← Advisory Opinions
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You ready?
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I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we are going to start with Olivier versus Brandon, a decision from the supreme Court about a street preacher who was arrested for preaching outside an amphitheater outside the free speech zone, but wants to now challenge that free speech zone on first amendment grounds. Then we will continue with more first amendment cases, including. Drumroll. You guys all asked for it. Yes, we're going to cover Afroman. Okay. But we've got three other first amendment cases, the Pentagon press policy case, and two quick cases out of the fifth circuit to decide whether I keep my first amendment merit badge from. David. And last, we have a new friend of the pod. Judge Rebecca Tableson of the 7th Circuit was confirmed late last year. She just got her commission. So we're going to talk about what it is to be a new circuit judge, where you get a robe and how she interviews clerks. What is a feeder judge looking for in the year 2026? All this and more on advisory opinions
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There's so many good brands. Join the norty 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 online, great prices. That's why you rack. All right, David, we've got some things to cover before we can get to judge Tableson. First off, let's eat our vegetables. Although these are tasty vegetables, they're like, you know, really good cauliflower. By the way, I was. I've been reading Ron Chernow's biography of Mark Twain and picking up little Twainisms and. And my new favorite is. I'm going to get it slightly wrong, but it's. Cauliflower is cabbage with a Glow up, basically. And like, yeah, that's cool. Okay, so we're going to eat some cauliflower. This is the decision we got from the Supreme Court late last week. We talked about the oral argument. This is Olivier versus City of Brandon. Now, if you remember, Mr. Olivier was convicted of violating a city ordinance restricting expressive activity near a public amphitheater. Or to remind you of the facts, he's a street preacher in Mississippi and believes that, you know, I guess through a bullhorn shouting his religion at other people is part of his religious calling. Here's now from Justice Kagan's unanimous opinion. His vocation sometimes took him to the sidewalks near an amphitheater in the city of Brandon where he could find sizable audiences attending events. Olivier was apparently not the only speaker attracted to that area, and the activities there caused some disruption. The In 2019, the city adopted an ordinance requiring all individuals or groups engaging in protests or demonstrations at around the time events were scheduled to stay within a designated protest area. Olivier checked out this area, but found it too remote for communicating his message. So he returned, along with his signs and loudspeaker, to the sidewalk fronting the amphitheater. And there he was arrested by the Brandon police chief for violating the city ordinance. The next month, Olivier pleaded no contest in municipal court. The court imposed a fine of $304, one year of probation, and 10 days of imprisonment to be served only if during his probation, he again violated the ordinance. Olivier did not appeal, paid the fine, and served no prison time. The question is, Olivier would like to go back out to where he was and not in his little BS free speech zone over in the back by the dumpsters, but in front where their people actually are and do this again. But of course, he would like to not be arrested this time. So he wants to challenge the ordinance on free speech grounds. And the question is, can he do that when he has already been convicted of violating this law because of this case called Heck? David, this is a unanimous decision, basically saying, yes, he can challenge the law and not overturning Heck, but saying, guys, guys, let's. Let's be reasonable on what Heck actually said and actually meant. And don't overread vague sentences from Heck. But can I just start substantively, David, because you've worked a lot on these free speech zones, and especially on college campuses, they would, I mean, put them in absurd places, or they'd be so tiny they were silly and obviously violative of the First Amendment at the same time. I totally get like, you're walking into a theater and you don't want to be accosted by five different people protesting vaguely obscure things with a bullhorn in your face while you're walking in on a date when you actually, like, you know, took the effort to put on heels and hire a babysitter. It ruins the vibe. So, David, give us a little, like, First Amendment Y stuff substantively here on how Olivier is going to do when he challenges this law.
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The basic rule here is this is all being evaluated. If you're talking about speech zones against the context of reasonable time, place, and manner restrictions. In other words, you can reasonably confine free speech to certain locations, you can confine free speech to certain times, you can regulate the manner of it. Like, how much bullhorning will there be? So, for example, bullhorning in a public park in the middle of a city, not nearly as much of a problem as, say, bullhorning in a sleepy residential neighborhood. So reasonable content, neutral time, place, and manner. And, you know, when you're talking about speech zones, at college campuses, they missed the reasonable part time and time again. They would put the speech zone, maybe in a. In a pen out near the football stadium where people don't walk by or. One of my favorites was the Texas University, that the entire speech zone was a gazebo. And my friend Greg Lukianov asked, like a physicist, to calculate what total mass, what would be the mass of the students if they all tried to exercise their free speech rights at once in the same gazebo? And he said it would be a mass of human flesh compressed to the density of uranium 238. So that is not a reasonable time, place, and manner restriction. So, yeah, there are circumstances where you can block bullhorning. There are places where you can create speech zones. But it all has to be against the backdrop of this standard of reasonableness. And now we don't know from this case how reasonable that speech zone is. Obviously, you know, Mr. Olivier did not find it reasonable. He wanted to be closer to the action. But that's not at issue in this case.
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Does it matter what. What he's yelling? Just. Sorry, one more question. Because in theory, what he's been yelling has been, if not actually vulgar, bordering on vulgar. Calling women names, for instance, that are not curse words, but would imply that they have sex for money.
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D
You know, there is a level at which you're gonna talk about, and we've talked about this earlier, you know, there is a point at which words in which a person can be engaged in a form of street harassment, sort of a disturbing the peace engaging in very belligerent conduct where they're going to cross into some other content neutral, generally applicable rules governing public behavior in a public park area. If you're talking about a public park area, there's going to be a lot of leeway here. You're going to have a lot of ability to say some pretty tough stuff.
