Advisory Opinions - Affirmative Action Hearing, pt. 2

Episode Date: November 3, 2022

Time to talk about Harvard. Returning to the affirmative action debate, David and Sarah consider the differences between UNC and Harvard, unpack the justices’ questions and comments, and ask what kind of diversity Harvard hopes to promote, if at all. They also discuss the preemptive backlash to Justice Amy Coney Barrett’s upcoming book, and the attack on Paul Pelosi. Show Notes: -Court filing detailing the break in to Nancy Pelosi's house. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And we are going to be talking about the second oral argument, the Harvard oral argument that we didn't get to discuss on, well, for you guys Tuesday, for us Monday when we recorded it, because it hadn't started yet. So we've got a lot to cover on Harvard. We've got a lot of reader, sorry, listener questions and feedback based on our discussion

of the North Carolina case. And we're also going to talk a bit about the Paul Pelosi attack. There's now been both federal and state court filings that give a lot more detail as to what occurred. that give a lot more detail as to what occurred. And the story seems to be just as simple as the quote-unquote narrative that everyone was upset about online seemed to be, that this is a politically motivated,

targeted attack of somebody who broke in. And some of the details are even more chilling than that. So we'll get to all of it. But first, Harvard, oral argument. Sarah, we had a little bit of a discussion in the green room beforehand where I was saying, I found the North Carolina argument more interesting. You found the Harvard argument more interesting. What is it that you found interesting about the Harvard argument? more interesting. What is it that you found interesting about the Harvard argument? So, you know, we talked about the fact of why North Carolina went first. By the way,

just for those keeping track at home, argument time clocked in at about four and a half hours for Monday. It was a long time. And that's relevant to this. So UNC goes first, then Harvard. The Harvard case is the one that's gotten more attention. The record is more egregious, frankly. And the justices seemed way more familiar with the record in the Harvard case. Because of that, in any normal world, I think Harvard would have gone first, followed by UNC. And it would have changed, to me, the entire dynamic of the argument. Because, David, as we've talked about a little, there is a world in which you can strike down Harvard's admissions program and uphold UNC's. And we got a question about why that is. So both use checkboxes, and that's why the cases have been consolidated the way that they have been. UNC is a state school, which you would think would put it under

sort of stricter scrutiny, if you will, as a pure state actor than under Title VI, which is what Harvard's under for accepting federal funding. So on the one hand, you sort of walk into the case with UNC in the worst position. But the record that got developed in the Harvard case was just significantly worse, which is why in the Harvard case, there was that additional claim for intentional discrimination against Asian Americans that you did not have in the UNC case. So it, again, in a hypothetical world is very possible to say, no, no, no, we're keeping Grutter. You can use race in a holistic manner in your admissions process. Harvard, however, wasn't doing that. They can say they were doing that, but the record is clear that Harvard was using race in a mechanical way that resulted in the intentional discrimination of Asian Americans. UNC, yeah, they use a checkbox, but actually it

really is a holistic process and yada yada. If you had had the Harvard argument first, it would have been so much on the Harvard record that I think when then UNC got up to argue, it would have almost forced UNC into the position that I thought they would have been stronger in by saying, that ain't us. Let me introduce you to our record. We don't do any of that. Not that, not that, not that. Instead, with UNC going first, you end up, whichever case was going to go first, you were going to deal with their record, but also the sort of larger race in the admissions process should we overturn Grutter part. Because UNC got the brunt of that, it, I think, changed the dynamic a lot. Now, look, the case may turn out the exact same way.

Both may get struck down because of the checkboxes themselves. Fair enough. But I thought that the Harvard case and the record around it allowed the justices to focus in on what they thought the specifics problems were about the Asian American discrimination, which I do think is just a really fascinating part of this case that you couldn't really do in the UNC part. And they kept kind of trying and then someone would be like, that's the wrong case. So I thought the Harvard case was interesting for those reasons. And also and also the solicitor general who had argument time in both cases. In the UNC case that again went first, she's making points about how affirmative action and race in the admissions process

is really important to the military academies and to the United States' interest to have a cohesive fighting force, which was very persuasive. She then, they're like, okay, so we can just exclude the military academies and say that that's a different case for another time. She's like, no, no, because also ROTC. And they're like, okay, fine. How about schools that don't have ROTC? And she's like, no, no, we draw people from not ROTC too for the government. So she was making a pretty strong case for keeping affirmative action in place in the UNC case. Come the Harvard case, she's wearing a very different hat, David. Really different argument from the Solicitor General, almost like they were different people,

but they weren't. It was Elizabeth Prelogger all the way through. So I found that a really fascinating part of the Harvard case as well. Yeah, one of the things that I think was interesting from both, but then kind of really spilled out more in the Harvard case, was the originalism argument about the 14th Amendment. And I want to beat on an advisory opinions horse for a bit. It all shows the difficulty of this sort of post-ratification historical analysis, which is now supposed to be better than balancing or tests or layers of scrutiny.

