all the time. I mean, that's, I think, part of my reaction to this current moment. You know, you have this spectrum of people, some of whom are legitimately celebrating the murder of a father in front of his children, but it goes all the way down to they disagreed with him and don't think that this was okay at all, but didn't like things he said and are highlighting that. So that's your spectrum of speech that's being targeted. But all of it, I have to say, didn't need to be on social media. Wherever you are on that spectrum, you don't have to tell random strangers your thoughts on current events. Go talk to your friends in real life. Get a little text chain going so that you can talk about these things with people who understand your background, your sense of humor, want to explore these issues with you. Social media is not much of a place to explore issues, and I would suggest that there's both, David. There's the tolerance for different viewpoints and all of that that we should have in society. And. And also, if you're an employer, the lack of judgment of your employees for being on social media in the first place.

Guest/Expert (likely a legal analyst or commentator) (13:41)

Frankly, I draw a giant distinction between the kind of speech that I've seen, like a white man dead. I'm not crying. Okay, that is vile. And then I don't condone that shooting. But I'm sick of the worship of Charlie Kirk's point of view. That to me, unless an employer has said in advance in writing, we are telling all of our employees to never comment on public matters, you should not take action. If somebody is saying, I really strongly disagreed with Charlie Kirk and I thought he was wrong about A, B, C, D, E, F and G or whatever, that, to me, there's a quantum difference between that and actually celebrating a death. And I think one thing you're seeing on the right is they're taking those two things and meshing them together as the same thing. Much like we saw post George Floyd on parts of the left, there was no longer like this spectrum of nuance. It was, if you were wearing a white sheet, you're an absolute racist. And if you don't put a black square in your Instagram page, there should be some horrible thing that happens to you, too. And so this sort of flattening of it all is, I think, really dangerous.

Sarah Isger (14:59)

Okay, next in the grab bag, interesting piece from the New York Times about the stats related to the interim docket. Now, there was a piece earlier that basically went through and was like, omg, this Supreme Court just rubber stamps everything Trump does on this interim docket. And Jack Goldsmith had a great piece pushing back, but, like, just internally, the piece itself didn't really hang together for me because it was comparing sort of the Supreme Court's percentage versus the district court's percentage. But of course, the district court has to take everything that is filed in front of them. The Supreme Court, even on the interim docket, doesn't take everything because this administration and the Biden administration, they are the ones choosing to appeal to the Supreme Court. Well, guess what? They don't appeal the dumb ones. They only appeal the ones that they think they have a good chance of winning. So they're going to win more at the Supreme Court than at the district Court. Okay, these stats are, are comparing individual justices in Trump's second term on this interim docket to Biden's term. It's still not apples to apples because the cases were different and the topics of the cases were different. Nevertheless, there is interesting stuff to see here. So, for instance, Justice Alito in Trump's second term has voted on the side of the government 95% of the time. But in Biden, he only voted for for Biden 18% of the time. Okay, Jackson has voted in favor of the government during Trump's second term 0% of the time. But in Biden's term, she voted with the government 77% of the time. In our 333 analysis, David, our three justices in the middle probably are the most interesting. Kavanaugh, Barrett, and Roberts have voted with the Trump administration 89, 79, and 74% of the time, respectively. So, so a lot, you know, those are high numbers ranging, you know, 74 to 89% of the time. And during Biden, they were 53, 53, and 41. So they are the Republican appointees most likely to have voted for Biden, of course, and the Republican appointees least likely to have voted with Trump. So once again, we see the 333 breaking out in this. Okay, but David, I am far less interested in the overall administration success rate between the two, because as I said, the Biden administration was appealing things that were executive power vis a vis Congress, which is areas that Trump has also lost on. Whereas the Trump administration has appealed infinite numbers of these injunctions that have to do with power internal to the executive branch, whether it's been grants, firing people, independent agencies. And so, like, yeah, of course they were going to have a higher success rate. What is interesting, however, I think, is there is a much clearer partisan divide between the justices in this interim docket than you see in the merits docket. So when I do Stat PAC at the end of the term, and I'm pointing out that, like, actually in 90% of the cases for the last 20 years, there has been a liberal justice in the majority, 90%, nine out of 10 times, there's at least one liberal who, who's in the majority. But here it does look really different, right? Kagan, 26%, Sotomayor, 11%, and Jackson, as I said, 0% for Trump. So why is that? I have my own personal theory that this is like, goes to the whole problem, if you will, with the emergency docket. You don't have full briefing, you don't have full time. You're only deciding what the status quo is going to be as the case is pending. And so you're far more likely to sort of fall back on your policy priors than you would in the case. So. So, for instance, during Biden, we're talking about 17 cases total that they took to the court. And yeah, to be clear, these numbers, we're dealing with very small numbers here. It's 17 for Biden and 19 for Trump. So when I'm talking about, you know, 74%, 74% of 19, and, you know, 53% for Biden, that's 53% of 17. So anyway, of those half or so that Barrett and Roberts voted against the Biden administration, they flipped when it got to the merits question. In three of those, what half of 17 is, you know, eight or so cases that they had voted. So almost half of the cases that they voted against the Biden administration, they then flipped and voted for on the merits question when they actually had full briefing. And so when you don't have great factors for how to determine what the status quo is, where the irreparable harm is likelihood of success, you are seeing a much more partisan outcome, at least. If nothing else, I think the most.

