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- [00:01]
David French
You ready?
- [00:02]
Sarah Isgur
I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we are going to start with the decision out of Virginia. Straight breaking down Virginia's new congressional maps. What the what? The Virginia Supreme Court refusing to rule on this until the election had been held and now saying that the ballot measure was never constitutionally processed under the Virginia Supreme Court. What is to come of this? They've said they're appealing to the United States Supreme Court. Does David think that that is going anywhere? Second, we've got a TED Talk. Yes, Former acting Solicitor General Neil Katyal recorded a TED Talk about winning the tariff case. And look, I don't want to talk about it on this podcast, but we have to talk about it on this podcast. And I think it illuminates quite a bit about oral arguments and frankly, how the Supreme Court cert petition process works that would cause one member of the Supreme Court bar to say that Neil Katyal just announced his retirement in the form of a TED Talk. And lastly, David, what might be the best AP Government teacher in America? As best I can tell, put together 56 would you rathers on the eve of the AP government exam. Let's see how you do all this and more on Advisory Opinions. Ready to soundtrack your summer with Red Bull Summer All Day Play? You choose a playlist that fits your summer vibe the best. Are you a festival fanatic, a deep end dj, a road dog, or a trail mixer? Just add a song to your chosen playlist and put your summer on track. Red Bull Summer All Day Play. Red Bull gives you wings. Visit red bull.com brightsummerahead to learn more. See you this summer.
- [02:16]
David French
Some follow the noise. Bloomberg follows the money. Whether it's the funds fueling AI or crypto's trillion dollar swings, there's a money side to every story. Get the money side of the story. Subscribe now@bloomberg.com.
- [02:36]
Sarah Isgur
Well David, I hope y' all had a wonderful Mother's Day with your family. And in my family, we were on day three of potty training the two year old and there was just poop everywhere, David. There was poop on me. There was poop on him. But at one point, I will tell you, there was poop in the little potty. And while that may not sound exciting to those of you who have not done this, there's no better Mother's Day present I've ever been given than pooping that little potty. And to be clear, little potties are not hooked up to plumbing. So I still had to clean poop from the little potty. But it's symbolic, David. That's the point.
- [03:14]
David French
You know, when those moments occur, the delirium of the celebration that would break out in our house. And it was intentionally designed to delirious celebration so that the kids would want to continue to do that to get to the celebration.
- [03:30]
Sarah Isgur
We had a rager at our house. Nine kids, lots of, you know, moms, and there's my son pantsless the whole day. So it was a party, let me tell you, David. Speaking of parties. No, there's no actual segue here.
- [03:45]
David French
Oh, I have the segue. Speaking of throwing out the poop. Oh, yes, yes, we are going to talk about the end of the absurd Virginia gerrymander.
- [03:56]
Sarah Isgur
Okay, here's the thing, David. I could not have gotten this outcome more incorrect once the Virginia. I'm a Virginia voter, remember, So I, like took time out of my book tour to go vote for this referendum, which was a ballot measure about whether Virginia could change how it does redistricting. Previously there was a commission that did redistricting. That commission actually hilariously failed. And it was then left to courts to draw nonpartisan districts. And then, of course, Texas goes, California goes, Florida goes. And Virginia's like, let's do this too. And so Virginia wanted to redraw its districts to maximize partisan gain for the Democratic Party. There's the famous lobster district that folks were pushing around. And multiple times the plaintiffs in the case argued that there were all sorts of procedural hurdles that the Democratic legislators did not go through to get this ballot measure voted on. And every time the Virginia Supreme Court did not review, it, didn't stop the election, nothing. And David, I made the huge mistake that I tell people about all the time. You are not an expert in all courts just because you're an expert in one court. I'm not an expert in the Virginia Supreme Court. I was reading the tea leaves about a court not stating stopping something from happening as a quasi interim docket type decision. And that that tells you something about the likelihood of success on the merits on the back end. Well, not in the Virginia Supreme Court. They held four to three that in fact the legislators had not checked the box because under the Virginia Constitution, you must have a ballot measure passed by two separate legislatures with an intervening election. Well, they passed the ballot measure in October of 2025, indeed, the very end of October. Then there was an election on whatever it was, November 5th or so, and then they passed it again after. And then it gets voted on by Virginia voters. Where it narrowly passed, I think, two and a half points or so, it passed by. And the Virginia Supreme Court's like, nope, the election was going on when you passed it the first time, and therefore there was not an intervening election to allow voters to have their say over, you know, this thing that was basically happening. David, so much to break down here. But first of all, this sounds a lot like our filibuster idea that I've talked about, right? This idea that as long as there's an intervening election, you make the voters actually weigh in on real substantive issues. But if it's October 31st and early voting here starts early, I take the point. Before I get to you substantively, though, I want to get to this interim docket question, right? The Virginia Supreme Court said that they had no choice. They were not able, because of Virginia precedent, to weigh in on this. And let me read you what they wrote. It is fair to ask whether we could have or should have reviewed the constitutionality of the proposed amendment prior to it being presented to the voters, but it is not a question the Commonwealth should ask. Throughout this litigation, the Commonwealth has insisted that we cannot lawfully decide this case prior to the referendum. In its motion for a stay in this case, the Commonwealth argued that longstanding Virginia precedent, Scott versus James, was, quote, virtually indistinguishable from this case, and that it clearly held that, quote, courts cannot interfere to stop any of the proceedings while this permanent law is in the process of being made and only upon the completion of the proceedings. If the validity of the amendment is assailed on the ground that the several provisions of the Constitution have not been complied with, then the court can pass upon the validity of the amendment. Citing their motion, the Commonwealth concluded the lesson is clear. Courts may not preemptively invalidate a proposed constitutional amendment before it has been passed by the voters. Having successfully insisted over the objection of the claimants that we postpone judicial review of the constitutional amendment until after the election process, it might be tempting for the Commonwealth to think that the final vote implicitly stacks the deck in its favor, perhaps enough so that the exercise of any judicial review could be viewed as an ultra vire effort to overturn the will of the people. And then basically it's like, that is wrong. But David, that's a really weird way to phrase all of this. It's basically like the rest of you can question whether this was a good idea, but Virginia can't complain. What about you court? Like, can we go back to why you thought this was a precedent worth upholding? David, this precedent is from 1912. It deals with two ballot measures that basically were supposed to be separate and then they combined them as one ballot measure. It's 100 and some year old precedent. I think it would have been completely reasonable for the Virginia Supreme Court to say we're not going to follow that precedent here. There are distinguishing features to that precedent. So narrowing it to its facts. $83 million were spent on this ballot measure in Virginia, 5 million taxpayer dollars to, to actually hold an election and my time was wasted, which is maybe the thing I am most upset about. So David, I guess overall my takeaway is thank God the US Supreme Court has an interim docket, an emergency docket, a shadow docket. I don't care what you call it because the alternative is what Virginia just did.
