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- [00:00]
A
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Join the Nordy Club to unlock exclusive discounts. Shop new arrivals first and more. Plus, buy online and pick up at your favorite Rack store for free. Great brands, great prices. That's why you rack. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French, and we are live at Florida State University. Seminoles mean it.
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A
The Seminoles mean it. And SMU is now in the dust, I have to say. It's official. It's official.
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B
All right. Today, David, we have a full substantive pod. Yeah, we are going to do tariffs revisited and do an AO special where we steel man, everyone else, right, other than the majority, revisiting Justice Kavanaugh's dissent and revisiting Justice Kagan's concurrence and the best arguments for why they are totally consistent across all of their jurisprudence. We will also talk about the other tariff authorities that the President has invoked and the legal foundations for those as well as should the justices go to the State of the Union, which has been a thing of some controversy after the President has, you know, accused some of them of being under the control of a foreign power without any evidence, as well as we have a decision from the Fifth Circuit on the Ten Commandments case, which is very First Amendment fitting with why we are here today. And then we'll just see. We'll see where we go from there. Who knows? David? Yes, as we talked about the tariff decision in our emergency podcast, we split this up into a 3, 3, 3 decision, where you have the Chief, Barrett and GORSUCH in their 21 page, you know, major questions doctrine. This falls in line with student loan debt forgiveness and OSHA vaccine mandate. Nothing to see here. We can do this all in a 21 page. Little neat bow. And then you had Justice Kagan, Sotomayor, and Jackson saying, this is just clear statutory interpretation. We don't need the major questions doctrine. And also, somehow this is totally consistent with us dissenting in things like the student loan debt forgiveness case. Let's start there for a second, because online, for instance, I've seen people make the argument that they're being totally consistent because they don't believe in major questions doctrine. First of all, that makes it sound like it's a faith that one joins, which I'm not necessarily opposed to, I guess. But what's interesting to me, and I'm about to argue that they are being completely consistent, but before I do, I want to debunk the idea that somehow the major questions doctrine, like, fixes the consistency issue. If anything, not believing in major questions doctrine makes it harder. So, for instance, if they had said that the student loan debt forgiveness case, you know, we don't like major questions doctrine. We think this is just statutory interpretation. And the best reading of this statute in student loan debt forgiveness is that Congress did in fact allow President Biden to do this. And now in tariffs, you know, we're looking at this regulate importation. You guys have been applying major questions doctrine. You know, fine. While we didn't agree with it before, that's clearly the court's jurisprudence. And so applying that precedent, despite the possibility that there's a reading of the statute that allows Trump to to impose tariffs, regulate importations using major questions doctrine, which raises the bar. Therefore, you know, that's how we can be consistent. We didn't use major questions doctrine before. Major questions doctrine will make it harder for a president to find authority in vague congressional statutes. It's like we're all in. So if anything, Kagan, Jackson, and Sotomayor not signing on to major questions doctorate should make it harder to find consistency. Because without major questions doctrine, like the tie goes to the President type thing, if there's a large, vague statute, we sort of defer to the President's authority and the possibility that Congress gave him that authority. That's what they said in student loan debt forgiveness. That's what they did not say here. Okay, so that was my argument for why it's not consistent. Now I want to give you the totally opposite argument. It's completely consistent. So let me read you from Justice Kagan's student loan debt forgiveness. Some 20 years ago, Congress enacted legislation called the HEROES act, authorizing the Secretary of Education to provide relief to student loan borrowers. When a national emergency struck the Secretary's authority was bounded. He could do only what was, quote, necessary to alleviate the emergency's impact on affected borrowers ability to repay their student loans. But within that bounded area, Congress gave discretion to the Secretary. He could waive or modify any statutory or regulatory provision applying to federal student loan programs, including provisions relating to loan repayment and forgiveness. And in so doing, he could replace the old provisions with new terms and conditions. The Secretary, that is, could give the relief that was needed in the form he deemed most appropriate to counteract the effects of a national emergency on borrowers capacity to repay. That may have been a good idea or it may have been a bad idea. Either way, it's what Congress said. So this Kagan, of course, ranks the principal dissent in student loans and the principal dissent here in Terrace. What she's saying in student loans is that this isn't quite the same as just some big, vague emergency power that because the topic is so bounded, that we should read in a little more deference to then the expanse of the discretion within that very narrow topic of student loan debt. And I take that point well.
- [06:57]
A
You know, it really centers around the word waive. So waive, could that mean waive all of the obligations that exist under the student loan system, or can it mean waive any number of obligations under the student loan system, but not the obligation to repay the loan? In other words, just do away with the loan? And so I absolutely see the point here that you're looking at a statute that has, within a narrow confine, it has stronger language here, maybe more clear, wave has a meaning that seems to be pretty clear. And it does raise a question that I think is very important to ask in light of all of this back and forth, because as I said very clearly, I'm absolutely a major questions guy. I like the Gorsuch formulation of major questions. But when I read Kagan and when I read Barrett, part of me is saying, wait a minute, is this angels dancing on the head of a pin kind of argument that gets legal scholars all worked up, but in the reality, it's all just statutory construction? In other words, it's all just reading the statute and major questions doctrine, to the extent it really matters, is just kind of a principle hovering over everything that you can derive from the statute itself anyway. And so that, to me, that's one of the interesting questions hovering over this is how much is this a dispute that at the end of the day, really matters? I tend to think it really matters because as a sort of a canon, a rule of construction that just sort of says, okay, if I want sweeping powers, I have to have a clear statement. Sweeping powers has to be justified by clear statement. Look for the clear statement. Not there, it's over. That is a system that makes sense to me, but isn't looking for a clear statement, just statutory interpretation and construction. So how consequential, Sarah, is this debate?