balancing or tests or layers of scrutiny. And as we've explained many, many times, and as I've discussed many, many times, post-ratification history is often really messy, really messy. And I think that that was pointed out pretty well in the Harvard case where essentially the Council for Students for Fair Admission was saying, look, a lot of the post-ratification history on the 14th Amendment is states trying their best to undermine the 14th Amendment. And so, therefore, you know, if you're going to be looking at that post-ratification history, it's a whole lot of Jim Crow, because it was very soon after the 14th Amendment was enacted that you had the election of 1876. You had the withdrawal of Union troops from the occupied former states of the Confederacy.

You had the imposition of Jim Crow. And so post-ratification history of the 14th Amendment is incredibly, incredibly messy. messy. And so you ended up doing this thing where you're looking through various states to see, is there some post-ratification history that isn't tainted by the pervasive racism of the time? And it just felt to me to be like such a futile exercise so that now the legislators of the state of Kentucky in the late 1860s are now what? The definitive experts on the 14th Amendment? I'm not so sure about that. Can we stick with the text for a while? Can we stick with that text?

That would be good, thank you. So a lot of that, I thought that was interesting about Harvard. The other thing that kind of stood out to me was for the second straight time on the same day, Justice Sotomayor just seemed to make a couple of arguments that really didn't make a lot of sense. And one of them that she made was that, well, wait a minute, if you're starting to consider things like religion or you're considering someone's experience with discrimination,

to consider things like religion or you're considering someone's experience with discrimination, isn't that a form of viewpoint discrimination? Well, Harvard is a private university. Title VI prohibits discrimination on the basis of race. Title IX would prohibit discrimination on the basis of sex. Private universities are going to be able to discriminate on the basis of viewpoint, not just in students, but also in faculty as well, and do so all the time, by the way. So that's something that I think was a little weird. It just kind of came out of left field. But the reason why I found North Carolina more interesting, Sarah, than Harvard was precisely because North Carolina didn't have, aside from some of the quotes and comments that were in the

record that were pretty brutal, North Carolina didn't have the same level of bad facts as Harvard. So it felt like- That's funny. So you found UNC more interesting because it was a more distilled version of the arguments around race and admissions. I found Harvard more interesting because it was the most extreme version. Harvard had been cited in Bakey and in Grutter as the gold standard for an admissions process. So actually we thought the exact same things. It's just that we found different ones interesting. Right, exactly, exactly.

Can I jump into some of the transcript on the Harvard argument? Yes. So there's this uh, there's this one exchange and it touches on two important issues in the case. Um, and it's an exchange between justice Barrett and solicitor general pre-logger, then Kavanaugh jumps in and pre-logger answers that question. Um, and justice Barrett's question, they circle around it many times over four and a half hours, as most topics did get a lot many times over four and a half hours, as most topics

did get a lot of attention in four and a half hours. And this is about what is that 25 year deadline mean in Grutter? Obviously, the plaintiff students for fair admissions, we'll call them SFFA for the rest of this podcast, if that's okay. SFFA obviously wants that to be like its own constitutional rule that Grutter expires in 25 years. I find that the least persuasive part of this four and a half hours, because in every other way, conservatives would not treat something that is so clearly apart from the text apart from the original meaning i mean that is a legally creative judicially created rule if i've ever heard one in my life that something will expire at an arbitrary time a quarter century later with

no regard to what will be happening at that point 25 years later, and yet we're supposed to stick by it for funsies. So it is important to know, I start from a very skeptical place on the plaintiff's side of that argument. Here's Justice Barrett's question. And this is at the beginning of Solicitor General Prelogger's portion of the argument. She's talked about how the structural barriers that were

around in the time of bakey and grutter still persist justice barrett but what if the structural barriers that there's not a remedial justification on the table here our precedents rule that out what if the structural barriers just make it impossible 25 years from now to sit here and say that without race conscious admissions, especially if Harvard wants to keep everything exactly the same with respect to other metrics like SAT scores not dropping at all and the museum and the squash team and all that stuff, what if it's just impossible? And so what if Grutter was grossly optimistic in what it thought was achievable? And perhaps Grutter, as we've talked about earlier in the argument, emphasized the risky and potentially poisonous nature of race classifications. What if there's no end point?

