Advisory Opinions - 99 Problems and an Election is One

Episode Date: July 27, 2020

Our esteemed podcast host Sarah Isgur launched her new Dispatch newsletter called “The Sweep” today, in which she broke down the effectiveness of the new presidential campaigns ads. Conclusion? Biden’s new ads are strategically boring to offset his opponent’s predictable unpredictability, whereas Trump’s play up the anarchy of the radical left. As Sarah reminds us, persuasion ads don’t work. This leaves candidates with two options: 1) Run up their existing base in enthusiasm and support, or 2) Get their opponent’s base not to vote. Justice Roberts trended on Twitter Friday night after joining the four liberal justices in denying a Nevada church’s application for injunctive relief over coronavirus restrictions. Religious liberty lovers sounded the alarm for First Amendment violations. But our podcast hosts are less concerned about this case’s long-term effect on religious liberty case law, given the state’s interest in restricting mass gatherings will soon be subverted to transcendent religious liberty concerns once the pandemic subsides. As David says, “The real enemy is not Justice Roberts, the real enemy is the coronavirus.” Speaking of Supreme Court drama, Josh Hawley told the Washington Post on Sunday that he won’t support any SCOTUS nominee who does not explicitly acknowledge that Roe v. Wade was wrongly decided: on the record, and before they are nominated. Was this ridiculous fanfare to fuel his base? Our hosts have some thoughts. Sarah and David wrap up the podcast with some revisionist history on a Merrick Garland Supreme Court tenure and some parental advice on how to teach your kids risk tolerance and moral courage. Show Notes: -Sarah’s pilot newsletter, The Sweep: “T-Minus 99 Days and Counting …” and Thursday’s French Press, “Dump Trump, but Don’t Burn Down the GOP.” -Friday’s Supreme Court dissents on Nevada church case. -“Sen. Hawley lays down new antiabortion marker for Supreme Court nominees,” Josh Hawley’s recent speech on the failures of the conservative legal movement, and Adrian Vermeule’s case for common-good constitutionalism in the Atlantic. -Supreme Court opinions: NIFLA v. Becerra, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission , Our Lady of Guadalupe School v. Morrissey Berru, June Medical Services, United States v. Davis. -The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure by Jonathan Haidt and Greg Lukianoff. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Are these mega cap tech companies here to stay? Never before has there been a better time to be an ETF investor. BMO ETFs presents Views from the Desk, a show all about markets and investing with ETFs. New episodes every Thursday morning. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we've got a lot.

I say this every time, Sarah. We've got a lot to talk about. We really do, though. I mean, for the summer, normally summer is like sort of the doldrums. Not this summer. No, not within 100 days. Is it 100 or is it 99? I got 99 problems and an election is one.

Good night. That's unbelievable. So we are, it has been longer since the pandemic lockdown started until the gap between when the pandemic lockdown started and now is longer than what we have now till the election. That's crazy. Yeah. Well, and that's just until the last day that people vote, of course. Right. Right. Voting starts soon. Real soon. So September, the very beginning of September, North Carolina is going to mail out their ballots. Mid-September, Pennsylvania and Michigan can actually, you can do in-person early voting. And then a whole bunch of states by September 18th and 19th start in-person early voting. So, I mean, this thing's underway real soon. Yeah, absolutely. Well, okay. Let's got to lay out the podcast here. So we're going to start by talking exactly what we're talking about, the election. Sarah has a brand new newsletter. I

would encourage you to subscribe to it. It's called The Sweep. And she started off with a bang with, I thought, a really interesting analysis of the opening campaign ads or the latest round of campaign ads from Trump and from Biden. And so we're going to start off talking about that. We're going to ask what on earth is going on at the Supreme Court with religious liberty. There was a rather explosive case that landed, I believe it was Friday afternoon, that upheld Nevada's restrictions on churches, where their rules are far more restrictive on churches than they are on casinos. And that was very interesting. To be clear, listeners, it actually upheld Nevada's restrictions on church attendance. Oh, yes. Yeah.

Not only have you warned me out about that pronunciation, countless listeners have. So I'm going to yield Nevada. It just automatically comes out Nevada, but I'll try. Nevada. We're going to talk about Josh Hawley's vow that he will not vote for a Supreme Court nominee who did not say that Roe v. Wade was wrongly decided before his nomination or her nomination. We're going to talk about a really interesting CNN reported piece about the machinations behind the scenes in the Supreme Court this last term. We're going to answer

reader email on the last two points. How would some really important cases have come out differently if Merrick Garland was on the court? And then we're going to answer a really interesting question about kids and risk tolerance. And Sarah and I have some different perspectives on that. And so before we dive in, one thing I just want to remind listeners, because we've got a lot of new listeners and we're really thankful for that. And you all may not know, we're all part of, Sarah and I are part of Dispatch Media,

thedispatch.com. Love for you to check us out. And also, we'd love for the new listeners to go to Apple Podcasts and rate us and provide a review. That would help us out a great deal and we appreciate it. So without further ado,

Sarah, you launched a new, is it every Monday morning? Yeah, it'll be every Monday. And then we're going to have little updates through the week of interesting tidbits, but the main newsletter will be Mondays. And this one was opened out to anybody. Anybody can click on this. This is not behind the paywall. The Monday long one will be free to everyone through the election. And then the little tidbits during the week of breaking news and reported stories will be members only. Oh, good. Okay. Very similar where I have a Sunday newsletter that's open to everybody. And then my other newsletters during the week are members only. So tell us about issue number one and talk us through some of the ad

strategies because I watched each one of the ads that you highlighted and they hit me in very different ways. And so I want to... Well, let me just describe the ads and then I want to hear how they hit you. So first of all, the two campaigns and by campaigns, I mean both the actual legal unit of the campaign, but also their allies. So that's going to include the RNC, the DNC and these like outside groups all put together between now and the election have already reserved a quarter billion dollars in time with a B. With a B. And up to this point, Trump and his party committees have already topped $900 million. So we're well over the $1 billion mark so far, and we're going to be well over it again. Now, they're buying time.

