B (3:21)

They just run off and elope right there. Well, look, we've got an exciting podcast for you. Hold onto your britches. Well, David, where to start? A lot has happened since our last episode of Advisory Opinions. The Attorney General, Pam Bondi was fired, as we've learned on. On the way to the Supreme Court argument in the Birthright citizenship case, which had to make for a bit of a surreal moment to sit in the Supreme Court gallery as the President of the United States is there for the first time knowing something that nobody else in the country knows, that you're about to not be Attorney General, but you're sitting there quietly without your phone or any ability to do anything, really, except be in your own head about the whole thing. I'm sure many of us have experienced versions of that, but it's like, extreme when you're the Attorney General and the place you are is the Birthright citizenship oral argument at the Supreme Court. David, you know, big takeaway for me. Jeff Sessions, 22 months. Bill Barr, 22 months. Pam Bondi, 14 months.

A (4:34)

Yeah, well, and the thing about it is, ordinarily, if you saw a AG this disastrous be replaced this quick, I would say good on you, Mr. President. You are, you know, maybe, hopefully you've just steered the Titanic away from the iceberg before it hits. But then you realize she tried to do everything the boss wanted her to do, but he was wanting her to do things that were not entirely in her control. So you cannot, as the ag, both prosecute and convict somebody. You can only try to prosecute, and you can only, with the emphasis on the word try to prosecute that. You know, we've seen the ham sandwiches being very resilient in the face of grand juries of lately. And so she was running an enterprise whose results were not up to her. Now, there are ways that she sort of botched Things, you know, she had some own goals like the Epstein Binder release day, which was just genuinely embarrassing for everyone involved. I mean, one of my favorite recurring pictures is do you, do you follow the account? Three year Letterman?

B (5:43)

Of course, yes.

A (5:44)

Three year Letterman. I mean, Great American. For those who don't know, you just have to follow this dude on Twitter. You know, youth football coach, drives a 2020 Ford Taurus, fully paid off his waterbed from Georgia. And it's a parody account and it's spectacular. But every now and then he drops out of parody mode. And about once a month he'll post the picture of all of the people holding up the Epstein Binders back in the first months of the Trump administration. He's like, Happy 11 month anniversary for all who celebrate. It was just such a absurd spectacle where she gives these redacted binders to people and calls them the Epstein files. Was ridiculous. You know, the Epstein files are on my desk was another own goal that she had. But the reality is that she was an instrument of Trump's vengeance and she couldn't accomplish his vengeful goals. And so I think what we're going to be looking at is a search to find somebody who can do it, that he believes can do all the things that he wants done better. So I don't think that this is necessarily the sign of better things to come, although I'm open, I'm open to the idea that the next AG could be better, but I'm worried that the next AG just might be more competent at doing what Trump wants done, not that the AG would be an upgrade. So I gotta say, I'm nervous about what comes next and I thought what we had was a disaster.

B (7:13)

So I wanna put on my grifter Sarah hat for a moment and advise the President. So understanding, I think intimately what his frustrations were with Jeff Sessions and quite well what they were with Bill Barr and Matt Whitaker and Pam Bondi. To me, the choice is really obvious. You put Todd Blanche in as Attorney General. He is currently the Acting Attorney General because he was Deputy Attorney General. Fun fact about the Vacancies Reform Act. While in almost every situation you cannot be the acting and the nominee for the position, there is an exception to that if you have been in, in the first Assistant position, so Deputy Attorney General in this case for more than 90 days and you are Senate confirmed. Well, Todd Blanche is one of the few people who is actually Senate confirmed and has been in for 90 days who can both serve as the acting and be the nominee while acting Todd Blanche, you know, we mentioned him on that podcast with Governor Christie. Really? Actually well regarded federal prosecutor over in sdny. He left as an AUSA and was Donald Trump's personal criminal defense attorney at one point. He understands how the department works. And so to your point, David, if the problem with Bill Barr is he understood the department but wouldn't actually do your stuff without questioning it. And the problem with Pam Bondi is she would do your stuff, but wasn't competent enough to know where the levers were. Todd Blanche is the best combination. I think that's out there right now. As opposed to, let's say, Lee Zeldin, who would fit, I think, a more traditional mold of who you pick for Attorney General. Someone who's held elected office, someone who's going to understand the politics. A lot of the role of Attorney General is quite political and interfacing with Congress, not just publicly, but privately as well. And so having someone with that experience is really helpful, but it's not the goal here. So I would not pick someone in that traditional Attorney General mold. I can't imagine someone better than Todd Blanche. Now, the question on everyone's mind is who in their right mind would accept the nomination for Attorney General at this point, when it just hasn't gone well for anyone? There's a track record of zero successful Trump attorneys General. I don't have any great advice on that except to say, like, Todd Blanche is already in for a penny, so might as well go for that pound.

A (9:53)

Perfectly befitting grifter. Sarah, you have articulated the worst possible option, I would say, because he is both the combination of ruthless and competent. And so you've got Pam Bondi, you had all the ruthlessness and none of the competence. And with Bill Barr and Jeff Sessions, you have a lot of confidence and competence and not enough of the ruthlessness that Trump wanted. It feels like Todd Blanche is the ruthlessness, competence, singularity. And he would be the worst possible and I think the best case just for, you know, Americans who want the DOJ to work. Best case that's a reasonably possible case is Lee Zeldin. I think of him as a traditionally, relatively, I mean, you know, again, everything sort of relative in this new world, relatively mainstream Republican. Somebody, I think, who would want to have an identity post Trump that's not necessarily tied specifically to Trump. I don't know. What do you think? You grimaced. You grimaced.