Prelogger. I do think that, yes, the compelling interest would still exist there. I recognize the force of the point that there are structural barriers that can impede progress, but I think it would be wrong to suggest that those barriers are going to exist in perpetuity in all places and with respect to all schools. The states are not similarly situated in this regard. There are nine states that have barred the use of race in college admissions, and many of the universities and colleges in those states have been able to still achieve enrollment of diverse student bodies. And I think it's incumbent on every college and university around the nation to study from and learn from those examples. And it's not accurate to say that if we look forward into the future in 25 years, still all places throughout the nation, it will

be necessary to have race conscious admissions. And here's the fun part. But I do want to be responsive as well to the point that you made about resisting any changes whatsoever. And be clear on behalf of the United States that we do not think that a university could reject a race neutral alternative because it would have those kinds of modest impacts on things like SAT scores. And then she says,

if the court has any concerns that lower courts are not applying that stringent standard, then I would urge the court to make clear in a decision and provide guidance going forward, i.e. send it back. Justice Kavanaugh, I think that's very important what you just said. So you're saying an adequate race neutral alternative, it would be permissible for the court to say that you have to eliminate things like legacy, children of donors, if you could obtain, if you could meet your diversity goals by doing so and doing a race neutral

admissions. Do I have that correct? Yes, that's exactly right. Justice Kavanaugh, Justice Sotomayor jumps in, but I'm sorry. At what point does that become dramatic? Harvard won't be Harvard if it drops from 2,200 to 500. And is there a point at which the change is significant or insignificant? And it's going to go on from there where Justice Sotomayor is really thrown back on her heels and is trying to pull back the solicitor general. And fascinating, to a large extent, Prelogger resists that and says, yes, of course, there would be a point at which it's significant, but a drop of 40 points in the sat score that we're talking here that ain't it now then pre-logger says there are other things here that you could say out are different she says with respect to simulation d in particular it wasn't just changes to sat score this is pre-logger i think the most substantial reason that the district court rejected it as a workable solution was the precipitous decline in the number of African

American students. They would fall by about 30%, coupled with the impact on reductions in the number of students who had the highest academic and extracurricular ratings who would then be admitted. But wow, David. Yeah. So I will tell you why I thought that was really shrewd of her. So why I thought that was really shrewd relates back to the UNC oral argument, because in the UNC oral argument, an awful lot of time was spent on whether or not race neutral classifications were in fact in the clear. If the race-neutral classifications that were put in place for the aim of increasing diversity, I should say, or that had material impacts on diversity, were in fact in the clear. And this was something that

the, you know, oh gosh, why am I blanking on the name of the oral advocate for SFFA in the UNC case? It was Patrick Strawbridge for UNC and Cam Norris for Harvard. Yeah, so Strawbridge, Patrick Strawbridge and the justices went back and forth for a bit on this whole notion of race-neutral alternatives and can race or race-neutral alternatives always going to be acceptable and so i think and i i'm not in general in general prelogger's head here i think that what she's doing here is trying to show yes race-neutral alternatives that increase diversity should be okay like they should be okay because Like they should be okay. Because that was actually something that came up as a question mark in the UNC case, which was what if we implement race neutral alternatives

with the goal of racial diversity? Is that going to be a problem? And I think a smart oral advocate is saying, huh, I think Harvard is toast here. I think Harvard's pretty much toast, but here's what I do want to preserve. I do want to preserve race-neutral alternatives implemented with an eye towards racial diversity. And I think that was an, I'm with you, that was a very, very interesting exchange, extremely interesting exchange. And worth talking about, because we got a question in the comment section as well.

Do we think that that's legally cognizable, this idea that, for instance, Texas Institute's the top 10 percent rule for the purpose of racial diversity in its state universities. So does it matter that you're not using race as a primary consideration? You're using race-neutral means, but the purpose is to achieve racial balancing and that, in fact, you create a race-neutral alternative that you know will result in racial balancing. Aren't we just going to have that lawsuit in a few years? We'll have that lawsuit. And isn't that the TJ lawsuit? Yes. Yeah.

And TJ, remember, this is the high school in Virginia. It's a magnet school for STEM students. They were using simply score-based GPA and a test score. And they then believed that their school was becoming unbalanced racially. It was about 70% Asian American. They changed their admissions criteria to be sort of a modified top 10% rule. They moved to, I think, whatever, I'm going to make this up a little bit, but three students from every junior high, knowing that the Asian American population was concentrated in three of those junior high schools, and then looking at a, quote, holistic application process with an eye towards racial diversity.