- [09:57]
David French
We have to do a little bit of quick civics here because we don't talk about state supreme courts nearly as much as we talk about the federal courts. So for a quick reminder for the non lawyers, the state supreme court is the final word on state law. The U.S. supreme Court is not the final word on Virginia state law. Now if Virginia state law conflicts with federal law, or if federal law has a bearing on Virginia law or the Constitution has a bearing on this, the federal constitution, then of course the US Supreme Court is involved. But if it's a strict state law issue, then they are the final arbiter. Which means they're not actually bound by that precedent, only if they choose to be bound by it. So they're deciding they don't have to do this. They decided not to intervene when a majority of the court believed there was unconstitutional under Virginia state constitution, unconstitutional defects. They allowed this to go forward. 80 plus million dollars spent, millions of voters going to the polls. I mean it is remarkable, it's remarkable what a choice to make here. Honestly, what a choice to say we choose not to uphold this. I mean we choose not to disturb this precedent and we're going to allow a referendum to go forward for nothing.
- [11:20]
Sarah Isgur
And the constitutional defect was back in October, right? Like it was a long time ago. And that's only the first defect. There were three other defects that the plaintiffs in this case argued that they didn't need to reach because they found that the very first defect killed the entire amendment process. Okay, David, so here's what they wrote. The opening sentences of Article 7, Section 1 of the Constitution of Virginia. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates and if the same shall be agreed to by a Majority of the members elected to each of the two houses. Such proposed amendment or amendments shall be referred to the General assembly at its first regular session held after the next general election of the members of the House of Delegates. Now, David, this is Virginia, right? This is Madison, this is Jefferson. Like this constitution, it old. And these guys intentionally wanted to slow things down, force, compromise, prevent, you know, mobile rule. And here you have again, four to three. This was very close at the Virginia Supreme Court saying that, well, an election then meant one day. Sure, an election now can mean many, many weeks. And so, yeah, you have to do it before the election starts. And, you know, David, I'm curious on the legal side whether you think this is the right outcome.
- [12:57]
David French
I would think that if there was one singular election day, that it would not be the correct outcome. So if they voted on October 31st, and even though it was November 4th, just so soon after that you had, it would still technically be the next. There would be an intervening election, and everybody at least would have the opportunity who was going to the polls. They would have the opportunity to go and take into account as part of their vote the existence of this amendment. Because the intention is to have a legislative vote, the voters to weigh in on the legislature, then another legislative vote, then a referendum, which, by the way, we need to have a whole conversation about this process because I kind of love it, actually, I kind of like it anyway, that this, this would be an interesting idea of like one of the potential amendments that we've talked about, how to amend the Constitution to make it easier to amend the Constitution. I kind of like this idea. I haven't chewed it entirely in my mind, but I kind of like it. But if, if that was the case, October 31, there's the vote. November 4, you have an actual election. And in fact, in some ways, even that short turnaround time, because it would be just fresh in the news cycle, it'd be all over the news. There might be some validity to the idea that, hey, even close to the election is, you know, fine, but here, I'll read the. I'll read you this paragraph. In this case, voting in the general election for the House of delegates began on September 19, 2025, and ended on election day, November 4, 2025. The General assembly voted for the first time to approve the Constitution to propose the constitutional amendment to the electorate on October 31, 2025. Here's the key. By that date, over 1.3 million votes had been cast in the general election, which was approximately 40% of the total vote. For that election cycle. So to put this in James Madison terms, in terms of James Madison, who was not aware of early voting, this would be about like the General assembly proposes the amendment at noon on election day, after the polls have been open for, say, six hours. And then you vote, then the General assembly votes, and then you've got six, seven more hours of the polls being open. That. That's sort of the equivalent of it. This was proposed in the middle of the election, not before the election, in the middle of the election. And I get it. I get the dissenting view that, wait, there is an election day. We've talked about this whole election day concept more than I ever thought we would. I mean, I get it. But my goodness, 40%. 40% of the total vote had already been cast. That's during an election. That's not before an election.
- [15:48]
Sarah Isgur
It's worth mentioning that the Virginia Supreme Court justices are picked in kind of an, you know, interesting but not shocking manner. They are selected by the governor and then sent to both houses to be voted on. Virginia has actually had divided government the entire time. For every single one of these justices, there were two years, 2020 and 2021, where it was full democratic control. But. But no justices were appointed at that time. So every justice on the court, it's hard to actually pin down, you know, any sort of partisanship to any of these justices in particular, for what it's worth. So, David, here's my lightning round on this Virginia question 1. Is there something to be said for not having an interim docket? And would it take pressure off the United States Supreme Court if everyone understood that we don't decide these things until they are actually in effect. So, you know, the Birthright Citizenship Order would have to be in effect before the Supreme Court could rule on it. Biden's student loan debt forgiveness would have to be in effect before the Supreme Court would rule on it. Or did the Virginia Supreme Court just prove why we need an interim docket? First question.
- [17:06]
David French
Okay, first question. Virginia Supreme Court demonstrates why we need an interim docket. You know, there are some injuries, and we've long known this. We've long known this, that there are some injuries where the harm is irreparable. So, for example, I was. I spent much of my career arguing injunction cases involving constitutional rights where, you know, the deprivation of a First Amendment right was deemed, even for a moment, irreparable harmony. Why? Because there wasn't really a dollar figure you could put on the compensation that. In other words. Well, here. How much? What is it what is the financial cost to me of not being able to chant no blood for oil. Right. I can't put a dollar amount on that. But there's some incalculable value of this individual liberty. And so in those circumstances, there are times when you've got to stop something from happening because there is this potential for irreparable harm. And this is a circumstance where this looks like an irreparable, almost a paradigmatic irreparable. Who's going to write the 83? You can't compensate for this loss.