Guest/Expert (likely a legal analyst or commentator) (19:55)

Important sort of substantive thing that I think that you said in that analysis was a lot of these cases are about a very narrow issue, which is the president's authority over the executive branch. And I've got news for everybody. The six justices of that were nominated by Republicans have a different view on the executive authority than the three Democratic nominees. And so I'm just going to we can just go ahead and predict this, Sarah. If a case is coming up and it's about the president's authority over the executive branch, Trump's going to win the vast majority of those cases. He just is. If it comes up and it's about the substantive underlying policy of say, okay, is birthright citizenship? Is the change in birthright citizenship lawful, then I think you're going to start to see those numbers shift a bit. What's interesting to me is the tariff case is one which is much more in the Biden mode than the Trump emergency docket mode so far, because it's asking. It's not about the executive branch's authority over itself. It's about the executive branch's assumption of traditionally congressional powers. Now, that's something where the court's taken historically a pretty dim view of executive power. And so that's let me do an analogy that might be helpful to people. A lot of folks, I think, thought that it was going to be that six, really, 5.5 originalist judges meant that there was going to be a lot of unanimity on sort of hard right substantive positions and have been a little bit surprised that 5.5 originalists don't agree with each other on everything. But one of the reasons why people kind of got this artificial sense of originalist unanimity was because of Roe. They were viewing originalism through the Roe prism, and there just never was any kind of credible originalist argument that Roe was rightly decided. So imagine if you then had a year of emergency docket litigation about Dobbs and Dobbs related issues. You would say, wow, that's a hard right court. No, it's just that the cases coming up have been specifically in this particular area where originalism has spoken pretty clearly. And I think that's the case when it comes to the power of the executive over the executive branch, there is a consensus there that exists within a majority of the court. And I don't think that same clear consensus exists when we get to a lot of the more substantive issues.

Sarah Isger (22:31)

I think that's right. And when you look again at those Biden numbers and see that the liberal justices were far more likely to vote for President Biden's emergency applications. Yes, but they have a different legal view of the administrative state and the deference due to the administrative state, the expansive powers of the administrative state. So. So again, one way to read this is partisan ideology. But another way to read it is, yep, you found their judicial philosophies. And if you substitute Biden for administrative agency lawsuits and you substitute Trump for executive intra executive branch unitary executive theory, those percentages are going to line up about the same. And again, it's up to each administration which lawsuits it's actually bringing to the Supreme Court, even on the interim docket. Now, unlike the merits docket where the Supreme Court can decline to grant cert and not say anything, if the administration appeals to the Supreme Court, the Supreme Court is either doing something or doing nothing. Either way, it is a choice. But people are forgetting it's still up to the administration to even ask the Supreme Court. And in the example of Trump, and definitely in Biden, a very small percentage of their overall losses at these lower courts, they are asking the Supreme Court to weigh in. As I said, the numbers are 17 and 19. And I think people have this sense that it's, you know, hundreds. So you caught them. They have different judicial philosophies about the administrative state and the executive branch.

David French (24:04)

Woo hoo.

Guest/Expert (likely a legal analyst or commentator) (24:05)

Yeah. I mean, if you're saying where are the cases upholding Biden's authority over his own administration? Well, he never challenged the independent agencies. Like this is, you know, one of the things differences between the Republican Party and the Democratic Party is the Democratic Party has long been in support of these independent agencies. The Republican Party has had long had a position going back well before Trump that these independent agencies violate the separation of powers principles in the Constitution. And so of course you're not going to see Biden challenging the ftc. Biden liked the ftc. He was good with it.

Sarah Isger (24:38)

All right, when we get back from this break, since we did bring up the tariff case, we have a delightful email from a listener that taught us something. So stick around.

David French (24:54)

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Guest/Expert (likely a legal analyst or commentator) (24:56)

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Guest/Expert (likely a legal analyst or commentator) (25:41)

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David French (26:14)

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Sarah Isger (26:15)

Ask your doctor about ebglis and visit epglis.lilly.com or call 1-800-lilyrx or 1-800-545-5979. Going online without ExpressVPN is like not having a case for your phone. Most of the time you'll probably be fine, but all it takes is one drop and you'll wish you'd spent those extra dollars on a case. Every time you connect to an unencrypted network in cafes, hotels, airports, your online data is not secure. Any hacker on the same network can gain access to and steal your personal data, passwords, bank logins, credit card details. It doesn't take much technical knowledge to hack someone. Just some cheap hardware is all that's needed. A smart 12 year old could probably do this. ExpressVPN stops hackers from stealing your data by creating a secure, encrypted tunnel between your device and the Internet. Look, ExpressVPN is super secure. It would take a hacker with a supercomputer over a billion years to get past ExpressVPN's encryption. It's easy to use, which is why it's rated number one by top tech reviewers like CNET and the Verge. Husband of the pod and I travel a lot. We can't wait to do every financial transaction or sign in to any website until we're back home. We have to be able to do it on the road. So that's what ExpressVPN is great for. Secure your online data today by visiting expressvpn.com advisory that's E X P R E S s v p n.com advisory to find out how you can get up to four extra months. Free expressvpn.com advisory all right, David this email is from John Endian. He is a professor of law at Brooklyn Law School. And I can't read the whole. Wish I could. It is so good, it is so nerdy. It touches on everything you could ever want. When it comes to the real nerd appeal of this tariff case, you know, and ieepa, there was this one part, David, that I think both of us were like, oh, interesting theory. So he has a law review article coming out on this in the San Diego Law Review, and his theory goes something like this. When Congress delegates its power, and we're looking at it through the lens, for instance, of major questions doctrine, it can delegate any of its enumerated powers to some extent and yada yada. But his point is accept the taxing power based on the history at the founding that he has done, the taxing power had to be delegated explicitly and specifically, unlike the other enumerated powers. It is fundamentally different he describes than the other enumerated powers. So to quote him, when Congress chooses to delegate its exclusive taxing authority to the President, Congress must make clear its intent to delegate the taxing power. It is not sufficient to simply point to a delegation of power in a statute for the President to assert the power to tax. Rather, Congress must have specifically delegated the taxing power to the President in order to impose the tax. Well, this gets to iipa, right? So the implication of this, of course, he says, is that IIPA tariffs are unlawful not because of the major questions doctrine or non delegation doctrine, though that may be true as well. But because a law that was enacted pursuant to Congress's power to regulate foreign commerce, after all, AIPA delegates power to regulate the importation of property cannot be implicitly read to also authorize a different enumerated power, that is to lay and collect Taxes and duties, unless Congress clearly indicated such a delegation. Never thought about that, David.