And there's plenty in the record that says the purpose is to lower the number of Asian American students at the school. That is absolutely going to be the number of Asian American students at the school, that is absolutely going to be the next case sooner rather than later. Yeah. And, and interestingly, this circles back to something we didn't talk enough about because we had so many things to address on, when our first discussion, a case that came up. I felt overwhelmed. I did. I literally, you could have pulled on any given thread of it for three hours. Yes.

So it circled around to this case that we've not really talked much about, Village of Arlington Heights versus Metropolitan Housing Development Corporation. So this is a case that came up in UNC. And this goes to what I would say is race neutral measures that are specifically designed to be discriminatory. In other words, to engage in, they're designed for the purpose of engaging in invidious discrimination, not creating diversity. Which again, like this is what's interesting. The TJ example, again, let's take it in the facts most helpful to the plaintiffs. In the TJ example, the purpose is to be discriminatory, to hurt Asian American applicants. In the Texas top 10% example, the purpose is simply to have racial balancing that looks like the state, which is

why they're just going to take students from every high school, because then it will literally look like the state, even if the purpose is racial balancing, it was not to in particular hurt or help any given race. But, and this is where I want you to talk about Arlington Heights. Does purpose matter? Does effect matter? Because we've had the Supreme Court say different things about that in different contexts. Yeah. So this is kind of an old argument that's, well, old perennial argument. It's constant. It comes up all the time. Purpose or effect?

And what's the interplay between purpose and effect? In Arlington Heights, Arlington's Planning Commission denied a bid to create racially integrated low and moderate income housing. The denial was challenged as racially discriminatory. And the question was, was this was the denial, which was allegedly on the basis of race-neutral criteria, did it violate civil rights laws? And what the court said is that a denial can result in a racially disproportionate impact, but in the absence of evidence of deliberate intention, But in the absence of evidence of deliberate intention, well, then the disproportionate impact is not necessarily going to be enough. Except that's not what we do in the Voting Rights Act cases. I mean, again, it's like First Amendment jurisprudence to Second Amendment jurisprudence. There's no consistency. It's all over the place.

And let me actually add a third bucket. So there's purpose and effect. And then there's also sort of facially, you know, is it race neutral on its face? Because here, of course, we don't have a race neutral admissions process on its face. Then we're talking about moving to a race neutral alternative. And that's where we get to the purpose and effect problem. And does the Constitution, does the 14th Amendment care about any of that? But then, of course, the problem is if the 14th Amendment only cares about race neutral, then TJ is fine. Texas is fine.

Anything that's race neutral on its face is fine, regardless of purpose or effect. Woof. And we know that can't be the answer. Right, right. And so it appears that what you might end up having is that instead of sort of the Grutter type framework, you might go more towards an Arlington Heights type framework, which is essentially a race-based classification, explicit race-based classification, is going to be unlawful. Race-neutral alternatives are going to be kind of what you might say presumptively lawful in the absence of evidence of invidious discrimination, in the absence of evidence of intentional discrimination on the basis of race. So, in the absence of an evidence of intentional discrimination on the basis of race. So post Harvard in the TJ case, the plaintiffs would come in and say,

okay, this looks all race neutral, but this is Arlington Heights. This is, we have evidence of intentional discrimination against Asian Americans. And so that to me was attorney, general prelogger coming in is coming in and saying, okay, wait a minute. What so that to me was Attorney General Prelogar coming in, is coming in and saying, okay, wait a minute. What I want to do is say, I want to make it presumptively lawful to have race neutral as a fallback argument. If Harvard's not going to win, it's a fallback argument. I want to make it presumptively lawful to haveneutral policies that are enacted for the purpose of racial diversity. I think that's what she was wanting to establish. So that if you produce evidence that the purpose of the race-neutral alternative is racial diversity, that's not Arlington Heights.

Arlington Heights would have to be, I'm trying to penalize a specific racial group. You know, in the TJ case, we've gotten some questions about this as well. So, okay, there's a few things in the record that you could draw the inference that the purpose is to discriminate against Asian Americans, to reduce the number of Asian Americans in the school because 70% is wildly out of whack with the percentage of Asian Americans in the population that Thomas Jefferson High School draws from. But, okay, so let's assume it gets struck down for a second. And two years later, a school board's like, yes, but we would like to move to a Texas top 10% rule because the purpose of Thomas Jefferson High School is to educate this entire area in STEM. And that's not what's happening right now.