- [08:53]
B
Well, I want to take us over to Kagan's concurrence here where she explains why she's being consistent with things like West Virginia VEPA and student loan debt forgiveness. I objected in the principal cases cited. She's now referring to Gorsuch. Right, because all of this is the back and forth with the concurrence. Like nobody even remembers the 21 page majority opinion in this case. I objected in the principal cases cited, West Virginia student loan debt forgiveness, to the demand for a special brand of legislative clarity. In my view, the Court used its clear authorization rule in those cases to negate expansive delegations Congress had approved. I explained there that the proper way to interpret a delegation provision is through the standard rules of statutory construction. To your point, David, that means most concisely stated reading text in context. More expansively put, it means examining a delegation provision's language, assessing that provision's place in the broader statutory scheme, and applying a modicum of common sense about how Congress typically delegates the last of those inquiries includes consideration of whether Congress has ever before or likely would delegate the power the Executive asserts. A matter also of import in applying the major questions doctrine. In the past, though, I have thought that the Court used that doctrine to override rather than help discover the best reading of delegation statutes. So, David, there's that one sentence in there that I think is really important. The last of those inquiries meeting common sense about how Congress typically delegates basically is the major questions doctrine, she's saying. So she's like, yeah, major questions doctrines built into my statutory construction as well, because it goes almost more to the Barrett point as a way to read the text. So, like, you have them almost sitting, as you say, like right next to each other. Gorsuch wants a little more Barrett's maybe in the middle and then Kagan's right over here and they're all touching and then yelling about how far apart they are, right on how you do statutory construction. And she then goes on to say, this case, the tariffs case, presents nearly the opposite situation. The use of a clear statement rule here is unnecessary because ordinary principles of statutory interpretation lead to the same result. It is not just that the government's arguments fail to satisfy an especially strict test. It is that they fail to satisfy the normal one. Even without a clear statement rule in the picture, the conclusion follows. I EAPA does not authorize the President to impose tariffs. And indeed the principal opinion's reasoning well explains why the rest of this opinion draws on that analysis, I hope without too much rehashing to demonstrate what I view as the fundamental point usual text in context interpretation dooms the tariffs the President has imposed. The crucial provision of iipa, when viewed in light of the broader statutory scheme with a practical awareness of how Congress delegates tariff authority, does not give the President the power he wants. So David, bottom line of why Kagan's being totally consistent, she's just looking at the statute. She thinks the other statutes were broad delegations of power to the President. She thinks this one was not. I will tell you that what would make me feel in our last episode I said I think this is the weaker case for consistency than what we're going to talk about in Justice Kavanaugh's dissent. Because I would like to see Justice Kagan vote to uphold a Republican president's power under a vague congressional delegation of power or strike down a Democratic president president's delegation of power under a vague congressional delegation. That's a policy preference of the left. That's my only complaint so far. It is not that I don't think that the idea that like you just have to look at the statutes and you have to do regular statutory construction and this idea that you can like wave around things like major questions, doctrine or other fancy terms relieves you of the need to do statutory construction. I think she's spot on about that actually. But I do need to see it applied against policy ideological preferences.
- [12:52]
A
And I think one of our answers would be something like just putting on my Justice Kagan hat. Look, if you're going to compare these different cases and you zoom out, the delegations actually in OSHA or at the delegations in student loans were very narrow and confined to very small specific areas over of regulation. This, on the other hand, is a sweeping assumption of the taxing power of Congress that has trillions of dollars of impact compared to the relatively narrow impact that was there. And the narrow impact that was there is evidence of the narrowness of the grant compared to the breadth of the grant.
- [13:34]
B
I love that $400 billion is now our narrow exemption.
- [13:38]
A
Narrow exemption. But if you play out the tariffs, it's trillions. It's trillions. But I I the arguments I'm hearing
- [13:45]
B
you say, which I think she didn't write, but I think it makes some intuitive sense. There is no inherent congressional constitutional authority for, like, vaccines or student loans or even carbon emissions. Those are delegations to agencies for the most part. And here, this is a core congressional power. It is the power to lay tariffs and duty. So the idea that Congress can delegate that broadly, again, that sounds more like major questions.
- [14:16]
A
That sounds like clear statement, doesn't it? Yes, it does.
- [14:19]
B
But I do think that she impliedly is saying there's just a difference when you're saying as long as you say there's an emergency. Congress just gave away one of its explicit Article 1, Section 8 powers and just gave it to the president unbounded.
- [14:35]
A
So before we move on from Justice Kagan, I get to exercise we negotiate ahead of time. Who gets to read the footnotes? Because the footnotes are the fun part of these opinions. And one thing that's unfortunate, when you get a big opinion just sort of a bit about how the sausage is made, we often have to immediately comment on them like, there is a phone call start coming in. You know, when's the emergency podcast? What are you writing on this? And so you have to very efficiently read through these things. And one of the things that I do, you have to make a trade off. Do you dive into the fun and joy of the footnotes or do you wait? And so I power through and read as much as I can, and I kind of leave the footnotes to clean up later.
- [15:19]
B
Dessert footnotes.
- [15:20]
A
Dessert footnotes. And these were particularly delicious. So Justice Gorsuch, who walked in with sort of, if you listen to our emergency podcast, we called it the Festivus opinion, where it was like, I got a lot of problems with you people. And it was everyone except him and the Chief Justice. And so he had problems with seven other people. And I mean, he went in detail into all of his problems. And so you can't expect, you know, justices of the Supreme Court to take that lying down, and they did not. So here's Justice Kagan. Justice Gorsuch claims not to understand this statement. And what was the statement that she was saying that she was referring to? She said a clear statement rule is unnecessary because ordinary principles and statutory interpretation lead to the same result. So Justice Gorsuch claims not to understand the statement, insisting that I now must be applying the major questions doctrine and his own version of it to boot. Given how strong his apparent. How strong his apparent desire for converts, I almost regret to inform him that I am not one, which is a little amusing. And then she goes on to I proceed in the case as I did in West Virginia and Nebraska, but given how strong his appearance is, it's like she's slamming the door in the face of the Jehovah's Witnesses here. I've read the Watchtower, and I'm unconvinced.
- [16:49]
B
All right, so, David, we got a question from a listener who makes an interesting argument that maybe it's not Justice Kagan who's being inconsistent here. What if it's Justice Gorsuch? And I want to read you this question. I understand Gorsuch's disagreement with Kagan, and so do my Oren Jackson to be that Kagan argues that the regular tools of statutory interpretation are sufficient to reach the majority decision, and therefore that the Major Questions doctrine was unnecessary to the holding. Gorsuch says, no, Kagan, you are actually applying the doctrine here. You just aren't admitting it. And you aren't just. And you just aren't applying it when it leads to a decision you disagree with. Anyway, this leads me to the following question about Gorsuch. Is he claiming, explicitly or implicitly, that without the Major Questions doctrine, he would have dissented from the majority opinion, that is, that for him, without Major Questions doctrine, he would find that the President could legally use IIPA to impose tariffs? If the answer is yes, that for him, Major Questions doctrine is essential to the holding, then by inference, isn't he saying that he confided the authority to impose tariffs in the text of iipa? I find that shocking, given that Gorsuch is an avowed textualist. It feels to me as if Gorsuch's support for the Major Questions doctrine is at odds with his textualism. If the answer is no, that even though he supports the entirety of the chief's opinion, he also would have ruled against Trump on purely textualist statutory interpretation grounds, then does that mean he actually agrees with Kagan? But if he agrees with Kagan, then what was the point of the concurrence?
- [18:17]
A
I loved that. That's a good email. That is a good email.
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B
I have not seen a takedown of Gorsuch from anyone because I think everyone just sort of enjoys the vibes.
- [18:27]
A
Yeah, yeah.
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B
But, like, I almost want to just read that whole email again, because he has logically just taken it apart like a Rubik's Cube with all of the little squares now separated.