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Can I read you this description? Olivier's preaching included loud personal insults directed at attendees, including yelling whore and drunkard, which he described as biblical terms for sins relevant to his community. Okay, but David, as you were saying, that's not actually what this case is about. This is about whether he can challenge the ordinance at all based on this previous Supreme Court decision called Heck versus Humphrey. Okay, so I'm going to read you the facts of Heck, and you're going to see just how wildly different they are from Mr. Olivier. But the reason I really think this case is important is because it kind of shows the problem with precedent that every line of a previous case gets expounded upon philosophically as if it's handed down on tablets, and the facts kind of get lost. And the obvious distinction between the facts gets lost. Okay, here's Heck versus Humphrey. Roy Heck had been convicted in state court of manslaughter and was serving a 15 year prison sentence. While his appeal was pending, he filed a 1983 suit in federal court naming two prosecutors and a police investigator as defendants. Heck alleged that they had committed misconduct such as destroying exculpatory evidence to gain his conviction. He sought, as a remedy monetary damages attributable to his unconstitutional conviction. The question was whether 1983 allowed the suit. The court held that it did not. The court took as settled that Heck could not use 1983 to challenge the fact or duration of his confinement and seek immediate or speedier release from custody. A claim of that sort, the court noted, must be brought in habeas corpus proceedings. And so too, the court held, Heck could not use 1983 to seek damages deriving from a conviction unless it had already been overturned. To be sure, Heck could not get damages by way of habeas action. But ensuing for them under 1983, Heck Will was in truth mounting a collateral attack on the validity of his conviction and thus intruding on the habeas statute's domain. And here's the money line, David. When a state prisoner seeks damages in a 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. A judgment for Heck would have done so for his success, rested on proof discrediting his conviction, and his 1983 suit, therefore could not go forward. But, David, the differences here are so obvious. This isn't someone who is continuing to be in custody continuing to have a punishment because of this. It's all prospective relief. It's not even damages for what happened to him before. This is just injunctive relief so that he doesn't get arrested again if the ordinance is invalid. And I think the problem, as Justice Kagan pointed out this, whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. If you read that in its broadest sense, which the fifth Circuit did, which is how the Supreme Court got this case, then any 1983 suit about this ordinance challenging its validity would make his previous conviction invalid. Like, if. If you sued in the city of Brandon about this and were like, I just want perspective relief because I would like to go be a street preacher. You know, David French is sick of the New York Times, and they're like, you're right, David. This free speech zone is, you know, unconstitutional. It violates the First Amendment. Then Mr. Brandon's conviction would obviously also have been invalid. So, heck can't be read that way. So this was a unanimous decision. But I think, you know, if you talk to justices or clerks, frankly, and really drill down on this idea of like, hey, when you join an opinion, you know, you're not the author of it. When you join it, do you go through and look for lines like that that are super broad to make sure they can't be applied to future facts that won't make sense? And the answer you get is, first of all, justices do not line edit each other's opinions. So they literally would not change that line anyway. So it's up to the writer and that the writer and the clerks who do the drafting and stuff, that's not the exercise they're involved in. And yet later, judges and lawyers read these lines as if every word were thought through an adverb and everything. And it's like, ugh, that's not the author's intent. Which is a bit of a problem. And maybe especially for textualists, like, well, you wrote it. It's the text of the opinion that is now precedent.
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A lot of this is in dicta. A lot of it is in dicta, and there's a lot of dicta. In other words, you know, for those who are not up on the lingo, that it's not the exact holding of the case. It's the explanation of the reasons for the holding. And yeah, technically you're not supposed to hang the moon on dicta. You're not, technically you're not supposed to. But in reality, when you're an advocate, you're grasping for anything you can grab hold on and you will grab with both arms a broad statement in dicta or a statement in dicta that is, that is directly helpful to you. Absolutely. And yeah, I mean, it just can't possibly be the case that all of these opinions are line by line considered by all relevant parties and agonized over by all relevant parties. But going back to the case itself, you know, the difference here clearly is he just took the L on the first conviction. He just said, I'm taking, I'm pocketing that loss and I'm going for a dub in the future. He, he, he was very clearly not challenging. Although if he'd won, if he wins, it would, you know, cast into doubt the, the legitimacy of the original conviction, but not in a. Only conceptually, not actually.
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And that's the big difference. This case called Woolley, will now control cases like Olivier. Let me just read you the facts of Woolley because they are kind of fun. George Maynard viewed the Live Free or die motto on his New Hampshire license plate as repugnant to his moral and religious beliefs. David I don't totally understand the religious objection to Live free or die, but okay, anyway, so he covered those words with reflective tape in violation of a state statute. Maynard was convicted for that conduct three times over in state court, receiving mostly suspended sentences involving small fines and short jail terms. After the last proceeding had concluded, and presumably anxious that there not be a fourth, Maynard brought a 1983 suit in federal court seeking a declaration that the state statute violated the First Amendment and an injunction to prevent its future enforcement. New Hampshire argued as its front line of defense that the suit was precluded because Maynard had already been subjected to prosecution under the challenged law. In the Woolley case, the court rejected New Hampshire's argument on the ground that Maynard's suit sought only to prevent further prosecution under the New Hampshire statute. So Mr. Maynard got to move ahead and challenge Live Free or Die fun case.
- [15:52]
D
David I get the logic. I mean, would you say to everyone who is in the Soviet Union, you have two choices, Fight for freedom or like or die. Or can somebody live in a totalitarian country and choose to live there? I don't know. It's an interesting.
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I think we're allowed to have hyperbole in our rhetoric. This is taking from a long line of great American speakers.
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D
This is Jehovah's Witness, correct?
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I'm sure it was.
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They're pretty strict about this stuff, Sarah.
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They're not into hyperbole. All right, I get it. I get it, David. When we come back, we're gonna talk more First Amendment fun. Just a lot of cases actually on the First Amendment, including. I know you guys are waiting for it. Afroman we just got a Sedona Elite from Brooklyn Bedding for our guest room and it's been quite the upgrade for our guests. It feels sturdy and supportive, the kind of mattress that's clearly built to last. Every Brooklyn Bedding mattress is carefully designed and assembled in Arizona, cutting out the middleman. While focused on craftsmanship at a fair price, they offer options for every sleep style and body, including hard to find sizes if you tend to sleep hot. Their Glaciotex cooling covers and copper infused temperature regulating foams help keep you comfortable all night long. Brooklyn Bedding is also endorsed by the American Chiropractic association for proper spinal alignment. Made completely fiberglass free and backed by a 120 night risk free trial. And with honors like Best Mattress from CNET and Best Hybrid mattress from Wirecutter, it's easy to see why Brooklyn Betting stands out. Go to BrooklynBetting.com and use my promo code advisory at checkout to get 30% off site wide. This offer is not available anywhere else. That's brooklynbetting.com and promo code advisory for 30% off site wide. Support our show and let them know we sent you after checkout brooklynbetting.com promo
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All right David, we ate our cauliflower. Now You've got a choice between the interim decision in the Pentagon press case or Afroman. I'm going to let you decide.
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D
Oh, you know, the decision. It's Afroman.
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Go for it, David.
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D
Okay, so this is a wild story that nobody was tracking until four days ago. And then all of a sudden, four days ago, Afroman, in the middle of a war in the Middle east, basically takes over social media. Because here are the basics. So going from the New York Times story about the trial. On Wednesday, Ohio jury ruled in favor of the rapper Afroman after a civil trial in which law enforcement officers accused him of causing him mental distress by using footage from their 2022 raid on his home in a pair of music videos. The rapper, whose real name is Joseph Foreman, was sued in 2023 by seven officers with the Adams County Sheriff's Office and Southern Ohio. They said in a complaint that Mr. Foreman's use of their images in the music videos and to promote his brand had caused him to suffer humiliation, ridicule, mental distress, embarrassment, and loss of reputation. So he had a little moment of fame in the year 2000. So he's had a moment of fame before. And his song, his famous song, and I'd never heard of it.
