Advisory Opinions - Actual Animus

Episode Date: May 8, 2025

David French returns from his other job to discuss President Trump’s transgender military policy with Sarah Isgur. Does the Supreme Court hate transgender people? (Hint: No.) The Agenda:—Transgender military policy reflects ongoing debates about authority and judicial deference—Demonstrating animus—Making David blush—You can't be an erotic dancer if you're under 21 in Florida—Weak and strong originalism and the role of precedent Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠click here⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions! I'm Sarah Isgur, that's David French, and well, we've got a little Supreme Court news, some 11th Circuit fun, and I want to talk about what exactly is starry decisis? What is precedent? How are we supposed to think about that? And by the way, don't forget, May 15th, we will be covering live that Supreme Court oral argument that is from the short order or equity docket, depending on which team of AO you're on here. This will be the first oral argument after the oral arguments have ended for the term that I've ever seen. You think about the environmental case and the vaccine mandate

case, both of those were still within the term. Even TikTok was. So we don't know what they're talking about. This is going to be very exciting. Okay. But now, David, let's go to the Supreme Court and what they've already decided from that short order docket. We got another short order slash equity docket decision coming from the court, but this one did feel a little bit more shadow dockety, meaning all we got was that the Supreme Court stayed the injunction of Trump's transgender military policy. The district court had said the policy could not go into effect. The Ninth Circuit had upheld that decision, and the Supreme Court has now flipped

that. We have the note that says, justices Sotomayor, Kagan, and Jackson would have denied the application, but that's it. We don't know why. So we're kind of left to piece it together from all of the briefs that had been filed in this case. And just again, remembering when it comes to the short order equity docket, I don't know, we're gonna have to make a decision here between our two children. This is just

what happens while the case is pending down below. So it's a status quo question. And David, this case doesn't come out of nowhere because back in 2018, Secretary of Defense Mattis put in place a, well, for our purposes, let's call it a similar policy. And that was also enjoined by a district court. It was also upheld by a circuit court and then also stayed as in flipped by the Supreme Court. So it feels like the Supreme Court in this case was really being asked two questions. One, who gets to decide the policies for military personnel and are there any parameters on that, limitations, etc. And second, is this policy substantially different than that 2018

policy that the Supreme Court had allowed to go into effect? I.e. was the district court, was the circuit court ignoring Supreme Court precedent? Is kind of the wrong term when we're talking about the short order docket. But were they ignoring what had come before it? Or is this policy substantially different so that you're starting back from scratch? I hate this because it's 6-3 along ideological lines. We don't have their reasoning. We don't have any explanations. This is why Will Bode called it the shadow docket.

It's not great, Bob. Yeah, yeah, it's not great. And, you know, it really then what ends up happening is you fill in the void with all of your own imagined reasoning here. They hate transgender people or they're coming along to Trump or Whatever whatever explanation you're filling in that void is filled by speculation Which we are probably going to do some of today as well. Absolutely There is a void through which we shall pour an immense amount of speculation. But I think the thing that is important to understand about this case and the resolution

of this case, this case is ultimately really going to be an authority slash standard of review case. This is not necessarily going to be a case about, this is not a case about does the Supreme Court hate transgender people or not hate transgender people. This is going to be about who has authority to issue commands and what degree of judicial deference is due those commands. And I think that that is a very important point to make here because the administration is essentially saying we get kind

of double deference. This is maximum deference to our views and the administration is arguing there's rational basis review which you know long-time advisory opinions listeners know that rational basis review is the lowest level of review if that's all you've got against the government just prepare to lose but it's rational basis review, but also with this sort of notion that there is extra deference due to determinations regarding service members. And the administration points to a series of policies

regarding both physical and mental health that have resulted in about 71% of American young people being sort of presumptively disqualified, which is a shocking percentage. That is a shocking percentage of American young people who are presumptively disqualified from military service absent waivers. In other words, they'll have to get waivers for a medical condition or a mental health condition. And so that's the administration. The core of their argument is, look, this is absolutely our call. It is not your call.

We get deference, we have rational basis review, we win. And that's essentially the administration argument. So, look, on the one hand, the administration is saying that this isn't about transgender or even gender identity. This is about a mental health diagnosis. And this policy says that basically if you've been diagnosed with gender dysphoria, which is in the DSM, or have received gender affirming care in the previous set of months,

I forget exactly how long, that you are disqualified both from joining the military, but also if you are in the military, you will be discharged. And I'll just read a section of their brief talking about that. The 2025 policy was based on consideration of, among other things, the president and secretary's written direction existing in prior DOD policy and prior DOD studies and reviews of service by individuals with gender dysphoria. That consideration included Secretary Mattis's 2018 memorandum, which remember that had already gone up to the Supreme Court and

they had allowed that to go into effect while litigation was pending, but then Biden comes in and he rescinds it. So the case gets mooted out and here we are again. Which determined based on the work of a panel of experts that there are substantial risks associated with allowing accession and retention of individuals with a history or diagnosis of gender dysphoria. A 2021 review conducted by the department's Psychological Health Center of Excellence and the Accession Medical Standards Analysis and Research Activity found that nearly 40% of service members with gender dysphoria in an observed cohort were non-deployable over a 24-month period. A 2025 medical literature review conducted by the Office of the Secretary of Defense for Health Affairs reported that