- [18:40]
A
And I honestly think, if you drill down on it, that the email is not that Major Questions is inconsistent, just completely unnecessary. In other words, that.
- [18:52]
B
But then if it right in this case, Right. But if it's unnecessary, then you and Kagan agree, so quit giving her crap.
- [18:59]
A
Yes.
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B
And if major questions doctrine is necessary, then you need to acknowledge that Kagan's also right and that by like, sorry.
- [19:07]
A
That she's not being inconsistent with.
- [19:10]
B
Right, right. So that like AIPA actually does allow the president to impose tariffs. Unless you have a clear statement rule, in which case he needs to acknowledge that Kavanaugh's right.
- [19:20]
A
Right.
- [19:20]
B
So basically he needs. Gorsuch failed to acknowledge that either Kavanaugh's right as a matter of statutory construction or that Kagan's right that you don't need major questions doctrine, but you can't actually disagree with both of them if you're Gorsuch.
- [19:33]
A
I'm fascinated by that email. Like I'm. And I keep. I've been thinking about it ever since it landed in my inbox. And you know, it is a rather interesting box. Unless essentially what you're saying is the, the canon of statutory construction requiring a clear statement that. Yeah, I think maybe for him to be, for his concurrence to have the same sting, he has to say that no, actually in the absence of clear statement, we're in a realm necessary, not necessarily of just statutory interpretation, but maybe statutory interpretation colored by deference might be the way he would respond to that. But that doesn't seem very Gorsuchian actually. But I forgot one piece of the. I didn't read one piece of the Kavanaugh. I mean, I'm sorry, the Kagan footnote. I'll let Justice Gorsuch relitigate on his own. Our old debates about other statutes on unrelated to the one here before us. That's in, in, in judicial speak. That's a, that's, you know that that would be the Twitter equivalent of Kagan destroys Gorsuch. And then we're going to have some of these others, other footnotes we'll be talking about as well.
- [20:50]
B
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- [23:04]
A
Right.
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B
Basically. So this idea that Kavanaugh is some partisan hack who only rules in favor of Trump almost flips on the head. What's really happening. He's quite likely to rule in favor of presidents. Like it's far more that he's into executive power. This makes sense with who Kavanaugh is and his background as staff secretary to Bush. He has written extensively about executive power, yada yada yada. So there's just that argument that the chief arguments on his consistency sort of miss what the inconsistency might actually be. I think the argument on inconsistency needs to be very narrowly focused on the application of major questions doctrine in the student loan case or West Virginia and this case, not Trump versus Biden, because that case falls apart real quick.
- [23:55]
A
Yeah. I mean, when I saw the lineup, there was a couple. We were at a National Constitution center event and I had a couple of people come up to me and they Say what about Kavanaugh in the dissent? And I said Kavanaugh is a strong believer in executive power. I'm not surprised. So this was something. When I was counting votes after the oral argument, I honestly was not really counting Kavanaugh against the tariffs. I was counting Gorsuch. Gorsuch for me was kind of the wild card. I thought Gorsuch would be against the tariffs. But then when he came out in oral argument and really made this very strong argument about the one way ratchet that if you grant the executive this amount of power as a practical matter can only be overcome by super majorities in the House and the Senate, that doesn't happen. And that I could very clearly see where Gorsuch was going. Not so with Kavanaugh. I mean, I think, you know, if you go back to also another one is Trump the United States. So this is the immunity case. Kavanaugh was obviously in the majority on Trump the United States. So he does have absolutely very strong view of executive power. It's just not that the executive wins every single time. So in that sense, when I saw the lineup, I was not surprised and I was definitely. So it wasn't going to be the classic three, three, three that we've talked about because right there in the oral argument, Gorsuch and Kavanaugh, I thought pretty clearly distinguished themselves.
- [25:16]
B
And fun fact last term in closely divided cases, the six, three and five fours, I just love this. Gorsuch and KAVANAUGH Only agreed 50% of the time. Half the time they're on opposite sides. So they're almost just repelling each other on any of these hard cases, which I find fascinating considering how similar their judicial, you know, childhoods are.
- [25:42]
A
Yeah, well. And can I use this as an opportunity? This is a great opportunity to vent about something that we vent about.
- [25:47]
B
That's. That's all this podcast is for.
- [25:49]
A
Yeah, we just like we re air old grievances all the time. What's this one though?
- [25:54]
B
I don't know.
- [25:54]
A
So this one is okay. When you bring up Gorsuch and Kavanaugh and they agree with each other 50% of the time, this really is going to go to our constant complaint about the 6:3 court and that there's sort of this Borg that is the, that are the six Republican confirmed judges, Republican nominated and confirmed judges. And they, they are just this unified force. They are, they're different. I mean, originalism is not a, you know, once you identify yourself as an originalist, you don't become originalism. Bot9000 that always spits out the same thing. All originalism does is it reframes the debate. And the key word is debate. And they are going to disagree a lot. And so. And it also gets to something else. This was a really important decision, y'. All. This was very important. It was very important on a couple of grounds. One, it was structural about the Constitution because you're talking about a delegated an authority given under Article 1 of the Constitution being assumed by Article 2 of the Constitution with vague language that is a structural issue in our Constitution that the Supreme Court decided. Secondly, decided it at a time when there's all of this argument about the Supreme Court as being an illegitimate or legitimate institution based purely on partisan breakdowns. Based purely on partisan breakdowns. And here you have one of the most important Supreme Court decisions of the last 20 plus years where you can't identify this wasn't a partisan decision. And so you know what that means in sort of the bigger world, people move on from it. They move on. It's like a decision where the partisan balance doesn't exactly match. Then that's not. It doesn't fit the narrative about the court. And so we're not going to be angry about it for the next five, 10 years. It just recedes and melts into history when the reality is this was very, very important and it's a consistent source of frustration that. And so then what happens was, because this gets memory holed because it doesn't fit the narrative about the court, then all that people think about is the six, three, because you memory hole immediately, everything that doesn't line up exactly in that partisan dispute. And so we're in a position now where you have extremely important cases decided and they're just dismissed and forgotten about immediately. And they're explained away. Like, I saw an explanation online that was, well, how do you, if you think this is an illegitimate partisan court, well, how do you explain breaking with Trump on his signature economic policy? Like, this is almost up there with breaking with Trump on the 2020 election. Like, how do you explain it? Which they also did. So how do you explain it? Well, they're willing to support trump until their 401k is in trouble. Wait, what? What?
- [29:01]
B
I know. Apply that to the National Guard case. Why would they prevent Trump from federalizing the National Guard in Chicago? How does that help their 401k? What about the Alien Enemies act case? Why would they prevent Trump from deporting someone without due process? How does that help their 401? Like, there's always some explanation for like this, this time they stopped Trump, but I mean, they're actually for his fascism. That was the word that was used
- [29:26]
A
until it hits their forward. Yes.