- [18:16]
Sarah Isgur
Let me take the other side of this one. There was nothing the legislature could have done once they had done it on October 31st and that was already within the election period. It wasn't like they could have fixed the the ballot at that point. There was always going to have to then be an intervening election. So this ballot measure was never going to be done in time for the 2026 redistricting. So in that sense it didn't really matter when they ruled on it. Two, there was a 50% chance that the Virginia Supreme Court wasn't going to have to weigh in in this on at all because the ballot measure was going to lose. In which case you prevent the court from having to be in this partisan situation where one side is going to lose and one side is going to win and they're having to decide the winners and losers. So 50% chance of saving yourself a lot of grief. And yeah, you know what, both sides spent a lot of money. Most of that 83 million was spent by the Democratic Party to try to get the ballot measure passed. That was their choice. They're the ones that cut the corner in the first place. They knew the risks they were taking. Assumption of risk, but not the voters. Yeah, yeah, my time was wasted and I'm pretty uncool about that. And to the point, like I knew that there were defects with this ballot measure, but I couldn't take the risk. Like I didn't get to choose, like, well, I'm not gonna vote. Cuz I think there's a good chance that this didn't pass Virginia constitutional muster. No, clearly I have to go waste my time regardless and you feel a certain buy into the process. So now millions of Virginia voters, I do think, understandably feel like their votes just got tossed out. So this brings us, by the way, David, to the future question. The Virginia, the commonwealth has said they are going to appeal this to the United States Supreme Court. Now David, you already said this is based on Virginia law and the Only authority, the end authority on Virginia state law is the Virginia Supreme Court. The United States Supreme Court gets no say over what Virginia law means. It looks like their argument is going to be that the Virginia Supreme Court interfered with the state legislature's power under the Constitution, which allows state legislatures to set the time, place, and manner of elections for Congress. And, David, this is exactly the argument the right was making. It's pure horseshoe.
- [20:43]
David French
This is the independent state legislature argument that got struck down by the Supreme Court when it was made by the right. Yes. Yeah, exactly.
- [20:51]
Sarah Isgur
I mean, it's a beautiful thing. I love it when one side says that the other side is morally reprehensible, and then are we, four years later, four years later adopts the exact same argument. Republicans were a threat to the Constitution and the rule of law when they made these arguments, David. And while I didn't agree that they were a threat to the rule of law, I thought they were losing arguments. So I just want everyone who said that Republicans were a threat to the rule of law for making these arguments to be willing to say that their own side is a threat now, and vice versa. I want Republicans who think this is somehow a threat to whatever to acknowledge that they made the argument four years ago.
- [21:31]
David French
You know, this is just endemic. I wrote a piece over the weekend about Graham Platner, and can I just say, I'm not a fan. Not a fan of the guy. And, you know, look, Sarah, I. I've been around a lot of soldiers in my day, more than a few Marines. And if there's one thing I know about soldiers and Marines, they know their tattoos. It's like, hey, this one's a picture of my mom when she was 29. This is the Chinese symbol for strength and fortitude. This is the final score of my last high school football game. Like this, you know, this death head tattoo, I don't know what this is. Where'd that come from? Who knows what that is? The guy's a history buff. Anyway. It's not a fan. Just a record of, like, reprehensible public statements. Just reprehensible. Says he was going through a dark period. That dark period ended in, I don't know, 2021, Sarah, so. So you've been out of your dark period for, what, five years? You just covered up your tattoo and you're now running for Senate. And it's very important to overlook the Nazi tattoo, to run against Susan Collins, that threat to democracy, who, by the way, voted to impeach and convict Donald Trump. And the rationalizations Now, I'm not comparing Graham Platner to Donald Trump. Donald Trump is in his own category. So I'm not everyone who's saying, oh, how dare you put them in the same sentence. They are in as far as the gravity of the wrongs committed by the two men, very, very different. But the arguments for rationalization of supporting the wrongs are very, very similar. Very similar. Democracy is at stake, et cetera, et cetera. You know, the ends justify the means. We want authenticity, which is a word I'm growing to detest. Have you, like, have you been in a prison? There's a lot of authenticity in prison. Do you want to go ahead and start recruiting your candidates from there? Because they're super authentic. Like, come on. Honesty is not an equivalent. It's not a synonym for authenticity. I want honesty. Authenticity is a different thing. That is, I am who I am, and sometimes I am who I am is a horrible liar. But. And so. But we're just seeing this again and again as this partisan temperature rises and rises and rises, that the argument that was. That was reprehensible, morally unconscionable and vicious and evil when the other side makes it somehow becomes totally fine when we make the argument. Because everybody knows if we win and we run things, then it's all great. They can't win. The real harm is not the process foul, it's the outcome. And whatever process gets us the outcome that we want, that's the one we're going to embrace. And it's just a virus that is spreading all over this country.
- [24:16]
Sarah Isgur
The last thing I'll say, David, is on the actual question of the intervening election, the consequences of this Virginia Supreme Court decision that basically holds that you must pass a ballot measure before early voting starts and then again after the election in order to put a ballot on the Virginia Constitution, will basically mean that for six weeks or so every two years, you cannot propose a ballot measure or you can shorten early voting to have that be less amount of time so that you have more time up until the election day to pass a ballot measure for the first time. I think I'm actually great with both of those consequences. Right. That like, the election period is sort of the sacred period where the House of Delegates can't try to amend the Virginia Constitution and. Or we have a shorter amount of early voting, which I think has gotten really way too long, where we're learning, like we're voting on candidates before the election has really started, campaigning has started. And so you learn things about candidates weeks later. But you already voted, but the election hasn't happened yet, so I would love if that were the consequence too. So, yeah, this one's done. David?