B (10:50)

You've tapped into something really important here. He has his own constituency, however you wanna think about that, his own reputation. And when you think about the most successful person in either Trump administration. It's got to be Susie Wiles. And I think she and Todd Blanche have a lot in common. They do not have their own constituencies that they need to worry about or their own public Personas or their own reputations, you know, as elected people who want to continue that career trajectory, et cetera. And Susie Wiles, I think, has done very well as his chief of staff compared to all of the other failed versions. He needs to find that if he wants to have a successful attorney general.

A (11:32)

Yeah, no, that, that's very well said. I would. I thought you were going to say for a minute, Stephen Miller, because he has no independent constituency and he has completely subsumed his identity into Donald Trump and really runs much of the federal government, like, just by dictate right now. So I, but I, I see your point on Susie Wilds. I was kind of thinking of Todd Blanche as, like, this Stephen Miller of the doj.

B (12:01)

I think he's more Susie Wiles than Stephen Miller, but we'll see. All right. Other news from the Supreme Court. We had an orders list on Monday morning. Two of those orders will be of interest to folks. This is the Sittenfeld versus United States case. This was a local guy who was convicted of bribery. He had been appealing that. And David, actually, as a bribery case and sort of what the federal law is, it was a pretty interesting case. However, the Trump administration issued a pardon, and so DOJ was trying to dismiss the indictment. The actual guy, Sittenfeld, wanted the Supreme Court to take the case and rule on the bribery questions. The Supreme Court. The petition for a writ of certiorari is granted. The judgment is vacated. The case is remanded to the United States Court of Appeals for the 6th Circuit for further consideration in light of the pending motion to dismiss the indictment. So that's a gvr. If DOJ wants to dismiss this indictment in light of the pardon, why would we weigh in on something that at that point would be more of an advisory opinion? There's no live case or controversy here. And the second one, David, remarkably similar. This is the Steve Bannon case about contempt of Congress. Steve Bannon spent four months in prison. Also wanted the Supreme Court to take the case. Same language GVR'd for further consideration in light of the pending motion to dismiss the indictment. So the Supreme Court just saying, yeah, we're not. We're not getting in the mud with these pigs. No, thank you. You guys want to dismiss the indictment, so be it. So that's going to make a lot of headlines, but there's not actually a lot there in terms of the Supreme Court saying anything at all. This is very normal for the course at this point.

A (13:59)

Yeah, if there's a pending motion to dismiss, I mean, this is not something the court's not going to take. Cases that are about to evaporate. The thing that cleared the way for the ban and dismissal was the motion to dismiss. The was the dismissal. It was the effort to dismiss. I mean, this is normal stuff. The only thing abnormal is that Steve Bannon is one of the names.

B (14:19)

In fact, it always was going to end this way. The only other choice was that the Supreme Court would actually get rid of the original indictment itself by finding that that was unlawful for some reason. So at this point, Steve Bannon's conviction was going to be gone, if that makes sense. The question was whether the Supreme Court would do it on the merits or DOJ would simply dismiss it. So this idea, Supreme Court clears way for dismissal. Like, no, no, DOJ did this dismissal. There was a version where the Supreme Court could, you know, vacate his conviction, but they said no to that one. All right, David, let's get to some meaty meats here. This is Chiles v. Salazar. This is the conversion therapy decision. And I just, it is worth underlining this. Do you remember at the beginning of the OT 25 Supreme Court term where we defined the big cases? Chiles vs Salazar was a big case for everyone. It was on everyone's list. Conversion therapy and whether the state of Colorado could criminalize talk therapy that sought to, you know, tell someone that they could be comfortable with their sex that they were born in or that they could overcome same sex attraction. Well, we got the decision. It was 8:1. Jackson was the sole dissenting justice. We'll get into the meat of this for a second, David. I gotta say, like, it really fits the mold of once that thing was 8:1 once it didn't fit the 6:3 stereotype and narrative. Not a big case anymore.

A (16:08)

It's just become a phenomenon that once you see it, you cannot unsee it. And that is as soon as a decision is cross partisan, as soon as Democrats join with Republican, Democrat nominees join with Republican nominees, Republican nominees join with Democratic nominees. As soon as that happens, the case just drops out of the public consciousness, no matter how big it is. So the tariff ruling, for example, says 333 the biggest case of the last 25 years because it's so structural to the essence of what the Constitution is supposed to be. And the separation of powers and the Republican form of government. And I wrote that up and nobody like really rebutted it on the merits. It was just sort of like it just disappeared. Like people just stopped talking about it. With this case as well. I mean, this is conversion therapy. This is a collision between free speech and LGBT rights that has been. That was sort of like the dominant aspect of the culture war in many ways, or a dominant aspect of the culture war for 20 plus years. And it's an 8:1 decision. And, you know, literally the amount of commentary is minimal. No public backlash at all. It's fascinating to me. And, and this might be right. I'm still chewing on it. I think the old culture war is mainly over and we have a new culture war. And the old culture war was based much more around the kinds of constitutional issues that really get lawyers up in the morning because they are tough questions about consequential issues. What is the intersection between anti discrimination law and free speech? These are tough things to work through with very high stakes, very personal kinds of issues around identity and faith. And I feel like the Supreme Court has essentially settled most of this. Most of this collision has now been. And we're just now dealing with sort of the issues on the margins. And now we've moved into a different culture war, which is basically this, Sarah, not so much what issues prevail, but who's in charge and how much power do they have? And I feel like we've kind of moved from a kind of culture war and we might end up regretting, like missing the old culture war. Because the old culture war really was about people arguing in good faith about deeply held convictions and the collision between deeply held convictions argued in good faith. Two, the two wings, the two more illiberal wings of both parties in a knockdown, drag out fight over who's going to achieve total victory and domination over the other. That is a much more dangerous culture war in many ways than arguing over these kinds of issues about identity and religion and constitution that all were being argued where both parties were in an agreed upon dispute resolution framework. In other words, if I lose the case, I lose the case. I never had a University. In 20 plus years of suing universities, I never had a university even flirt with defying a court order, not even flirt with it. Like we went in, we argued the case, it was passionate and there was a winner and then there was a loser, and we moved on. And we're in a different world now. And I feel like we're going to, in many ways, we'll look back on 2011 and say, man, that's when. Those are the good old days. We were fighting about, like, big important stuff and then agreeing to abide by the results and going forward as Americans. So tell me, Sarah, am I wrong? I'm working this through in real time.