the suicide attempt rate is estimated to be 13 times higher among transgender individuals compared to their cisgender counterparts and that the strength of evidence on transgender mental health and gender-affirming care is low to moderate, and that they spent between 2015 and 2024, $52 million providing care to active-duty service members to treat gender dysphoria. So based on this, they come up with their policy, according to them. Now let me give you the other side's version of events, which as you can imagine, looks quite different. And does have a couple of legally significant factors to it that we should talk about. So they're really arguing two things, David. One, that this policy is based on animus towards

transgender people. And two, that the policy is substantially different than it was in 2018. They say, for instance, this court permitted a much narrower and different policy, the Mattis policy, regarding transgender service members to go into effect in 2019. The instant ban materially differs from the policy in that case. Under the Mattis policy, no active duty service member who had already transitioned would be separated from service or have their health care denied. The ban compels the expulsion of every transgender service member, including active duty, in this case, their respondents, meaning the plaintiffs in this case, kind of. Moreover, the Mattis policy relied on independent military

judgment and did not heedlessly implement the 2017 proclamation that several courts had pointedly enjoined. This ban, by contrast, reflects no independent military judgment. Rather, it is rushed and haphazard, anomalous from all ordinary military policymaking. Timing also matters. Issued in 2018, the Mattis policy was necessarily based on predictions about open service by transgender people, but the intervening years have provided evidence based on transgender service members' actual experience. That service is not contrary to military effectiveness and lethality,

but rather enhances military readiness, lethality, and unit cohesion. Okay, so David, there's a lot in there, right? But I wanna start at the end of this, which is this difference between predictions and evidence, because to me, this is a who gets to decide. You have, on the one hand, the administration arguing, yep, and now we have evidence

that there's 13 times the suicide rate and we've spent all this money and they're not deployable or 40% haven't been deployable in 24 months. And they're saying, no, it's actually helped unit cohesion. That's a pure who gets to decide question, right? Right. Yeah, that's a who gets to decide question.

And I think that on that point, that's gonna be the plaintiff's weakest point. Because if you have one side saying, look, there's a 40% non-deployable rate based in a two-year time period, based on a 2021 study, that's a pretty recent study. And that 40% number is a very big number. And so in that circumstance, if you say, hey, we're coming in here with this 40% number or the suicide rate number, the

financial expense number, and in our judgment that this is not improving military readiness and lethality, that's where the court's going to exercise maximum deference. But you know where it's not going to exercise maximum deference? When there's evidence of animus. So let me read that paragraph. Yes. An unprecedented degree of animus towards transgender people animates and permeates this ban. It is based on the shocking proposition that transgender people do not exist.

Along with other recent executive orders targeting transgender people for opprobrium and discrimination, this ban claims that having a gender identity that differs from one's birth sex is a falsehood or false claim. The ban thus violates the equal protection, due process, and free speech rights of transgender service members and those who wish to serve, as well as basic equitable notions of fairness. Indeed, the ban fails under any level of review." Okay, so that's their argument in a nutshell on the animus claim, David. What makes you of that? Yeah, that is where they're going to be at their strongest because if you're looking at evidence of

and if you are seeing evidence of animus, in other words, that you've got a belief that this is not motivated by dispassionate decision making. In other words, this is not something where the government doesn't have a hostility to the population, but it's just doing sort of a dry scientific review in much the same way that it would look at, say,

what is the deployability rate of somebody with schizophrenia? You're not actually hostile to the person with schizophrenia because you're saying, wait, here is a, and I'm not saying these are the same things, just to be very clear, I'm using a different diagnosis as an example. So if you're saying, well, we've looked at this

and even with medication, et cetera, deployability rates are very low, then courts are just always gonna keep their hands off on that point. And so when you're talking about deployability rates or suicide rates, that is a non-hostile objective evaluation. If you're saying, however,

that the assertion of transgender status is itself dishonest and demonstrates lack of humility, that is an animus-laden value judgment. And that is something that is going to, if there's anything that can, if there's anything that can puncture through rational basis review, it is evidence of just actual animus.

And Sarah, this is something that kind of goes along the lines of other elements of the Trump program this second term is that they've kind of gone at stuff in ways that are directly saying to courts, okay, we don't like you. We don't like the target here. We don't like you Harvard. We don't like you immigrants. We don't like you transgender individuals.

And that, with that kind of attack, that is about, in my view, Sarah, about the only way that the Trump administration can lose this case is by demonstrating animus. If there is a record, now by the 6-3 vote so far, I think the odds are in Trump's favor, obviously, on this case. But if you wanted to say, how can you lose this case? If I was sitting in a room with the, if I was sitting down with Peter Hegseth and he says, I think we can win this case. How could you lose this case? If I was sitting in a room with the, if I was sitting down with Peter Hegseth and he says, I think we can win this case, how could you lose this case? I would say, well, I think about the only way you can lose this case is if you just go running around insulting transgender people and instead of making a dispassionate analysis of deployability,

you make a value-laden judgment about their very essence and character. And that's going to be the strongest point of the plaintiff's case. And of course, this is why you see the administration putting forward all of this, you know, documented evidence and here's what we learned and the suicide rates or the deployability rates because even if they are able to find some examples of someone saying something with animus, at some point there's a bit of a balancing act that goes on here where, well, if you think that all of these studies were really just to cover for the animus, it can't be, what's the word I'm trying to think of?