- [25:35]
David French
Yeah, I'm, I have no objection to a brief period of early voting, but these 6, 7, 8 week early voting periods, I really don't like them because what it really does is it sort of gives away the game that essentially what's happening is not persuasion, but mobilization.
- [25:55]
Sarah Isgur
That's right. You're locking in voters who don't know who the candidates are.
- [25:59]
David French
Right, right. You're, you're going to your classic traditional constituencies, you're trying to get your reliables out to the polls as much as possible to bank your votes. To bank your votes. In any democratic system where the voting process really does devolve to mobilization over persuasion, I think you're getting, you're drifting towards real problems. That's when you're, you're really drifting towards the kind of polarization that we have now. If your fundamental goal is persuasion, that really does have both a temperamentally moderating effect and it often has a policy moderating effect. And I'm not saying that moderation is always right, but I don't think that in the United States of America, in the year of our Lord 2026, we're overcome by an excess of moderation amongst our elected leaders. We could, at the very least, even if you don't want to compromise on your policy goals, at the very least some temperamental moderation would do us some real good.
- [26:55]
Sarah Isgur
All right, David, when we get back, I'm going to read the tweet from Neel Katyal that I actually didn't think warranted any time on this show until the TED Talk came out. So we'll be right back with everything. Neil Katyal, you know that satisfying feeling when you finally get everything organized after it's been piling up? That's what using Gusto feels like for your business. Bringing payroll, HR and benefits into one place and clearing out the day to day admin clutter so you can focus more on business growth. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly and incredibly easy to use so you can pay, hire onboard and support your team from anywhere. Get direct access to certified HR experts who can support you through any tough situation. And enjoy a quick, seamless switch to Gusto by simply transferring your existing data. Plus, you won't pay a cent until you run your first payroll. Try gusto today@gusto.com advisory and get three months free when you run your first payroll. That's three months of free payroll@gusto.com advisory one more time gusto.com advisory chronic migraine 15 or more headache days a month, each lasting four hours or more, can make me feel like a slight spectator in my own life.
- [28:21]
David French
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- [28:24]
Sarah Isgur
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David French
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- [29:08]
Sarah Isgur
Why wait? Ask your doctor, Visit Botox chronic mind migraine.com or call 1-800-44-BOTOX to learn more. Becoming a parent really shifts your perspective. I felt how suddenly everything isn't just about me anymore. It's amazing, but also it comes with a lot of responsibility and plenty of unexpected moments you can't plan for. You start thinking more about the future and what would happen in situations you hope never come. That's why having some kind of safety net matters. Just knowing your family would be protected brings a different kind of peace of mind. Ethos makes life insurance fast and simple with a fully online process. Get a quote in seconds, apply in minutes, and even secure same day coverage with no medical exam. Just a few health questions. Online you can get up to $3 million in coverage with plans starting around $30 a month from a network of trusted carriers. Take 10 minutes to get covered today with life insurance through Ethos. Get your free quote@ethos.com ao that's e t h o s.com ao Application times may vary. Rates may vary all right, David, let's start with who Neil Katial is. He was the Deputy Principal Solicitor General under President Obama. He became Acting Solicitor General when Elena Kagan was nominated to the Supreme Court, and he has been a constant presence on msnbc. Now Mississippi, now as a legal commentator. And he argues regularly before the Supreme Court, David. In fact, over 50 times. I think he's a really nice guy. And so when I saw this tweet, everyone was dunking on it. And I thought, you know what, David? Forget it. Like, people aren't always their best on Twitter. And it's funny to text your friends about it, but we're certainly not going to talk about it on this podcast. I will read you the tweet. Five months ago, I argued against the President's $4 trillion tariffs at the Supreme Court. In 237 years, the Court had never struck down a sitting president's signature initiative. Legal scholars said it was impossible. Some of my own colleagues said it was impossible. We won 6, 3. But the real story isn't what happened in that courtroom. It's what happened in the months before. And it's the subject of my TED Talk coming out tomorrow. I had the best legal team in the nation, especially Colleen Rose Sidzdak, the most outstanding legal strategist I know. Huge thanks to go to the Liberty justice center, and in particular its fearless and hyper intelligent leader, Sarah Albrecht, who organized the client small businesses as well as to the brave small businesses themselves. I also had four teachers preparing me. A mindset coach who'd worked with Andre Agassi, an improv coach who taught me that yes, and works in Supreme Court arguments the same way it works everywhere else. A meditation coach who taught me stillness, and Harvey. Harvey predicted many of the questions the Justices asked, sometimes almost word for word. Brilliant, tireless, occasionally insufferable. Here's the catch. Harvey isn't a person. Harvey is a bespoke AI I built over the last year with a legal AI company trained on every question every justice has asked, an oral argument for 25 years and everything they've ever written. Now tomorrow, Ted releases my talk about what really happened and what I learned standing at that podium. AI can predict. AI can analyze. What AI cannot do is the one thing that actually won the argument. Connect, read the room. Hear not just a justice's words, but her worry. And answer the worry that is the irreducibly human skill. Find yours. Go deeper. In this age of AI, that's where your edge lives. So, David, I get it. That's kind of cringe. Maybe it's even very cringe. But you know what? There's nothing particularly wrong about a lot of that to me. He gives a lot of credit to his team that worked with him. I think it's weird that after 50 arguments, you needed A meditation coach and a mindset coach and an improv coach. But you're crazy if you are an oral advocate who is not working with an AI to help predict the questions that the judges on your panel or the justices are asking. Everyone is doing that. David Latt reached out and asked whether he was making money off Harvey or had any financial interest, whether they give him Harvey for free. He said no, he has zero financial interest here and in fact pays full price for the Harvey product that he uses. So, David, why are we talking about this?