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B
Are you serious? You'd never heard the song?
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D
It might not be my genre of music that I'm really paying close attention to. The song was called Because I got.
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B
I was gonna go to class before. Before I got high. I could have cheated and I could have passed, but then I got high. It was like every kid's anthem. I'm taking it next semester. And I know why. Cause I got high. Because I got high. Because I got high.
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D
Okay, okay. It's coming back to me now.
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B
It's a catchy little ditty. It's a bop, it's a cat.
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D
So basically, he writes these songs that are. I would say, Sarah, I don't know how you interpret them, is obviously insult comedy, parody. So he takes. He had cameras inside his home. And on the night in question, the night that launched a thousand hip hop videos, four deputies, two sergeants and a detective were acting on a search warrant. So they raid his home in August 2022. They were apparently. The warrant was rooted in allegations of kidnapping and drug trafficking. There were no charges, but he had a security system, and he watches it. And he watches the police officers break down the door, watches him rummage through all of his stuff. He claims that they took. When they took cash from his house, they returned it $400 short. And so he does These music videos entitled things like will you help me repair my door? Was the very catchy name of one of them. Lemon pound cake was the name of another.
- [21:48]
B
Okay, the lemon pound cake one is the best. So this overweight officer, like, is walking by, sees the pound cake, and then double takes the pound cake. He doesn't actually eat the pound cake or anything. He doesn't. Doesn't do anything with the pound cake. So he makes this whole song, lemon pound cake, which is now very popular online. There's T shirts you can buy that say, officer lemon pound cake. And aphroman has this line where he's like, I get it. I'm a big boy too, but you want a slice of that pound cake is basically the gist.
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D
And in one of the music videos, he's insulting one of the officers, I think, calls him a son of a bitch and then says, I'm having sex with your wife.
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B
And by the way, he uses the officer's names. That is important here to the first amendment question.
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D
Yeah, yeah. So he uses the names, and he claims that he's having sex with one of the officer's wives. So, Sarah, this case, I don't know who was advising these officers. So this was the Streisand effect on steroids. And Sarah, correct me if I get any of these details wrong, but there was a blogger who had a video or pictures of the Streisand estate, and he had posted it on a blog that he had that nobody trafficked, nobody went there. It got no hits at all. And Barbra Streisand got very angry that he posted these pictures. So she demands that they be taken down. When this famous person then makes this demand, then everybody learns, oh, wow, there's pictures of Barbra Streisand's estate online, and the traffic just mushrooms. So it had the exact opposite effect. She's trying to get her estate out of the public eye by trying to sue. To sue this blogger or this web designer. It goes everywhere.
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B
So it had only six views. This is the Streisand thing. The Streisand picture had six views before she filed her lawsuit. And then 420,000.
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D
After the millions of people now, I mean, tens, hundreds of millions of people who now know about Afroman and lemon pound cake. It's stunning. So let's talk a little substance here. Why was this a bad idea to bring this lawsuit if he's doing two things? He's doing one, he's saying their names. So he's bringing them into the public arena, and he's saying transparently, at least about one of them, a transparently false thing, that he was having sex with the man's wife. So why is it a bad idea to bring this lawsuit? Don't they have him dead to rights? He is broadcasting their faces publicly, profiting off their image and likeness and lying about them, Sarah. So why do they lose the case? And it really goes to this notion that there is such a thing as satire and you can say false things when they're clearly satirical. However, if you're going to sue and claim it's a defamation, you're getting into this weird box. And there was this moment in the cross examination where the lawyer for Afroman is questioning the officer who Afroman claimed he had sex with the man's wife. And he says to the man, did he have sex with your wife? And he says, I don't know.
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B
Yeah, that was a weird moment, actually. I'm confused about it still.
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D
If he said no emphatically and clearly and unequivocally, then the question is, why would anyone have taken this seriously?
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B
Oh, because then it's obvious satire. If you say, no, my wife's never met Afro man. There's no chance.
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D
There's no.
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Nobody could believe she's having sex with Afroman. And obviously you're not going to say yes if you're.
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D
Because then it can't be defamation anymore because then it's truth. Right?
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B
You have to say, I don't know if my wife is having sex with Afroman.
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D
It was wild. It was wild because, you know, because it was so obviously satire. And honestly, my biggest question, Sarah, in this case is why it went to a jury to begin with. When you have these cases, you have such obvious satire. And look, as far as using their faces and their names, these are public officials who he's accusing of violating his rights. I mean, they don't have a right to confidentiality in these circumstances. And so the fact that it was satire was so obvious that I'm just stumped as to who thought this was a good idea to file the lawsuit. And I'm actually somewhat stumped that it even went to a jury to begin with.
- [26:24]
B
By the way, we did get a question from a listener about this. We just got most mostly you guys yelling at us that we needed to cover it. But we got one question from a listener because the court order at the end says that plaintiffs and defendants will split costs. And this person was like, isn't that super weird? And doesn't it seem like the judge is trying to Help the officers. So a couple things that are just fun litigation facts. One, the American system, as it is called, means that you pay your own way in court. So even if you win, you still pay your own attorney's fees, barring some specific statutory, you know, thing like in 1988, David, in federal court. So that would seem really weird, right? That not only, like, it's not that one side has to pay the other, but you actually split them. Meaning you, like, you aggregate all of everything together and then just divide that in half. So the other side, who's, you know, super profligate. Benefits. Not quite so. So costs generally do not mean fees, which I know is annoying and stupid. Cost means like the filing fees and stuff like that. Not attorneys fees and stuff. You know, the things that actually cost a ton of money and generally controlled by statute. So this is an Ohio state case that was tried by a judge with a ton of experience. I am not an expert on Ohio law, but I am willing to give the benefit of the doubt to the judge that in fact, there is some statutory provision in Ohio that just says you split the cost, not the fees in a case like this.
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D
There is another really interesting and funny part of the case. Well, several. Because this was a televised trial. And so the footage of the trial just starts to go everywhere. And you can see while the music is playing, people in court are trying to keep a straight face. Like, people are struggling to keep a straight face. Like, this is so obviously just over the top.
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B
Well, Afroman's also in a full American flag suit, bopping to his own songs.
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D
Yes, he's vibing to his own song in an American flag suit with American flag sunglasses that he's wearing inside. And which then led to the other interesting lawyer choice, which was for his lawyer to essentially say, look at what my client is wearing. How could you take this man seriously? Which was fair. You know, in other words, he's showing. It's not that he was doing anything necessarily wrong dressing like that. He was showing how over the top this whole thing was. And the fact that it was so over the top gave us the clear indication that this was all satire.