It is drawing from one part of the community, like literally these three junior highs and the rest of the junior highs aren't getting students in. So we're just going to change it so that every junior high has sort of an equal opportunity to come to Thomas Jefferson High School because this is a magnet school. It's not a private school. And the purpose of the magnet school is to serve the community. I wonder how far away from the dumb school board people who said things about Asian-Americans one has to be. And we've dealt with this, by the way, in that voting rights context, where you have state legislatures say incredibly dumb, racist-ish things. And then later state legislators are like, that's not what we wanted though. We just think the policy actually has underlying merit. This is where this all gets messy. And it's why that grutter 25 years I keep coming back to.

So by the way, here is Cam Norris arguing for SFFA on what he thinks the 25 years I keep coming back to. So by the way, here is Cam Norris arguing for SFFA on what he thinks the 25 years means. I think that what people forget about the 25 year mark or the four paragraphs you mentioned before, where they explain that racial preferences will fail their own acid test unless they make themselves unnecessary. So I think what Justice O'Connor was saying is that in 25 years, if we still need race, it's not that you get another 25 years. It's that we then declare racial preferences to be a failure and call it off

and go to race neutrality and try that instead. I just think that the 25 years out of Grutter is so insane to me. It was insane at the time. It's insane. We're arguing about whether you get another 20, like whether it's the underlying purpose of Grutter and whether that's been met here in 2022.

The answer I think is pretty clear to argue, no. All racism has not been eliminated in the United States in 2022. Great. On the other hand, the fact that we have nine states, whatever that number is, that have moved to race-neutral schools, and that in Berkeley University, white students are the third most represented students at the school, this gets to David Latt's point. And we've talked about David Latt a lot in this podcast. Yes, we're huge David Latt fans. I know he basically should just be a third member of this podcast. Send him notes about that, by the way. We need to bring him back. He's only

been here once. We should. He wrote the most wonderful newsletter on this. Again, it's called Original Jurisdiction. He is obviously an Asian American male who went to Yale Law School. I know, bless his heart, on the Yale thing, obviously. And he's talking about the fact that, yes, in Harvard and UNC, they don't like Berkeley's race-neutral admissions policy, and they don't think it's a success just because white students are the third most represented. Therefore, it's actually an incredibly diverse student body. And even though Harvard under simulation D would massively increase the number of Asian-American students and decrease the number of white students, they don't consider that diversity. decrease the number of white students. They don't consider that diversity. And this is David telling a story about a friend he had who was getting his four-year-old through the preschool application

process for private school recommendation letters. And the consultant told him that elite preschools value diversity. My cousin excitedly told the consultant, she's from the Philippines. Her husband's from Australia. Their son has already lived in multiple countries and been exposed to many different cultures and languages. I'm sorry, the smiling consultant said to them, but that's not what these schools are looking for. Your child does not offer visual diversity. Visual diversity, that sad, shallow, hallowed out vision of diversity is exactly the kind of diversity that Harvard, UNC, and other educational institutions are obsessed with. That's the kind of diversity these schools are seeking by giving pluses to applicants who quote, check the box. Checking the black box doesn't guarantee a

black experience. The descendant of former slaves, the child of the Nigerian tycoon, and our son, Harlan, have had very different life experiences. And as a result, they probably hold very different worldviews. But here's the one thing that all three of them can reliably deliver, thanks to their darker skin, visual diversity. So in the end, what Harvard and UNC are arguing is that visual diversity is the compelling state interest. Having classrooms and admissions brochures that look like Benetton ads can justify resorting

to racial classifications that we have justifiably banned pretty much in every other area of American life. Now let's look at the visual diversity from the Asian American perspective. The evidence at Harvard's trial showed that Asian Americans were disfavored even compared to whites, which is why Asians are widely seen as, quote, the new Jews, referring to how Harvard subjected Jewish students to quotas in the 20s and 30s. So what might justify giving white applicants preference over Asian ones? I respectfully submit that it's not because we would detract from the diversity or experience on campus. And then he talks about his own experience with discrimination being called a

banana or a Twinkie, yellow on the outside, white on the inside, growing up in a largely white community and being different. But giving white applicants a preference over Asians does make sense once you remember that the schools are looking for visual diversity. Having a class that's 43% Asian, even if those Asian American students have life experience that are as diverse or even more diverse than their white peers, terrible for visual diversity the fact that many of us have dark hair and dark eyes i.e we won't have the greater visual diversity of white people who have more variation in hair and eye color as a matter of biological fact just makes things worse see generally all look same.com i mean dot com. I mean, David just, it was, it was well-written. It was compelling. And the Benetton ad idea has really stuck with me for those who don't remember Benetton ads. This was a clothing

company and it was sort of a joke because every ad would sort of have one of each archetype of race looking happy in their clothing. It was colorful. Well, and you know, I think that's really strong, especially when you go to what Cameron Norris basically threw down the gauntlet about in his part of the oral argument, Cameron Norris, for those who keep in track, he is representing SFFA in the Harvard case. It was like, Harvard's not diverse. He just went there. He just said, what are you talking about? Harvard is not diverse. And he talked about how Harvard is 80 plus percent wealthy, how narrow the experience of the Harvard student body is.