- [33:52]
David French
Two things quickly about that tweet. One, it feels very AI written. So if you. And guys, if you are on Twitter, which I do not advise it, you see this kind of tweet all the time now. There'll be 400 words, 500 words, 600 words longer than that, and they all are written in the same way, like a punchy paragraph, another punchy paragraph, punchy paragraph, punchy paragraph, mic drop, close. And it's just like the same thing every time. It is actually remarkable. So I don't know, maybe it was written by an AI helped write the post or not, but it reads very much like an AI written post. But number two, once you get past the cringe, I think, on the substance, it's exactly right. You know, I was literally talking to somebody the other day who was talking about how AI is going to replace lawyers very quickly. And I was like, when are we getting the Blade Runner style replicant? Who can argue a case in front of a jury? You know, that's when it'll happen, is when you have like Blade Runner style or Cylon level technology. But until then, you know, especially if you're a words person, you're communicating with people and human beings and reading reactions, engaging people's reactions. He's completely correct. AI can supplement, but it cannot replace. So the substance, put the cringe aside. The substance on that was like, to me, spot on. And I thought it was actually interesting that a person with more than 50 arguments was that painstaking in their prep, was going that deep into the prep in which is sort of like, you know, if you watch and look, I'm not going to say, as we'll be discussing here in a minute, I'm not going to say that Neal Katyal is the Steph Curry of advocates. But if you know, and you watch Steph Curry say, for example, go through his warmups, the guy doesn't take anything for granted. Even though he's like the greatest shooter in basketball history, he does the work. He does it and so I feel like that's an interesting professional lesson for people. 50 Supreme Court arguments in 50 plus. You're still doing the work. You may not do it the way he does it. Like, I never thought. I don't even know what a mindset coach is, but I would not think of an improv coach, but I would think of how do I prep this as seriously as I can prep it. And also, it's true that this was a super huge, monumental case. I called it the most important case of the new century. So there was a lot of reason to take it very seriously. Okay, that's the defense. That's the defense.
- [36:27]
Sarah Isgur
And let's just say this dude also posted pictures of himself from Burning man with a beanie hat with a spinner on top. And we didn't comment on that either. Right? This podcast does not like dunking on people. You know, but for the grace of God go I. Right? We've all posted super cringe things, and we don't want people dedicating time to saying, what a loser, you know, what a nerd we are. Fair enough. So all was well. And we were not going to talk about any of that, because, again, not unreasonable to me. Then the actual TED talk came out. 1.4 million people have watched it. And, David, we've moved past cringe into something totally else. I'll just give the first. Give some vibe here at the beginning. There is a mahogany podium at the Supreme Court of the United States. One person died there mid argument, a stroke. Another collapsed there, dying soon after. That's the podium. It also happens to be where I practice law. The most powerful court on earth. Nine minds ready to attack, and you stand 10ft away from them. There are no prepared speeches in this court, except, as Josh Blackman points out, your opening statement, where they're not allowed to interrupt you for two minutes. There are literally prepared speeches, but fair enough. Instead, 50 questions thrown at you in 30 minutes. I'm making hundreds of decisions in real time. Every argument I choose to make or not make, every word, every pause, every tone. There are no rewinds. Flinch, and the justices pounce. That's my courtroom, David. It's roughly 10 minutes long. There's the part where he says, it's my courtroom, which is, again, cringe. He also says I'd argued 52 cases. I'd saved the Voting Rights Act. I'd struck down the Guantanamo military tribunals. Pretty aggrandizing. In the actual TED Talk, he never talks about his team by name. He makes references to other lawyers that he worked with, but actually dedicates a relatively long amount of time in a 10 minute speech to attacking Michael McConnell, his co counsel, who he says tried to steal the argument from him. He has no evidence for this that he has shown anyone. And that's when I changed my mind about this topic, David. Because when you punch down that way with no evidence and making that kind of accusation, feel free to bring the evidence. I'm open to it. But until then, no sir, you do not get to give a ted talk with 1.4 million people and say that Professor Michael McConnell tried to snipe the argument from you. Poor form. That's like pretty gross behavior to me. Also using the AI for moots. As I said, super smart. Everyone's doing it. Nothing special about that. But he gives these examples where he compares the questions that Harvey predicted with the questions that the justices actually asked. Well, David, I actually went through and looked back at the transcript because there's a lot of ellipses in there. And let me tell you some things that I learned about this, guys.
- [39:41]
David French
This is why you listen to advisory opinions. This due diligence right here, this is priceless. This is priceless. I'm on the edge of my seat. Sarah, go.
- [39:50]
Sarah Isgur
A month before the argument, Harvey told me that I should expect a question from Justice Barrett about license fees. And then he puts up on the screen the question that Harvey predicted about a case called Algonquin, which was a relevant precedent in this case. Again, there actually weren't that many relevant precedents. So of course Harvey predicted a question about the relevant precedents. And then he puts up next to the screen a question from Justice Barrett where she says Algonquin was very careful to always call it a license and a licensing fee. So tell me, tell me what the distinction is between licenses and fees and if it matters, here's the thing. The dot dot dot had like, I don't know, 300 words in it. David. She was talking about a different precedent entirely when you get to the end of the question. And guess what, David, the question wasn't to Neil Katyal. It was to a different advocate. It was to the Solicitor General on the other side of the case. So let's continue. Harvey predicted that Justice Gorsuch would ask a question about everyone. Brace it, the Constitution. So Harvey, the power to lay duties and imposts is front and center in Article 1. Why shouldn't we apply a clear statement requirement before concluding Congress transferred any part of that power to the executive in ipa? Justice Gorsuch's actual question. It does seem to me, tell me if I'm wrong, that a really key part of the context here, if not the dispositive one for you, is the constitutional assignment of the taxing power to Congress. Isn't that really what's animating your argument today? And in his transcript, he says it knew that Justice Gorsuch would ask me about the taxing power. Again, that question was not to him. It was to a different advocate. And yes, Justice Gorsuch asked about the text of the Constitution. I could have told you that. I think anyone could have told you that. Like, that was actually every justice asked about that. Really? Because this whole thing was on whether the Constitution allowed that. This was the whole non delegation argument. Okay. There is a question from Justice Kavanaugh. It says it knew Justice Kavanaugh was going to grill me on tariffs versus embargoes. Here's Justice Kavanaugh's. Here's what he included in the PowerPoint. Well, what's the difference between a quota and a tariff? And what's the difference between an embargo and a tariff? That is actually Justice Kavanaugh quoting a different court. It is not Justice Kavanaugh's words. And then there's an ellipses. And he says we find no support in the language of the statute. Ellipses for ellipses. That the authorization ellipses. Yada, yada yada. That's all quotes from a precedent. He's reading a precedent and then asking him to comment on that precedent. That to me, looks pretty different. Then we have Harvey predicting that Justice Barrett would be worried about tariff refunds. Fair enough. Except as we've talked about on this podcast, in fact, so much so that, David, it's in my book that Justice Barrett asks questions about consequences. Right? And then the advocate pushes back in that one case and says, well, that's irrelevant to the constitutional question. And she says, I know, and I'd like to know what the consequences are. So once again, you didn't need an AI to predict that she would ask about consequences. If you are a, you know, following this in any way, you would hear that. I just, I actually found this, if you're an actual Supreme Court person, to almost prove the opposite, that Harvey was really unhelpful because we don't have the denominator. How many questions did Harvey come up with to be able to then say that it predicted this question? Because if the answer is Harvey predicted 100 questions. And one of them kind of looks sort of like this question if again, we take the most obvious questions in the whole world that could be asked, that's not great for Harvey.