B (19:53)

All right, let's put a pin in that because I want to get into the meat of the Chiles case itself. So I'm going to read some facts. Justice Gorsuch wrote the opinion for the eight justice majority on matters of sexuality and gender. Mrs. Childs clients, including minors, come to her with different goals in mind. Some are content with their sexual orientation and gender identity and seek assistance only with social issues, family relationships and the like. In cases like those, Ms. Childs does not try to persuade her clients to change their attractions, behavior, or identity, but aims instead to help them address their stated goals. Other clients, however, come to her hoping to reduce or eliminate unwanted sexual attractions, change sexual behaviors or or grow in the experience of harmony with their bodies. And in These cases, too, Ms. Childs seeks to help her clients reach their own stated objectives. In doing so, she does not prescribe any medicines, perform any physical treatments, or engage in any coercive or aversive practices. All Ms. Childs offers is talk therapy. In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in conversion therapy with minors. The state reports that it adopted the law in response to a growing mental health crisis among Colorado teenagers and mounting evidence that conversion therapy is associated with increased depression, anxiety, suicidal thoughts and suicide attempts. Any Coloradan who thinks a licensed counselor is engaging in conversion therapy may file a complaint with a regulatory board. A complaint in turn triggers a disciplinary review process that can yield a fine, probation, or the loss of a license. David, in the end, based on those facts, I mean, it was 8:1. So, like, it looks like an easy case. It felt like an easy case. Reading the Gorsuch majority. The punchline being this is speech. Colorado cannot ban speech just because the speech comes from a doctor who is licensed by the state. And we saw some of this in oral argument, the idea that the licensing system is the qualifications you must have to get the license, but there's not a continued ability to control how the person who is licensed performs their job. And when it comes to only speech, the speech interest outweighs whatever interest the state may have. In the Jackson dissent, David, her argument was also, I thought, quite simple. Nope. When we're talking about talk therapy, that is an act, no different than prescribing medicine or performing some other act the act here happens to involve speech, but the speech is subordinate to the act itself. And of course, the state can ban acts, and therefore Colorado's law should have passed any level of scrutiny here. David, any surprise takeaways? Any things worth underlining? Or is this a traditional. This court is more protective of free speech than any Supreme Court in the history of the United States. And this case just falls in a long line of speech wins.

A (23:14)

Two aspects here I think, are. Are very interesting. Number one, I completely agree with you. This is a very speech protective court. This is. I mean, let's look back, regardless of the identity of the speaker. I mean, think back to last term when Justice Sotomayor wrote the 90 opinion protecting the free speech rights of the NRA. That's not your normal headline. Justice Sotomayor writing for unanimous court for defends free speech rights of National Rifle Association. I mean, that is. This is a very speech protective court. I also think that the members of the court really do. It has really sunk in with them that in the speech world, what's good for the goose is going to be good for the gander. So if you are protecting the free speech rights of people you disagree with, you are also actually protecting your own free speech rights. I cannot tell you the number of times when I was president of FIRE that I would go and I would talk to administrators and I would say, look, guys, one day you're going to need the free speech protections that you're stripping from your students and faculty. And they would just look at me like I was an alien from space. You know, we run higher education. You know, this is our thing. And now. And now look at it, right? They're begging for the free speech protections that they fought. That they fought for 20 years. Okay?

B (24:35)

The First Amendment is singing Toby Keith's famous anthem, how do you like me now?

A (24:41)