Pretextual. All these studies and stuff can't be pretextual. But on the other hand, if one person said something stupid and it's clear that that person just doesn't represent the thought process of everyone else, I mean, we see this in the congressional redistricting cases, in the Voting Rights Act cases, where you're trying to balance one side saying, no, no, we have really good reasons for doing this, and the other side saying, no, no, this is all pretextual for race-based animus, for instance. So we're a bit off to the races on that or not, as it were, because this will now be

the status quo. The transgender ban policy will now go into effect and we will not hear about it again until it makes it through the district court and then the circuit court and then potentially back up to the Supreme Court. So more to come. the district court and then the circuit court and then potentially back up to the Supreme Court. So, well, and the one thing about the animus point here, this is very different from like just some person in the government saying something mean on the record. It's in the executive order. So, you've got, this is not a situation where you have like some legislator giving some dumb interview and they're one out of 200 people or whatever in a state legislature.

This is in the EO. Yeah, the decision maker. Yes. And so that's why, a man's assertion that he's a woman and his requirement that others honor this whole falsehood is not consistent with the humility and selflessness required of a service member. That's animus. That's animus. That's animus.

And that is gonna be where, you know, and it plays great on X on Twitter. It plays great. Oh, look, look, look at this. That, but if the Trump administration loses, it's going to lose based on those kinds of sentences. Now, again, based on the stay, it looks like the Trump administration's gonna win.

But if they were to lose, that is going to be the grounds. Well, and just to remind everyone of what those stay factors are and what the justices have talked about, remember in that Idaho, was it the Idaho case where we got the like basically seven concurrences with everyone talking about what their own personal views

on the short order docket is? And I thought that Justice Kavanaugh's was the most interesting. And let me just run through those factors first before I get to Justice Kavanaugh. So one, a likelihood of success on the merits, meaning this is the status quo while the case is pending, you're making a best guess as to how the case will turn out. So if you think based on just what you know now, your best guess, that one side will win, that's the likelihood of success and the merits. Two, a reasonable probability of obtaining certiorari.

This one sort of becomes interesting because it's kind of one of the new factors, meaning do you think the Supreme Court would take this case? A reasonable probability of obtaining certiorari. This one's kind of new. It was brought up by Justice Barrett, this idea that the Supreme Court shouldn't intervene if it wouldn't intervene on the merits case itself. Like, why would we deal with this on the short order or equity docket if we wouldn't deal with it on the merits docket? And three, a likelihood of irreparable harm. But that one's always getting sticky, David, because everyone

argues irreparable harm. The government says it's irreparable harm to have a military that they don't think is ready. The transgender service members say, of course it's irreparable harm. We're being discharged from service and our careers are being affected. If in the end you would say that they weren't allowed to discharge us and in the intervening two years we haven't been in service. So then you look at what the justices themselves have said about what they think of all of this. So that likelihood of success on the merits by far is the most controversial. And that's what I was referring to with Justice Kavanaugh's separate writing where he's like, look, you guys are all trying to avoid talking about the elephant in the room, which is that we're having to make a guess at the earliest stages of a case as

to how the case will turn out, which seems kind of unfair because we're basically prejudging the case. What's the point of having the case? But there's nothing else you can do because if it seems like one side is probably going to win, of course that's a factor of what the status quo should be in the meantime. You have real disagreements over that Barrett-Serserari point. You had Justice Sotomayor, I believe, making the case that there should be a lot of deference if the district judge and the circuit judges agree, then the Supreme Court shouldn't flip

when four judges have already agreed on something, which is the case here. I mean, we've almost got nine different takes on how you're supposed to look at all of this and weigh this. And again, this is where the shadow docket part comes in. When it comes to this case, we don't know which factor they were thinking of looking at or deciding on. Right. Right. You know, this is, again, we should emphasize, as we did at the beginning, we were pouring a lot of speculation into a void here. There is more that we don't know than what we know about how the court is approaching this case. And if I could offer a bit of a frame for now analyzing this, I think there's going to be a few buckets that will ultimately determine the totality of this case.

One is, okay, the policy for service members or people seeking admission to the army or to the military. So the bar on people enlisting with gender dysphoria, that's going to be one bucket. Another bucket as the petitioners make, well, they're not the petitioners in this case, plaintiffs in the case make clear, is that there's also the factor of what about the existing service members who were exempted from the ban under MATA. So you have the people who want to join, the people who are already in. And then the third factor is going to be how much does the animus actually impact the analysis across the board? Does the animus actually change the analysis? Is that sufficient to change the outcome of the case if it's otherwise, if the policy would be otherwise constitutional? And so

I think those are going to be some of the key elements here. And the, you know, the standard of review, rational basis review, I'm not quite sure that they're going to be able to escape from rational basis review. I think you might have some hope that you've got a kind of Romer v. Evans situation where you're singling people out, that you're going to demonstrate that when you're singling out a particular population that the quote from Romer v. Evans, if the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare desire

to harm a politically unpopular group cannot constitute a legitimate governmental interest. That kind of language, they're gonna hope that the animus evidence matches that language sufficient to pull this into that Romer v. Evans category. And Romer v. Evans was the case that struck down Amendment 2 to the Colorado State Constitution, which prohibited the extension of protections to those who suffer discrimination due to their sexual orientation. So a state law prohibited all

other jurisdictions in the state for protecting people from discrimination on the basis of sexual orientation, the Supreme Court found that law to be motivated by animus on a 6-3 basis and struck it down. And so I think that that is the analysis that the plaintiffs are going to want to pull this case into. Noting, Roemer was written by Justice Kennedy. That's very Justice Kennedy-esque language. Yes. That being said, we have two clerks of Justice Kennedy's now serving on the Supreme Court, Justices Gorsuch and Kavanaugh, and I'm married to one. It's worth mentioning. Kennedy clerks all around.