- [28:56]
B
And, David, there's this one point. So there's. He looked at my lemon pound cake and they destroyed a door in his camera system. That's not okay. But I think the one thing that Afroman really had going for him on the facts is that they said they took X amount of money from him, you know, cash. And when they returned that cash, they returned it X minus $400. And so he was like, you took $400 from me. Give it back. And then they were like, oh, we looked into it, and they actually just miscounted it on the front end. And so we didn't take $400. And there's just no way for him to prove they took $400 or that they lied. Like, so maybe he's out $400, maybe he's not. I don't know. But you can see being pretty angry about that. If you believe you knew exactly how much money was there that they took, then they give it back $400 less. And then they're just like, no, no, we just never took that amount because we're bad at math. Like, yeah, I'd write a rap song about that, too. Like, that's insane. And the whole thing was that they came to his house for kidnapping and human trafficking on a tip.
- [29:59]
D
And a tip that included that allegedly he had some sort of dungeon.
- [30:03]
B
Yeah. And he's like, I will. He has a whole line of like, I will kidnap a blunt. I may kidnap your burger if you look away too long, but I don't kidnap people. I'm too lazy for that.
- [30:15]
D
The guy is just hilarious. And then when he gets out of the. When he gets out of the trial and he's just got. Yeah. Freedom, America. Yeah, it's the greatest. Like, Afroman, for one brief shining moment, brought the United States of America together.
- [30:34]
B
All right, David, we have a couple other First Amendment cases worth mentioning. So this Pentagon case got a lot of headlines. This is the new Department of Defense press policy that a bunch of outlets and across the ideological spectrum said they would not sign and therefore had their hard passes to the Pentagon revoked. The New York Times sued, claiming that this was unconstitutionally vague and violated the First Amendment. A judge, on an interim basis. Right. This is the question of whether they were going to get an injunction against that press policy on the front end. A judge said, yeah, it is unconstitutionally vague and it does violate the First Amendment. This is worth comparing, by the way. David, why? It was different from that AP case brought against the White House that went to the D.C. circuit. And the D.C. circuit was like, no, nope, that that policy is fine. Pretty different policies. So in the D.C. aP case for the White House, remember, the AP keeps their pass to the press briefing room, you know, and all that stuff. What they Revoked was the AP's designation as being in the press pool. So to go into the Oval Office for pool sprays or to travel on Air Force One for specific trips to meet foreign dignitaries and stuff like that. The White House is like, yeah, it's viewpoint discriminatory, but these aren't non public fora. They are nothing. In fact, they are just private. And that's where the D.C. circuit like rubber hit the road. And they were like, yeah, actually this has no First Amendment designation because it's not a forum of any kind that has been opened up in any way. In the Pentagon case that was just decided, both sides agreed that the Pentagon areas that press are allowed in are non public fora. By the way, we should just say forums because that's what normal people would call them, but lawyers call them fora and it's annoying and stupid and I don't like it. So feel free to call them forums in your comments and emails. But the idea was that I found interesting, David, the unconstitutionally vague thing. I don't know that I actually agree with that part. It'll be interesting how that goes on appealing. I don't know how specific you need to be, but I thought it was actually okay. The First Amendment question though, is unconstitutionally vague under the fifth Amendment. The First Amendment question was interesting to me because the judge held that it was discriminatory on viewpoint but not political viewpoint. Right. Because the Daily Caller, National Review, they all refused to sign this as well. So it's not right versus left. The judge held it was positive versus factual. Basically, if you are unwilling to commit to never writing a, you know, a non positive story about the Secretary of Defense or the Department of Defense, that you can't sign this thing and therefore you can't have a hard pass, and that is viewpoint discrimination. I'm not sure I can think of another case like that, David, where the viewpoint wasn't an actual viewpoint that you hold on an issue or partisanship, but rather I intend, I don't intend to write just positive things. Right.
- [33:50]
D
It's very interesting. I mean, I absolutely. It's the case that propaganda is a viewpoint. Pro government propaganda is absolutely a viewpoint. And so I think it's actually effectively illustrates how we're in an authoritarian moment, but not necessarily a very ideological moment, that in other words, the imperative isn't to support the right or support a particular conservative ideology. The imperative is to support the actions of this administration. The imperative is to ratify, approve of, cheerlead, et cetera, whatever this administration is doing. And that's why it's a propaganda viewpoint, not a necessarily an ideological viewpoint. It's fascinating.
- [34:36]
B
So all of these cases, the AP case and this Pentagon case are both in their interim eras, if you will. So the AP case, last I checked, PACER had been argued before a D.C. circuit merits panel. The previous D.C. circuit decision was a motions panel that was back in December. So we could get that AP decision like any time now. I suppose this, you know, the government could appeal just again on this interim basis to decide whether they get the injunction or not. And then you're still going to have to go back and do the merit side as well. So always like now pointing out the difference between these interim dockets because they exist at the lower courts as well versus the merits docket. And David, you know, There were these two other First Amendment cases out of the Fifth Circuit. The D. Ray McKesson one, the Black Lives Matter activists who an officer sued claiming that McKesson's negligence in organizing the protest led the officer to suffer injuries. And the Fifth Circuit held with a dissent from Judge King that it can go to a jury. It's not like sort of per se protected by the First Amendment. In another case they held that James Wesley Berger, an 18 year old high school senior who had put threats on Roblox, that that could also move forward because the initially the indictment had been tossed out, that no reasonable juror could find that Berger's statements were true threats. Outside protection of the First Amendment. But fifth Circuit held that a trial on the merits is necessary to evaluate the sufficiency of the government's evidence. So David, we have seen this repeatedly in a lot of cases that the Fifth Circuit is becoming less First Amendment protective, sort of along the Justice Alito lines. You know, you have Justice Alito in the crush video case, in the Westboro Baptist funeral protest case, and in the violent video games case. In all of those cases, Justice Alito would have held that that was outside First Amendment protection. It's just not valuable speech that we need to worry about. The Fifth Circuit seems to be following that. Although as David Lapp pointed out in original jurisdiction, another way to read these cases is just the 5th Circuit wanting stuff to go to juries like the Afroman case. David, I'm just curious again, from your First Amendment litigation experience, I don't know how am I supposed to think about that? Because I do want juries to decide stuff sometimes. But when it comes to the First Amendment, that's a counter majoritarian thing. Like I don't want majorities to decide whether speech is good or bad.
- [37:14]
D
I guess the role of a jury in a First Amendment case is really typically pretty narrow. So for example, if it's a defamation case and you're presenting truth as a defense, a lot of times what you're doing is you're adjudicating the truth or falsity of the underlying allegation. And that.