Biden team bought time in six states. These will not surprise you. Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin for next week. Trump has bought time in 12 states. It includes Ohio and Georgia, but it also includes Minnesota and New Hampshire, for instance. So, okay. The first ad that I talked about was the Trump ad. He has put more money behind this ad. It has run more times than any of his other ads. And that's why I chose this one. You listeners may have seen some other versions of this ad because there are several that are all on this theme. It ends with the tagline, you won't be safe in Joe Biden's America, but this is the, you won't be safe in Joe Biden's America one that has run the most. So, um, it basically just starts with a phone in an empty room and it's ringing and a female automated voice picks up and says, you know, basically you've reached nine one one because the police have been defunded. We're not here to answer your call. If you're calling to report a rape, press one, if you're calling to report a murder,

press two etc etc then it says our estimated wait time is currently five days and then it says you won't be safe in joe biden's america uh in the second half of the ad it shows footage of you know various protesters buildings on fire windows being broken it's It's dark. It's a dark, dark ad, David. So my take on this was trying to figure out who the audience is, because there's a lot of sort of female shout outs. The voiceover is female. A lot of the protesters that they use are white females, which was interesting. But to me, the most important thing and like what was jarring to me listening to it for the first time was a rape came first in the list on the 911 call press one if you want to report a rape but it also like she really emphasized the word and i was like huh and you know my first gut was

like oh well this is geared towards women but then i watched it like three or four many more times and i i really realized like nope this is not geared towards women. This is geared towards men who know women. So, you know, to me, this was about the white non-college educated male vote, which he is running up 34 points against Biden with. No question. He's got them locked down. But in 2016, he won them by 48 points. So he's got a 12-point difference there. And I think this ad is meant to shore that up to 2016 levels, because that is, in a lot of places, the largest voting block. They can make up 20% or more of the electorate, just this white, non-college educated male vote in some of these states. So increasing that by 12 points can net you two points, which of course in 2016 numbers would be a landslide in a lot of these states. So David, what was your take watching the ad? Well, first I want to go back and I want to watch a clip or a trailer from the Purge movies.

Yeah. Because I think it's the same female voice. Interesting. Yeah, it does. It does have that. At least if it's not the same person, it's mirroring it. Yeah, it's very much mirroring it. It's very much mirroring that sort of Purge, uh, anarchy lawlessness sort of, um, vibe to it

for sure. Um, I found the ad to be trans incandescently bad, but I also knew it was completely not aimed at me. That's interesting. Cause I actually thought it was pretty well done because here's why i thought it was incandescently bad okay number one i know for a fact that joe biden doesn't want to defund the police and has said so and number two i also understand that all of those awful pictures and footage are coming from trump's america and not joe biden's america and so uh on the one hand i felt like oh this ad is grotesquely mischaracterizing his opponent and showcasing how bad things are right now. And so and I think, you know, a lot of a lot of my friends who are college educated, not all that political, are kind of puzzled by this

whole use of footage from right now and how bad things are right now to attack Joe Biden. But I also know there's a strong group of people who think that Joe Biden wouldn't fight back against any of this stuff at all. And so I do think you're exactly right. This is not aimed at the college-educated men or college-educated women. I thought that your analysis of that ad was spot on. And even going back to echoing back that kind of purge-like language, I mean, there are a lot of folks in Trump's base of the base of the base of the base who really see him as holding back the nightmare, that he is the man standing in the gap holding back the nightmare.

And so I thought, oh yeah, that's a great analysis. It's not aimed at me. It's not aimed at a person living in a relatively safe environment and who's sort of seeing what's happening at Portland is very distant. It's aimed at somebody else entirely. And I thought, yeah, I think that's a fantastic analysis. But you're the campaign professional.

It seems if you're running ads to shore up your base of your base of your base, you're playing a little bit of D. Well, I mean, yes and no. so the social science out there says that persuasion ads don't work and so your two choices are uh run up your base in enthusiasm and support or get their folks not to vote you're not going to switch the their votes but you can get them to be unenthused. Right. And so, you know, I thought this ad was visceral. And I think that's a high compliment for a political ad because so many of them are boring, predictable, stayed, whatever. Like this one did grab you like you really watched it. You were wondering what was coming next, which was sort of the Trump presidency. So if you like the Trump presidency, you'll like this ad, which is the point. Yeah. I mean, for me, it was visceral. It made me viscerally angry. You're lying about your opponent and

you're portraying the chaos that presently exists. Well, let me say one thing, though. They're actually very careful how they word the defund the police thing. They do not say Joe Biden wants to defund this police. They say the radical left wants to defund the police. Oh, I know. I know. So, you know, fact check, it passes. Okay, but onto the Biden ads. So there's two Biden ads that are running this week. That's the $15 million playing in those six states. Quickly, the first one, it's like Joe Biden wears a mask over and over again. Like that's the ad. It's a white mask. It's a black mask. It's a mask inside. It's a mask outside. It's like Joe Biden wears a mask over and over again. Like that's the ad. It's a white mask.

It's a black mask. It's a mask inside. It's a mask outside. It's like the Dr. Seuss of ads about masks. What stood out to me on this one was Florida. Like Florida keeps showing literally a map of Florida. It's not subtle. It's like, hey, Florida.

Hey, Florida. Yeah. So Biden's up quite a bit in Florida. But if he gets Florida, he's up the average of seven points right now florida has 29 electoral votes he doesn't need pennsylvania michigan arizona or north carolina if he gets florida so i understand why they're going a bit all in on the florida not subtle Florida-ness. Yeah, Florida is called relatively early in the night.

Yeah, yeah. It's going to be, at that point, there's the yellow brick road all the way to the White House. What did you think of the ad? You know, it never mentions Donald Trump. It references, you know, we need a president who, over and over again. But, you know, this was definitely just aimed at his people. This is not to try to depress Trump vote turnout or anything

like that. In some ways it's an introduction ad to Joe Biden. Uh, it paired interestingly with the next ad. I'll talk about that one and then we can sort of talk about them together. The next one is called tested. And if you've ever seen a political ad, you've seen this ad. So right. Like I know that I'm writing a newsletter about this ad and I still zoned out in the middle of it. And then I went to rewatch it and I zoned out again. So like it's that ad, I mean, it's super duper boring. It has the line, you know, Joe Biden will give every American a path to a good paying job, a quality education and affordable healthcare. And exactly that tone that if I asked you to read an ad in your political ad voice, you would read it. Um, but that's the point of it. It's meant to be boring. It's very good at being boring. It makes

you feel comfortable. And after the last six months zoning out during a political ad, maybe just what you're looking for. And if so, Joe Biden is the candidate you want. If you don't want the, it's darkness in America. So are you ready for this, you know, hyper-representative focus group of one again? Yes, yes. Okay. So hyper-representative focus group one. I zoned out in the mask ad about 1.4 seconds into it. And I'm pro-masking.

I mean, we've had these conversations endlessly on, you know, on our podcast, on the Dispatch podcast, tweeted, written about it. I'm pro-mask, but I immediately was like, oh, I get this. He's saying I'm the responsible one, and by implication, the president is not the responsible one. And now, too, it's funny because the script for it

says nothing. Numbers don't lie. Infection rates are going up. We need a president who will level with the American people. So what is being said is not important. It's really just you getting to see Joe Biden looking like an adult who's calming things down. There's the scene in the church, which I wrote about quite a bit, that this was not meant for the woke left young progressives to win them back over from Sanders or Warren. Bingo.

Not at all. There's not protests. There's not any wokeness whatsoever. I point out this couple that cracked me up. It's like this young couple doing a Zoom happy hour with their friends or something. They just look pleased as punch. They are just happy people. something, they just look pleased as punch. They are just happy people. The thing that I said in the newsletter was, they clearly aren't discussing universal healthcare or systemic racism. They're

more likely admiring their friend's new puppy or sourdough starter. This is the group that Joe Biden wants to run up his score with, which I think is fascinating after all the discussion through the primaries about how's he going to win over the Sanders people with $15 million on the line? The answer is. Yeah, whatever. I mean, this is,

you know, we've, we've talked about the justice Roberts of the electorate. That's the suburban voter. And this is aimed flat out at the server, suburban voter. And I thought the other one was too. And I actually did not zone out on that.