That's right, all the way down. David, my speculation is that this is actually pretty easy to figure out what the Supreme Court was doing, which is this Supreme Court with the 6-3, the 6 could not distinguish this order from the 2018 Mattis order. So they were actually just reaffirming a decision they already felt that they made. There was almost a precedent slash starry decisis element to this decision. And that the previous decision, that 2019 decision, was based on a likelihood of success on the merits, which was based on the concept that the commander in chief is going to have, as you mentioned at the beginning, maximum power and latitude when it comes to deciding who is qualified to serve in the military,

basically putting it in this national security bucket. So this current decision is a bit bootstrapped onto that old one, which is why you see so much discussion of that in the two sets of briefs of whether this current policy is distinguishable from the old policy. The administration, of course, says it's not. And the plaintiffs slash respondents in this case are like, yes, it definitely is different. My own take on that is that it is different. I don't think there's any question about that. Is it legally different? Now, this sets aside your animus point, David. Right. Just the actual policy affects itself. They are certainly bigger, bolder, whatever word you want to use. There's more of it. It will affect more people. But is it legally different? No, I don't think so. So I actually think they're probably right here that their 2019

decision is the precedent in this case. But of course, that's just for the pending of the litigation that didn't then happen and got mooted out before. So, yeah. Yeah. And we're going to see. And I do actually, though, wonder about the existing service members. Is there going to be a distinction made between sort of the anticipatory non-deployment of service members or people who seek to enter versus the actual individualized determination of existing service members? Because the way things work in the military is that once you're in, it is not the case that all of the things that disqualified you from entering now continue to disqualify you once you're in. It's a different regime

once you're in. And so that's going to be an interesting question to me, is there going to be this distinction between the anticipatory policy that says somebody with gender dysphoria were anticipating would be a deployment risk. So therefore we're going to screen them out in the way we screen out 71% of other conditions or 71% of people through other conditions or when it comes to people already in is that they're then going to need to be

an individualized determination. And I think that's where the animus actually might play more, Sarah, for the people who are already in. So if you're already in and you have a sterling service record and you're transgender, and then the logic of removing you from service,

eliminating you from service with an existing service record, that becomes, I think that's a different, perhaps a different analysis. And indeed, this ban compels the expulsion of every transgender service member currently. And that is a difference from the previous ban. As I understand them, I'm not an expert on these two bans. I want to be very clear on that.

But you're right, David. And I think where the administration is really strong is to say if 70% of people are disqualified automatically, this is just another reason we would disqualify someone and it's based on a medical diagnosis. There's just nothing there to really argue with, honestly, to me, except the animus point, fair enough. But even that I think can be overcome by the obvious medical diagnosis that fits far more into the 70% than anything else. But as you know, getting rid of people who are already in service, when for instance,

if you get diagnosed with some of those other things that would have disqualified you in the 70% from being able to join, but once you're in, it no longer disqualifies you, that is going to look different. And that's an example, David, where again, I'm not an expert on these two bands, but once you're in, it no longer disqualifies you. That is going to look different. And that's an example, David, where, again, I'm not an expert on these two bands, but where the 2018 ban could look materially different from this ban. And that could change. That's one of those fact-based questions that actually is why we have the litigation. So the Supreme Court may say, look, this doesn't look different enough to us from the 2018 one. We already said the 2018 one was fine. But then through the course of

litigation, if it comes out that like, no, it's actually super different. So your 2018-2019 decision is not presidential for this. That could change the likelihood of success during the course of the litigation, which again, is going to take now a while. And in the meantime, this ban will be in effect and we will see David how it is implemented, which will also affect the litigation, right? Like it's not like we freeze the facts based on the hypothetical of the ban. The litigation will now be citing what actually happened

and if transgender service members were treated differently than people who had other mental health diagnoses after they were already accepted into service, for instance. Yeah. I mean, you know, you could easily imagine a situation where the court is looking at one set of cases is people who, again, going back to this trying to enter versus already in, you have people who are trying to enter and you have sort of these, you're playing the percentages and the odds rather than the individualized determination. That's what these medical conditions do

when they strike people out from service is they're saying, look, the percentages, the odds that somebody with X or Y or Z condition can become a productive member of the military are lower than with people who don't have these other conditions. And rather than go through the process when you're talking about entering thousands and thousands of people every year, we have to make tough judgment calls to enhance effectiveness

and lethality. That's one thing. It's another thing to say to say maybe to somebody who's served extremely honorably, who has incredibly impressive OERs, Officer Evaluation Reports, who maybe has two or three highly decorated Bronze Star Medal for valor perhaps, to then say, well, you have to get out. Why?

My service record, look at my service record. Well, you don't have the character to, wait, what? Look at my OERs, look at my service record. Well, you don't have the character to wait. What? Look at my OERs. Look at my, you know, that's a kind of situation where you're going to, I think that that's where I could see the court really, really taking into account the animus point. Right. If you're treated differently than someone else who also has a mental health diagnosis, then the explanation becomes more likely to be an ex. Exactly. Exactly. All right, David, will you tell us about this 11th Circuit case?