- [29:27]
B
Reason why this one doesn't count.
- [29:29]
A
Yeah. And what about the election? You know, when you go back to the 2020 election, one of the judges who rendered a vital opinion against Trump in 2020 was a Federalist Society judge who was on Trump's shortlist for Supreme Court. And so he had direct personal interest, potentially. I mean, it wasn't a conflict of interest sufficient to cause him to, you know, to recuse him from the case. But if you're gonna argue, like here was this situation where you had an 11. It was an 11th Circuit judge who had a direct interest, arguably, cuz he was on Trump's Supreme Court list. If Trump was president again, maybe he's a SCOTUS justice and he ruled decisively against Trump. And I just get weary, very weary of this idea that we're going to unjustifiably pull the judicial branch into the world of dysfunction that is the political branches of the American federal government, the executive and the legislative, they are distinct. They're not perfect, but they are absolutely distinct. And the fact that something busts your narrative might mean you need a new narrative, because how many times do you have to bust a narrative before it's not a narrative anymore?
- [30:44]
B
Well, and this gets to the problem with the big cases and to the
- [30:47]
A
Star wars universe, but that's a whole other conversation.
- [30:50]
B
Don't even know where that came from.
- [30:51]
A
Yeah, well, busting narratives and rules and anyway, I've got a lot of beef, right? Yeah.
- [30:57]
B
Well, the pushback I get most, like when I point, you know, that 15% of the cases last term had only, you know, liberals in dissent, which fits the narrative. But 15% of the cases had only conservatives in dissent, which doesn't fit the narrative. And they're the exact happen to be the exact same number of cases on each side. The pushback I get is like, yeah, but what about the big cases? And it's like, yeah, the problem is that we define the big cases after they're divisive. They have to be 6, 3 along ideological lines for us to decide that they're big cases. Like this Tariffs case. I'll be so curious how people, you know, tell me that that turned out not to be a big case. Okay, so bucket one on the Kavanaugh dissent was that he's, you know, just pro Trump. No, he turned out to be pretty pro Biden too, on a bunch of cases. Bucket number two is, to me, the most interesting bucket. And this is the foreign policy is different. Yeah, Bucket.
- [31:53]
A
We've talked about that a ton.
- [31:55]
B
So Anne Marimow has mentioned this, that he has longstanding views on how to interpret statutes that are foreign affairs statutes. And, you know, throughout his dissent, he's quoting Youngstown, for instance. Let me read you this little Youngstown piece here. In any event, he writes, the court has never before applied the major questions doctrine in the foreign affairs context, including foreign trade. Rather, as Justice Robert Jackson summarized, and remains true, this court has always recognized the unwisdom of requiring Congress in this field of governmental power to lay down narrowly defined standards by which the President is to be governed. So this comes from footnote two of Youngstown. Let me read you. I mean, footnote two is actually pretty long, but here's the money part that includes the unwisdom. When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's actions are, or indeed whether he shall act at all, may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. There is something there, David, and I think if you simply dismiss that as like, oh, Kavanaugh just wanted to uphold the tariffs. He loves executive power, thinks Trump's awesome or whatever. This is a real argument that when Congress delegates power in a foreign affairs context, you are far more in a Youngstown, I forget my zones now, but you know, where he's acting in concert with Congress. Congress has said, you know, you have all of this inherent Article 2 authority as the commander in chief in under foreign relations. We want to add to that when there's an emergency, the tariff power as well. And there's no question, for instance, that Congress can delegate the President the tariff authority, as we're going to discuss. There's plenty of other statutes that do so now, my argument is, yes, and they do so explicitly using the word tariffs, whereas here they didn't. But put that aside for a second in an emergency context when it's foreign affairs, and there's no question, IEIPA is that, that, yeah, Congress is going to hand over broad authority because it is narrowed by the need for it to be an emergency. Now, again, there's all sorts of problems with like, oh, who's defining the emergency and all that. I don't want to gloss over that. But for, for the, just the foreign affairs part, totally glossing over it. It is in theory a narrowing of the broad delegation because it's foreign affairs and because there has to be an emergency.
- [34:46]
A
Yeah. And, you know, I, I think this is something that going into the case we identified was the factor that made us less than 100% confident that we knew the outcome was that this is okay. What happens if you take the student loan case? What happens if you take the OSHA vaccine mandate case and somehow they had some location or nexus with national security, Would that have changed the outcome of those cases? Maybe, maybe. There's a lot of deference given to the president in foreign affairs. But I keep coming back to, as you're talking about this, what you're talking about is a core power of Article 1 of the Legislative branch. How much can it delegate that? And that is a question that also applies in other aspects of foreign affairs. Because if you think of the War Powers Resolution, for example, that is both a limit and, truth be told, the delegation of authority to the President, in essence, you get a couple of months where you can engage in offensive military operations without a declaration of war, so long as you notify members of Congress and then Congress, then the ball gets back into Congress because court, and I don't know that that's the, if you talk about a Congress has the power to declare war and the president's the commander in chief. I'm not sure that's the founder's vision, but there was an A, in many ways, War Powers Resolution, as much as presidents have hated it because it binds them to some extent, is actually a delegation of war declaring authority, at least for a period of time. So I do think there are such a thing. We have seen, you know, for example, if you're talking about Trump v. Hawaii, this is the, this is the case involving the what so called Muslim ban in Trump's first term that the Supreme Court upheld. 5, 4. There was a delegation there, very explicit to the president in national security type situations to ban any person or class of persons from entry into the country. That's a big delegation. But again, that's when we're going to get into Gorsuch's grievance. Can I read the Roberts footnote real fast before we go? Oh, so there's a Roberts Footnote this got spicy. And so in Kavanaugh's dissent argues relies on a case called Dames and Moore v. Regan, which gets back to early in President Reagan's first term involving the confiscation of funds from Iran. And did the president have the power to do it under ieba? Under ieba. And the court found eight to one that it did. And so the question was how broad is this case? And Kavanaugh relied on Justice Kavanaugh relied on this case. So here's what Justice Roberts says. Finally, the government invokes dames and Moore vs. Regan. But that case offers no support. Dames and Moore was exceedingly narrow. Footnote 6 okay, let me go read this. Footnote 6 CEG cite we are confined to a resolution of the dispute presented for us next. We are acutely aware of the necessity to rest the decision on the narrowest possible ground capable of deciding. Another quote, we attempt to lay down no general guidelines covering other situations. Another quote, the decisions of the court in this area have been rare, episodic and forward little precedential value. Another one we re emphasize the narrowness of our decision. Here's Justice Roberts. This is not quite no, no, no. A thousand times no. But should have sufficed to dissuade the principal dissent from invoking the case. Again, that's spicy for the chief especially. That's not not Twitter spicy, but that's court opinion spicy, which is very interesting.