Guest/Expert (likely a legal analyst or commentator) (29:55)

I know, I know. When I read that email, I thought, well, man, you just put that better and more succinctly than I thought. I thought about it. That was very good.

Sarah Isger (30:06)

Yeah. And of course, he gives the example of President ocasio Cortez in 2029, declares a climate emergency and immediately imposes a punishing tariff on all imported fossil fuels. Under the government's view, that has to be lawful right. And under the government's view, where the declaration of an emergency is unreviewable, the Major Questions doctrine is inapplicable, and AIPA's delegation of power extraordinarily capacious. It seems that a carbon tax levied on all fossil fuels used in the United States would also pass muster. And it's not clear why a nationwide wealth tax to deal with, say, the emergency power of rapidly increasing inequality wouldn't pass muster either. In other words, the implication of the government's view seems to be that Congress unknowingly delegated nearly its entire taxing power when it passed IPA in 1977. I mean, this is actually my beef with it, and it's much closer to Major Questions doctrine to me, although I really like his point about the separate sort of historical analysis of needing to delegate the taxing authority explicitly. But like, that is hiding an elephant in a mouse hole. You passed IEPA and you delegated all of your taxing authority without saying so. That's Major Questions doctrine. That's Congress hiding elephants and mouse holes. And we decide that probably they didn't. Right. Congress doesn't hide elephants in mouse holes. That would be a weird thing to do unless they had a sign that was like, by the way, we're going to try to squeeze this elephant in this mouse hole. If there's no sign that says that, you can assume there's probably not an elephant in the mouse hole. All right, well, speaking of emails we got from listeners, this one came from Andy Smarrick at the Manhattan Institute, and it is on Rehnquistian clerk hiring and Sutarian clerk hiring. So, yes, these are named after Chief Justice Rehnquist and Justice Souter. The stats are kind of stunning, David. So he has broken down clerk hiring by undergraduate in law school and by Ivy League plus degrees and then by Justice. And so basically, the Justices who had an IV degree themselves are significantly more likely to hire clerks that have an IV degree as well. And by the way, if you're curious, there's very few Justices that don't have said Ivy League plus degree. So at undergrad, it was Justice White, current Justice Barrett, Powell, Thomas, Berger, and Scalia. And then for law school, that is.

Guest/Expert (likely a legal analyst or commentator) (32:38)

It for undergrad, not law school.

Sarah Isger (32:41)

Okay, yeah, now I'm on law school. So non Ivy law degree. Rehnquist, Barrett, Powell, Berger, o' Connor, and Stevens. So of current justices, the only justice without an Ivy League law degree is Barrett. And by the way, note that I stopped saying Ivy League plus because we don't even need to expand to that. And you'll also see then that while for Chief Justice Roberts, more than 70% of his clerks have an Ivy League law degree, for Justice Barrett, that number is just over 20%. And so the point that Andy makes in this law review article is sort of like, hey, the whole system has gotten biased because we have this very tried and true path to become a Supreme Court Justice. And when you have these justices that maybe come from other parts of the country, come from other schools, that diversity carries through in the clerkships, which then carries through to all of the doors that get open for Supreme Court clerks who maybe don't look like, in a literal sense or in a metaphorical sense, all of their fellow clerks. And it's a really interesting read. And I'll just read his last paragraph here. To be a Ringquestian, meaning to hire from a broader range of schools, does not mean discriminating against the graduates of elite private schools. Indeed, in most Rinquestian states, Ivy graduates are still overrepresented in legal leadership roles. The most Rehnquistian, Justice Rehnquist included, hire a significantly higher percentage of Ivy + college and law school grads than the Ivy + percentage of the college and law school graduate population. But being a requestian does mean looking for and hiring talented individuals from a wide variety of schools. It is not clear whether sutarians doubt the existence of such individuals or whether they are not interested in looking for or hiring them. Whatever the reason, it can and should change.

Guest/Expert (likely a legal analyst or commentator) (34:37)

There is a difference between elite higher education and elites in higher education.

Sarah Isger (34:43)

Okay?

Guest/Expert (likely a legal analyst or commentator) (34:44)

And there's a lot of elite students, a lot of elite students in higher education at all levels. I use this statistic often when I talk to people about this, and it shocks them. What's the university in the country with the most National Merit Scholars enrolled?