Yes. I know why I want you to tell us about it, right? I know you. You. I get to see David turn red. Please. You make me. Well, I have to say, though, I have no absolutely no standing to object or to turn red because I voluntarily read some of the facts of that hot, sexy and safer case that I talked about. And so I am now officially, Sarah, the most transgressive

member of this podcast. Amazing. Because I read those. I read those facts. So this is a case that is very interesting. It's 11th Circuit, Judge Newsom opinion. So, you know, right there, we're paying attention to it. And I think this is an interesting case, not because it's groundbreaking necessarily, but it does give us an opportunity to sort of talk,

to circle back to free speech, free speech, dancing, porn, etc. All of that smorgasbord of the edges of the First Amendment in this, in an advance of the Paxton decision. This is the Supreme Court case involving the age limitations on access to online sites. In advance of that, I think it's interesting to sort of talk about this unique world that adult entertainment occupies within the First Amendment. It's a very, very simple case. It begins like this.

We must decide whether a Jacksonville ordinance that effectively prohibits erotic dancers under the age of 21 from performing in adult entertainment establishments violates the First Amendment, and relatedly whether the ordinance's licensing scheme applicable to older dances imposes an unconstitutional prior restraint. After careful consideration and with the benefit of oral argument, by the way, can I just say

I love Judge Newsom, thank you for putting the conclusion in the opening paragraph. As a recovering practicing attorney, there are a few things more frustrating than reading, scanning through 20, 30, 40 pages to get to the final conclusion to find out if we won or not. But you put it right here. After careful consideration and with the benefit of role argument, you hold that one, the ordinance's age restriction must be treated as a content neutral regulation of expressive activity and is this subject to intermediate scrutiny which it survives and that the ordinance's licensing scheme embodies sufficient procedural protections to save it from invalidation as a prior restraint.

Accordingly, we affirm the district court's decision. So in other words, the ban, and this is very interesting, Sarah, the ban on dancers from under the age of 21 performing in adult entertainment establishments must be, was treated as content neutral. That's what's so fascinating about this case. It was treated as content neutral when, how is this possibly content neutral? Because it's aiming at erotic dancing. And so there is an answer to this question that is related to a quirk of the analysis of expression and adult establishment.

And so here's how the court dealt with this, the contra neutrality. And this raises a very interesting and very controversial point when you're talking about adult entertainment. And here's Judge Newsom. To be sure the ordinances age restriction feels content-based.

Conspicuously, it doesn't apply to all 18 to 20 year olds performers or all dancers. Rather, it applies only to those engaging a particular type of expressive conduct, namely erotic dance, as opposed to say jazz, ballet, or tap. But as the district court observed, we held in Zabutluta, that's quite a case name, that when the purpose of an adult entertainment ordinance is to amelior when the purpose of an adult entertainment ordinance is to ameliorate the secondary effects of adult businesses, intermediate scrutiny applies.

And so holding, we explain that although these ordinances are not strictly content-neutral, they are simply treated as such. Indeed, we candidly acknowledge that restrictions of the sorted issue here are in substance content-based. Even so, we explainly acknowledge that restrictions of the assorted issue here are in substance content-based. Even so, we explain that when a restriction's purpose is to combat the secondary effects associated with adult businesses, then although content-based, such a regulation will be treated as if it were content-neutral. So in other words, this is a content-based restriction treated as content-neutral, therefore

it has inter-unit scrutiny, which as we know means the judge decides and the judge decided this is all fine. So Sarah, your thoughts on this and more broadly this secondary effects doctrine, which for people who don't know what it is, is essentially a means of regulating the speech at adult establishments that is taking aim not at the speech of adult establishments so much as what happens around adult establishments. Think of a of like a strip club as like a vice seed. You put it in a neighborhood and crime sprouts around it. And so you can regulate the existence of the adult establishment because of the things

the adult establishment draws around it. Sounds like a heckler's veto to me. That's why I said it's very controversial. It's very controversial. Yeah, so look, of course this sounds like a heckler's veto because it's based on how other people respond to what would otherwise be protected speech. So, you know, I wear a controversial shirt to school and the other kids are mad about

it so I'm not allowed to wear my shirt. No, that's not how the First Amendment works. Think of it as like a disruption seed in that case. This looks like the same thing, except it's not. This is just an outcome searching for a process, if you will. It's like everyone knows, like, oh, this doesn't know. This can't be protected the same way that political speech or even flag burning or something else should be. Therefore, if we know what the outcome needs to be, we need to fill in the gaps to get there. I actually think this is way more interesting

than it seems like on first blush because I think there is actually a pretty real, I don't know what else to say, like a true version of originalism, for instance, that has a strain of this as well. And not in some bad way. I don't mean this in a pejorative, but it's this idea that if I'm correctly following originalism, certain outcomes cannot be true. Therefore, if a certain outcome looks like it is true, I have not correctly applied originalism. Does that make sense, David? It's like a way of checking your math work, if you will. If the answer doesn't come out right on certain big things, then you didn't do the math correctly. The problem, of course, is what are those big things? Because otherwise, originalism just

becomes outcome driven. This seems very similar. Let me give an example of the originalism problem. It's Brown v. Board of Education. It's loving. It's this idea that like, if you can't make originalism protect interracial marriage. Something's wrong with originalism. Something's wrong with originalism. Now, the strong form of originalism is like, nope, nothing's wrong with originalism.