- [38:22]
B
Okay, last bucket for Justice Kavanaugh. And this is just the statutory construction bucket because he and Kagan agree that you shouldn't use major questions doctrine here for different reasons. But doesn't matter. And so you have Kavanaugh lay out the case for all the ways in which AIPA actually did intend to give the president a tariff power that regulate importation would obviously include tariffs. And he goes through the history of presidents using tariffs for foreign policy purposes, et cetera. I bring up this bucket because it really to me is a shame that we have Justice Kagan making the exact same arguments on the opposite side and Justice Kavanaugh and they're all just like history of these statutes, history of Congress delegating power, canons of statutory construction. And they're completely at loggerheads. And it fits exactly with the narrative. Yeah, right. It's a Republican president's policy and reading into that delegated authority with a liberal justice versus a conservative justice on just straight statutory interpretation. I think they absolutely both believe what they're saying. I will commend to you going and reading them because I think they both make great points.
- [39:37]
A
They make great cases.
- [39:39]
B
It's why the Major questions doctrine, I think is helpful. Because if you just read both of those, I come away saying like, yeah, also, yes, and how would I break that tie? Because it's a major question affecting America's economy, and therefore I want Congress not to have us reading tea leaves. I want a clear statement, if anything, Kagan and Kavanaugh, who I think you can argue, we certainly said before they are being consistent in good faith, at least for sure. This is why we need major questions doctrine. You guys just proved the point of major questions doctrine. And if I were writing my Gorsuch dissent, it would have been less festivus and more. Thanks for proving my point that, like, you actually do want to have a thumb on the scale. This is why, because you guys both make excellent historical textual cases for why the President should or should not have this delegated authority. So how are we gonna break some of the smartest people who've come up with great reasons why he does or does not have that power? Because it's trillions of dollars and we're just going to make sure Congress meant it before we take that power away from them. So the tie goes to Congress. Yeah, that seems like a pretty good answer to me.
- [40:51]
A
I love that answer, Sarah. I can't improve on that answer. And that could have been a shorter dissent. I mean, concurrence. Sorry.
- [40:59]
B
Okay. Let's talk about the President's other tariff authorities. David.
- [41:03]
A
Yeah, so we knew, we knew that the President was not going to give up on tariffs. If there's one thing, if, if, if there was a version of Brokeback Mountain in this current political environment, in the. I just can't quit, you would have been about tariffs, not about a person. And so the Trump is not going to quit on tariffs. No question about that. And so he immediately announces global 10% tariffs, which were increased to 15% tariffs and under a specific statute. And this statute is 19 USC section 2132, balance of payments Authority. So I'm going to read to you the key language, Presidential proclamations of temporary import surcharges and temporary limitations on imports through quotas in situations of fundamental international payments problems, whenever fundamental international payments problems require special import measures to restrict imports to deal with large and serious United States balance of payments deficits, a temporary import surcharge not to exceed 15% ad valorem in the form of duties on articles imported to the United States and then goes through, essentially, it's saying when there is a balance of payments Deficit, you can impose a up to 15% tariff.
- [42:26]
B
And just to be clear. Oh, that's what it looks like when Congress means to delegate its tariff authority. Pretty clear.
- [42:31]
A
Very clear. Very clear. So it uses the very. It uses all the key language. So you can do it only up for a period of 150 days. So it's 15% maximum 150 days.
- [42:42]
B
When happens after the 150 days, can you renew it or do you have to go to Congress?
- [42:46]
A
I haven't gotten that far.
- [42:47]
B
So, yeah.
- [42:49]
A
So 150 days. Because we're talking about legality on the front end. And so the. So the answer is, the question is, is there a balance of payments deficit? So that's the triggering language. And the answer is no. Now. And if you want to know why the answer is no is that you have to understand that the, the history of this case and what is the difference between balance of trade and balance of deficits? So we do have a trade deficit. So that means that we buy more imports from foreign countries than they buy exports from the United States. Let me. But that's not the difference between balance of payments. Okay, So I have a trade deficit, a coffee trade deficit with Starbucks. I consistently receive coffee bean related materials and products from Starbucks and I do not export back to them anything else I'm exporting back to them. Money. Okay? And the fact that I'm giving them money for the coffee means we don't have a balance of payments deficit. In other words, I'm making this oversimplified. But what you're measuring is not the outflow and inflow of goods. What you're measuring is the outflow and inflow of goods and capital and expenditures, et cetera. And ever since we liberated ourselves from the gold standard, if anyone wants to have an argument about the gold standard, this guy's not qualified to have it. Okay? So I'm just explaining that the historical background. And Andy McCarthy explained this very well. He says the balance of payments is a broader. Andy McCarthy from National Review is a broader concept than the balance of trade. It accounts for all of the economic transactions that take place between the United States and the rest of the world. Without getting into every kind of transaction that entails. Suffice it to say that foreign investment in the United States, coupled with the advantages of our nation's. Our nation accrues because of the dollar, is the world's currency more than makes up for the trade deficit in goods. And this is actually a tracked. These numbers are all tracked. And so then he says it's vital to understand why Section 122 was enacted. There was a financial crisis in the late 1960s and early 1970s under the Bretton woods system, when the dollar was tied to gold, foreign countries that held dollar reserves could exchange them for gold at a fixed rate. Meanwhile, our government was spending at a high clip due to the Vietnam War and Great Society programs. This and the obligation to pay out gold put enormous pressure on the dollar. In response, in 1971, President Nixon severed the dollar's tie to gold and as several Justices recounted in the Learning Resources opinion, imposed a temporary 10% tariff to stabilize the economy. And the years immediately after the end of Bretton woods, with the dollar now floating rather than anchored to gold, and the nation still concerned about the quantum of its reserves, and Congress continued to fear instability, Section 122 was enacted to enable the President with significant restrictions to address the balance of payments crisis. But now, a half a century later, these conditions no longer obtain. The dollar floats and the government does not concern itself with gold parity. So we're just in a completely different situation. And in fact, the administration recognized this in its own argumentation about that. Why they needed ipa, because the question was, why are you going to IIPA when other statutes specifically authorize tariffs? Because wouldn't the easy answer to be, well, we are authorizing these tariffs under IIPA and Section 122. And if you strike down to IPA, we still have Section 122. And you know, the in argument in briefing, the government told the court, nor does section 122 have any obvious application here where the concerns the President identified in declaring an emergency arise from trade deficits, which are conceptually distinct from balance of payments deficits. So this is why I think major questions, again, this is a reaffirmation of the Gorsuch opinion. This is why you do major questions. Because we can see here, when Congress does a tariff delegation, it does it very clearly and it does it with limitations. So while Justice Kavanaugh is correct that there are other tariffing authorities, they all have different limitations and conditions. There was a reason why Trump went for iipa. It gave him the most power possible. And you can see that section 122 is just not the same.