- [43:49]
David French
There are three words that came to my mind when I saw the TED Talk and they're, they're going to not, they're going to surprise you. My three words were top dog law. Okay, why would I say that? You can't go anywhere driving around in the Midwest without seeing advertisements for call top dog, top dog law. And it's like this very brazen. I win cases like you don't call yourself top dog unless you are broadcasting that you're like the pit bull and even the picture of topdog law dot com. I think that's a pit bull by top dog lawyer. And it reminds me, it's like he went into the TED Talk and said, I'm top dog and I'm going to show you how top dog I am. My courtroom. I won. I won. I won my courtroom deck. Stacked scholars said this was impossible. What? What scholar scholars said, you're winning this case, Neel Katyal, you're winning this case. Now, let me tell you, I think there's something that's kind of weird out there, Sarah, and we talked about this a little bit in the green room. Can I call it the painfully unsophisticated, highly educated political hobbyist. And this is the audience for an awful lot of political media is this audience. And it is people who have a pretty good degree of education. They're highly attuned to politics and they're highly partisan. And that last bit of it, the highly partisan actually means they become much less sophisticated about politics and law because the media that they consume. This goes back to like the more in common survey from 2018 that shows the volume consumers of political media are the most wrong about their political opponents. So you've got as your media and TED Talk listener is probably a high, is a highly educated person. It's not rarely does somebody go from third shift at the tire plant to a TED Talk. Right now there are some people who do. But it's not your core audience. Right? So it's a highly educated audience. It's a very partisan audience by and large and probably highly attuned with political media. And if you're on the left, if you're left leaning and you're highly partisan and you're highly attuned to political media, what is the one thing that you have in your mind about the Supreme Court? Totally biased against this. You can't win. It's always going to rule for Trump. Blah Blah, blah. All of the facts that you put out in your book, Sarah, all the facts that we talk about in advisory opinions, they don't know any of that. They are just deluged with Supreme Court's for. It's, it's rigged, it's rigged. It's illegitimate, it's rigged. Look at Dobbs, look at these emergency docket cases. Rigged, rigged, rigged. So then you have this attorney come in who's a fellow liberal who won in front of the 6:3 Supreme Court, and he is going to, if that's your mindset, look like Zeus walking down from Mount Olympus. You know, he's got a thunderbolt in each hand. You know, I walked in to the Lion's Den, this 6:3 Republican court and got a 6:3 Republican court to strike down the signature, signature policy of a Republican administration. Look at me, I am the God King. I am Zeus. And it is a message that lands with a particular audience incredibly well because it plays its premise on all of their false assumptions about the Supreme Court. If you actually walked in with a realistic view, he was the favorite. He was the favorite. He was big time the favorite. You know, he, he is the Oklahoma City Thunder in the 2026 playoffs. He was the Los Angeles Dodgers in the 2025 World Series. I mean, he's walking in as a prohibitive favorite. And he won. His client won. He won. All, you know, credit to him. We, I would not minimize that at any way, shape or form. But you know what I would also not do? Maximize it. Right? Don't minimize it. He did something impressive. He won a major, major Supreme Court case. And guess what? I don't care if you are the favorite when you walk in. You still got to win the case. You still got to deliver the argument, make the argument. So all. I do not begrudge him a scintilla of credit for winning this case. However, my gosh, dude, please just acknowledge the truth here. You know, the truth is you're walking in as the odds on favorite to win the case. That if you, those of us who knew the jurisprudence of these justices, knew you were the odds on favorite to win the case, this was much more of a situation where if you're going to begin the TED Talk, you would say I walked in with the worst kind of pressure an oral advocate can feel, and this would be true. I could blow a winnable case and I could. Everyone knew walking into that courtroom that the odds are were that I could win this. But I will tell you, as somebody who's been on the Underdog and been the, you know, the favorite. I would much rather be the underdog. It is much more stressful to be the favorite because I feel as if a loss is on me. So I hired a mindset coach. I hired, you know, to me that's a very honest, true, clear way of explaining. Why would somebody who's the favorite feel so much pressure? Well, I've been the favorite arguing cases before and I felt intense pressure. And then when I've been the underdog, I've been much more loose. I've been much more, you know, I felt much more relaxed going into court. I took my, I took the big swings. I tried, you know. And so I think there's a way he could have done the TED Talk, which actually approaches it realistically that would be very humanizing and not take any credit away from him for winning the case. Because the one thing I don't want to do in talking about this is just denigrate him for he won, you know, his client won. Credit to you, Neil, you won. But gosh, and then trashing Michael McConnell like that, everybody knew who he's talking about. He's just referred to as like that guy, I think, in the, in the, in the TED Talk. What are you doing? I mean, we weren't there. We don't know all the ins and outs. We don't know the full story. But Michael McConnell has a reputation as being a gentleman. I have known him, not closely, but I've known him for years. I've worked with him on cases and he is a gentleman. He is not a self aggrandizing egomaniac. I've never seen a hint of that in him. And so I don't know what went on behind the closed doors. For all you know, I'm not going to opine on the, the, all the, the veracity of all this, but it was just such an unnecessary inclusion that really went with sort of this narrative of I'm the underdog. I slayed Zeus and quelled an internal rebellion at the same time.