Sarah Isger (35:00)

Sarah, do you know most National Merit scholars? Like, if we're just doing numbers, it's gotta be a big public university. I'm thinking Alabama. Texas.

Guest/Expert (likely a legal analyst or commentator) (35:10)

Bam. Alabama. So right now I'm looking at the latest numbers from Alabama and They go back and forth between Alabama, sometimes Oakland, Oklahoma, sometimes Florida. And you might say, why? Why these schools specifically? Well, they, Alabama, for example, if, unless I'm. They've completely changed the policy, which I doubt they used to, if you're a National Merit Scholar or National, National Merit Finalist, you got a free ride, period. And so, you know, there was just this giant incentive. And then all of a sudden now Alabama has a community of 1100, almost 1200 National Merit scholars on their campus. That's a lot of elite students on your campus. And so, you know, you're going to have coming out of Alabama, just in raw numbers, some of the most elite students in the country. And it pains me to say this, Sarah, by the way, as a person who was born in Auburn, Auburn, I love you. You have lots of National Merit Scholars too. But Alabama really did a very smart thing. Oklahoma did a very smart thing. These schools have done a very smart thing. And I think that the long term effect of those decisions is going to impact how we view higher education. That I do think the combination of the way in which a lot of the elite universities have squandered their reputations and their credibility, combined with the fact that there are now a lot of big state schools that for a decade or so have been pumping into the American marketplace, some of the smartest people in America, means I think that the tail effect of this is 10, 15, 20 years from now going to be interesting as the upper ranks, so to speak, of American society are populated by more Auburn and Alabama and Florida grads.

Sarah Isger (36:58)

All right, David, I've got one more that I want to do today because it's sort of a quick one. Do you remember that case about Deborah Loughner, who had filed hundreds of Americans with Disabilities act claims against hotels across the country that she didn't intend to visit? But like if their websites didn't tell her the information about whether they had ADA accessible rooms, that itself violated the ada. So she said, and she filed all these lawsuits. She created her own circuit split in doing so. And the Supreme Court finally grants cert on one of those cases. And everyone is going to like, everyone thinks that the Supreme Court is going to say she does not have standing, she does not actually have an injury because she doesn't ever intend to, to visit these hotels. She's just one of those people who like surfs the Internet to file lawsuits and it costs tons of money because most places just settle with her. And so she gets like $10,000 a pop or whatever. And her lawyer turned out to Be corrupt and blah, blah, blah. So she moots out her case and tells the Supreme Court, don't decide this. Never mind. I won't file any more cases like this. And I was shocked. But the Supreme Court went along with it, and Justice Barrett wrote and said, like, yep, it's moot, but if this keeps happening, we reserve the right to treat it differently, basically. Well, here we are, David. So you know that case that the Supreme Court granted cert about transgender participation in women's sports? Well, the ACLU has filed a petition at the court trying to argue that the case is now moot. Respondent Lindsay Hecox notifies the court that she has voluntarily dismissed with prejudice her claims against petitioners in the district court. Because she has voluntarily dismissed, it terminates the proceedings, yada yada. She respectfully submits that this case is moot because she has no live claim against practitioners because of her voluntary decision to dismiss her claim mooted the case. The court of appeals decision in her favor should be vacated. The court should therefore vacate the court of appeals judgment and remand with instructions to dismiss the appeal. David, they can't keep letting this happen, because when someone like the court grants cert and then you think you're going to lose, so you then dismiss your case with prejudice. But the problem is, right, there's all sorts of these cases. They've won some, they've lost some. What about all the cases where they won? Are they willing to dismiss those and moot or vacate out those appellate decisions? I don't think so. So when the Supreme Court only takes vehicle cases that will then affect dozens of circuit decisions and pending cases around the country, I don't see how you can continue to let litigants choose which vehicle you're allowed to look at.

Guest/Expert (likely a legal analyst or commentator) (39:41)

You know what this is downstream of? It's downstream, I think, of the really tremendous reporting that exposed sort of the hubris of the legal strategy that led to the loss in the Scremetti case that all of these people were saying to these, you know, the LGBT advocates, what are you doing? Pushing. What are you doing? This is, you're not going to win this case. You're not going to win this case. And they pushed it and pushed it and lost. And so now they have this other case coming up where, you know, you don't like to say that any given case is a foregone conclusion. But let me just say, Sarah, if this court rules that biological men have a right to participate in female sports, I will fall out of my chair in Absolute shit shock. Like I just totally stunned if that's the ruling. And so they're standing there looking at these litigation strategies, which I think quite obviously was undertaking and sort of an imitation of the litigation strategy that resulted in Obergefell is just hitting a massive brick wall. Just a massive brick wall. And basically anyone who knew anything about the court could have told them this years ago, years ago that the very, very, very aggressive legal arguments that they were making were just not going to have find purchase at the Supreme Court. And I think that that message is absolutely sunk in. And so now they're trying to sort of unring the bell. And I just a don't think they can, nor do I think they should be able to. It's, you can't march an issue all the way to the Supreme Court, not just to the doorsteps of it, into the door and then say, oh, I think we might lose this. Our bad. Especially when, as you said, other cases have been out there, there have been other court rulings, including court rulings in their favor. Are they going to go back and vacate all of those? No. So, yeah, this strikes me as gamesmanship that the court shouldn't tolerate.