- [47:32]
B
So my question is similar to one that we've gotten a lot of listener questions on about the tariff decision. Did they address the emergency part of this, that there was no emergency, or Trump's ability to have an emergency? Yes and no. You will be dissatisfied if you wanted a case that was Based on that, the Chief justice says all it takes to unlock this extraordinary power is a presidential declaration of emergency, which the government asserts is unreviewable. And the only way of restraining the exercise of that power is a veto proved majority in Congress. So basically they accept or at least don't need to reach whether the emergency is reviewable because IEEPA is triggered when the President declares. This is different than a statute that says when an emergency exists that could imply some reasonable person standard. Right. It's like, nope, there's nothing really about the emergency part of IIPA in the tariffs decision. So David, who gets to determine whether there's a trade imbalance? Well, that's because if that is unreviewable, if that is left to the President's discretion, then we're back in the emergency problem where as long as the President says there's a payment imbalance.
- [48:44]
A
So the difference here is you, this is actually a thing that is tracked and so you actually have the numbers. And so the, the we're we what you're doing.
- [48:54]
B
But you see the problem. Right?
- [48:56]
A
Like no, because if you look at
- [48:58]
B
the numbers, if the statute says it is up to the President to determine, then I don't care what the numbers say because someone made those numbers and someone else can make the numbers and the President can say there's different numbers. And if it's not reviewable, it don't matter what people are telling you and what numbers exist in the ether as I wave my hands in the air. What matters is whether who Congress gave the power to determine that finding.
- [49:20]
A
Yeah, it doesn't, it doesn't say that when the President determines there is a large and serious United States balance of payments deficit, it says to deal with large and serious United States balance of payments deficit. So different from like Insurrection act where it says the President determines. This is referring to an objective state of being large and serious united. And the, the problem you have is currently, and again there's might be some people in here more familiar with global economics and trade than I am. But essentially what you have, you do
- [49:52]
B
not have to be very familiar with global economics and trade to be smarter than either of us on this topic. Yes, but minimal expertise will do.
- [50:00]
A
But there when you're dealing with trillions of dollars are flowing back and forth just on a daily basis or weekly monthly basis on all of the in trades and international goods. You're, you're essentially fundamentally at about a zero deficit balance. But it is based on you've got payments, you've got goods flowing out, you've got money coming in. You might have, for example, if a good goes out before money comes in, that is a temporary deficit, say, in that particular transaction. But it's dealt with, let's say, if you have payment 30 days upon receipt, that's dealt with relatively rapidly. So these numbers are nothing like. It's like Mars and Venus from the situation when this statute was enacted. And so, you know, again, you go back to this and you say, okay, well, if this was just fine for enacting these tariffs, why was it not utilized to begin with? But, you know, there's going to be some interesting follow on litigation here. You know, a lot of folks I respect who are both experts in the law and the economics of this situation say, what are we talking about with the balance of payments deficit? That seriously, really, what are you talking about? I mean, it will get litigated. We'll see how this turns out. But again, it's so this. See how different this statute is. See how different this statute is from iepo, which I think really does match with the Gorsuch opinion. But one other thing I'd like to point out, after the student loan decision, Biden did a version of this. So he began sort of piecemeal forgiving student debt using different authorities here and there and here and there. And so he did exact. He didn't, you know, call the justices unpatriotic, but he immediately began bobbing and weaving to try to find different ways to get around the student loan opinion. That is what Trump is doing here. And I don't think it will work for the reasons we've talked about. But, you know, that's why you litigate and don't decide cases on the basis of podcast episodes.
- [52:10]
B
All right. Trump by name attacked members of the Supreme Court and attaboyed other members of the Supreme Court. You know, we are hours away from the President's State of the Union address in, I mean, let's do a little State of the Union history. So the, you know, Constitution says from time to time, the president will inform Congress about the State of the Union. I'm paraphrasing here. Up until Woodrow Wilson, that involved like a letter. And then Woodrow Wilson was like, me, me, me. And so now we've had a State of the Union address. Because Wilson is the worst.
- [52:43]
A
Yeah, there's so many reasons he's the worst.
- [52:45]
B
I know. And this is actually really low on my list.
- [52:47]
A
Yeah, yeah. This is way below resegregating the federal government. Yeah. Way below. Imprisoning hundreds of political Prisoners.
- [52:55]
B
It's on there.
- [52:56]
A
It's on the list.
- [52:57]
B
It's on the list for sure. Okay, so we have the State of the Union address. And Supreme Court justices have always attended, though it's been pretty random who shows up versus who has to rearrange their sock drawer. And I can only imagine that it's getting less and less attractive to have to sit through the State of the Union. You can remember when President Obama attacked the Supreme Court from his State of the Union about Citizens United at Alito Malz. You lie. That did not go over well. That was like a thing for sure. And I would just say it hasn't really gotten better ever since. So, David, the question is, in light of the President now attacking the Supreme Court, in light of all the things for tonight, should the justices and which justices should go to the State of the Union? Because I feel very strongly.
- [53:52]
A
You feel very strongly.
- [53:54]
B
I do.
- [53:55]
A
Oh. And I don't know which way it's going to cut. Okay, so here's my dream. They don't go. And they put out a statement saying they prefer return to the Woodrow Wilson format, which would be utterly gratuitous. I would say my preference would be for the chief only to show up. The chief shows the flag for one branch of the government out of respect for the presidency, but nobody else shows up. So what's your strong? You have a strong.
- [54:28]
B
I would like them all to show up this year, all nine. Because this goes back to the reason they wear black robes. They are not individuals. The nine of them only together can make any decision to represent a branch of government. I know it's technically five, but whatever. You get my point. They are an institution of the third branch of government. They should show up together. They should all wear black robes. They are not individuals. And then next year, none of them should show up and they should never show up again.
- [54:58]
A
I'm good with that. I'm good with that. And then I should include it to. I am now officially on strike with my editors that I'm not going to cover another State of the Union until it goes back to written.
- [55:08]
B
Yeah, that's.
- [55:09]
A
There we go. That'll change it.
- [55:12]
B
I just think this year with the President's attacks on the court, they need to show that they are one institution, not nine individuals who the president can pick off at will.
- [55:23]
A
The good ones and the bad ones.
- [55:24]
B
Yeah. And then from now on, there's just no reason for these people to have to sit through this. It is not actually important to anything. If anything, it's a Security risk. It looks brutal to have to sit there. I don't know why anyone would want to do that. So I assume I'm doing them a favor. So everyone shows up this year, sits together, hands in their laps, straight faced the whole time. Which also by the way, looks like God forbid you need to like scratch your ear or something. And everyone's like, oh, oh, see, he did it, right? Like, no. And then the chief should send a letter that says, you know, respectfully, the court has decided not to attend future state of the Unions and send that in six months. Like not right before the next one, not right after this one. Just at some point in the summer. We've been doing some housekeeping and we've decided we don't like sitting there. Bye. Bye.