Exactly. So I think the justices of the Supreme Court have imbibed this fully. And then the second thing is, and I just would say this to all of my friends who are upset by this ruling. Read the statute. You know, don't look at the headline where it says a ban on conversion therapy. Because what ends up happening is you fill into your mind what conversion therapy is, and you fill it in with the horrible stories that I know have happened. And there are horrible things that have happened to young people. I do not doubt that. And the people who've done that should be held accountable through malpractice, lawsuits, et cetera. So what they do is they fill in the parade of horribles that are genuine and real. Okay? So I'm not. I do not want in any way to have anyone listen to this and think that I'm okay with the way that a lot of LGBT kids have been treated in some of this conversion therapy stuff. I am not okay with it, and I think that people should be held accountable in malpractice for it. Okay, but you read the statute, and it's so far beyond the horrible things that you've heard. It's so broad, even to the point where it talks about changing behaviors. Wait a minute. You know, if you're somebody who has a particular moral code, like, you know, you're somebody who has a value system rooted in religious belief, and you want to conform your behavior to the value system rooted in religious belief, that is not the same thing as electroshock therapy to alter your brain. Right? I mean, these are different things. And when you read the statute, what it really was, it was this incredibly broad thing that basically said, okay, if a young person walks in and they want to conform sort of their belief, and they want to harmonize their beliefs and their values. If their beliefs and values are pro lgbt, yes, you can do that. If their beliefs and values are, let's say they have a traditional Christian sexual ethic, well, then, no, that's conversion therapy. No, no, no, no. Those are not the same thing. And so the way in which this was absolutely weighted towards one value system and away from the other. That's why I beg people, read these statutes. Don't read headlines. Read statutes. And then think through your mind. If you give the legislature this power, you know what they could do in a red state? They could ban orientation affirming therapy. They could just ban it outright. You know, and so this is a very consistent free speech position with a statute that was viewpoint discriminatory and extraordinarily broad. And that's why it's 8:1. In fact, I'm mildly surprised. Tiny, maybe 1%. Surprised it wasn't 9:0.

B (27:37)

When we get back, we'll talk about whether Kagan was throwing shade at Justice Jackson in her concurrence. We'll be right back. Okay, David. So the Gorsuch majority opinion, really straightforward. This is speech. It's discriminating on the basis of viewpoint, as you say. Sure, Colorado is banning conversion therapy, but if you upheld that law easily, a red state could ban affirming therapy. And we're not gonna play these games. Justice Kagan, Justice Sotomayor joining, wrote a concurrence that I thought raised an interesting question. She says the court today decides that the Colorado law challenged here as applied to talk therapy, conflicts with core First Amendment principles because it regulates speech based on viewpoint. I agree. I write only to note that if Colorado had instead enacted a content based but viewpoint neutral law, it would raise a different and more difficult question. This is really interesting, David, because under Justice Kagan's view, for instance, if you simply had a ban on talking to minors about their sexual orientation, affirming it or trying to change it or anything in between, she's saying, I'd want to see that. That would be a different case for me and a different fact pattern. Basically, you know, the, the red state and blue states kind of, you know, the culture war is taken out of the conversation entirely. You just can't talk to minors about their gender identity, let's say. Now, David, in First Amendment law, there's, you know, different. No, no places. Viewpoint discrimination is the number one. No, no place. Right? Like, it's not even interesting if you have a viewpoint discriminatory law like the one here. But content based regulations can also be a no, no place. And what Justice Kagan is saying is in the context of minors and medical licensing schemes, maybe content based would be okay. Maybe that would look more like our commercial space speech cases, for instance. And I just, I was curious what your thought on that was.

A (29:51)

I completely agree. The viewpoint, it's almost boring when you're practicing a case and you can establish viewpoint discrimination. It's almost like, well, let me hand this over to the first year associates so they can go ahead and get a dub, get a win, and get their confidence. Because once it's viewpoint discrimination, it's over.

B (30:07)

Here's what Justice Kagan wrote, by the way. A law drawing a line based on the ideology of the speaker is disadvantaging one view and advantaging another skews the marketplace of ideas our society depends on to discover truth. That is a great summary of why viewpoint discrimination cases are easy.

A (30:25)

Yes, content is different. Content is different. And this is where you get into things like, okay, can a transit authority ban political ads? In other words, we're going to allow ads for tobacco or liquor or whatever, but we're not going to allow ads for politics. You know, that's. That gets a little trickier. But again, even there, even there, you're. Once you're in, once the word discrimination is at the end, there's a blank, and then discrimination, content discrimination, viewpoint discrimination. And you're the plaintiff's attorney, you establish viewpoint, you're almost always winning I mean, absent, like wartime, I don't know. It's very hard to know when you're not winning. Once you've, once you've really established viewpoint discrimination, content is a little more challenging. But Sarah, only a little bit more. Only a little bit more. And you know, there is strict scrutiny often in content discrimination. So when you have either one, much less both, you're, you're going to be in the driver's seat. So nothing about this is surprising on outcome.

B (31:33)

So again, to Justice Kagan, she says a viewpoint discriminatory law suggests an impermissible motive, that the government is regulating speech because of its own hostility toward the targeted message. And what she's saying is that in the content discrimination sense, it could be different when we're talking about doctors and counselors and medical care. So she says medical care typically involves speech. So, so the regulation of medical care, which is of course pervasive, may involve speech restrictions, and those restrictions will generally refer to the speech's content. But laws of that kind may not pose the risk of censorship, of official suppression of ideas that appropriately triggers our most rigorous review. Again, she says, like, I don't know, I'm just saying I'm reserving judgment because this is viewpoint. It's really easy for me. But like, bring me a medical regulation, state medical regulation that is viewpoint neutral but not content neutral. And that may look different to me than say the subway car ad example, but I don't know. And footnote, Justice Jackson sucks. No, that's not what the footnote says. It says Justice Jackson's dissenting opinion claims that this is a small or even non existent category. And this idea of viewpoint neutral but content based state medical restrictions. And she says but even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples. Her view to the contrary rests on reimagining and in that way collapsing the well settled distinction between viewpoint based and other content based speech restrictions. I have just seen people online say like, omg, sick burn, justice cadence. Kagan and Justice Jackson are fighting. I would like you to refer to footnote two of Justice Kagan's Andy Warhol dissent taking on Justice Sotomayor's Andy Warhol majority. Like, no, no, if you want to see sick burns, go to that one that has some like, oh my God, like I thought we were all friends here. This, you know, and sometimes in law we're like, ooh, you don't know this, but actually in law, like she is throwing down, I did not feel that way about this footnote. I felt like she was saying, I disagree with Justice Jackson and her own, you know, dissent refutes itself. Which is a really common thing to point out about a dissent.