I had the exact opposite. Interesting. Yeah. So what I thought the other one was too. And I actually did not zone out on that. I had the exact opposite. Interesting. Yeah. So what I thought was really effective about the second one wasn't the very end part, which is I did zone out during the I'm going to healthcare and all of that stuff. What I thought was very clever is he did two things in the first one. I've handled an economic crisis and I've handled a pandemic. Yeah, they weren't like,

I was not, uh, I mean, I think pointing out the Ebola thing over and over again is maybe a mistake because at least for me, I don't even remember that. And it wasn't like I was in junior high. Bingo.

So that's what he's saying. It's like, remember that pandemic that didn't ravage America? Touche. Yeah. So I think, I mean, like that's, that's how I thought about it was like, okay, I can't, we came into office, we had a giant economic crisis. We turned that ship around. There was, and I remember the breathless Ebola coverage because what was happening in Africa was horrifying. I mean, it was horrifying. And places like Fox were talking up the Ebola challenge

and all of that here in the United States. And I remember, you know, wall-to-wall headlines when somebody flew back into the U.S. who had Ebola. And then you realize, oh, that didn't hit us really. And so doesn't that count as a success? Something that he's going to, you know, a feather he's going to put in his cap. And so I thought that was really effective. And then it went into blah, blah, blah land.

Well, subscribe to the newsletter if you're listening. I'd love to have your thoughts. I'm jumping in the comment section right after we tape this pod to spar with people and get into the weeds. So come on board. Yes. And so right before we leave our politics talk, I have to say, Sarah, I did not know so many dispatch members

wanted to burn the GOP to the ground, salt the of went against the Lincoln Project vision of what should be done to the GOP, of just destroying it. And it's very interesting. I did not expect the sort of visceral reaction against that. And there's something I want to say. There's one thing I want to say in my defense about that. I still stand by the peace, but a lot of people accuse me of whataboutism when I talked about how in all of American history, there's one senator, one senator from his party who, or one senator

who was voted to convict in an impeachment trial, a president of his own party in all of American history, and that's Mitt Romney. And I said, not one Democrat broke ranks and voted to convict Bill Clinton. And a lot of folks accuse me of whataboutism. Well, what, you know, what about how bad the Democrats are? No, the purpose, and I thought it was clear, but apparently not, because I really am not a big fan of whataboutism, is to show how historic Mitt Romney's demonstration of political courage was. This was something that had never happened before in American history. to say of a political party and the members of a political party, either you demonstrate the kind of political courage that's never been demonstrated before in the history of the United States, with the exception of one guy, or I burn you all to the ground. I'm not sure that's a sustainable

standard, Sarah. I'm not sure that's a sustainable standard. It's not one that we've applied before. So my argument is, don't burn a party to the ground because it has an R by its name. Evaluate each politician on his or her merits. And if you drill down, these different GOP politicians have not all marched in lockstep and they've not all done the same things in response to Trump and they've not all behaved the same way and just take it case by case. That's my position, Sarah, and I'm sticking to it. You are welcome to stick in and to that position. I think I'm a little more,'s not that i i think i belong in the burn it down crowd i'm just more sympathetic to it in the sense that their point is if you don't burn it down it weakens

the argument against trumpism so if you're really against trumpism burning it down is part of proving your point that this was a failed experiment and so yes those individual members may not be the worst in fact the ones that you're most likely to defeat are the ones who are in fact most likely to be towards the center yeah but if uh you know republicans took the house somehow and kept the senate and just lost the presidency. I think their point in the burn it down crowd would be like, that's not going to burn down Trumpism. And that's our goal. Our goal is not saving the conservative movement or saving the Republican party in the shortest amount of time possible. It's repudiating this thing. And so their goal is how do you repudiate that the fastest? And I think there can have very good differences of opinion, but I think your goal is somewhat different, which is evaluating people as individuals and who's a good leader and all of that. And that is worthy and interesting and worth discussion, but it is different than what they're trying to do. So I think both of you are passing each other in the night a little on goals.

I also think, and this is another point that I made, that there is a, if you, if Trump loses and loses decisively, because there's a difference between Trumpism and Rubioism. Like, I don't agree with every aspect of Rubioism. I don't agree with every aspect of the way he's interacted in the Trump camp, you know, with Trump.

But there is a very big difference between Marco Rubio and Donald Trump, a very big difference. If you, if Trump is out and Trump loses Florida by seven, eight, nine points, I don't, and Rubio, well, he's not up for reelection. I'm trying to think of, oh, you know, say Cory Gardner. I think Cory Gardner's toast, But who's non-toast? John Cornyn. Pick John Cornyn. John Cornyn. So let's imagine a reality where John Cornyn wins re-election by six, seven points, five,

six, seven points, and Trump loses Texas by two or three. Is anyone in their right mind going to think that there's any vestige of Trumpism that has been validated? He lost Texas. Like he lost Texas. Well, yeah, but that will be like his last ditch, die hard, very online folks. The top line will be Donald Trump actually lost Texas. Yeah, but what they would tell you, I think, in the burn it down crowd is, yeah, sure,

but what allowed Trumpism to take root were people like John Cornyn allowing it to take root and not standing up every single day yelling stop. And therefore, yeah, losing the Senate sucks. John Cornyn was a fine person.

But we need to prevent this from happening in the future as well. And for the nomination next time around and whatever else. So yes, I'm not evaluating John Cornyn as a person. I'm evaluating him as a vehicle. And as a vehicle, he did not stop Trumpism and therefore he's out. Again, as a vehicle, he did not stop Trumpism and therefore he's out. Again, I'm not saying I subscribe to this, but I think they are principled in their own position and goals. No, I totally agree that they are completely principled in their own position and goals. And it's a very debatable point. This is a point that is... Because there was a, Bill Kristol and Charlie Sykes were on the Bulwark podcast and they talked about my piece and Charlie wrote a piece in the Bulwark today disagreeing with me. This is, and this is a symbol that a lot of times people use the term never

Trump to sweep very broadly with a presumption that we're all the same, that everyone who has opposed Donald Trump is, we're just all the same. We're not all the same, that everyone who has opposed Donald Trump is we're just all the same. We're not all the same. We've come into this with different priorities and different concerns. And anytime you have a thorny, difficult challenge, you should have different perspectives on how to deal with it.

Here's my analogy. You're all textualists, but some of you are Gorsuch and some of you are Alito and some of you are Gorsuch and some of you are Alito and some of you are Kavanaugh. And I'm not even sure which are which right now. I'll come back to you, but definitely we have Lincoln Project, Republican voters against Trump and David French. And one of you falls into each justice bucket. And I think one of the things that I'm trying to come at here, that I have an overarching philosophy that I want to transcend the 2020 election, which is I want people to judge politicians on individual merits more rather than tribal block voting.