It's very possible that the US constitution does not protect interracial marriage, or in this case does not ban a state from banning interracial marriage. It is to be left to the political system, and if we had done so, the political process would have worked itself out and we'd be exactly where we are today. So this whole like conservatives want to undo interracial marriage, no, it's a who gets to decide question. Is it the a who gets to decide question. Is it the courts who get to decide that or the political process? We would have ended up in the

same place anyway is how that argument would go on loving. But I find that a really interesting debate within originalism. Does loving have to turn out the way it has to turn out? Or loving turns out the other way, but it's okay because that's how originalism works and it's supposed to send things back so that we could have an amendment, for instance, on interracial marriage. Or to give another example, the Equal Rights Amendment, there's a great argument that the entire reason the Equal Rights Amendment fails to get ratified by enough states was because the Supreme Court had read into the 14th Amendment gender protections for equal protection. And

that's what the Equal Rights Amendment was supposed to do. So it becomes kind of pointless in some ways because the Supreme Court's finding these new constitutional rights. There's this quote from, I think it's Lyndon Johnson, and he's talking about Justice Douglas. And I'm gonna get the quote slightly wrong, but it basically says, "'It would take us years to change the Constitution "'through the amendment process,

"'but Justice Douglas can do it in an afternoon.'" That's not great, obviously. That's going to stifle actual political change and put a lot of political pressure on the Supreme Court, et cetera. Okay, that's a really long-winded way of saying, David, this to me feels like that sort of outcome-based question, but then it's like, well, is that bad in this case? Or should we be saying, for instance, that that's just not protected by the First Amendment?

Maybe. Is it, you know, like, do you look at the outcome and then backtrack through the process? I think that has made a real mess. The secondary effects thing is complete crap to me. So you have some alternatives, right? We can pass some constitutional amendment saying what is and isn't protected by the First Amendment. Or the courts can find that certain unvaluable speech is not protected by the First Amendment.

That's certainly Justice Alito's take. He has the crush video case about the baby animals being killed for funsies and sexual pleasure. There's the Westboro Baptist case where he also says that should be unprotected, as in your speech directed at a specific person at a military funeral is simply not valuable speech that we need to worry about protecting. This also has an outcome problem though, because we're basically looking at the speech and then being like, eh, valuable or not. Doesn't seem valuable to me, so it's not protected. That's why you and I tend to be more First Amendment absolutists, because we'd rather just protect all the speech rather than have a judge or anyone else for that matter going through and being like,

valuable, not valuable, valuable, not valuable. Because a lot of speech isn't deemed valuable by people in charge or the ones being criticized, et cetera. But yeah, secondary effects test, two thumbs down, I say. Yeah, I have very mixed feelings about it because I am much more of the one thumb partially up on secondary effects. Ooh.

Yeah. You like vice seeds. So here's the issue. No, I dislike vice seeds. That makes me thumbs up on the secondary, a thumb mostly up on the secondary effects test. No, sorry. I mean, you like vice seeds as a legal test. Yes. Yes. Yeah. You don't like the vice seeds. No, no, no. Do not like the vice seed.

So here's the really interesting thing and kind of quirky thing about adult entertainment, et cetera. Tell me, David. What is the quirky thing about adult entertainment? Oh my gosh. So forever, it's been generally acknowledged that obscenity is not protected by the First Amendment. That is a classic category. If you're going to talk about what is not protected by the First Amendment, the answer is obscenity. So then the natural question becomes, what is obscenity? And that is always, there's always been a definitional problem, but if you're gonna actually look at sort of originalism, original public meaning, et cetera,

under original public meaning idea of obscenity, the vast majority of what we would call pornography now would meet that definition. And by the way, that original obscenity case is about a erotic-ish French film that was banned in Ohio, I think, and that's where you have the footnote. Basically, all the justices have to watch this film, and then they all are making sort of opaque references to it, and you have the footnote that says, I know it when I see it

about obscenity. But in that case, what he was saying was, I know it when I see it, and this isn't it. As in, this is just a film about two people who clearly do have sex, but we don't see them have sex, so not obscene. Anyway, that quote gets used a lot, I know it when I see it, but it actually came out the other way.

Yeah, yeah. And so what you have is this world where basically everybody knows that the vast majority of pornography is obscenity, but then the difficulty of drawing the lines is such that it becomes very difficult to actually regulate obscenity as obscenity. And so then the secondary effects doctrine is sort of a way of regulating obscenity without regulating obscenity, if that makes sense. And so there is an consequentialist element of this here that goes to the point that you are making, Sarah, which is, okay, wait a minute, if everyone knows that what happens when you plant these establishments. In the real world, all kinds of crime and exploitation

just sort of explodes up around it. That, you know, I don't know, we probably have some listeners here who are old enough to remember walking through downtowns, like Times Square, maybe in the 1970s. Or, you know, when I went to Lipscomb as a freshman in 1987, you didn't go to Broadway in Nashville,

which is now the Bachelorette capital of the world. But at the time was the peep show capital of Tennessee. I mean, it was gross. It was gross. People didn't go there. And so when you look and you see in the real world, just this explosion of crime and exploitation around these establishments,

there is a point at which there is this sort of consequential element that sort of starts to surge, especially when you're dealing with a category of speech here, that is in all likelihood often, in all likelihood in the category of speech that would be obscenity.

And so it becomes a, the secondary effect doctrine to me is one of those where you're looking at a extremely thorny constitutional question, but that there are objective elements surrounding the constitutional questions such as crime, sexual exploitation, et cetera, that allow the court to kind of cut through the noise. Here's the problem for me, David. I like the effects of the secondary effects doctrine, and that makes me squeamish because that's exactly

what you try to avoid in the first amendment context. Right. But I don't like the vice seeds. Right. And you know, I think if the vice seed were political rallies, it would be a very different kind of analysis. But that has secondary effects too.