Sarah Isger (41:49)

All right, we'll, we'll cinch the bag for today because we have an amazing guest coming on the podcast next. Professor Richard Primus from the University of Michigan has this fascinating, I mean, really like paradigm shifting idea in his book the Oldest Constitutional Question. And before we get to him, though, I want to prepare listeners with all of the text and stuff so they can feel informed before we jump into the conversation. So first, Article 1, Section 1, all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. So a lot of what we're going to be talking about is Congress's enumerated powers, as in the thing the Constitution lists that Congress has the power to do. Does that mean Congress has only those powers or is it just like listing them because the President doesn't have those powers? So when we talk about enumeration, we're talking about this list and we're talking about that section one language. We're also going to talk about the 10th amendment. Let me read that to you. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people, is delegated the same as enumerated. All things we'll discuss. And David, part of what makes this so interesting to me, as we're growing up in this era where Congress isn't doing much. I mean, in the generation right before this, the problem was that Congress was doing too much, right? It was this, like, crazy Congress with their commerce powers, and they were just unlimited power. And now we're like, ooh, how do we make Congress, like, poke Congress with a stick and hope they're alive still? And so it's interesting because if you had brought this idea that Congress's powers aren't limited 20 years ago to conservatives, I mean, you would have been chased out of the room with pitchforks. I might have held one of the pitchforks. But we're experiencing a very different separation of powers crisis right now, which is the exact opposite. A sort of zombified coma Congress. And now the idea of, like, I don't know, maybe if we tell Congress they have all the power they want, maybe they'll try to, like, lift a muscle. I don't know.

Guest/Expert (likely a legal analyst or commentator) (44:06)

Also in which I learn that I read the Constitution like a Protestant.

Sarah Isger (44:12)

So all that and more in the conversation coming up. And now a message from McAfee. I'm not a real kid and I'm.

Guest/Expert (likely a legal analyst or commentator) (44:21)

Not a real grandpa. We're deep fakes and we're making it harder to tell what's real online.

Sarah Isger (44:28)

The good news, macafee can help. McAfee's scam detector automatically identifies text and email scams and even deepfakes.

David French (44:35)

So if you whippersnappers meet one of.

Sarah Isger (44:37)

Us, you'll know if they're faking it. They're not making it past us. Get award winning scam detection today. McAfee.com Keep it real.

Guest/Expert (likely a legal analyst or commentator) (44:47)

Charlie Sheen is an icon of decadence. I lit the fuse, and my life.

Sarah Isger (44:51)

Turns into everything it wasn't supposed to be.

David French (44:54)

He's going to.

Guest/Expert (likely a legal analyst or commentator) (44:56)

He was the highest paid TV star of all time.

Sarah Isger (44:58)

When it started to change, it was quick.

Guest/Expert (likely a legal analyst or commentator) (45:00)

He kept saying, no, no, no, I'm in the hospital now, but next week I'll be ready for the show. Now, Charlie sober, he's gonna tell you the truth. How do I present this with any class?

David French (45:09)

I think we're past that, Charlie. We're past that.

Sarah Isger (45:11)

Yeah.

Guest/Expert (likely a legal analyst or commentator) (45:12)

Somebody call action, AKA Charlie Sheen, now playing only on Netflix.

Sarah Isger (45:18)

Without further ado, we will now welcome Professor Richard Primus from the University of Michigan to the podcast to discuss his book, the Oldest Constitutional Question. All right, professor, what are we doing here? What's the oldest question?

David French (45:33)

The oldest question is, what's the division of power and the division of responsibility between the national government and the state Governments. The Supreme Court has called that our oldest question of constitutional law. It's probably right to call that our oldest question of constitutional law. And this book is about the primary way in which constitutional lawyers have traditionally understood this question, which is as a function of the enumerated powers of Congress. Every law student learns that the federal government is a government of enumerated powers, meaning that there is a textual list in the Constitution of things that Congress can do. Congress can do what's on the list and not what's not on the list. This is the opposite default rule from a state legislature which presumptively can do anything that isn't affirmatively prohibited. And we are taught that the enumerated powers system for Congress is fundamentally important for federalism. It's how we preserve the appropriate balance of power between central and local authority. That it's a fundamental part of the framers design. The Constitution was built to work that way. That the text of the Constitution requires it, and therefore that it's very important that Congress only be permitted to legislate as is specified in the textually enumerated powers, and that those textually enumerated powers together give Congress less ability to do things than it would have if it were like a state legislature, a legislature of general jurisdiction. This is all Bedrock Con Law 101 stuff. And this book says most of it's wrong. I thought about calling the book everything you know about enumerated powers is wrong, but decided that I shouldn't for a few reasons, including that not every everything you think about enumerated powers is wrong. It's just mostly wrong.

Guest/Expert (likely a legal analyst or commentator) (47:20)

So of course that raises the very next question, which is what are we wrong about specifically in that analysis?