- [37:30]
B
Was Afroman sleeping with your wife?
- [37:33]
D
Yeah, exactly, exactly. And so there's factual questions at issue that are quite relevant. However, that is not the norm in a lot of First Amendment case law. A lot of First Amendment. In a lot of First Amendment cases, you're not dealing with too many questions about the facts. I mean, so, for example, in Olivier, we know what he was doing, we know what the ordinance is. There isn't a lot of factual dispute there. Now, if he was accused of public disorder or public nuisance, sort of misdemeanor or crime, there would obviously be. He might raise a First Amendment defense, but there would obviously be some factual elements to that. But it is not the norm in my practice to have very many factual, relevant material, factual disputes in a First Amendment case. That is not. Now, it is quite normal to have factual disputes around, say, damages. But where you really do get into the factual disputes are much more when you're claiming retaliation. In other words, an action was taken against me that might be otherwise lawful, but it was actually motivated by an unlawful purpose to punish my first. You know, my First Amendment expression. And the jury trials that I had in the First Amendment context were retaliation jury trials where you really were adjudicating and litigating motive. And that's another area where you're going to have the jury get involved.
- [38:59]
B
Is it crazy for me to want to split the baby sometimes and say, for instance, maybe, you know, if we're. If we're having to err on one side or the other on the front end, maybe let it go to trial again if it's a close call, like in this Roadblocks case. I think that's interesting, right? Do we think those were true threats? Maybe a jury should decide that. And then, you know, if the prosecutor argues things or the jury instructions are a little on speech issues, then you can appeal your conviction on First Amendment grounds after a jury has found whether a reasonable person would consider those true threats. Because I guess I think it is a factual question Sometimes, you know, you're on these multiplayer games and someone puts a threat in. It's very clear that that is not a true threat. It's satire, it's talking crap, et cetera. But there's other ways for it to very much be a true threat on those. And I guess I do want that to go to a jury and then I want it to be appealed on First Amendment grounds after we have a jury finding on, on the facts rather than making all these decisions on the front end. Is that, can I still keep my First Amendment absolutist badge?
- [40:08]
D
Well, I mean, I think in the context of, is this a threat? If you have a legal definition of a threat that has factual elements to it. I mean, whenever you have the factual elements, you're, you're going to have a jury question if it's material. Right. So I don't, I don't think you're compromising anything if the actual standard, if the actual question has factual elements to it that are material to the outcome. So you've kept your First Amendment street cred, Sarah.
- [40:35]
B
All right, when we get back, Judge Tableson is going to tell us how she really climbed Mount Everest to meet her husband and it all went as planned. This episode is brought to you by Welch's Fruit Snacks. Big news for your kids lunchbox. Welch's fruit snacks are now made without any artificial dyes. A snack parents can feel good about and the same delicious taste kids can't get enough of. All made with no artificial dyes. Try Welch's Fruit Snacks today. Chronic migraine is 15 or more headache days a month, each lasting four hours or more.
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A
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- [41:58]
B
Why wait? Ask your doctor, visit botoxchronicmigraine.com or call 1-844botox to learn more. And without further ado, we'll bring in our special guest of the day, Judge Rebecca Tableson. Now, Judge Tableson has many claims to fame on this podcast. She is going to be the least amount of time serving on the bench circuit judge that we've ever had. So we're going to get the freshest takes about being a new circuit judge. Also, she clerked for then Judge Kavanaugh and then Justice Scalia. But maybe more fun than any of the other facts about you. You met your husband preparing to climb Mount Everest. Can we just start there?
- [42:43]
D
Wait, you were preparing to climb Mount Everest or he was preparing.
- [42:47]
B
Both of them.
- [42:47]
D
Both of them. Okay. Okay, let's hear this story.
- [42:50]
A
Yes. I mean, this is definitely the place to start. Cause this is, like, the first and last interesting thing about me. But. And I have to turn the modesty dial down a little bit here. Neither of us was planning to or did summit Mount Everest, which is like a very sort of, you know, high technical skill and expensive endeavor, and that takes months. Instead, we were both going to the base camp, which is about 20,000ft, which is more like a hard hike for someone that's in reasonably good shape. But, yes, let's see, we were between college and law school, and we were both doing some volunteer work before law school. And both of us took a break independently from our volunteer work to do a trek up to the base camp of Mount Everest. And then my husband, his dad, came to meet him. Uh, and I actually met Ben's dad in the Kathmandu, Nepal, airport. We were in the same passport line together, and we started chatting, and Ben's dad was like, pretty soon, and pretty awkwardly like, oh, you're gonna. You're gonna marry my son. And I was like, okay, okay.
- [43:59]
B
I mean, you know, we'll just. It's nice to meet you.
- [44:04]
A
And it turned out we were trekking with the same agency, so we were going to the same hotel, and we were on different routes, but that, like, crisscross up to the base camp of Mount Everest. And so I met Ben at the hotel, and when we got out of the van, the first thing his dad said to him. Ben hadn't seen his dad in, like, nine or 10 months, was, look what I brought you. And then I got out of the van, and there I was.
- [44:29]
B
This is the most Jewish dad abroad story ever. I met a Jewish woman in the past, but for it line, this is it. I. I figured it out.
- [44:39]
A
It's like I crushed it. And you know what? He was totally right. Like, when I. By the way, before I ever met Ben, I knew what his SAT score was. Okay, so just to add to this, like, you know, picture. And when I Saw him, I thought, wow, that guy was pretty handsome for his SAT score. And anyway, yeah, then we crossed paths all the way up Mount Everest, which is you have less and less oxygen as you go up. So it's a little bit like being at a bar and getting sort of tipsier and tipsier every time we saw each and so by about 15,000ft, I was also like, oh, we are getting married. And then I would say about three years later, Ben came to the same conclusion. And here we are.
- [45:21]
B
Okay, next important question. So I ran these numbers for Judge Kavanaugh for his placement. He was the ultimate feeder judge. And it's like, not even close. I think he's the number one feeder of maybe all time to the extent anyone has run those numbers. So he would have four clerks a year at the D.C. circuit, and his ending stat was that 3.4 average per year clerked for the Supreme Court. So, Judge, did you feel a lot of pressure to get that Scalia clerkship? Did you know that you would be like the loser clerk if you couldn't nail down.