It's overwhelmingly on one side of the political spectrum. There's an enormous amount of uniformity at Harvard. And you know what? He's right. Of all of the places that I have spent significant time in, in my entire life, the most uniform places in many of the most important contexts of life, such as religious outlook, such as ideological viewpoints, such as socioeconomic status, are the two Ivy League institutions I've been associated with in my life. Law school, where I went at Harvard, and Cornell, where I taught. These places are monocultures in a big way. I mean, I remember when I was in the faculty at Cornell Law School, the vision of political diversity then was,

is George W. Bush evil or just misguided? Like that was the whole- Evil or stupid. Yep, that was the whole diversity with a few tiny outliers here and there. And so I think it was really good of him to just say, look, what are we talking about here? Harvard's not diverse. And I think that was a powerful point

because diversity is allegedly creating the compelling governmental interest or the compelling state interest that is permitting the race discrimination. As people say at one's lectures, I have a comment and a question. Comment. I do, though, think it is worth flagging the socioeconomic admissions criteria problem that if the purpose of using socioeconomic status and let's use income specifically is to create a more racially diverse class, this gets to our purpose and effect, you know, problem again. But then you end up with non-white students, underrepresented minority students who all come from poor

socioeconomic backgrounds. And that creates its own lack of diversity, frankly, that then the assumption on campus is that anyone who's not white is poor. And that therefore, when you go out to the world, that all non-white people are poor, which is not true either. And I do think that would lack diversity in its own way as well, that there actually is a different experience. And you bring a certain diversity as someone who is non-white and not poor for the very reason that there are these stereotypes out there. And so moving to pure socioeconomic income based, to me, creates a different problem for these schools that I am sympathetic to, actually. Now, as the SFFA folks pointed out, there is a difference between using and what you can use socioeconomically,

some of which would be really helpful. So for instance, in the simulation D, where black enrollment would go down 4% if they then provided tips for socioeconomic income, they actually suggested that it could be very different if they used wealth instead of income and that that could have a much different effect. And it would solve some of my issue to use overall that generational wealth gap rather than simply income in the moment from parents. But David, here's my question to you. At points, again, four and a half hour argument. At points, we kept circling back to a question about religion. Justice Kavanaugh seemed particularly interested in why the schools care so much about racial diversity, but not religious diversity. For instance, asking Seth Waxman, who represented Harvard, that question and pushing him.

Seth Waxman's like, but because we're already religiously diverse. And he's like, how would you know? You don't ask that in the admissions process. His answer was, we have a lot of chaplains. And Justice Kavanaugh was like, okay. But a question that came up is whether religious affiliated schools,

Georgetown to Notre Dame to BYU, whatever else, BYU is a state school, so maybe that shouldn't count. Whether religiously affiliated schools could argue that under the first amendment, their religious beliefs require them to seek racial diversity. And therefore they get to keep using race-based admissions. When for instance,

Harvard, which I think is Methodist in theory, but not actually. All these schools have some religious affiliation. It's just not one that we like. Princeton, Harvard, they all were started as religious institutions. But basically Georgetown wants to keep using religious affiliations.

They filed a brief saying, whatever you decide in this case, make sure it doesn't apply to us because our religious mission is to provide racial diversity. David, what do you think of this argument? Well, that's going to run headlong into a couple of pieces, a couple of Supreme Court precedents.