David French (47:29)

Okay, good. So we're wrong about a few connected things. The idea of enumerated powers and constitutional law isn't just one proposition. It's a web of related ideas and attitudes and stories. Some of them are ways that we are taught to read the constitutional text where the text might mean more than one thing. And this way of thinking about things tells us it means this and not that. Some of them are accounts that are historical stories about why the framers did what they did and indeed what they did. And some of them are accounts of how federalism works and the role that enumerated powers play within federalism. And they all kind of hang together, which makes sense, right? You would expect them to make sense. This whole way of thinking in the book I call enumerationism. And what I want to say is that enumerationism is a lens through which we understand constitutional law. It's not a set of facts about constitutional that must be true, like the document is written in English, is a fact about the Constitution. If you approach it on some other assumption, you're just doing nonsense. Enumeration isn't like that. It's one way of looking at. At how all this works. And there are other possible ways. And enumeration is a flawed way. So what are the flaws? You ask me what's wrong? Here are some of them. First, the text of the Constitution doesn't say that Congress is limited to its enumerated powers. And I think it quite deliberately doesn't say that. I think it's deliberately written to leave that question open. Historically, the enumeration of powers was not written, or at least not primarily for the purpose of limiting Congress. It was probably written primarily for the purpose of. Of empowering the national government against the states and then of empowering Congress against the President. That is, it does a lot of. It was intended to do a lot of separation of powers work, which we've mostly forgotten about because we mostly think it sounds only in federalism, which leads to a common phenomenon in modern con law where they say the first thing you learn about enumerated powers is Congress can only legislate on the basis of the enumerated powers. And that's limiting, and that's important. But the second thing you learn by the end of the semester is in practice, it's not very limiting. Right. For a hundred years, Congress has been able to legislate pretty much anything that isn't affirmatively prohibited and bring it within the enumerated powers. And a lot of people think, well, that can't make sense because then the enumeration isn't doing anything. And that's a fallacy. That's a fallacy because you would only think that if you think that what the enumeration is supposed to do is limit Congress. If that's not. If it's supposed to empower Congress, and if it's supposed to allocate powers to Congress as opposed to the President, it's actually doing a lot of things. And historically, I think that's most of why it was written. And then one more thing, really importantly, federalism is super important. I like federalism and I like locally autonomous decision making. And the book is not an argument that everything should be decided at the national level. I think that would be a really bad idea. What I'm saying is that the enumeration of powers is not a helpful tool in federalism. You think that when you do enumerated powers, you are limiting the scope of what Congress can do and therefore preserving federalism. But in fact, that's not what limits Congress. Congress is limited. But that tool is a bad tool for the job of limiting Congress. It wasn't designed to do that. It doesn't do that in practice. The reason that Congress isn't limited by its enumerated powers is it's a lousy tool and we should stop expecting the enumeration of powers to do the work of limitation. That is really important to be done, but this is the wrong technology.

Sarah Isger (51:00)

Okay, there's maybe three pieces of this book that I found the most fascinating. One, you're not an originalist, but you make a lot of originalism arguments here for the benefits of people like me and David, and really not for us, frankly, but people like us, I suppose. Second is this practical point that even if sort of intended to be enumerated, it hasn't been. And so what do we want to do about that now? But there's also this third point that I just don't want people to miss out on, which is I actually think the book is a really interesting meta read on how to make an argument. When you're the only person making an argument against a sea of, let's call it the flat earth. You know, just sort of. Everyone accepts that this. And you're like, actually, I'm not saying you have to accept this, but at least one other interpretation of this data could be. And I just found your method of argumentation delightful and persuasive because of the way you made the argument. And I hope to keep that with me as well. So for no other reason, if you don't care about enumeration at all, I just think it's a really cool read on how a very smart person with receipts nevertheless can make a pretty humble argument, and especially because you're not an originalist. So I want to start at the originalism point where, correct me if I'm wrong, but like, you've got this letter from Madison where Madison basically says enumeration would be a bad way. This is before the Constitutional Convention, even enumeration would be a bad way to limit powers, just like in a theoretical sense, as he's talking to someone about their state constitution and sort of what, how you would limit a legislature's power, how you wouldn't. What it'd be good for internal limits versus external limits. And you sort of get to the punchline of like, probably Congress didn't agree on whether Congress's powers should be limited to their enumerated powers. That's why it never says one way or the other. Not that it is clearly that Congress's powers weren't limited to their enumerated powers, but that they didn't agree. Which I think is a fascinating originalist place to end. And I think you mostly convinced me until we got to the 10th amendment. And so I hope you'll discuss sort of that original originalism in Madison and then try to persuade me on why the 10th amendment doesn't blow this up. You make an argument about delegation versus enumeration and Constitution, Big C and little C. And I felt like, ugh, I don't know, maybe the earth is flat.

David French (53:39)