That's the whole problem, right? Like you burn an American flag, we can talk about secondary effects. You wear a shirt that says there are only two genders to your junior high school, there are secondary effects. Like, the second you start doing secondary effects, it can apply to everything because speech that is unpopular, the very speech that needs First Amendment protection, by definition is unpopular. It has bad stuff that follows with it. The Nazis and Skokie secondary effects. Yeah, no, I'm with you. And that's why the secondary effects doctrine is quite confined. It is quite confined to this category of speech. Which is why everyone's fine with right now, because people like me are like, well, I don't know. But originalists would look at, if you're taking originalist perspective,

originalists would look at the category of speech and say, this is not even protected speech under original public meaning. And so- Which I'm fine with that by the way. Yeah. Just say that it's not protected. I would rather that than secondary effects because that seems's not protected. I would rather that than secondary effects because that

seems slippery to me. That's why I'm not all the way thumbs up on it. But I think it's the marriage of the kind of speech which is, look, you know, it's interesting to me, like, it is not that common to find an originalist who is also a free speech advocate to say, to circle the wagons around pornography and say the ACLU traditionally has. The ACLU does not take an originalist approach to the First Amendment. It sort of takes an approach that says free speech, just use the word. The words free speech are kind of self-explanatory. Free speech is what you want to say, what you want to do. It's more of a textualist argument, really. Exactly. It says freedom of speech. So it doesn't matter what they thought it meant. Right. It matters what the words

mean. Right. Exactly. Then and now, which is complete freedom of any speech. From commutes that become learning sessions to dishwashing filled with laughs, podcasts can help you make the most out of your everyday. And when it comes to everyday spending, you can count on the PC Insider's World Elite MasterCard to help you earn the most PC optimum points everywhere you shop.

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your family tree. Register at ancestry.ca with just your name and email. No credit card details required. Free access ends May 13th. Terms apply. Okay, David, let's spend just a few minutes. This is just one of those big picture conversations that's been on my list for a while. Precedent. Because precedent actually has a lot in common with the First Amendment. In the same way, the First Amendment is only really needed to protect unpopular speech, because it was popular, no one would be banning it. Precedent is only there to protect incorrect decisions. Because if the decision were correct, you would just make the same decision again, right? There would be no need to talk about upholding precedent or stare decisis. At least that's one version

of it, and that's kind of my point. So this actually is going to go back to the bronze doors at the Supreme Court. David, remember this was Judge Eskridge's baby. There are eight panels on the two big doors that open into the front of the Supreme Court. Panel number two actually deals with precedent. It is Praetor's Edict, which nobody had heard of slash still nobody has heard of, except if you've read, of course, Judge Eskridge's brilliant work on the bronze doors of the Supreme Court. But in short, the office of praetor in the Roman Republic was a very high position. I'm now going to read some of his paper here. A praetor administered the judicial system without himself being a judge under historical

litigation procedure. Even so, praetors began to decide which formula pertained to certain cases, specifying what must be proven to succeed on a claim in court. In this way, the Praetor would determine whether such claims and defenses involved any right or interest worthy of protection and therefore warranting trial. If so, the litigation would proceed before a judge to adjudicate the merits, often with further guidance and instructions from the Praetor. In this way, while a Praetor didn't decide the actual winners and losers, his preliminary

role substantially affected the citizenry's legal rights. From there followed the legal innovation of the Praetor's Edict, by which the Praetor would explain in advance the rights and remedies recognized in specific circumstances. At the beginning of each year in office, the praetor would write out in red letters on a whiteboard for display in the forum the laws and orders considered most relevant to the citizens and pertinent formula for use. It thus became a public expectation that the praetor would conform to his edict without deviation. What's more, the legal custom was such that successive praetors should conform their edicts with those of the past. Over time, then, a continuous and stable body of law developed that governed the adjudication of legal rights."

And this is really cool. And the Fifth Circuit, for instance, in a 1961 decision, actually cites the Praetor's edict in a case. So that's kind of cool. The Supreme Court did an 1820 decision as well. But David, the Praetor's Edict, meaning this goes back to, what was that, like 300, I'm going to look when the Praetor's really got into fun. Yeah. The Praetor was established So we are 2500-ish years in to the idea of precedent and stability in the law being part of the rule of law. And this leads me to explain that there's a few ways to think about stare decisis, meaning let the things stand, or precedent. One is what I said, right?

Even though it's wrong, stability in the law is part of the rule of law and we should continue doing that because that's what makes consistency and gives people faith that it's not simply judge-made edicts, etc., that can change every year, every time the judge switches. But there's another version that the current justices seem to be playing around with. This is the idea that in fact it's a way of sort of being a tiebreaker, if you will. Ooh, this is really tough. I'm just one person. A bunch of smart people for the past 300 years though have interpreted this right this way.

So even though I'm not sure it's actually that way, all of them can't be wrong. So it's sort of a way of informing your own intellectual humility, maybe a tiebreaker. So that's one version. And then another version, our third version, is the Justice Thomas version, which is screw intellectual humility. If I think this thing is wrong, that's enough. If it's truly a tie, fine. If it could go either way, okay. But most cases can't really flip a coin. If it's wrong, it's wrong. Justice Kavanaugh, the Chief Justice have something that's more like egregiously wrong. But this is a struggle within the entire history of the Supreme Court, David.

When is a precedent wrong enough? When is a precedent close enough? When should you have intellectual humility because everyone else decided it the same way before you? And we think of it being really easy to say, just always uphold precedent. Oh, so you like plussy? Right.