A (34:12)

Yeah, everyone's looking for the. That headline of like, Kagan owns Jackson or something like that, or it's very rare to actually read an opinion, a Supreme Court opinion that's written in that kind of way. I mean, you know, when we talked about Gorsuch and the Festivus Concurrence and tariffs, that's getting close to it. But let me go back to content and viewpoint, because here's the way I would put the difference between content and viewpoint. Content discrimination, you get strict scrutiny. Normal case. Viewpoint discrimination is strict scrutiny. All caps or content discrimination is strict scrutiny. And normal voice and viewpoint discrimination is strict scrutiny. In other words, it's just especially bad. And so, you know, if you have a content discrimination case, that's a good case, you're in the driver's seat as a plaintiff. If you have the viewpoint discrimination case, you're not just in the driver's seat, you're the Harlem Globetrotters against the Washington Generals in that position.

B (35:10)

I will say it is interesting to me when you look at Justice Jackson's most fiery, most quoted dissents in some of these interim docket, emergency docket decisions that the Court has made this term. Justice Kagan has not joined any of them, actually. Now, she may not write separately, she may not mention why she joined or not, but like when Justice Jackson sort of has those very quotable, you know, moments, it's without Justice Kagan's support. And I. Do I have to read that footnote too, from Andy Warhol, because, like, I was not looking at it when I said that, like, that's how much I've memorized this. I know it's footnote two in the Andy Warhol dissent. Here's how it starts. One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self refuting. After all, a dissent with no theory and no reason is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. In any event, I'll not attempt to rebut, point for point, the majority's varied accusations. Instead, I'll mainly rest on my original submission. I'll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority's, go take a look at that decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to IPSA Dixit with those two recommendations, I'll take my chances on readers good judgment. Now that is a sick burn.

A (36:58)

Owned, maybe even destroyed, possibly.

B (37:03)

All right, David, when we come back, we're going to circle back to your question about culture war as well as some listener questions we have about Chiles and how the president in his Easter message said it's roads and bridges week in Iran and whether that's a war crime or whether you're allowed to attack roads and bridges if they're being used for military purposes as well as the use of exclamation points in judicial opinions. David, I mean, we have not had a good throwdown on punctuation on this podcast in too long. Coming up next on Advisory Opinions. Okay, David, I've been chewing on your culture war point. There is definitely a shift. I guess for me the shift is away from, as you say, like here's the issue. I'm on one side, you're on the other side. And it's more the horseshoe problem, right? When I have power, I will wield that power. When you have power, you will wield that power, and I will try to thwart you at every step of the way. And, and there won't be principles involved or process involved that we're arguing about. It's just about who has the power, which I don't think is different than what you were trying to say necessarily. But the old culture war actually honored the question of process. It's like, I'm going to try to use the process because I think that this principle is important or whatever else. And we were arguing about process and how that process would result in different outcomes and all of that. Both sides now seem to just want the outcome that they want. And that's why we're not having the same culture war fights, because we've ditched the process.

A (38:47)

When we say both sides, we're not talking about center right and center left, we're talking about illiberal left and illiberal right. And it really is how much power can I wield to dominate? You become sort of the the way in which the post liberals or the illiberals on the right and the left operate in many ways. You know, a lot of the underlying issues are flipping and flopping around right now. I mean, I never saw the right coming to be the home of anti vax, for example. That's not something that I thought would happen. And when we're talking about illiberalism, you really are talking about questioning the fundamental structure of the government itself. And that was not at issue when I was arguing where where does, you know, Title 9 end and the First Amendment begin? Those are very different things, as emotional as that argument can be, because that deals with things like gender discrimination and free speech and religion and all of that. Again, as I said earlier, at the end of that, you have the rule and you go forward and you live with it. Now, of course, you still have more litigation because people are people, and you're going to have those who try to test the rule and bend it and break it, et cetera. But it was all within the dispute resolution process that is the United States Constitution in this illiberal. The illiberal wings really do aim to break the system itself to impose their will. And I would say that that is a higher order of intensity than agreeing to the system and then working within it to accomplish your objective.

B (40:29)

All right, let's look to some questions from listeners about the child's case. How is conversion therapy different than porn for minors? Gorsuch separates physical acts from speech and expression, but isn't porn considered expression? It is also a product being sold, like porn. Chiles is not having a conversation in the park. She is selling a product. Her expressions. So why can we protect children from porn but not a product declared harmful by the American Pediatrics Association?

A (40:59)

DAVID well, again, we have to go back to the statute here. We have to talk about what is it that is particularly harmful. And so you know what? One way of looking at this case, which I think is a very smart way of looking at it, is this case is a First Amendment case, and it's also a remedies case, because what is the remedy for conversion therapy, for harmful conversion therapy, is it a prophylactic rule that eliminates viewpoints, or is it a malpractice rule that punishes failure to comply with duty of care that results in harm? None of this vitiates malpractice. Malpractice is still out there. And so really what you're talking about here isn't anything goes at all. Not at all. This is not an anything goes opinion. It is in many ways a remedy's opinion. And so the when you look at the what was actually banned here, how broad it was, it was so far beyond sort of the the category of speech that has been demonstrated to do harm, and for that category of speech, slash conduct that has been demonstrated to do harm Remedies are still available. So I think you have to really understand what we're dealing with here. It's not an anything goes opinion. It's an opinion that says you can't use viewpoint discrimination to establish a prophylactic rule. That's what we're dealing with here, which is very different.