I want to acknowledge and appreciate the very high compliments that I take you to be giving me about the mode of argument. I think that the virtues of certain kinds of scholarly craft are enormously important. I think that care is important. I think that intellectual humility is important. I think that being candid with your audience about how your argument works and what its limits are are really important. Those are all things that I tried to do in this book. Next, you're right. I'm not an originalist and I don't understand the book to be making originalist arguments. I think it makes historical arguments which people who are originalists might pick up and fit into their paradigms and then decide what to make of them. Right. Because it is my view that the conventional story that originalists and non originalists tell about the origins of the enumeration right, that it was done because there was an agreed upon plan to limit Congress to this mechanism, is wrong. It's wrong not because nobody had that idea. It's wrong because that idea wasn't sufficiently a matter of consensus to command agreement and be written into the Constitution or be tacitly agreed upon without being written into the Constitution. It was not a settled question. Depending on what kind, if you are an originalist and depending on what kind of originalist you are, that might trouble you about the status of enumerationism, right? There are various things that you could do about it. For me, that set of propositions about the history doesn't establish what the law is today. Because I'm not an originalist. But I want to provide historical accounts that complicate the accounts that originalists and non originalists use to undergird the conventional enumerationist paradigm. Because to the extent that you think enumerated powers need to be limiting because you think the history requires it because you're an originalist or otherwise. I want you to understand. Yeah, your minor premise is wrong. The history doesn't do the thing that you think it does. And I'm not going to argue with you in this conversation about your jurisprudence. I'm just going to tell you that if you crank the handle on your jurisprudence with the actual history rather than the story that's told, it's going to be more complicated and. And you're not going to get where you want to go on the 10th Amendment. Let me start at the end, Sarah. You said that you were persuaded until I got to the 10th amendment and then you read it and you thought, yeah, I don't know. And what I want to say is, if you come out of this book thinking, I don't know, I'm going to count that as a win. Because my best case scenario is that people will read this case, read my book, and say, yeah, he's right. Enumerationism is not a constitutionally required paradigm, and in fact, it's not a very good idea. But my second best case, which I think is frankly good enough, is that people will stop regarding enumerationism as necessarily obviously correct and think of it as one contestable way of understanding what's going on. So having said that, let's get into the substance. Right. On the 10th amendment. The 10th amendment is conventionally read as if it said, the powers not enumerated in this Constitution as belonging to the United States government are reserved for the states. Right maybe exercised exclusively by the states or something like that. It's what it says is the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively, or to the people. And the book walks through these things. There are a bunch of reasons why that's not the enumerationist dictum that people think it is. One is the middle clause, nor prohibited by it to the states. The Constitution prohibits the states from doing certain things by the terms of the amendment. Those things are not covered by the 10th Amendment in any way. Right. They're outside the coverage of whatever this Amendment does, which means nothing about the 10th Amendment, says the federal government can't exercise those powers. Right. That is, say, if a power is prohibited to the states, it might be a power that the federal government can exercise, whether it is textually enumerated as affirmatively belonging to the federal government or not. The 10th Amendment is silent on this. And this point is not original to me. I know of Its having been made at least as early as 1890, largely submerged and forgotten. Right. Like it's not part of how we normally think about it, but it's clearly right on the text. Right. The second thing is it doesn't say the power is not enumerated. It says the power is not delegated. And every good lawyer knows that there are multiple ways of delegating a power. You can do it expressly in writing, you can do it orally, you could do it implicitly. There are some sorts of agency relationships in which delegation is inherent. Right. Delegation can be done a bunch of different ways. And the people who wrote the 10th Amendment knew this. We know that they knew it because when the text was pending before Congress, there were two attempts to insert the word expressly before the word delegated. Had they done that, the 10th Amendment, that part of the 10th Amendment would say what enumeration thinks it says. But Congress rejected that proposal twice, which means Congress did not. Congress, understanding that you could redelegate it to mean something broader, chose not to make it mean the more specific thing. Now, they didn't choose to say the powers not delegated to the United States comma, whether expressly, implicitly or otherwise, comma, Right. They didn't resolve the question against enumerationism, but they quite clearly made a conscious decision to write a text that would leave the question open. Right. That's the second level. So for those reasons, it seems to me pretty clear that on the text of the 10th Amendment, the possibility of implicit federal powers is not at all precluded. We think the 10th Amendment precludes those powers because we understand it to be a principle of the system for a bunch of different reasons that such powers are precluded. And then we, this is just normal con law behavior. We staple that thought to the piece of constitutional text that comes closest to saying that thing. Right. That happens a lot in con law. What I just want to point out is that's what we've done. We've stapled a non textual thought to the text and caused ourselves to think that that's what the text says. Last point. There are two alternatives to enumerationism. Not well, they're actually multiple. But there are two big ones that I think have actually typified American jurisprudence. Because I think enumerationism is not really how we've done things, it's just how we've talked. One is the model of implied powers on which Congress has its enumerated powers, and it also has a set of implicit powers arising from the Fact that it is the national government, more or less, that I think was the dominant jurisprudence of the Supreme Court through a bunch of the 19th century and through the early 20th. We repress that memory, but it's there, right? That's the threshold. The next level is why can Congress organize and operate the post office? The text of the Constitution says the Congress has the power to establish post offices and post roads. So I know why they can establish the post office, but why can they hire the people who deliver the mail and tell them how to deliver the mail? That's not. That goes beyond the establishment of a post office or a post road, nor is the operation of the post office necessary and proper to establishing a post office or a post road. The necessary and proper relationship is the other way around. Right. But we agree that Congress can do those things even though it's beyond the text. And necessary and proper doesn't get you either. And then there's the big stuff. There are all kinds of Supreme Court cases from the middle of the 19th century to the beginning of the 20th in which the Supreme Court explicitly affirms congressional legislation that it is not based on any enumerated power. The legal tender acts that give us greenback currency, which is kind of a big deal in the American sociopolitical order. Right. Territorial governments, Native American affairs, election administration, foreign affairs. Right. And Curtis Wright, there's this whole basket of decisions that the Supreme Court issued from the middle of the 19th century to the eve of the New Deal, in which the court sometimes says, yeah, Congress has this power because it's a national government. The modern court hates these cases. It tries to repress them away, but they're there in the United States reports. And then a funny thing happened in the New Deal. The conventional story is the Constitution was written to be enumerationist. And for a long time it worked the way it was supposed to. And then the New Deal court came and it messed everything up by giving us overly broad constructions of some of the enumerated powers, principally commerce, taxing, maybe necessary and property. And since then, the enumerated powers haven't limited. That's the conventional story. What I want to say is, you see, it didn't work the way enumeration thinks before the New Deal either, because before the New Deal, there were a bunch of implied powers not enumerated. What the New Deal actually did. The part of the conventional story that says the New Deal court adopted significantly broader constructions of the enumerated powers is correct. And the part that says, and therefore the enumeration doesn't limit much anymore is also correct. What the conventional story doesn't recognize is the reason that we don't do implied powers anymore is that since the New Deal, we haven't needed to. If you, Congress, get everything you need from the enumerated powers, you never have to go to the Supreme Court and say, we have this power, even though it's not on our list. Everything is on our list. What could be better? And so the broad constructions of the enumerated powers preclude the need for going off list. That I think is the development that has actually happened. And there's Nothing in the 10th Amendment that says you can't do that. Right? There's Nothing in the 10th Amendment that says the powers that are delegated, whatever they are, are collectively less than a police power. It just doesn't say that we read it that way because we have the conventional picture in our heads that says enumerated powers are necessary for federalism, which means limiting the federal government. And therefore that must be implicit in the 10th Amendment. But I don't find that in the words of the text Amendment, in the words of the 10th Amendment, I find that in the general theory of enumerationism, which I think is, in all of these little ways that I talk about in the book, not quite right.