No, that's ridiculous. So of course we know we are going to overturn precedent sometimes. Korematsu is a disgusting decision. It gets overturned in the Trump travel ban case kind of sorted depending on how exacting you wanna be. So David, I just thought we should have this big picture discussion on the current court's view of precedent because it seems to be this ongoing discussion, which

makes it all the more fascinating because actually this court is overturning precedent at a lower rate than previous courts were. It has gotten about as high as I think three-ish at the peak of the Warren Court. I think it was like 2.79 or something. Now we're in the one ish a year, a term, overturning precedent. But because there's more attention on the court, perhaps because those precedents, like Chevron, for instance, or Roe become the focus of national attention as well. When those get overturned, yeah, maybe it's only one a term, but it's row. Right. So how do you think of precedent?

What do you think's the right way to do this? What do you think of the court's current disagreements over the role of precedent? Praetors, Edick, give us all. This is going to be a bit of an oversimplification, but I kind of look at it this way. Justice sometimes requires change, but the rule of law also requires stability.

So how do you harmonize those two interests? When I say the rule of law requires stability, when you're doing things like entering into family relationships, when you are entering into business relationships, when you are part of a functioning society, there is a level of legal predictability that is mandatory. You have to have it for society to function. And so, I think of it in terms, I think of precedent as a rebuttable presumption of stability would be the proper way to look at it. Stability is the default presumption. However, you can overcome the default presumption in the interests of justice. So for example, Plessy, Plessy had to be overturned.

Coromantso had to be overturned, but not every single case that comes before the Supreme Court where, you know, I guarantee you justice, not even Justice Thomas writes a dissent every single time. He disagrees. He might come closest. He might come closest. He might come closest, but I would say not even Justice Thomas.

So I think that they all have a rebuttable presumption of stability, but just what rebuts it is different for different justice. And I actually liked the way Justice Alito kind of laid out the test in the Dobbs decision and talked about it in the Dobbs decision. And one thing that he talked a bit about, which I think is very important, is the reliance interests in precedent. And that's something that when I talked about why you need that stability, people

form relationships, people form business partnerships, people create companies, they build infrastructure, they create families, all of these things where they're pouring their heart and soul into something, there is a need for predictability and stability in that enterprise. So let's think of it in the commercial context. One of the issues right now with American manufacturing is the tariffs are not reshoring manufacturing in part because there's

a lot of legal instability in the United States right now. You have to have legal stability before engaging in giant investment. And so for those who hate precedent, I would urge you to consider the consequences of instability. Those who adore precedent consider the demands of justice, and that's the harmony. harmonizing those two things is just kind of the constant battle. As Justice Gorsuch would say, that's what the judgment is for. Exactly, judgment, yes.

I'm pretty torn on it. I totally agree with you. I think the reliance interest is the Praetor's edict part of it, right? That's the stability being built into the rule of law, which is the rule of law. But I'm torn because on the one hand, I think Justice Thomas has a really good point. If it's wrong and we all know it's wrong and we all think it's wrong, the fact that it's not very important to us that it's wrong is not a very good reason to just keep doing it. On the other hand,

I really care about the stability point. Obviously, I care about the rule of law a lot, but I'm also a big fan of intellectual humility. This idea that just because I think something doesn't mean the past, you know, very smart people were stupider than I am or the future people will agree with me and sort of constantly thinking of yourself as sitting in this much, much bigger with me and sort of constantly thinking of yourself as sitting in this much, much bigger continuum not just of the current world with all the billions of people in it, but of the past and the future as well. Like we're on a whole journey here together in our little planet Earth. So I'm pretty torn.

I don't know what my judicial philosophy would be on precedent, except my best guess is that it would be a way of reading the case, if that makes sense. Well, you better get it down before your judicial nomination, Sarah. It's coming any minute now. It's coming any day, any day, because you're in the perfect, you're young. You know, you're young, you have that sharp legal mind. Well, now we don't have the filibuster anymore. If I had a political party,

I'd be the poster child for the post filibuster, you know, say exactly what you think. Yeah. Unfortunately. You just have nobody to nominate you. That's your problem. That's the only thing holding me back. The only thing holding you back.

All right. With that, don't forget, May 15th, we're having our Birthright Citizenship slash oral argument SCOTUS blog AO extravaganza. You won't want to miss it. The argument will start at 10 a.m. with an opinion hand down as well. So we'll have the live blog during the oral argument. And then again, after the oral argument, we will do a live AO, everyone can join.

You'll be able to find it on SCOTUS blog and the dispatch website as well. Trade, copyright question. Yeah. Would we have a problem with Lollapalooza if we called that Lawlapalooza. Ooh, you know, we've talked about copyright before, the Olympics, for instance,

you can't use those Olympic rings for like a junior high science fair. In fact, that was literally a case. Yeah. So it really depends on how much Lollapalooza has protected their copyright. Yeah, because we're changing two letters, Lawlapalooza. Yeah, that's Palooza.

Yeah, that's not very relevant. Darn it. Okay. The Olympics, it's the science Olympics. They're like, we changed the whole thing. There's no science Olympics at the real Olympics. And they're like, no, no, the Olympics really sends you that cease and desist letter

for the Thomas Jefferson Middle School. Hey, let's just name this podcast, Lollapalooza, and see if we get the season. And see what they do. Yeah, absolutely. Okay, Lollapalooza, it is. You