B (42:25)

There's also the problem of porn. Maybe not having first amendment protection.

A (42:29)

A lot of porn doesn't. It's obscenity, it's just not prosecuted. Yeah.

B (42:33)

Okay, next question. Does a medical practitioner limiting their treatment to speech and calling it a viewpoint allow them to do anything? By that logic, can counselors treat depressed patients by discussing the merits of euthanasia? It seems absurd to me that a counselor may guide a minor down the path of killing themselves. But euthanasia is a viewpoint which the opinion and concurrence seem to protect. Does it matter if the counselor suggests actions since that is where Gorsuch delineated the protection? If child suggests the client wear different clothes, or my hypo quack doctor suggests a client jump off a cliff, does the review change? By the way, I just have to say I love our listeners because in both of these questions you will note they read the opinion. How great is that?

A (43:17)

Yeah, I would go back to that. Malpractice, you know, the issue and thinking about this through remedies, which by the way, with assisted, you know, right to die, assisted suicide, all of that, like in Canada and other places in the western world, counselors do guide people towards that.

B (43:35)

But isn't the argument that a state in the United States should be able to ban counselors from suggesting that a child kill themselves because they're depressed?

A (43:44)

Absolutely. I think you could absolutely specifically ban that. Also, if a counselor did that, the malpractice award would be massive. There would, there might be criminal penalties. I mean, you know, we've seen situations where there was a case in Massachusetts, I believe, where a woman urged her, a girl urged her boyfriend to commit suicide. So yeah, that's going to be punishable. Absolutely. But again, there are absolutely punishable things such as like electroshock therapy or whatever that would be encompassed within malpractice. That could be punishable on their own, independently, perhaps even criminally. But again, the statute wasn't doing that.

B (44:24)

Yeah, I was going to say, I think a big difference here is exactly what Kagan was trying to distinguish between. A statute that says a person may not use talk therapy to encourage a minor to self harm or commit suicide, I think would be considered viewpoint neutral. Content based but viewpoint neutral because it wouldn't matter why you're encouraging them to commit suicide. Any encouragement to self harm or kill themselves would be banned. So content based, but viewpoint neutral. And so I think that was actually exactly the fear that Kagan had or the distinguishing meant distinguish just whatever that Kagan wanted to make, which is this is viewpoint specific. You come to me with a medical content based law. I'm curious and I think your hypothetical here is a spot on example of what Kagan is trying to leave room for in the future. Because David, I take your point about prospective versus retrospective. But of course if you're a parent, you don't want malpractice claim at the back end of your child killing themselves. You don't want a tort claim, you want prospective prohibitions on this sort of thing. And I think what Kagan is saying is no problem. You know, something that came up at the oral argument as well that I thought was kind of a policy moment to some extent, but it was a crazy moment. I forget which justice asked and they said, hey, all of these studies that you base this law on about the harm that conversion therapy can do to, to minors and the increase in depression and suicide attempts and all of this, none of those were based on speech therapy. Right? You don't have a single study that is speech therapy specific where you found any harm. And the lawyer for the state had to acknowledge that all of the studies that they were basing this on were aversive therapy, electroshock therapy or other types of behavioral therapy that were quite different. And look at the end of the day that's going to matter when the state has nothing to point to of why this is a rationally based law aside from political viewpoint, or political might be the wrong term, but ideological viewpoint, discriminatory law.

A (46:36)

And also I would say that if you're don't diminish the power of malpractice. For example, we recently had a malpractice verdict of I think a couple million dollars involving a detransitioning a person who detransitioned after transitioning as a minor. And I guarantee you multimillion dollar verdict is going to have is going to reverberate more than here today, gone tomorrow. Political wind shifting regulations and statutes that often will depend on which party is in power. Whereas the malpractice verdict that retained, that remains, that stands whether there's Democrats or Republicans in power in the state house or the, you know, in the Congress, that malpractice verdict it radiates outward to the point where it's not like, you know, if you, if you, if there are multimillion dollar malpractice verdicts, you know, it's not like a situation where if I go from Tennessee to Michigan, well, now I can get all the treatment that I want. No, both Tennessee and Michigan providers are looking at a multimillion dollar malpractice verdict and saying, I don't want any piece of that. And so that malpractice is actually, in many ways, does have a lot of actual prophylactic effect, but it's a prophylactic effect tied to particular facts and circumstances, not tied to ideas.

B (48:00)

All right, David, I want to move on to our next topic, and that is the president said that it's road and bridges week in Iran, meaning he intends to bomb the roads and bridges. Some people have pointed out that attacking, specifically targeting civilian infrastructure is a war crime. But David, I feel like Iran uses their roads and bridges, for instance, to transport potential nuclear material, et cetera. So when are civilian infrastructure war crimes? And when are they actually things that the military or the regime can use for military purposes?

A (48:39)

Yeah, it's a really great question. So we've been watching the Russia, Ukraine war where every year Russia tries to destroy the civilian power grid in Ukraine to make the Ukrainian people suffer through the winter that, you know, and they had enormous success with that over the last winter where it was brutal on the Ukrainian people. And we said, war crime. Russia is engaged in a war crime. And now here comes Trump saying, well, we're going to blow up your power plants and your roads and bridges. Is it okay when we do it? No, comma, but. Okay, so here's the no in the but. So the no is civilian objects such as a road, like a, you know, a bridge. What's the interstate that runs, Interstate running through the middle of Houston?