Guest/Expert (likely a legal analyst or commentator) (63:49)

In looking at this and just zooming back about and just thinking about constitutional interpretation more broadly, it strikes me, and this is. This is certainly absolutely. When you're talking about the breadth of the language, how sweeping a lot of the language is, and the Constitution, it's sweeping but imprecise often, but sometimes it's quite narrow and precise, like, President must be 35 years of age and older. And it feels as if, let's suppose there was general consensus at the Constitutional Convention that the President should be a mature adult, but they absolutely could not figure out a precise age, that they would say something like, the president, United States should be a mature adult, and then like, leave it for the generations to figure out exactly what that means with that intent in mind. So sometimes they do things quite precisely, and many times they do not. The executive power of what is the executive power? The legislative power. These are not very precisely defined words. And so here we are, more than 200 years later, sort of trying to parse this broad language, almost like we're a bunch of biblical scholars peering and dusting away an ancient text and trying to figure out what the words are written in a language we don't fully, completely, 100% understand, and how much of our Digging through and picking through and trying to figure out, like what. What is the actual real golden nugget here? What's the actual true interpretation? How much of this is sort of downstream from the idea that this Constitution has been amended? A lot less than the founders thought it would be amended. And so we're kind of stuck with the vagueness when we were never. That vagueness was never necessarily intended to be permanent, if that makes sense.

David French (65:46)

Well, I think there's a lot there. I think a lot of it is right. I think that a great deal of how we do constitutional interpretation is a function of the fact that the text is old. I'm completely with you on the biblical analogy. I come to it largely from that frame. I grew up in South Bend. My father taught theology at Notre Dame. And one of the things that I know is that there are very few moves that constitutional interpreters know that the biblical hermeneuticists did not know long before them. And that's partly because it's an old text. It's partly because it's a sacred normative text, and therefore it must be made to mean the thing that the interpreter would like it to mean. By the way, that's part of why I'm not an originalist. I'm not an originalist because I believe in the rule of law. I know that most originalists have the view that the rule of law calls for originalism. And I have the view that that's a reasonable starting idea, but that in practice, what originalism does is destabilize the rule of law because it lets you come to a current practice that is stable and say, yeah, but it wasn't supposed to be that way at the beginning. And that's antinomian, right? That's Luther against the Catholic Church, essentially. But I want to push also on one other point, it is conventional for good reason in constitutional interpretation to say there's a division between the specific and, and the general, the vague and the precise pieces of constitutional text. And we need to treat the specific, precise ones as the rules they are. And the vague ones we do our best with one way or another. That's not quite true. That's a tidier story than Israel because there are very specific texts in the Constitution that we don't abide by. So, for example, the Constitution says that senators serve six year terms after the first Congress when the division was made to stagger senators. Right. The Constitution provides for two and four year terms to get the system going. There is no provision anywhere in the Constitution for anything other than a six year term. But senators from 39 of the 50 states have been elected for non six year terms corresponding to nothing in the Constitution. Because when the states were admitted to the Union, they weren't on that day on the 24 or 6 year cycle. Right. You send your senator for the first time with 18 months to go before the next elections. So they were elected for three and a half years, five and a half years. Right. That steady practice going back to the 18th century. There is not a word in the Constitution that permits that. The Constitution says the senators shall be elected by the people of each state for six years. We could have done it that way. It could have been that when Michigan came into the Union, the senators were elected for six years from that date. And we would then just have like a rolling Senate essentially. Right. Like every month someone's getting elected from somewhere. It'd be better in some ways, it'd be worse in others, but it would be consistent with the text of the Constitution. We don't do that. Which I bring just to make the point that it's not even as simple as what the text specifically says we do. It's more complicated even than that.

Sarah Isger (69:03)

Professor Richard Primus, in his book the Oldest Constitutional Question, you know, friend of the pod, Professor Levinson, told me this was the most exciting book of the year in law. He did not disappoint, as he never does. And I think my biggest takeaway from this, oddly, is this idea that originalists are the heir to Martin Luther. That makes actually a lot of sense to me. What a fascinating historical analogy. I'm going to be chewing on that one for a while. Thank you so much for coming on Advisory Opinions. The book was a treat. 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. 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.

David French (71:01)

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