- [45:55]
A
I felt a lot of pressure to get the Scalia clerkship. I don't think I realized at the time. I clerked for him pretty early in his tenure, and so he was definitely sort of a feeder then. But it wasn't quite at the, the levels that you're describing because he was. I think it was his fifth year on the bench. He, you know, helped me at every step of the way. Like, he, you know, reviewed my application to the Supreme Court. And when I got the interview with Justice Scalia, he was my first phone call. And he was like, okay, just to be fair, you need to kill this. And, you know, like, gave me topics to research, which were basically all of constitutional law. I was like, okay, Roger. And then, you know, he has this amazing story about. He's this funny little story about how Justice Kavanaugh does. Even now, something like 16ish years later, he remembers exactly where he was. He was driving somewhere in Bethesda when I called to tell him that Justice Scalia had hired me. And I. I always love that little story when he tells it to me. And I relate to it more and more now that I'm a judge because I'm just so invested in my law clerk clerks thriving. And I mean, and as he was. I mean, I really cannot overstate how influential Justice Kavanaugh and Justice Scalia have been for me. But it is such a fun part of the job to get to mentor and champion this next generation of Lawyers. So I, too, will probably remember exactly sort of like where I was.
- [47:23]
B
Wait, wait, wait. You were on your first set of law clerks and you've known them for, like, a hot second. Like, you just got confirmed. I don't even know if you have a robe yet. Did your commission arrive? Are we heading for Marbury versus Madison? Like, you're. What is happening?
- [47:37]
A
My commission just came last week, so I'm official. My robe. Let me tell you, getting a robe is a surprisingly niche and difficult and expensive process. I am. I'm like, really? I'm very petite. I'm five one, and I'm just very small. And so I had to have this very custom robe made. And in the meantime, while it was coming, I definitely purchased something on Amazon called a children's judge costume, which I then promptly forgot to bring to Chicago multiple times for my sittings. So I had to raid the road blockers of other petite female judges, who fortunately do exist. And yes, my. I have law clerks. And they are wonderful. They are.
- [48:15]
B
Wait, how much is a robe?
- [48:16]
A
The custom one was like $500.
- [48:18]
B
Oh, yes.
- [48:20]
A
I know I'm sounding like a. I guess I'm sounding like a career public servant that I am. But that's not nothing.
- [48:26]
B
I mean.
- [48:27]
A
And you just pay for it yourself.
- [48:29]
D
No, these. The trappings of the judiciary can cost a surprising amount. I looked at. I once looked at barristers, wigs. Don't. Don't ask me why. But $600 for your typical, you know, like the wig that they wear in. Yeah. In England. So that's price gouging. It's just horsehair.
- [48:47]
B
Okay, well, to paraphrase David Latt, what's underneath the robes? Are you always in business attire no matter what?
- [48:56]
A
Such a good question. I love the robes because they really take a lot of pressure off of attire selection. For the purposes of oral argument, when you do feel like everyone in the room is sort of looking at you, they're already scrutinizing, you know, your facial expressions and when you're typing and when you're not typing. So I'm grateful to at least not have my clothing choices scrutinized. That being said, you go directly from oral argument into conference with your fellow judges. So I am, in fact, wearing a full suit, like, underneath the robe. So it's nothing exciting.
- [49:29]
D
So switching gears, we've been talking about the newness of it all, which means that the whole confirmation process is very fresh in your mind. And I'm always interested in the career path of judges. In other words, when did you have this glimmer in your mind that I think I'd like to be a federal judge. And how did you then move from a glimmer in your mind I would like to be a federal judge to becoming a federal judge? I mean, in one sense you do have job openings posted in that we know when there are vacancies, but it's not like you're sending in a CV to a central HR facility that is then screening. How do you get from A to B on this?
- [50:13]
A
Well, the glimmer question is going to be sort of the answer sort of embarrassingly early. But it's because I just looked up so much to the judges that I clerked for. So it was impossible to work for Justice Kavanaugh and Justice Scalia and not sort of want to be them. And you know that. So that was the case early on. But then, you know, so what you do is you sort of put that idea out of your mind because it feels like, you know, deciding that you want to win the lottery, there's no way to go about it and it makes no sense to organize your life around that principle. And so. But one thing Justice Scalia said to me that was very influential was he knew that Ben, my husband, is from Wisconsin. And he said, you know, Rebecca, go. Go to the middle of America, go to Wisconsin. Your legal skills will make more of a difference there. You'll have a bigger impact on your community. And we did. And that was not because I was trying to be a judge. It was for the reasons Justice Scalia said and also because we wanted to raise our kids here in the Midwest and near family. But it was obviously ended up being sort of dispositive for me in terms of becoming a judge. And then, you know, when I was here, I have been working for the Department of Justice for the last decade in the U.S. attorney's office here in Milwaukee, which is one floor down from my chambers right now. And then I did a brief stint, Well, I guess a 2ish year stint back in D.C. at the solicitor General's office. But then we came back here for all the aforementioned reasons. And you know, there are two, seven circuit seats in Wisconsin and that's a pretty small number. And so it's, it, you know, it didn't, it wasn't something I was planning on. And you know, Judge Sykes is not, you know, aged. And so I wasn't sort of eyeing that seat in any way. But when she did decide to go senior, you know, she has been a mentor to me and I'VE looked up to her for a long time. You know, we sit, we sat in the same building. So yeah, when she went senior, I thought, oh wow, that would be quite, quite an honor and an opportunity. Even then though, it feels like a complete long shot, like lightning has to strike. And so even then you don't sort of turn your life upside down. I don't think you should. You sort of try to keep being the person that you want to be applying for this job. And if it works out, it works out. And if not, there are lots of other meaningful ways to be a lawyer.
- [52:33]
D
So in the process, you're obviously a presidential nominee, but also your senators have a role in this as well. How did that work from the standpoint of I'm first talking to senators, then talking to the White House or what does that, what are the nuts and bolts of that process?
- [52:55]
A
It's different in every state. The way it works in Wisconsin is we have two senators and they obviously everyone has two senators, but our two senators have appointed a nominating commission that considers all applications for vacancies to federal judgeships. And each senator has appointed three people to this nominating commission. And so essentially around the same time that the White House was interviewing candidates, the nominating commission was soliciting applications and they asked for an application that looks very much like a Senate judicial questionnaire. So it's a similar, very similar. And so I both interviewed with the White House and applied to the nominating commission and then the nominating commission interviewed me and many others. And then it deliberates and the commission put out a list of, gosh, I want to say four or five people who were approved by the commission which requires if I think a vote of five, six of them. So to a certain extent a little bit bipartisan there. And the senators have sort of in theory pre committed to respecting the nominating commissions work. That doesn't always mean that the senator is going to vote to support you. And one of my senators did not. But I was happy to have least gone, I've at least gone through the, you know, the in state process out of respect for that process as well. Ultimately really it feels like the final call is of course with the White House where it should be, but we did have that parallel state process.