- [51:06]
Sarah Isgur
If you remember, David, we did talk about this before the argument and I said that I thought they were making a strategic mistake not having someone fluent in conservative legal thought argue this case because it turned so heavily on the major questions doctrine and non delegation doctrine and that having Neil Katyal argue it was a mistake. Jason Willock wrote that in the Washington Post as well. Part of this Ted Talk is saying that Michael McConnell put Jason Willock up to that piece in the Washington Post. Jason Willock has since come out and said, that is not true. I Talked to Michael McConnell the afternoon of the argument and basically like prodded him into like, hey, you know, that didn't go very well in terms of the oral argument. You guys went in, expected to win, and you lost altitude in that argument. He wouldn't take the bait. He was like, well, I hope we win in the end. Thanks, good to see you. And walked off. And then of course the client herself has come out and had some harsh words for this TED Talk as well, and how unfortunate it is. David Latt has put together a whole newsletter on this over at Original Jurisdiction.
- [52:13]
David French
This is catnip for David Latt, by the way. This is David Latt's Christmas is when you have like this high level Supreme Court drama that he can unpack. I love it. I love to see a man in his wheelhouse.
- [52:26]
Sarah Isgur
So here's. He put together some of the tweets. Here's Dan Epps counterpoint. The justices are good at figuring out what they think about a case of this magnitude. And Neil's four coaches had zero effect on the outcome. I don't think I have ever seen a SCOTUS advocate claim so much personal credit for a win before. Yeesh. And David, this is what I quoted, sorry, tweeted, quoted, citing an anonymous member of the Supreme Court bar. I hope Neil knows he just announced his retirement in the form of a TED Talk because he can never appear in front of the court again. And I just thought it was worth to wrap this up. David, do oral arguments matter and what that actually means. So one, we've said this before, right? The cases are largely decided on the briefs, but the oral argument sets the aperture. Is it a big win? Is it a narrow win? And sometimes you are picking off votes. And most importantly, you can lose the case at oral argument. I would have been really curious to see whether Michael McConnell arguing might have been able to move, for instance, a Justice Kavanaugh or maybe even a Justice Alito into a separate concurrence rather than being part of the dissent, for instance, would have been interesting to me. We'll never know. Fine. So. So that cuts both ways, David. On the one hand, claiming huge amounts of credit because of the oral argument, like that's not how oral arguments, that's not what they do. But also, you know, me saying he will never argue again before the court, like what does that matter? So here's why, David. When you send in your cert petition to the court on behalf of your client, there is a counsel of record and if you've read my book, you know the next process, right, it goes to the clerk assigned in the pool memos to write up that case. It's very short, oftentimes two pages. And they have these little short forms at the top. You know, splitless fact bound, no apparent error. That means you're getting denied. There can also be a thing called a vehicle problem. Some procedural box wasn't checked, who knows? It's just not the right case. They basically get the same cert petition for the same kind of fact pattern. Maybe not multiple in a term, but they know they're going to get another one next term and they'll wait for the right vehicle. I've complained about this. It's why we have so few cases going to the court right now, because they wait for the property. Perfect vehicle. But David, I am aware of a clerk writing in his pool memo, vehicle problem brackets the lawyer who was the counsel of record, that that itself was the vehicle problem. And when you have multiple cases coming up with the same question of law being presented, yeah, they do sometimes pick the lawyer that they actually want to argue the case. And so, yeah, I think that having this kind of TED talk, if you are a sophisticated client deciding what lawyer you want on your brief because you want your cert petition to be granted, you would be insane to put a lawyer that basically just insulted all the justices on the court in this weird, bizarre self aggrandizement exercise where he also insulted another member of the Supreme Court bar for no apparent reason with no actual evidence. I would not, if I were a general counsel, I would never put that name on a cert petition unless I wanted it to be denied.
- [55:48]
David French
This actually connects with our professionalization of the court conversation, which is once you have a say, a Paul Clement, you know, the, the goat, the conservative goat in, in all of, in, in these Supreme Court order arguments, there's a sort of self reinforcing momentum you get after a while. So if you are somebody and you've got, you know, let's say there's a circuit split that's hanging around out there and there's two to three to four vehicles and one of them is a big commercial firm that wants its case heard, you know what they're going to do? They're going to back this dump truck up full of hundreds and just like dump it on top of these leading Supreme Court advocates to draft the cert petition so that in the cert petition their name is in the council of record. And this creates this sort of self fulfilling Prophecy, almost. That's the council of record. Helps get the cert petition. In theory. In theory. And then once that cert petition is granted, well then that's of course who's going to argue it. And so it's at the cert grant stage that already you're starting to get this professionalization and narrowing and the competition there is very, very intense. And you know, to have an own goal like this, like, I don't think this is it for Neal Koch all, I mean, he's got 50 plus cases. He'll argue more, I'm sure. But this is not something that helps and you know, it, it really does show. You always have to keep in mind more than one audience. You know, if you're sitting there and you're just giving catnip to a TED Talk audience, you have to know that other people are also watching you and who are not TED Talk audience, who are not going to eat all this up because they know a lot more about what went down than the TED Talk audience does. And as much as, as many plaudits and as many views as you're going to wrap up, wrap up, you know, rack up on YouTube, the actual audience that really matters has tuned you out or has discounted your position or you've, you've put yourself in a hole with them in a certain way. And I think that that's what happened here. And it's one of these consequences, I think, of this just populist moment where this temptation to throw chum in the water because one of the ironies of populism is you always have the leader of the populist mo, you know, you always have this sort of populist elite. The, the man on the horse in front of the mob. And everybody wants to be that man on the horse in front of the mob. So they throw that chum into the water. And it's just, it's disappointing. He didn't need to do this. He had a good story to tell. He had a really good story to tell. And, and look, you know that what you just said, Sarah, about you can lose at oral argument. Harder to win at oral argument. That's why it's so nerve wracking to be the favorite because I can throw this thing away. You know, it's why defending champs often play tight. They're, they're worried like I'm gonna, I could throw this thing away. And so you do have a story to tell, but it's not the story that he, not the story that a, maybe a left leaning TED Talk audience was wanting to hear. I don't know that they want to hear that these Republican nominated justices were already predisposed to rule against the Republican President. Maybe that's not the that's not going to land in the same way.