One, Newman versus Piggy Park. So this is a civil rights era case where a barbecue restaurant was excluding Black customers and said that it had a religious, he had the religious religious liberty and it was his religious belief that he shouldn't have to serve black customers. And I believe the quote that the Supreme Court had in dismissing that argument was calling it patently frivolous. So in other words, the public accommodation statutes were going to overcome religious liberty objections when it came to invidious discrimination on the basis of race. So this has long been a precedent that's been used to say, okay, wait a minute. If you're a commercial establishment, you're a public accommodation, and you're going to try to

make a religious argument in favor of discrimination on the basis of the categories described in Title VII, you're losing. Then you had a religious institution, Bob Jones, which discriminated on the basis of race by banning interracial dating. Okay, this was a religious argument for banning interracial dating. And the Supreme Court said in the Reagan era, you can't get a, it upheld the IRS's decision to revoke its tax exemption. Now you might say, okay, Piggy Park and Bob Jones, you're, in both of those cases, you're dealing with intentional malicious discrimination on the basis of race where you are trying to, this is sort of Arlington Heights kind of territory to import a different case where we were talking about intentional, malicious racial discrimination. So that makes me skeptical that Georgetown could have anything like a Harvard-style program.

If you could demonstrate that, for example, it led to systematic discrimination against Asian applicants, you've got some precedent there that you're going to have to overcome that's been in place for a very long time that has been kind of a bedrock against arguments that, you know, people of fringe religious faiths that are explicitly discriminatory are going to be able to opt out of the civil rights framework, at least when it comes to actual public accommodations, when it comes to actual commercial establishments. So I'm a little skeptical of that under existing precedent, Sarah. incident, Sarah. Dear Georgetown, when writing an amicus brief, do address the arguments against you as well. Not all amicus briefs do that, by the way, so it's not that Georgetown is special here. You know, you just want to like get your point across. They actually do have to be pretty short,

so you can't dive into addressing all of that. But the fact that they don't mention Bob Jones or Piggy in their brief at all, I think makes it a little difficult to take seriously their argument that they have a separate religious interest in race-based admissions. David, I also want to talk about the descendants of slaves argument that comes up in the course of both UNC and Harvard. But again, I thought the Harvard one was more interesting. So ha. Over four and a half hours, the justices really do hone their questions, though asking the same ones at points. So this starts, we're back to Cam Norris arguing for Harvard. Justice Gorsuch, counsel, if I could return a moment to the drafting of the 14th Amendment, you said we should ignore the post-ratification history,

but let's just pay a little attention to it for a moment. In the briefs, we have discussion about the Freedmen's Bureau that Congress set up. How is that consistent or inconsistent with your position? And we got this question in the comment section as well about all of the post 14th Amendment ratification race specific programs that were started by the federal government. Norris, I think it's entirely consistent. The Freedmen's Bureau, for the most part, did not draw any racial classifications. It was a classification on the basis of being a former slave or a refugee. And the refugees at the time from the Civil War were mostly white. In fact, when objections were made in Congress that this is a racial-based law, the people who supported the Freedmen's Bureau denied the charge.

They said, they didn't say yes, but so what? They said, no, it is not. It is not race-based at all. Justice Kavanaugh. So today, a benefit to descendants of slaves would not be race-based, correct? Norris, I think that's all. Justice Kavanaugh. So today a benefit to descendants of slaves would not be race-based, correct? Norris. I think that's incorrect, Justice Kavanaugh. Well, you just said a benefit to former slaves was not race-based in the Freedmen's Bureau. How is it different now? Norris. The remedial exception that this court has recognized is fairly narrow.

Justice Kavanaugh then runs through like, you just said what you said to Gorsuch. Norris, I think there's a difference between the former slaves themselves getting a benefit versus generations later. I think that's the classification on the basis of ancestry, which is still problematic under this court's precedent. And even if it's not directly race based, I would assume that universities, and it would depend on the record, but universities are drawing that classification as a proxy for race in ways that the Reconstruction Congress was not. Interesting, David. Kavanaugh comes back to this a couple times in UNC as well.

I'm expecting a concurrence from Kavanaugh that specifically says that while schools cannot use checkboxes, they can use things like ancestry of former slaves, for instance, as a race neutral alternative in their programs. And I think it's going to look very similar to his concurrence in Dobbs, where he says, yes, we're getting rid of this. But let me tell you all the things in the Dobbs case that won't fly. In that case, he calls right to travel. He insinuates the life of the mother. In this case, he's going to say, but let me tell you all the things that will fly.