- [56:14]
A
I'm good with that. I like it. I'll incorporate that.
- [56:16]
B
Okay, last topic for today. The fifth Circuit sat en banc in deciding whether Louisiana's law mandating that the Ten Commandments hang in public school classrooms is or is not constitutional under the First Amendment's establishment clause. This is not the easiest case in the world. You and I have gone back and forth when Louisiana passed the law. When the fifth Circuit first had this case, we were going to cover the oral argument until I tried to listen live to the oral argument. And my co clerk, Will Peterson is Texas Solicitor General and I texted him after and was like, if you were doing that from your bathtub, then it was a faithful recording. Otherwise that was awful. Like were you in a snorkel mask? So couldn't really make heads or tails of the oral argument substantively. It was all over the place. We finally have a decision and they kicked it on ripeness. David. They said that they cannot make this decision until they actually see how a school or schools chooses to follow through on this law. I'm curious. So this was up on a preliminary injunction. We have a concurring in the judgment from Judge Ho, as we are want to do when it's the fifth Circuit sitting on banc, the cheese stands alone. Yeah. And then there's a dissent from some of the more liberal 5th Circuit judges who would have decided on the merits. Basically, Judge Ho would have decided on the merits that you can hang the Ten Commandments. And I think it was six of the fifth Circuit judges would have decided on the merits that you cannot hang the Ten Commandments. But the majority of the fifth Circuit said you can't hang the Ten Commandments because we don't know what it will look like when you hang the Ten Commandments. This is a PI Come back when it's ripe. Ripeness is a jurisdictional question. This is similar to political question doctrine, mootness, all of those, our jurisdictional questions. We don't see ripeness a lot anymore because normally ripeness has fallen in with standing that like, if it's not ripe, you don't have an injury, and if you don't have an injury, you don't have standing. So like ripeness doctrine, as far as I knew, and as you will see in my book, I say is dead, and now here I am. I cannot edit the book, but hey,
- [58:44]
A
it's gotta go be above the fifth Circuit before you can fully say it's back alive. Maybe it's like in that I'm only mostly dead category.
- [58:52]
B
Yeah, rapeness is back at the fifth Circuit. David, do you think this was a rapeness question?
- [58:57]
A
Okay, so I will say this. When I first read it, I thought this just feels like a punt. But then, you know, I got to Judge Ho's dissent, and here's the interesting section concurring in the judgment. Sorry, we keep doing that. So got to Judge Ho and here's the interesting situation. So you have an on point Supreme Court case saying no 10 Commandments in the classroom. Right. Shouldn't that end it for the 5th Circuit? 5th Circuit is not the Supreme Court. It can't overrule the Supreme Court. You got to comply with the precedents of the Supreme Court and then write your concurrence that says this is probably not good law anymore or whatever. But then he accurately notes that the Supreme Court case that decided the Ten Commandments case was based on Lemon B. Kurtzman, which is now overturned. So on as a matter of holding no 10 Commandments, that case is still good law. All of the reasoning used to reach that outcome has been overturned explicitly. Where does that leave a court? So Judge Hoad says it leaves us with, well, we're kind of free now. We can decide this. I think actually the majority in that kind of difficult situation got it right. They you it's. The situation is so confused as a result of the overturning of Lemon and not. But not overturning all of its progeny. But you have turned out overturned Lemon. Well, you know, we need more. We need more facts, we need more information, we need more. And, and by the way, needing more is quite consistent with a lot of the other jurisprudence around public displays of religious monuments and documents and all of that. As we've seen for 30, 40, 50 years of establishment clause jurisprudence, context really matters. It really matters. So a Ten Commandments alone with nothing around it at all is one thing. Ten Commandments that has the Hammurabi's code,
- [61:00]
B
Magna Carta, maybe some quotes from Lincoln, maybe Federalist paper, like, you know, a bunch of different founding things, some of
- [61:08]
A
them religious, some of them not religious, and sort of a conglomeration of this is the origin of law and the Western code of law, you know, we have on the Supreme Court building, you know, you have this kind of historical documentation of the evolution of the law. And so there's a very big difference between, say you're in math class and you have just the Ten Commandments right in front of you versus you're in history class, and you've got the Ten Commandments and you've got Hammurabi's code and you've got all of that. These are different situations, very different situations. And so what do we do? I think that that's. I'm going to say it's a fair punt. It was 4th and 11, and you don't go for it, then you punt. And so I think it was a fair punt, all things considered.
- [61:53]
B
I think it calls Louisiana's bluff. I think Louisiana passed this as a press release legislation. They thought for sure the courts would strike it down. And then they could blame the courts and be like, we wanted to put the Ten Commandments back in the classroom, but the terrible, terrible courts wouldn't let us. And now they're like, we probably will say that, to be clear, but let's see you actually do this and actually have voters and their children experience you flim flaming around trying to figure this out. Like, you want to spend money and time on this, by all means. And what I like about that is, of course, the, you know, the other branches, we normally talk at the federal level, but here at the state level, trying to use the court unwillingly as their sort of political fallback and punching bag. I like when the court's like, no, no, you people voted for this. Go sit in it for a while and see what you actually voted for. It goes to my piece that I wrote about the first Trump administration and the shallow state and the idea that Americans didn't actually really know what Trump wanted to do as president because he was hemmed in by the staff that thought they were preventing his worst impulses. But Americans voted for him, not us. And that was a mistake in hindsight. So I am. So here's the problem. As a policy matter, I would vote, I would not vote to have the Ten Commandments in classrooms. As a political matter, I think that political accountability is sort of key to a functioning, self governing republic. As a legal matter, I'm really, really torn up whether this is legal. And I have trouble separating in this moment, making sure that my not thinking it's good policy does not affect my establishment clause analysis. Because the establishment clause analysis is pretty open ended.
- [63:41]
A
I mean, to me, I think that it's contextual, like the two different situations that I outlined. Putting it in a history class in the context of history.
- [63:49]
B
And don't forget the coercion aspect, though. We've talked about that in Kennedy Remington, where I did think the court got that wrong. I think coercion should be a real part of the Establishment clause analysis. Justice Kagan wrote about that. And I was like, yeah, Kagan, as you know, two Jewish kids in public school, like, maybe we experience something different than the kids who went to private Catholic schools. So coercion has not been spelled out in Establishment clause. And context will still matter. To your point, if it's surrounded by a bunch of other things, it's not coercive. It's standing alone in math class and every day the teacher like taps it like it's Ted Lasso on the way in.
- [64:31]
A
And it's yeah, and it's kjv, only KJV guys, you know.