I want to say, because I wrote in my piece, I have this test that I apply for every person, every race. in my piece, I have this test that I apply for every person, every race. And that is, do I believe that they have a character that is commensurate with the office that they seek? And do they broadly advance my political values? You have to pass both tests because I have this view that says one of the quickest ways to get more bad people into politics is to vote for bad people. Interesting, interesting theory. Yeah, it's a controversial theory, Sarah. Right, right. But we often believe that the primary process is the process where we make our stand for character, and the general election is when we make our stand for tribe. And I feel like that has to stop. I feel like if we keep doing that, we're going to keep

winding up exactly where we are. So I kind of have this line in the sand. Every single one of these guys has to earn my vote. They are not entitled to it in any way, shape, or form. They got to earn it. And there's just a simple two-part test there. It's simple. And so that's my story and I'm sticking to it. All right. On to law. Yes, law. Okay. So Justice Roberts trended Friday night and he trended for a very interesting reason. After ruling, he's one of the more solid justices in recent history for religious liberty. But on Sunday night, he joined the Democratic-nominated four

to side against a church in a case called Calvary Chapel Dayton Valley versus Sisolak, which upheld Nevada restrictions on church attendance. So churches could not admit more than 50 people, but at the same time, other institutions like casinos, breweries, bowling alleys, gyms, can operate at 50% capacity. So a casino with a 500-person occupancy limit may let in up to 250 people, but a church with a 500-person occupancy limit, and this is quoting Kavanaugh in his dissent,

500-person occupancy limit may let in only 50 people. And Justice Roberts sided with the four Democratic nominees to, without an opinion, to uphold this restriction on churches, even though they were treated differently than casinos and in a more restrictive way than casinos. And it was such an eye-opener that, as you pointed out in our internal Slack green room, Sarah, even Vox's Ian Millhiser, who's not normally leading the charge in religious liberty,

raised an eyebrow at this sucker. And I'm interested in your thoughts. I have a couple thoughts here. One, let's'm interested in, in your thoughts. I'm of a couple of thoughts here. One, let's be very clear. This was not upholding Nevada's rule. This was about the injunction. Right. Yes.

But one of the prongs of getting an injunction is likelihood to succeed on the merits. So it gives you a preview of the merits analysis, but it is not the same as upholding this rule at all. And in fact, I think that Nevada will lose. Eventually. Eventually. But a couple of things. One, stays are disfavored in general. Status quo, the court doesn't like to step in when it doesn't need to. Two, you've got an ongoing pandemic, and I think there's some deference that's built in to the states taking care of this the way they see fit. And three, you've got this case out

of California that we talked about back in April, early May, that was similar in its most superficial level and quite different in terms of its timing and what we knew about the virus then and what businesses, et cetera, were in the in-group versus the out-group. And I do think it's very different when you're talking grocery stores versus casinos. But I can see why Roberts felt like,

well, but it's not that different. I know it's different, but it's not that different. And that this is all on a spectrum and therefore we're not going to do an injunction on this either. 24 pages of dissent. Alito wrote the first one.

Gorsuch just wrote a paragraph that was like a yeah boy paragraph. Is that a term of art? It is. G- that was like a yeah boy paragraph. Is that a term of art? It is. Yeah. GBR, yeah boy. Yeah boy.

And then Kavanaugh wrote another long dissent as well. All making, you know, sometimes I'm like, oh, well, the dissents were really interesting because they actually make these really different points. Not here. They're all the same. And they're just like scratching their heads. Why is this happening? Churches can't be disfavored. I did think that Kavanaugh broke it up into the different types of laws that can exist really well. And his point was you can disfavor churches and other types of places. Fine. You can like, basically you can break this up any way you want, but what you can't do is this, this version. Right. Right. So I, you know, so I think Roberts was wrong, but I'm not pressing the panic button about this because here's what I think is happening.

You remember all the way back at the beginning of the pandemic, you and I dedicated a ton of time to sort of like the police powers of the states in a time of pandemic. And one of the points that we made is there is a, at the onset of a pandemic, when danger is at its greatest, when our knowledge base about how this thing spreads and everything is at its lowest, the states are going to have maximum discretion, just maximum discretion to clamp down on this. And then when the pandemic eases, when we know a lot more about it, when infections are diminishing, when perhaps we're on the verge of, you know, we have a vaccine or we have treatments and we have methods of controlling it,

then that state interest is going to be less compelling. It's going to be, there's going to be the liberty interests are going to begin to assert themselves in a very conventional way. But in between there, in between the emergency of the onset of the pandemic and the easing of the emergency at the end, as we begin to get a handle on it, there's a giant gray area. And there's just not a lot of case law on this at all. And I think we've talked about maybe in June where we thought we were in the middle of the gray area. I think most people thought we were out of the gray area. And what this opinion says,

or the not opinion for the five majority is, nope, we're still in the gray area. And Kavanaugh's dissent, I think, treats us very much like we are out of the gray area. There's not a whole lot of discussion of being in that deference. They all note it and say, I get it, but we know a lot

more. And they basically say, we should be out of the gray area by now, and then jump straight into, and by the way, here at Kavanaugh's four categories. One, laws that expressly discriminate against religious organizations, and he uses Espinoza, our Blaine Amendment case is an example of that. Two, laws that expressly favor religious organizations. He says, that you can favor religious organizations over secular organizations no problem and that does not violate the establishment clause either three laws that do not classify on the basis of religion but apply to secular and religious organizations alike this is your hated smith case david which is cited with an underline by kavanaugh noted. And four, what he calls this category, which is laws that expressly treat religious organizations

equally to some secular organizations, like Smith, kind of, but better or worse than other secular organizations. And that's where it falls afoul of Smith in his view. But you would prefer that Smith not get mentioned in any of this. I would prefer that Smith be nuked from orbit. Yeah. And that the name Smith be such an anathema in the law

that lawyers by the name of Smith would have to file a motion for special permission to have it used in their pleadings. But this definitely is, you know, I'm not saying it's resurrecting Smith back to its old status, but it's not like Smith was just sort of cited after a long string site. It is number three and four. I put this in pandemic law. This is, yeah, this is pandemic law. And I think Ian Milhiser's analysis was right. He said the real insight here is articulated in the California case where Justice Roberts did publish an opinion explaining his vote and denying injunctive relief from a California church, which was very different regulatory framework. So the Nevada framework and the California framework were very different. But here was Justice Roberts in the California

case. Quote, the precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. He said, our constitution principally entrusts the safety and health of the people to the politically accountable officials of the states to guard and protect. It feels like to me that what we have is Roberts is sort of saying there's this area of, we're in a zone of discretion right now. We're still in the zone of discretion. And what Alito and Kavanaugh and the others are saying is the zone of discretion does not extend to treating religious institutions less favorably than similarly situated secular institutions. And I agree with them on that. I think they're absolutely correct on that. But I also think that if we get a handle on this pandemic, you would see this decision flip.