B (49:29)

I10.

A (49:30)

I10. So you're going to just blow up I10? Well, that I10 is presumptively civilian. Look at it this way. It's presumptively civilian. To bomb a civilian target, you have to show that there is a military necessity for bombing the civilian target. Not that there is some potential incidental military positive after effect, but there is a military necessity. So let me, let me give you an example. When I was in Iraq, we could not, we were prohibited from destroying civilian infrastructure unless we could show a urgent military need for doing so, such as we had an offensive late in my time in Iraq where there was one particular bridge that was the only way of egress for Al Qaeda. There was no other way for Al Qaeda to escape the net. We were sort of casting around them other than this bridge. And so we were able to destroy that bridge. But I had to go through a complex process to show the intelligence, to show the necessity before we receive permission. And one of the things we had to show was minimal civilian harm, maximum military effect. So think of it like this. If you have, let's say you're invade. It's Normandy, June 6th, you're invading, and there are panzer divisions that are coming to attack your forces. You can bomb the roads and bridges that they're going to use to attack your forces. However. However, you can't just wake up one morning anymore. This used to be the way things were. Sadly, it used to be, well, one way we're going to end the war is just by pounding the civilian population to such an extent that they just decide to end it. I mean, this was, you know, the blitz in London. That's what Hitler tried to do. You know, some of the elements of the night bombing campaign that the British had. It gets very messy and complicated. In World War II, there were not precision weapons like we have now anyway. But the bottom line is you've got to show military necessity. You can't show incidental military. It's not enough to just say, well, if we bomb enough of their bridges and we blow up enough of their power grid. Well, in theory, one of the downstream effects of that is no power to a military base. Or incidentally, one of the downstream effects of this is it's harder for the military to move around. No, no, no, no, no. You've got to have more of a showing. If it's a power plant that is supplying a military base. Yes. Power plant supplying a munitions factory. Yes. If it is a bridge that the IRGC is using to reinforce units that are trying to seize a captured American or trying to seize an American pilot on the run. Yes. But you have to identify the military necessity of the individual strike, not of the concept. In other words. Yeah, there are many circumstances in which blowing up a bridge is necessary militarily. So let's blow up all the bridges. No, it's not that way. It's not. Yes. There are times when the power plant is used for military purposes. So we can blow up all power plants. No, and it is definitely not. Let's blow up power plants and bridges and destroy the civilian infrastructure to such an extent that the civilians are crying out in agony for their government to end the war. No. You know, that is not the way this is supposed to work. And so that's how you can see Americans lawfully bombing a bridge. And we've done it many times. We did it when I was in Iraq. But we do it when we demonstrate the military necessity of the individual action, not of just the whole concept of all bridges can go or all power plants can go. That puts you in Putin territory, where Putin is saying, you know, we want to. We want the Ukrainian people to suffer so much that they cry out for peace. No, you cannot do that. That is absolutely not. And a lot of the rhetoric from Trump is along those lines. And I gotta say, man, if you're a military planner and the commander in chief is saying to you, we need to bomb all the bridges, we need to bomb all the power plants, you know, I mean, this is. This is getting. This is getting tense, Sarah. I would just put it like that. This is. This is potentially a very difficult situation. And it's also could be one of the reasons why Hegseth has cleared out the upper echelons of the JAG Corps, that he's clearing out a lot of general officers right now. You know, it's very telling that the army, the chief of staff of the army, his farewell message was emphasizing the importance of character in the military. And so I'm very worried about this. I'm very worried about this. You have an ongoing purge of generals. You've had a purge of leading JAG officers. You have the commander in chief, the language of which is broad enough to legitimately argue that he's calling for war crimes. I don't like this one bit, Sarah, and again, I'm no apologist for the Iranian regime. Absolutely not. But the Iranian regime is not so evil that its civilians now no longer enjoy the protection of the law of war. That is not the case. That is not the case at all. So, yes, you can bomb roads and bridges and power plants when there is a military necessity, and you go through the right process within the law of armed conflict, but you cannot just simply declare civilian infrastructure to be in toto, to be fair game. No, you can't cut off all the power to the hospitals and the schools and everybody's civilian homes with the objective of making them so miserable and making them suffer so much that they, what, revolt? I mean, this is not something that has worked in military history. We bombed. We bombed Germany to such an extent that by the end of the war, the rubble was bouncing, and there was. There was bitter resistance until the very last days of that war. And the only time where sort of area bombing has yielded a kind of shock and horror that resulted in peace was the nuclear strikes on Hiroshima and Nagasaki. And God forbid we ever do that again. I mean, God forbid we're ever in that situation ever again. And so, yeah, I'm worried about this, Sarah. I'm worried about this.

B (56:09)

Okay, David, it's punctuation time. In National Trust for Historic Preservation of the United States versus the National Park Service, Judge Richard Leon held that construction on the White House ballroom had to stop in doing so. I particularly liked Adam Liptax from the New York Times take on this opinion. Judge Richard J. Leon's opinion halting Trump's proposed White house ballroom contained 19 exclamation points, exhausting the judicial branch's annual allotment of that punctuation mark. David, many of the punctuation marks. Well, just. I'll read the first couple sentences. The President of the United States is the steward of the White House for future generations of first families. He is not, however, the owner. Exclamation point. There were also at least three. Please. Exclamation points thrown into this opinion. David, I have a hot take on this. I don't know if you're going to agree. I'm against, I'm against the exclamation point in judicial opinions. I think it subtracts, and I certainly think 19 subtracts. Is this offending me in some deep moral way? Absolutely not. If I were clerking, would I die on this hill to. No, certainly not. But I wouldn't use them myself for what it's worth, because I think it can make it look like you have emotional involvement in the question or that perhaps you've prejudged the, the party's arguments because you feel so strongly. There's a certain amount of judicial detachment that I think is helpful to the rule of law. And, and I think exclamation points undermine that judicial attachment. Not to make this some high philosophical thing on punctuation, but like I do. Sorry, exclamation point.