- [59:13]
Sarah Isgur
Well, David, David Latt reached out to Neil Katyal and asked him for his thoughts more generally on what one reader of mine dubbed Ted Gate. Here's what he had to say and I'm going to do some ellipses of my own, but I think I'm going to capture he had three paragraphs and each paragraph had a different message. Paragraph number one. Thanks for asking. The whole point was to admit vulnerability and to share with folks that no matter what your past looks like, it's still really hard and difficult. The bar is not really honest about this. I've often thought that the talk I really needed to hear in law school was not about the various modalities of constitutional interpretation, but but rather about the difficulties and how out of place one can feel in the practice of law. Paragraph number two. I have been fortunate to learn from the best advocates and from experts outside the law, and I work my tail off to try to improve all the time. I've never felt like I'm the best lawyer. The one skill I feel confident of today is the ability to put together fabulous teams and learn from them. The whole talk is about team ball, how to put together that team in your life to be able to do the things you want to do. And then number three, the AI piece is part of that. Our profession is on the verge of a seismic shift and the legal profession doesn't understand what is about to happen. Lawyers are already using AI. Soon judges will be, if they aren't already. And we need to begin that conversation now. And the talk is an attempt to do that. As David Latt said, I agree wholeheartedly with Katyal on the importance of admitting vulnerability, learning from others, working as a team, and embracing the power of AI rather than pretending it doesn't exist. And if his tweet and TED Talk had sounded more like the reflections he shared with me, the public reaction probably would have been different. Couldn't agree more, David. I thought that email was lovely, but to your point, that email does not chin up your base.
- [61:05]
David French
That's a TED Talk. I would love to see a 50 plus guy argument guy saying I still feel insecure, I still feel vulnerable. Here's the process that I do that would have been tremendous. Instead we got my courtroom.
- [61:17]
Sarah Isgur
Yes, I blocked Guantanamo military what? That's an insane thing to say that you did anything.
- [61:23]
David French
I mean, you can say I argued
- [61:25]
Sarah Isgur
the case, that I persuaded the justices. I'll accept that. But you didn't block anything with your article3.0 powers. Okay, David, when we get back we have an email from an AP Government teacher. The AP Government exam was this week and in preparation for their test he developed a Would you rather activity and David, I thought I'd play a little. Would you rather
- [61:54]
David French
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Sarah Isgur
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David French
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Sarah Isgur
Needs.
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David French
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- [62:56]
Sarah Isgur
All right, David, you ready? Would you rather. This is the most exciting nerd game ever created. Would you rather live under the Articles of Confederation or live under the US Constitution pre Bill of Rights? This one's easy. Let's see if you can get it right.
- [63:13]
David French
Oh. US Constitution pre Bill of Rights.
- [63:15]
Sarah Isgur
That's correct. And by the way, there's no correct answer. I'm just, you know, McLaughlin style anarchy
- [63:20]
David French
versus at least some degree of order. I'll take some degree of order.
- [63:24]
Sarah Isgur
Would you rather be a federalist at the Constitutional Convention or be an anti federalist after the Constitutional Convention?
- [63:34]
David French
Anti federalist. Oh. Ooh. Ooh. Okay. All right, that's. This. This one's tough. Sarah. I'm going to say federalist at the convention because the anti. It depends on what my brand of antifederalism is. Is it. Is it strike down the whole Constitution or is it. I will vote for this Constitution if You add the Bill of Rights. That one I'd rather be. That one I'd rather be. But throw the whole thing out. Not that one.
- [64:06]
Sarah Isgur
Would you rather. This is maybe the hardest one and it's one that we've talked about that I hope lots of Americans talk about as we approach the 250th anniversary of the Declaration of Independence. Because this really was the question. Would you rather have the Constitution fail without the three fifths compromise or have the Constitution ratified with the three fifths compromise? Boy, that's it, right? That is.
- [64:35]
David French
Yeah.
- [64:35]
Sarah Isgur
I question of America's constitutional republic.
- [64:40]
David French
That is a great question. I think you ratify it with the three fifths compromise, because I don't think if the Constitution fails, that doesn't end slavery. It might end America. It wouldn't end slavery because that wasn't the issue. The. The ending slavery was not on the table. That. That was not even in the realm because, you know, all of the Southern states, which, by the way, relative to the north, were much more powerful and prominent than they were by 1861. Then do those Southern states stay in a U? Boy, that. Yeah, that's a really, really great question. But I think once you realize ending slavery is not on the table at that point and the question is a united country or not a united country. That. That's. Whew.
- [65:33]
Sarah Isgur
All right, David, we're going to end on that one. For this episode, I may. I may come back to a few of these because this is. There's 56 of these.
- [65:40]
David French
I love it. I would do a whole podcast on this and just have the greatest time
- [65:45]
Sarah Isgur
and they are nerding out. I mean, some of these, you got to really. You're going to score a 5 on your AP gov exam. I'll tell you that. If you can even understand 30 of these.
- [65:56]
David French
Oh, I just. You reading these out to me says these kids are going to be just fine. Because I will tell you, my AP History class was not this intense. Not by a long shot. Not by a long shot. So good on you. Good on you, teach. That is a. Those are some great questions. I want to answer more, Sarah. I want more. Give me more.
- [66:20]
Sarah Isgur
Well, good for you. This is in a high school in Charlotte, North Carolina. He's been teaching there for 16 years. You know who you are. Extra shout out. And to everyone else, I have got this case on the Lanham act. And you think to yourself, that can't be sexy. And you are wrong. I feel like it is. It is the case that I'm going to point to David to decide who the next Supreme Court justice should be based on what side of the argument they take. This was a 2:1 decision out of the Ninth Circuit and I think far more than ideology. It tells you everything you need to know about a potential justice. So we're going to do that next time on Advisory Opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to, exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisory opinionsedispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [68:24]
David French
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