And I think if there's a scenario under which if we have a handle on this pandemic, it would be 9-0 against Nevada if they try to hold on to this too long. I don't think it's any accident that this came out the way it came out when we're in the middle of a string of day after day after day of 70,000 plus positive tests or 65,000 to 75,000 positive tests and deaths in the U.S. are arcing back upwards. I don't think those two, I think the facts of what's happening in the pandemic and the deference they show to the state here are connected. I disagree with the outcome. I totally agree with that. Yeah, I agree with that in part also because looking back at California, if they had ruled the other way and then there was a resurgence in cases, California could have felt its hands quite tied by a stay from the Supreme Court. And while the Nevada rule here is more stringent and runs more afoul of the First Amendment, I don't think there's much question of that. I do think that sort of the responsible dad of John Roberts is like, ah, yes, I know it would feel good right

now. And if we were just ruling on the merits, I would be there with you. But it's a fluid situation. If Nevada has a wild uptick in cases, we don't want to have them sitting there in a room spending six hours wondering how to have a new rule that fits with this state. Let's just let them do their thing for a little bit longer. Yeah, I think that's the entirety of what's going on. But I still think the Nevada rule is constitutionally defective. But again, that's why I'm not the real enemy here is not Justice Roberts. The real enemy here is coronavirus. And the friends we made along the way. Yeah, exactly. Exactly. We'd like to take a moment and thank our sponsor here, the Bradley Speaker Series.

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so come back often and subscribe to their YouTube channel to be notified whenever a new video is posted. So shall we move on to our Senator Hawley? Man, this was a thing. Do you want to brief the listeners? Yeah, so last night, late last night,

this hit my inbox, that Senator Josh Hawley of Missouri, Republican, told the Washington Post that he wouldn't vote for a Supreme Court nominee unless they were on the record saying that Roe v. Wade

was wrongly decided. And he says, by explicitly acknowledge, I mean on the record and before they were nominated. So a couple things here to note. One, he says explicitly acknowledge that Roe v. Wade is wrongly decided. He does not say you have to explicitly acknowledge that you would overturn Roe v. Wade, actually. Right. Which is interesting, because I don't see how a justice could say that

and not recuse themselves for prejudging a case, potentially. But you can say that something was wrongly decided. And then, on the record, meaning it doesn't count if you give private assurances you know in a meeting with josh holly and then tell him he can't tell the press it has to be public and two before they were nominated i.e now okay david i don't see any potential justice going out and doing this. I agree with you. I agree with you. So there are a few reasons why I think that this was relatively meaningless fan service.

Okay, so number one, if you're a shrewd Federalist Society member who is angling for a... If you're an extremely ambitious Federalist Society member and you're angling for a judicial slot and you have your sights set on the highest court, and there are people out there who actually are quite... I mean, they're actually that ambitious and are orienting their careers in that direction. You know what you're not doing, Sarah? Taking the bait. You're not taking that bait. You're not taking that bait. Because you know for a fact that there are Republican senators, and there have been from the beginning, who are not necessarily going to cast a vote for you if there have been from the beginning, who are not necessarily going to cast a vote for you if you have been on the record, because there are Republican senators

who either support Roe v. Wade or fear that casting a vote in favor of someone who would presumably overrule Roe v. Wade will end their political career. who would presumably overrule Roe v. Wade will end their political career. Yeah, I mean, some interesting things on this. One, the right has for a long time said that it will not make Roe v. Wade a litmus test. And recently, the left has said that they will make Citizens United a litmus test.

And I think Shelby as well will be a litmus test, although I haven't heard anyone explicitly say that one. It's like an implied litmus test that will become an explicit one, I think, in a future Democratic administration. Citizens United, of course, is the campaign finance case. And Shelby is the Voting Rights Act preclearance case about whether a state or locality can pass any new voter restriction without getting it pre-cleared by either a federal judge or the Department of Justice. So, you know, I get why Hawley, especially after the whole, the conservative legal movement is dead and Adrian Vermeule's,

what's it called? Good citizen constitutionalism, some Orwellian. Common good constitutionalism. Yeah, yeah. That's what it is. Good citizen. Yeah. You know, they're trying to create what the left already has. Yeah.

Which is like, screw the process. That was all well and cute and adorable, but now we need to care about outcomes. And this needs to be about outcomes. And Hawley is double tripling down on that. I get that. I just don't think that, you know, in that scene of Jerry Maguire, who's coming with me?

I don't think anyone's coming with him right now. I think where it would be really interesting is if he made that statement when it's 50-50 in the Senate with a Republican president, then are you really going to do that? Are you really going to do that? Are you really going to do that? Hmm, that would be fascinating to see. Still no. Yeah, that's when it would be fascinating. But it's, I think, less interesting of a vow

when it's not 50-50 in the Senate, so he could cast a vote for somebody, against somebody, and they'll still be nominated. I mean, still be nominated. I mean, it can still be confirmed. And, uh, also when it's, if present trends continue,

uh, you're going to have a Biden presidency when he'll, he'll be voting against the nominees anyway. Yeah. Can I take us down a weird cul-de-sac that, uh, I went in last night. So I,

uh, had a, our first post brisket date night last night. Nice. You know, our first date night without the brisket, which was difficult. Any new parents out there, I thought it would be easier than it was.

Luckily though, because this is COVID, he was just inside and we were on the deck. But he was with other people. Anyway. side and we were on the deck, but he was with other, he was with other people. Um, anyway, so I'm, I'm having dinner on the deck and with two former Senate staffers, and they are telling me a world in which we do not have hearings. If there is a vacancy between now and January, there's a vacancy on December 31st by God, 48 hours later, we will have a vote to confirm on the nominee. And they got very into the Senate rules, which I found super fascinating. And David, I don't know how much you know about the Senate rules or have

looked into this question, but this is where- I'm a little rusty on the ins and outs of the Senate rules, I must confess. This is where exactly what you're saying. Josh Hawley could vote against the nominee and they would still get confirmed. But what Josh Hawley is not saying yet is what he would do about the discharge petition that would basically get us around having a hearing. And what my wonderful friends were telling me is we're never going to have a Supreme Court hearing again. That that is dead after Kavanaugh. And what's going to happen is a nomination is going to get referred to the

Judiciary Committee. And by the way, forgive me, Senate staffer friends, when I butcher these rules, but this is my understanding. And I definitely have the gist of it right. Nominee gets referred to the Judiciary Committee. After 24 hours, if the Judiciary Committee has not acted on that nominee, which obviously they wouldn't have done, anyone can then move to discharge the nomination from the committee. And it's just the majority of the quorum present. So you don't need 51 votes for that. You just need whoever's there. So for instance, even if Republicans were in the minority at some point in the future, you would force Democrats to be there basically every day

to keep voting against things, et cetera. They were pointing this out of like, why didn't the Democrats do this around Garland? They could have forced his nomination in the summer of 2016. They actually chose not to for a variety of reasons, one of which is they were so certain Hillary would win. Right. Of course, there's the sense

that if you did this sort of thing, the legislative filibuster would sort of be the revenge. Mm-hmm. So that's all to say Hawley could vote yes on the discharge, thereby skipping the hearing, and then just vote no on the discharge, thereby skipping the hearing, and then

just vote no on the nominee, which would be a not necessary vote to confirm the nominee. Otherwise, but if that happens, by the way, and Biden wins, the legislative filibuster is gone. I mean, it's gone anyway, but it's extra gone if we end Supreme Court

nomination hearings. So I had a really fascinating back and forth. So I'm going to take us further down this cul-de-sac because I think- It's a long cul-de-sac. It has several houses on it. Well, yeah, and it's really fascinating. So, and perhaps quite consequential

for the history of the United States. So if there is a vacancy that opens up between now and january here is the question if republic republicans could absolutely push through i mean they could push through even in a lane let's suppose let's just again assuming present polling polling trends continue which they may not we're not predicting they will we're just assuming for the sake of argument. You could have a lame duck president and a lame duck Senate and a Supreme Court vacancy. Would the Republicans push through? And I had a really smart group of friends.