- [64:36]
B
Yeah, yeah, but like Ted Lasso, you know, just to like. I think I mentioned this story. When I was in high school, my social studies teacher taught like a Tuesday night fellowship. And if you went to his house on Tuesday night for Tuesday night fellowship, you didn't have to turn in your homework on Wednesday. So if you were a Jew, you had homework. And if you were a, you know, specific type of Christian that went to his house, you did not. That's a public school in Texas, Post Santa Fe, where we had prayer before orchestra concerts. And the answer when I was like, I was the president of the orchestra. So I was like, what is this? And they were like, well, if you don't want to pray, you can leave the stage. That's coercion. Like, that's the establishment clause problem. I was very popular in high school, as you can tell, bringing this up to all of my teachers. I would get a zero on my homework, by the way, obviously, because I didn't do it. That was my answer to it. I just also wouldn't do my homework. And so he would hand me back a paper with a zero on it on Wednesdays and he would put it on my desk and I would just slide the paper off my desk onto the floor and make him pick it up and throw it away. You were here. But I didn't have great references to go to college.
- [65:53]
A
Well, Sarah, you.
- [65:54]
B
I was not able to get into the University of Texas because I wasn't in the top 10% of my high school.
- [65:59]
A
Shockingly well, as you constantly remind listeners, I am substantially older than you. Not as substantially as you tend to imply, but substantially enough that at that time in your life, you could have written me a letter. I could have fixed the whole thing. I could have fixed it for you instantaneously. It would have just been about a page and a half letter to the school and that would have been that. So, huh? Yeah.
- [66:22]
B
What a shame. When you were 40. When I was in high school.
- [66:27]
A
Again, exaggeration, exaggeration. Probably somewhere in my 20s, maybe 30s. Okay,
- [66:36]
B
you were not in your 30s when I was in high school. All right, last thing, David, because it applies to what you just said about that Ten Commandments case being based on Lemon, that the holding of the Ten Commandments case is still good, but the precedent that it was based on, the reasoning of it is no longer good law. And we have this law review piece by Justin Driver. And if you are a law student, drop everything and go read this. It's called the Insignificance of Judicial Opinions. And it's going to first blow your mind and then you're going to find yourself wildly agreeing with it. And then you're going to stare into the dark abyss of what you are doing for three years in law school. This essay contends that such claims of the legitimating function, the exercise in persuasion, and all the other high minded things that law professors and justices and judges say about judicial opinion such claims are. Such claims wildly exaggerate the actual significance of judicial opinions. Celebrations of the all consuming import of judicial opinions accord them a talismanic power, placing weight on opinions that they cannot possibly bear. The Supreme Court's particular rationale for issuing decisions matters almost not at all in comparison to the Court's bottom line outcomes. In the court of public opinion, it is decisions that matter, not opinions. The public is almost completely unaware of the constitutional niceties that so preoccupy the legal community. More controversially, this essay further argues that even within legal circles, judicial rationales matter far, far less than is commonly asserted. Although lawyers frequently fetishize opinions, the content of those opinions plays precious little role in influencing their status, even among lawyers. And then David, and remember, Professor Driver is a liberal law professor. He was on Joe Biden's Supreme Court Commission. He did the SCOTUS blog summit this year. He's been on our podcast talking about affirmative action. And it's so annoying because he's so brilliantly smart and persuasive on everything I've ever talked to him about. And this thing is blowing my mind. I really, really enjoyed it. So he walks through Brown v. Board. It's a terribly reasoned opinion. And talk about an opinion we all fetishize. No, we fetishize the outcome of Brown. Not the opinion, the Brown opinions. That's why we don't talk about it much. Griswold, same problem. Roe. Ruth Bader Ginsburg said the opinion was a problem and if the opinion itself mattered, Roe then would have been fine once Casey came out. Nope, it wasn't fine when Casey came out because it was about the decision. And then he talks about. Part two of the essay is called the Cult of caroling products. Footnote 4.
- [69:32]
A
I did not know such a cult existed.
- [69:35]
B
Yeah, and we are not members of it.
- [69:37]
A
No, no. That's the smallest cult in the world. Yes.
- [69:40]
B
We're not huge fans of Footnote four. To be. You like Footnote four.
- [69:44]
A
I don't even remember what it is.
- [69:45]
B
Rational Basis Review.
- [69:46]
A
Oh, yeah, yeah.
- [69:47]
B
That's good scrutiny. Yeah, that's good stuff. Yeah. So you're a member of the cult. I guess I am not. So he talks about the cult of Footnote four, and I just found the whole thing pretty persuasive. And it kind of goes to the point we were making throughout this podcast, and especially on tariffs. That's a 21 page opinion followed by 150 pages of stuff the public will never hear about, care about, that lawyers are never going to really be talking about except on this podcast. The underlying decision is what matters. And if that's the case, David, what are we doing here?
- [70:22]
A
Okay, so he's partly right and he's partly wrong. I think one of the first things you learn, students, when you start litigating is facts matter more than reasoning when you are making an argument. And this is something that flipped me upside down when I first started. When I first started advocating, you know, being a litigator was that what you're really looking for are cases where fact patterns match the fact patterns of your case as much as possible. Because there's a lot of reasoning out there in many different fronts and many different that you can sort of copy and paste it out and put it in. But if it's not connected to a case where the facts are a sufficient match for your case. All of that reasoning is kind of noise. And so that's where I agree with them. If you are dealing with a case where you have facts and outcome that match your facts and outcome, you're in great shape. If you do not have facts and you do not have outcome and you're relying on reasoning, you're in much worse shape. I think that's just a, you know, it's not an always true, but it's a generally true statement. So I do think that if you marinate in law schools enough, you're going to overestimate the importance of the reasoning and underestimate the importance of the facts. And that's one reason why we talk about facts a lot when we talk about cases. But where I disagree with him is after, you know, I practiced for 21 years, and I will tell you that it was absolutely concretely valuable for me to read reasoning. We have judges in the room right now, and I would imagine that if I am arguing in a way where I am reflecting back the reasoning that you have written, that you're going to find it maybe a little bit more persuasive, you know, because often at oral argument and argument in your briefs, you're looking for marginal advantage. It's often not the late. It's often not. You've got the full house in Texas hold them. You're looking for, is my five going to be bigger than their four? And in that circumstance, you've got, you know, the reasoning really does help on the margins. It's not going to save you when you have bad facts. It's not going to save you when you have bad outcome combined with bad facts. So I found that very interesting, but it actually quite resonated with my trial practice experience.
- [72:54]
B
Well, per usual, Professor Driver is the most interesting law professor in the world. Highly recommend the piece the Insignificance of Judicial Opinions. Although it's pretty funny to write that in a law review article because if there's one thing less significant than judicial
- [73:08]
A
opinions, it's a law review article.
- [73:09]
B
It's a law review article. Thank you, Florida State, for having us. This has been advisory opinions.
- [73:19]
A
Sam.