- [54:21]
B
Can we do sort of a TikTok of how, sorry that that's a political phrase. But now it's been co opted by an app, I mean the line by line, you know, timeline. So you have your hearing, they vote in the Judiciary committee, then you go to the floor. They have now voted to confirm you to, you know, offer their advice and consent to the President. Okay, you have the vote. What's the timeline between that and getting a robe?
- [54:48]
A
So, okay, I was confirmed, I think I want to say end of October. At the time, the next step is the President signing your commission. And I believe at the time I was confirmed, the President was on a trip to Asia. So there was a little bit of delay, but he signed my commission the first week of November. So pretty soon.
- [55:09]
B
But you didn't get that commission till like yesterday.
- [55:12]
A
I got that commission like on Friday, I think, or last week sometime.
- [55:15]
B
So again, to go back to Marbury versus Madison, you know, Marbury had this commission had been signed, but it had not been delivered.
- [55:23]
A
Yes, although my understanding is that it was with the calligrapher. So I don't know that the calligrapher has any consequences, constitutional status, like, you
- [55:29]
B
know, but it hadn't been delivered. I mean, if Marbury was just like, yeah, it was signed. I'm a judge now, like, he could have done that too.
- [55:36]
A
He could have. Now I had some pretty good indicia that the commission was really signed and on its way to me, including a call from the President himself telling me
- [55:47]
B
that so Adams could have. Could have sent a note to Marbury that like, he signed it like it's Jefferson. That was the problem.
- [55:55]
A
You're right, you're right. But happily we did not end up in that situation. So we went. Justice Kavanaugh swore me in, and that is actually the official kickoff. And you start getting paid at that point. And then I flew back here to Chicago and went right to the courthouse and got the keys and got my Chicago chambers and got my parking pass and met with, you know, the sort of key court personnel and things like that. And then a strange and little known fact is that it's sort of up to you when to start hearing cases. I, as a sort of, you know, box checking workaholic, just started hearing cases immediately. So I had my first sitting in December, which, you know, I had got the cases right away, but you can take some time to set up chambers if that's what works better for you.
- [56:41]
B
David, are you ready for our marvel what if with Judge Tableson?
- [56:44]
D
I would love to do a marvel what if with Judge Tableson.
- [56:47]
B
So, Judge, as you know, we did this with Judge Beavis last week, and we bring the question to you, what is your fork in the road hypothetical for the Supreme Court that you would like to explore? That didn't happen. Could have Happened, whatever, and then we want to go live in that hypothetical marvel what if world.
- [57:08]
A
So Starting around the 1960s, the Warren Court undertook a process of sort of basically developing a pretty detailed and reticulated code of criminal procedure that it derived from the fourth, fifth, and sixth Amendments. And then through incorporation, that pretty detailed code of criminal procedure applied not just to the federal government's investigation, arrest and criminal trial, but to those processes in every state in America. I think the best so examples are things like Miranda right, which is a prophylactic Fifth Amendment rule that requires a very specific warning to people who are arrested at a very specific time, or things like the exclusionary rule map against Ohio, which is not just about the underlying constitutional right, but prescribes a specific remedy that now applies in the federal courts and also in every state court in land. And, you know, the list goes on. There are very specific rules about things that I don't know, for example, judges or prosecutors can and cannot say during trial about, say, a defendant testifying or not. So these are actually quite carefully articulated. And I think, you know, that constitutional interpretation was not inevitable. So it's interesting to think, you know, what if we hadn't gone down that path? And I have two hypotheses which are really obviously just hypotheses, but you know, the first is that states would have developed their own criminal procedure codes that would have experimented with different ways of guaranteeing the basic constitutional rights that are in the fourth, fifth and sixth Amendments. So you can imagine alternatives to Miranda, or you can imagine alternatives to the exclusionary rule as a remedy for constitutional violations as sort of laboratories of democracy idea, you know, that the states could have played with that. And the second thought I have is that we might have a lot more criminal trials than we do have today. As we all know, the vast majority of cases are resolved by plea. And that is because in large part the criminal trial and the litigation that leads to a criminal trial is so resource intensive now that no government, state or federal, can possibly do very many of them if it hopes to achieve anything else. And so the system just has to. It relies on having a huge majority of cases resolved by guilty plea. And I think that's due at least in some part to this constitutionalized code of criminal procedure, which requires a lot of litigation in the lead up to trial. And it raises the stakes of a lot of what you might think of as a somewhat small trial error to sort of the constitutional level. And of course, once the state makes a mistake, it can't retry someone because of double jeopardy. And so the government has to devote essentially a lot more resources to each criminal trial. And that I think puts a lot of pressure on plea bargaining. So that's my hypothetical marvel. What if?
- [60:00]
B
I love that what if? Because we really don't talk about it anymore at all. So Kagan writes her master's thesis before law school on Map v. Ohio under the sort of assumption that Mapp is going to get overturned any second now. And you see Nixon talking about the Supreme Court. He's only talking about this criminal procedure stuff and how we need to overturn all of these Warren Court, you know, criminal flim flammery that's, you know, rising the crime rate across the country. And like, that was the big concern with the Warren Court. We look back and talk about more of the like, culture war stuff. Obviously Roe as like a, you know, post Warren court, still Warren Court thing, but at the time it was all the criminal law stuff. And now we have mind wiped it and there's no real discussion about ever doing it, except in like your 1L law school class where it like blows your mind to think there could be something other than the extreme exclusionary rule. And then you're like, huh, that is an interesting experiment in your mind and we're never gonna do anything about it, I guess. And like, that makes me a little sad because on your first point about the laboratories of democracy, I like that idea. But of course it means some are gonna be like, find sort of a good answer and some are gonna find a bad answer. And so like, you know, trade offs there. But on the second point about trials, that seems like a bad trade off that we made, actually.
- [61:23]
D
Yeah, I would agree with that. And I, you know, I think the, the exclusionary rule is not the only natural, inevitable consequence of a fourth Amendment violation. In other words, it's not the only way to address a fourth Amendment violation. And so is there room for something else? And you know, there have been discussions of, well, what if you allow the admission, admit the evidence, but we eliminate a large majority of them of the immunities that surround policing. So there's a. If you've actually been damaged, like you've been damaged in a concrete way, and it wouldn't count that it's actually evidence against you in court. But if you've been damaged in a concrete way by the violation of your civil rights, having fewer immunities or no immunities, but no exclusionary rule, I don't know, is that a. Does that adequately protect the constitutional interest? It's a very interesting question.
- [62:16]
A
Yeah, I agree. I think in some ways, if you're looking at the big. If you're. If you're thinking. If you're trying to answer the big picture question, how do we deter unconstitutional conduct by law enforcement? The exclusionary rule and the. And the immunities are sort of two sides of that coin. And in some ways, maybe courts are thinking of one, whether when they're enforcing the other or vice versa.