Or should they push through? Should they? That was the question. Should they? And I had a really smart group of friends. One side says, well, of course, it's just politics. This is what you do when you have power, is you achieve what you want to achieve. And then another group of friends said, that would be very bad for our republic. And here's why. Because immediately what would happen

if you rammed through, let let's say a replacement for a progressive justice in a lame duck session or very close to it on the eve of an election whatever immediately the legislative filibuster is nuked and immediately you're staring court packing in the face yep because there would be such an explosive political atmosphere in the United States. And sometimes you have to consider the effect of your exercise of raw political power on the larger body politic. And it's interesting. I saw that Senator Grassley said we shouldn't push forward a new nominee if there is a vacancy. Well, no, no, that's not technically

what he said. Okay. What did he technically say? No hearing? That's right. Oh boy. He didn't say he wouldn't vote for the nominee. He said he didn't think there should be a hearing, which I think, I don't think Grassley was being cute. However, he has accidentally perhaps provided himself quite a bit of wiggle room there to vote for a nominee if it's on the floor. Yeah. If he says, you know, this shouldn't happen, but I got to cast a vote. That's right. So the discharge petition happens. The nominee is moved from Judiciary Committee to the floor and then there's a vote and everyone has their say. as they say. And, you know,

this used to happen back in the day. One of FDR's nominees was nominated on a Friday, confirmed on a Wednesday, I think. That was the last one before we had hearings, in part because we found out

that guy was a member of the KKK. Oh, my gosh. Oops. But, you know, I mean, you know, from my writing and everything and listeners know,

I'm really, really, really, really concerned about polarization in the United States right now. And I feel like responsible politicians should take into account in their governance of this country, the increasing amount of negative polarization and the increasing amount of hatred and mutual hatred in this country. It's a long, it's, it's a existential threat to this nation. I believe is this mutual loathing and negative polarization unchecked, unchecked. I think this stuff is an existential threat and I would like to see people govern as if they recognize it. would be willing to join you on something of lesser import or of at least less long-term import but you're asking them to make a uh you know lower the temperature decision on a supreme court

justice i don't think so yeah yeah i know i mean and i i think that in that argument what would happen is um you get the justice through it be confirmed, the legislative filibuster would be nuked, and then you have all-out war over court packing at that point. And then you might win it, you might lose it. and if you lose it, then you look back and you say, oh crap, because once that court packing line is crossed, I think that,

I honestly think that destabilizes our system. I think that's true. Yeah. So, no, I agree. You know, they're always the short-term, always the short-term consideration is going to be towards exercise of power. Yep.

Always. That's why the first argument I make in my book is there is no single important political, social, cultural, or religious trend that is pulling Americans together more than it's pushing us apart. Because the short-term calculus is always going to be to go for the W, always.

And speaking of that, by the way, so we got this great email from a listener about Judge Not Justice Garland. Yes. Basically saying, what would have happened? How would the court look different today? What decisions would have been different if it had been Justice Garland? And we both thought that was a fun little exercise. Yeah.

We did some homework last night and came up with our three cases that we think would have been affected. And I am really curious to hear yours. Okay. Why don't we take turns? Okay. Okay. So three cases that they may or may not be affected. So here's one.

I'll start with one that would have been. Okay, and this one is National Institute of Family and Life Advocates v. Becerra, Attorney General of California, short version, the NIFLA case. And this is the case that was a 5-4 decision in favor of crisis pregnancy centers who were being required by under California regulations to give a notice to people who entered their doors or give a notice in their advertisements as to how people in these crisis pregnancy centers,

to be clear, are institutions that are pro-life and they try to provide alternatives to abortion for women. They're built from the ground up, pro-life. Most of them are thoroughly religious as well. And California was saying that each one of these institutions has to provide a notice notifying women that they can get a free or a low-cost abortion through California, through California, I believe, Medicaid. And so this was a compelled speech case that where the crisis pregnancy centers were saying, no, you're compelling us, California, to advocate for something we completely disagree with. You're compelling us to advertise for abortion when our entire purpose is pro-life. In this case, it was decided 5-4 in favor of the pregnancy centers.

And I think that flips. I think that flips and that there would be the immediate practical occurrence, which is that these pro-life pregnancy centers would be required to make that statement. And then the other longer term occurrence is that one of the underlying issues was whether there was going to be a lower standard of review for professional speech. In other words, if you're a professional engaging in speech in the marketplace, are you going to be treated more like a commercial speaker, like a Chef Boyardee advertising its, you know, its SpaghettiOs? I think Chef Boyardee does SpaghettiOs.

Or would you be treated like a political speaker where there's very few limits, that the federal government cannot compel you to say anything much at all if you're a political speaker? Or very, very heightened threshold. And so the consequence would have been the crisis pregnancy centers would have been required to make the notice and professional speech would have fewer protections. That's number one for me. Do you concur or disagree? Yeah, I mean, I think I do.

Judge Garland was noted for being sort of a run-of-the-mill liberal judge. Not particularly known for anything except for being smart, thoughtful, not extreme. And certainly on these issues, I think, yep, he would have just sort of faded into another democratically appointed vote. Probably more along the Breyer lines on this yeah now it's yours okay uh i picked bostock and uh bostock of course was uh six three and i think there's a decent chance that bostock

actually comes out uh the same way obviously uh but i think there's a good chance that all of that fight over textualism that conservatives got very upset about is gone. And now it's just emanations and penumbras. Of course, this is protected. There's nothing to hang on to from affirmative action down the road for conservatives. There's no discussion of the text itself and what that means. It would be just a progressive opinion on civil rights issues. And all these, you know, the progressive legal movement's dead because we're arguing over which type of textualism to use would seem a hilariously delightful conversation to go back and start having if you're a legal conservative yeah no i think you're exactly right i think that that is bostock it still comes out the way it came out in result but the reasoning would have been much

more expansive hugely yeah and hugely um And probably would have followed the other sexual orientation cases, which because now there's a question of whether those cases are a dead end. And in fact, now you're going to follow the sex discrimination line of cases or just Bostock created its own little germ cell here and we're going to see where this goes. So in some ways,

Bostock would have been unremarkable in a Garland judicial world. Yeah. It would have continued on Obergefell, just very like, see Obergefell flipped. Yeah. Yeah, exactly. Exactly. So similar result, different reasoning.