A (58:08)

So I don't know why you think I would disagree with that after the whole Van Dyke conversation we had about swinging. You know what's. And the conversation we've had a few times, really, since COVID when we first saw it, where judges will issue kind of a political moral screed more than an actual judicial opinion that we. Thankfully, it's been isolated in the last few years, but a slight increase or uptick in what you would call just sort of like absolute judicial exasperation expressed in print. I don't love it. I don't, I don't love the, that, that kind of flourish. I love a good turn of phrase. But I don't like the exclamation points, the swinging, you know, what's. The opinions that don't contain very much case law at all, but lots of founding era speeches and, you know, that kind of thing. Leave that to us. Leave that to us, y'.

B (59:06)

All.

A (59:06)

That, that's like our job. But the plain vanilla judicial opinion with creative writing, which I love. Good writing. Written well written artfully. Yes, yes. Sprinkling in exclamation points like it's croutons on a salad. Nah, don't love it.

B (59:25)

Also on the substance of this, we don't normally talk about district court opinions because there's usually so much packed into them, it's hard to, like, pull out all the legal questions. But I gotta say, on this White House ballroom thing, David, we talked about at the beginning the problem that anyone would have establishing standing to sue about the White House ballroom plans. And so when I saw this, I was like, wait, what standing does the National Trust have? They're a private organization. Here's the paragraph. According to the National Trust, one of its members, Professor Allison Hoagland, is a longtime D.C. resident and a professor of historic preservation who regularly visits President's park to, quote, enjoy the historic buildings and take in, quote, unquote, the beauty of the l' Enfant Plan. Hoagland also gives walking tours and has published scholarly articles on Washington's historic architecture, to which the White House is central. Hoagland alleges that construction of a ballroom of the proposed form and scale would cause permanent and irreparable harm to the White House and President's park, thereby damaging her own aesthetic, cultural and historical interests. And the judge concludes that these alleged aesthetic injuries establish a substantial likelihood of Article 3 standing. I will just say, David, while that's not insane, because we have had aesthetic injury cases from the Supreme Court in the past, we haven't for a very long time. And we've in fact seen many of the justices basically say, that was a frolic and detour, that was a mistake, because now everyone can claim some aesthetic injury and it has, it could create this, like, replacement for taxpayers standing, this idea that, like, everyone has standing to challenge anything the government does. Because I'm a taxpayer, we don't do that. Because aesthetic injury, we don't really do that anymore. So, David, my prediction is that this opinion will not go far, not because of the exclamation points. And not because of the legal reasoning. Once you have standing. But standing is still a huge problem here. You don't have an aesthetic interest in how the White House looks.

A (61:38)

Sorry, I'm so skeptical about that standing analysis. So skeptical. Yeah, I'm with you 100%. And that's not to opine on the merits at all. It's just I don't have a legally recognizable interest in liking how the White House looks.

B (61:53)

If I did, the EEOB would have been torn down decades ago. That ugly MC Escher monstrosity. I mean, right? If I have an aesthetic interest in walking around D.C. and only seeing beautiful things, do I get to review the blueprints and then object? Because, like, that staircase will hurt my view of, you know, enjoying the walk because it's such an ugly staircase? No, of course not.

A (62:17)

So I kind of thinking here, I kind of want the Supreme Court to recognize aesthetic standing so I can sue our alma mater, Harvard Law School, over the monstrosity that is the Gropius dorm complex. It is brutalist architecture. And think about the generations of students who've been immiserated living in that structure and looking at it every day.

B (62:45)

Okay, but, David, I have something really funny to tell you about Gropius. When I was picking out china for our house, I had a very clear vision of what I wanted. I didn't want. I just wanted very simple. I wanted white plates. No lip. Just like a white plate, you know, a nice white plate. And do you know the only designer that I found that made this? My china on the back, every single plate is stamped, designed by Walter Gropius.

A (63:14)

No. Seriously?

B (63:16)

Yes. Yes. This is real.

A (63:19)

You have brutalist wedding china?

B (63:21)

Yeah, I have Walter Gropius wedding china.

A (63:24)

Wow. Marxism inspired brutalist wedding china. That's. That's phenomenal.

B (63:30)

And I love it. And it's beautiful, and it does the job every time.

A (63:33)

Well, I don't know if I get. If I get my aesthetic standing and I don't like your china. Prepare to be served. Prepare to be served.

B (63:42)

All right. On the next episode of Advisory Opinions. I want to revisit the Birthright citizenship case and why C. Scalia might be turning in his grave. According to Dylan Esper, as well as other questions that we've gotten from you guys on that defender general position and AI David, we only. We not only have a great question from previously that we teased, but we've gotten more. And I feel like. I don't know, I have thoughts about why you might be wrong. So some of the questions might even come from me. 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 and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@the dispatch.com premium. That'll get you an ad, free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisory opinionsedispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.