- [62:36]
B
All right, last question to you, Judge Tableson. What is a clerk interview like with Judge Tableson's chambers? I mean, you come from a long line of feeders. You know, Judge Scalia was a feeder. Judge Kavanaugh was a feeder. You have, you know, a paternal lineage here.
- [62:52]
A
I do. I do. And I've been. I've. In many ways, I really am. This is like a replica here of sort of the Kavanaugh and Scalia chambers with things borrowed from both of them. And the clerkship interview is, you know, no. Is like that as well. So I have a. I usually sit with them for an hour. Ish. And it's a lot of getting to know them. Personality is very important to me. People that have character and integrity and also who are authentic, who I feel like are not trying to make themselves seem other than they are to me. I really value that. And I also ask some legal questions, but it's not a legal pop quiz. I try to ask questions that seem at least likely to be in their wheelhouse based on their writing sample or the classes they've taken. Or I sort of let them, you know, pick a subject and then I probe it with them just because I want to get a sense for how they talk and think about the law, which is what I do with my law clerks all day long. And then my clerks interview them, usually in two groups of two. And I sort of let the clerks, you know, shape that how they want. There are some clerks who are naturally drawn to the sort of Scalia law clerk interview mode, which is, you know, a lot of, you know, difficult legal questions and a little bit pop quiz, like. And then there are other clerks who ask more questions about, you know, how people work and, you know, what their personalities are like. And so I get. I tend to get, like, a balance of views from my law clerks. And then I bring everyone in. I also have my. My ja. Olivia, who's, like, truly remarkable. Sit with. Sit with interviewees for a bit, because Olivia's views are really important to me. So then I have everyone in, and I won't tell Anyone what I think until they all tell me what they think and we talk about it for a while. And that's very much like sort of a hybrid, honestly, of the sort of Kavanaugh and Scalia modes of hiring, which, I don't know, worked for me. So it ain't broke. Right.
- [64:40]
B
How many, how many people would you interview for four slots?
- [64:43]
A
Oh, I don't have a great. I don't have a stable answer to that question yet because my hiring has been, you know, at the beginning I had to hire super quick for four people who could drop everything and move to Milwaukee immediately for a stub term. So then I did a lot of phone interviews and I did a lot of triage and I relied on people I trust basically to find me excellent lawyers. And that worked. Then I hired pretty quickly for 26. Now I'm taking my time and doing a lot more interviews, honestly for 27 and now thinking about 28. I have not yet sort of developed like a full mo. But I am picky. I mean, my clerks say I'm picky, but a lot of it is because it's just, just, you know, it's really important to find someone that's not only a really smart lawyer, but also it's gonna be a nice person to work with here for a year. It's small, close knit chambers, and so I, I don't know, I spend a lot of time to try to find that.
- [65:34]
B
Will you give us one of your legal questions that you would ask in an interview?
- [65:38]
A
Yeah. So if I'm, if I'm unsure, like what substantive area of law to ask about, then. Because let's say their writing sample doesn't sort of immediately generate interesting legal questions.
- [65:50]
B
No. I want to see if you will hire me for a clerkship. Ask me the question.
- [65:55]
A
Okay. I try to have something really, really broad. I'll be like, name a Supreme Court case that you thought was excellent or bad and tell me why, and then I'll let them talk. And then I usually, I'm, you know, reasonably well read on the Supreme Court, usually I know the case and can sort of further pursue. And so then I will, I will drill down on that case with them. And if we can drill down on like, you know, different opinions or different cases that touch on it.
- [66:21]
D
Let me ask you this. You ask that question and I'm immediately, I'm immediately like war gaming my answer out, like doing that instant. Do I go with the obvious, what I really don't like, or the obvious, what I would really like or Do I go a little more obscure?
- [66:37]
B
No, go obscure. You want to throw her off a little because you don't want her to be too steeped in the case. That's why I'm going pork producers. How much does she really have on dormant commerce clause at the tip of her mind right now in this interview? I'm going to crush her. No, I'm not. Yeah, you might.
- [66:53]
A
Don't ask me.
- [66:54]
D
I would immediately launch into a 30 minute tirade on bong hits for Jesus. Morse v. Fredrik. I would feel like that might be in the sweet spot, if not one of the big super famous.
- [67:03]
A
Another strategy which is not a winning strategy, I shall tell, which is just to try to pick something to try to pretend to be me, basically. You know, that is very obvious.
- [67:12]
B
I'm going to go ahead, pick something from the year you clerked for Justice Scalia that he wrote and be like, it's brilliant.
- [67:18]
A
Right? Exactly, exactly. This sounds like Judge Tableson. And I just think this is the best opinion of all time. And I'm like, okay, all right.
- [67:28]
B
Judge Tabelson, thank you for joining us as the junior justice friend. Sorry, I've promoted you too soon. Judge Tabelson, thank you for joining us as the junior judge friend of the pod. And we hope to have you on as the junior justice.
- [67:46]
A
Thank you guys so much. It's been a delight.
- [67:50]
B
Well, David, that was fun. We now have our junior judge friend of the pod.
- [67:54]
D
I love it. I love it. And I always like to hear the stories about how it all happened because I think of all of the categories of public official, the process of becoming a judge is the most opaque. And I just like, you know, more people to see inside it and see what it's like.
- [68:09]
B
Well, in our next episode, we have some oral arguments this week. And most importantly on Monday was the oral argument on that ballot received case. Right. Everyone agrees you have to have submitted your ballot by election day. It has to be timestamped or, you know, postmarked or whatever. But are state laws allowing the ballot to be received after election day unconstitutional? Is election day. Election day is election day. So oral arguments were in that case. We'll talk about that. And we have a dissent from the denial of cert in the Villarreal case. David, this is that fifth amendment journalist who was arrested for doing journalism. And the fifth Circuit held, nope, you cannot hold the officers liable. So another immunity case bites the dust. David. 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 at advisory opinions the dispatch.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. You know what they say early bird gets the ultimate vacation home Book early and save over $120 with VRBO because early gets you closer to the action. Whether it's waves lapping at the shore or snoozing in a hammock that overlooks, well, whatever you want it to so you can all enjoy the payoff come summer with Burbank early booking deals Rise and Shine Average Savings $141 Select Homes Only Starting a business can seem like a daunting task unless you have a partner like Shopify. They have the tools you need to start and grow your business. From designing a website to marketing to selling and beyond, Shopify can help with everything you need. There's a reason millions of companies like Mattel, Heinz and Allbirds continue to trust and use them. With Shopify on your side, turn your big business idea into Sign up for your $1 per month trial@shopify.com special offer.