Now, this one, I think, so I'm going, my next one is Masterpiece Cake Shop. Okay. So that case had a broad legal question and a narrow legal question in it. The broad legal question was, did Jack Phillips, the baker in the case, have a First Amendment free speech clause protected right

to refuse to use his artistic talents in a commercial transaction to create a custom cake for a same-sex wedding? That was the broad question. The narrow question was, did Colorado target him for his religious beliefs? Okay, the decision did not answer the broad question. It was decided on the narrow question seven two that he was targeted for his religious beliefs now here's the question now you would say okay if it's seven two then it still comes out the same way i'm not so sure i wonder if i wonder if the if there was a solid five votevote majority of, as you said,

Garland was kind of standard progressive jurist, if they would have gone ahead and ruled against Phillips on the broader question and not dealt with the narrow religious liberty question. Yeah. So I say, I don't know, but don't be fooled by the 7-2 into thinking that Masterpiece Cake Shop would have come out the same way. Okay, my next one, votes flip in this one. So I'm using June Medical. This is the Louisiana abortion case that, and the end result this year in our current multiverse.

And the end result this year in our current multiverse, it was 5-4 with the chief siding with the liberal votes to uphold or rather strike down Louisiana's restrictions on abortions, upholding whole women's health, but only kind of, and really going back to the Casey test. Yeah. I think in a Garland court, it is also five, four,

but with Garland. And I think that the chief dissents. So I actually think that, that flips Robert's vote into the minority, as long as Louisiana's law falls and the abortion restrictions fall, that he does not join an opinion upholding whole women's health in total, which it would have done instead of going back to the Casey test.

It would have had this, you know, continued on the whole women's health test. And I think similarly, by the way, I'm going to lump in the Nevada church case. I actually think in that case, you have a five vote majority and Roberts is potentially in the dissent as well for the church case. So basically where potentially in the dissent as well for the Church case.

So basically, where Roberts was the fifth vote on this institutional question, I think Roberts now flips to the dissent. Remember, Roberts was in the dissent for Whole Women's Health. Kennedy was able to be in the majority. And he was basically able to get

the result he wanted without him having to do it. So I think that Garland being on the court he wanted without him having to do it. So I think that Garland being on the court would have affected the chief quite a bit. Yeah, totally concur. Okay, my last one is Guadalupe, you know, my favorite case. Your favorite. My favorite case from last term.

I think that comes out exactly the same way. I think that comes out exactly the same way. I think that comes out exactly the same way because, remember, the ministerial exception, the case that really carved out the ministerial exception was a 9-0 case. Hosanna Tabor was a 9-0 case. There was nothing that says sort of conventional progressive jurisprudence has to dissent from ministerial exception case law. Now, this might have been 6-3 instead, may not have been 7-2, but I think the bottom line is it comes out basically the same way. So I think on that very critical question of religious liberty, I think that one comes out the same way. So my last one is like the reverse, the mirror of yours.

Okay. This is United States v davis from last term it was on a criminal law case and about whether this sentencing thing was unconstitutionally vague but you don't need to know the details listeners all that really matters is you have federal prosecutors versus criminal defendants. Justice Gorsuch is known for being pro-defendant, like his former boss, Justice Scalia. One of the things that Garland was a little bit known for was actually being pretty pro-prosecutor. Interesting.

And kind of, you know, I don't mean every time, but kind of anti-criminal defendant. And so there's a really interesting chance that in this case where it's 5-4, Gorsuch siding with the liberal votes, that it comes out the reverse way, 5-4 Garland siding with the conservative votes. Huh.

Intriguing. Intriguing. Intriguing. So I think, you know think I sort of spent, just because I'm ridiculous, I actually was laying awake at night pondering this on a broad range of cases after we slacked about it last night. Well, originally David wanted to do 10 and I was like, we're not doing 10, David. No. Yeah, that's too much. Originally, David wanted to do 10.

And I was like, we're not doing 10, David. No. Yeah, that's too much. But what was interesting to me is as I was sort of wargaming it out in my mind, I was reminded how much there would have been multiple different outcomes, but how much it would be like in so many areas of Supreme Court law, what you're talking about is not contrary to all of the hyperventilating fundraising emails that you see or talking head commentary about it. It's not the end of the First Amendment or the end. It sort of moves a little bit this way, and it moves a little bit that way. It moves.

Things change, but it's just this slight veering with other checks and balances that can perhaps reverse your losses. So, for example, in the California Crisis Pregnancy Center case, which I think would be a consequential loss for the First Amendment, to reliberate crisis pregnancy centers, you just have to change the California regulation. have to change the California regulation. Now, that might not happen anytime soon, but it's not a final declaration that crisis pregnancy centers have to do X. It's in that state they have to, and that state can choose to repeal that provision or not. Again, it's consequential. It is consequential, but I'm really struck by the contrast between these changes versus the rhetoric that surrounds these potential changes.

Well, thank you, Donald, for that really fun question that literally kept David up at night. Yes, thanks so much for that. All right, we're kind of running out of time, but we want to dive into this extremely complicated, interesting, fascinating discussion. We had a question from a reader who,

I don't have the email right in front of me, but I believe has young children. And because we had this long conversation, Sarah and I um two podcasts sarah interviewed me and i interviewed sarah about how did we become uh how did we as individuals become not risk averse um which doesn't mean reckless there's a difference between reckless and not being risk averse. How do you cultivate that in your kids? How do you cultivate a responsible risk-taking in kids? And I thought that was a fantastic question.

And one of the things that he asked about was, for example, football, which is one aspect. And so, I don't know, Sarah, what did you think about that question? So to me, that is not a question about risk tolerance for the child. It is a question about risk tolerance for the parents. Because you are able to know and weigh everything that you know about what's going on in football

versus your community, versus the sort of cultural, social aspects. aspects but the kid like playing football itself is not actually to me a particular lesson in risk tolerance there's all these rules it's not like you can choose to go with or without your helmet as the kid or something but i'm very interested in it as um parenting. So what did y'all, you have a son. Yes. Who played football. Okay. So you did approach,

you did have to answer that question as parents. Yeah. So the one thing that I would say about the kid, the kid playing football. So there's many different aspects of courage, right? There's moral courage. There's physical courage.

And those two things are not always the same thing. You know, I've seen people display a lot of physical courage. There's physical courage. And those two things are not always the same thing. I've seen people display a lot of physical courage. You don't necessarily display a lot of moral courage. So I do think that one thing that football does, it does flat out inculcate an element of physical courage. When you're around these kids right before they start playing, there's a lot of fear. Especially when they start playing, they're a lot of fear. Especially when they start playing, they're often some of the smallest people out there. And they have to get over that fear to play the sport. Courage is different than risk aversion. Yeah. Yeah. No, I mean, it's an element. I mean, it's physical courage, there's physical risk, but, um, you know, that was a really complicated question. And I think that one of the things is that,

that boiled down to it for us is our son wanted to play and, and he wanted to play badly. He wanted to, why, why? Because his friends were playing or because he really loved watching football? Because that would make a difference to me. It was a bunch of things. I think he wanted to test himself on the field. I think he liked the sport. His friends were also playing. He loves

the camaraderie of sports. That sort of band of brothers element to sports. And that band of brothers element is sports. And that band of brothers element is very, very strong in football. And so he wanted to play. And so it became for us a question of how much physical risk were we willing to tolerate for him? And combined with what are the consequences of a parenting decision of saying, no, don't do that. And so it was a hard, we had a lot of discussions.

At the end of the day, you know, I felt like if he, if he wanted to test himself in this environment, I feel like there was a greater consequence, parenting consequence to saying, denying him that opportunity than to, than to opening up him to that physical risk. opening up him to that physical risk. And then if here's what happened, Sarah, so we say yes. Day two of practice in non-contact drills, he's blindsided by a wide receiver.

He's playing linebacker and they didn't see each other. The wide receiver hits him in the jaw, breaks his jaw in two places, dislocates his jaw. And I'll never forget, I get the call from the coach. You need to come to practice. We think Austin broke his jaw in two places, dislocates his jaw. And I'll never forget, I get the call from the coach. You need to come to practice.

We think Austin broke his jaw. And I pick him up and it's obvious he did. And he's in a lot of pain. And he looks at me and the first words out of his mouth were, mom's going to be mad. Yes, she is.

Oh, yeah. Yeah. But we take him to the ER and he said, I want to come back this year. Wow. So he's in a lot of pain. He has surgery. He has his jaw wired shut.

My wife was a champ. I've never seen somebody prepare so many high-protein smoothies in my life. And he comes back and he plays special teams the last three games of the year, which was pretty amazing. And then he played two more years. He ended his high school career in the, I believe it was the quarterfinals of the state playoffs and loved it, loved it.

And it's so glad he did it. And we're glad he did it, but it, it was, but just to say that football isn't necessarily the only sports that's physically risky, the very next year in the middle of the basketball season, he broke his nose. That seems like the most obvious thing to have happen is breaking your nose playing basketball. Bows out, man. Oh, I broke my nose in Hemingway Gym in Harvard Law School.

Exactly. Yeah. Yeah. Par for the course. I knocked out cold. Exactly. Yeah. Yeah. Par for the course. I knocked out cold. To me, risk aversion is about tolerating failure in yourself. And so to me, the best way to teach risk aversion, I would think, is to allow failures in small, unimportant ways and allow those failures to get bigger over time or allow at least the ability to fail to get bigger over time.

So I had... I don't really know if... I think my dad does listen to this, but I would say childhood was one of benign neglect quite a bit. Yeah. And that, I think, is to your physical point, right? There was some physical danger if you just leave your young child to like figure it out on their own. I liked building

playground equipment for my snails, which involved, you know, hammer and nails and stuff. So that's like allowing me to potentially fail in small ways. But as I got older, my parents did not check my homework or ask me when tests were coming. So if I failed to do my homework or failed to study for a test, I was going to fail in a bigger way, a test or a class potentially. And in high school, I did not have a curfew. And that certainly was allowing me quite a bit of freedom to fail. And that could have come in really big ways, potentially. I could have ended up in a bad situation.

But that's something I'm really curious about for parents these days, because I didn't have a curfew, but I did need to tell my parents where I was. But I could lie, because we didn't have cell phones. I was calling from a landline or a payphone. So it's not like they could really call back or check in or have a GPS on my phone or find my iPhone type feature. And I didn't lie because I didn't want the consequences of being caught lying. I didn't want the consequences of being caught lying. I liked my freedom. And that lesson was important, I think, to me,

that I could fail big if I wanted to, and big to a teenager, right? But there's some things that could happen. Yeah. But it also taught me some risk analysis of like, look, on the one hand, do I want to go to that movie that I'm not allowed to go to? I do. On the other hand, boy, it's pretty nice not having a curfew and being able to do whatever I want all the time, which my friends can't do. And all that I have to do is not go to this movie. Yeah. Screw the movie. I don't care. Yeah. I, you know, it's interesting.

That's a really, cause I grew up in the opposite. I had, I had strict curfews my whole life, went to a college with strict curfews. But at the same time, when I was growing up as a young kid, I was like a free range kid. So it was from a young age, bye mom, bye dad. Okay. Be back by six for dinner. Yeah. I'm coming in for dinner. And then it's like, bye mom, bye dad. And you're, I mean, even at a young age, you're getting on your bike, you're going all over the neighborhood. And there's this really interesting, Greg Lukianoff and Jonathan Haidt had this really interesting insight in their book

that that's just not the way we raise kids anymore. And they ask an audience, what is the age you were when you were first went outside your house and you didn't know your parents were when you first went outside your house and you didn't know your parents... You went first outside of your house completely unsupervised. Yeah. And they went through ages 7, 8, 9. And the bulk of the hands went up around 9 or 10 years old. Interesting. For the parents. And then they asked the next question,

when was the first time you let your child leave completely unsupervised 27 and i can't remember the exact answer but i think it was in the teens you know 13 14 and i think that's a big difference and we've actually consciously tried to raise our kids the way i was raised which was okay um you know look i mean not it's not hey we're gonna plop you down in the middle of Manhattan at age 10 and see you at six. But growing up in a similar kind of environment, have the similar kind of freedom that I had. And I think that that's important for kids. Did you grow up in a suburb?

Where were you growing up? So I grew up in a, it was a small town of about 8,000 and I lived in a subdivision outside of that small town. So I did live in a subdivision. Um, cause I do think it was relevant that I grew up in a pretty rural part of Texas. Like we lived on the end mile long dirt road. So I do think my age for free ranging was much, much lower, but also there weren't really cars or pavement. Yeah. So like when our youngest is nine or 10, she's 12 now and she was nine or 10,

we let her get on her bike and pedal around the neighborhood and go to the ice cream shop and things like that in the neighborhood we currently live in. And then the other thing is moral courage. So I think that's taught by example more than anything. Like my dad, I saw him when I was a young kid stand up against some pretty bad stuff in his workplace. And I knew I grew up knowing all those stories and I grew up seeing it.

And I saw him in a number of circumstances display moral courage in church settings, in career settings. I saw him incur career risk in standing up for what was right. for what was right. And that powerfully impacted me. And that impact of how, the impact that he had on me by doing that has translated into a lot of the decisions that I've made as a dad, that I want to have that same influence

on my kids that he had on me. Oh, that's sweet. And a lovely way to end, I think. I think so, especially since we're going long. But we left on the table this really fascinating CNN article about some of the inner workings of the court. And we may just put a pin on that and talk about that on Thursday, because I think that was really interesting.

So anything else, Sarah? No, I don't think so. I don't think so either. Well, again, I would urge you all to go to thedispatch.com, subscribe, become a member because we have another offering, Sarah's newsletter,

which was fantastic. Looking forward to reading more of it. And we will talk to you all again on Thursday.