Descendants of slaves, wealth, and other, again, David, what I think will be difficult down the road of race proxy, race neutral alternatives. Yeah, no, that was a very interesting line of question. And I think the response sort of dealing with things like the Freedmen's Bureau was spot on. Now, the question about the ancestry and the descendants, I found that a little less convincing that that was problematic all by itself to consider. I do think that, you know, there is. I'll tell you, I don't think it's very fair. Yeah. Like if you came to this country as a black immigrant in the 1930s and want to send it from slaves, but we're still

very much, uh, yeah. Like, I don't know that you're better off today, but, but it's, I agree with you. I'm not sure that schools couldn't use it. I just would tell the schools that I would not find that sufficient. Right. Right. Yeah. Yeah. I think there's much more of a fairness argument because the, you know, there are, there are descendants of slaves who are members of Congress, and are their kids particularly disadvantaged compared to, say, somebody like your example from somebody who came in the Jim Crow era? There's a fairness issue there. And at the same time, there's Japanese internment. Like, the schools can ask all of those things. I think it would be very interesting,

but necessary but not sufficient? Yeah, yeah, no. Not actually necessary, but possible but not sufficient. And I think one of the things that this argument showed was there's so many different ways to sort of think about an incoming class and so many different ways to sort of think about an incoming class and so many different ways to sort of compose and to create an incoming class. But the argument that the SFFA is making is the one

thing you just can't do is make that determination on the basis of race. And then, of course, if sex were an issue, you also can't make that determination on the basis of sex. But there's a lot of things that you can still look at, which is one of the reasons why I think the reality is that you wouldn't necessarily see a major sea change in college admissions here. It would be, in reality, kind of a change along the margins. But, you know, I could be completely wrong about that. But the case did show that there are so many different ways to think about it in admissions philosophy. And the plaintiffs are saying, but just not through the prism of race. Yeah. Yeah. And look, through the course of reading about this case, hearing about this case,

four and a half hours of argument in this case, hearing about this case, four and a half hours of argument in this case, I have changed my own beliefs on how I would run a perfect admissions process. I no longer believe in objective criteria like grades and test scores alone. I no longer think socioeconomic status based on income or even wealth alone would achieve the type of diversity that I would want in my class. Um, at the same time, I absolutely believe that it has to be race neutral and not just in, um, and it's facial, but to a large extent purpose, if you've created a good admissions process, you should have racial diversity, but it probably won't be the same percentages every single year. It probably

should reflect your applicant pool, if anything. And I did find that to be a compelling argument on the side of Harvard, which was that the variation in Asian student admissions, which of course, SFFA was arguing was mechanical because it stayed within a three point, you know, grouping every year for like 15 years, that in fact, the applicant pool variation was smaller. So as in the percentage of Asian American applications actually stayed remarkably the same over that 15 year period within a 1.5% change. But Harvard's admission of Asian American applicants changed three points over that same time, up and down, by the way. over that same time, up and down, by the way. To me, that is actually a better judge of how you're doing in diversity. You know, are you sort of picking the best and a little bit randomly, frankly? I'm not sure that it's all that important that your SAT scores are at the very top

if you care about diversity. It's something that I like to tell my back when I was a staffer, you can only have one priority. Truly, you can have a priority number two, but you can only have one number one priority. If your number one priority is diversity, that's great. Then make it a diverse, interesting school. And that's going to mean that academics cannot also be your number one priority. Pick Harvard. Yeah. Yeah, as I've said before, I was on the admissions committee at Cornell Law School, and I've seen all this right from the inside. And I will say that there are really good reasons to not just go with test scores alone. Let me give you an example that maybe some of our conservative listeners will resonate with. Had a candidate, a notch below a lot of the other candidates, white male, so no, you know, upper middle class, white male, but a notch below, just a notch below.

We all voted him in unanimously. Why? He was the pilot of Marine One. So. That's super cool. That's diversity. So there are ways in which, and what is Cornell Law Schools, was Cornell Law Schools, and I don't even know if he said yes.

You know, we sent out the offers, didn't necessarily track everyone. And so does that mean that Cornell Law School might have been better off having the former pilot of Marine One? I guarantee you, yes. I mean, classmates would have found it, found it fascinating, interesting, different perspective, completely different perspective. And so, there are a lot of ways. Here's another one, geographic diversity. So, you know, we would have a situation where do you take the 15th person from New York City or the 25th person from New York City or somebody with very similar credentials who's from Kentucky? You know, do you take the first person from Kentucky or the 25th person from New York City?

All of these things, it's not an exact science. It's kind of alchemy. But absolutely considering these kinds of factors matters a lot. But I can also tell you, as soon as it veered into the racial discussion, man, it changed. It just changed. And I got just deeply uncomfortable, deeply uncomfortable with a lot of conversations. But anyway, I hear you, Sarah.

I think we'll put a pin in this. If you have questions about the argument, drop them into the comment section, become a member of the dispatch and hop into our very fun, interesting comment section. I love reading all the AO comments because probably we're going to come back again at some point to this argument, certainly between now and June.

But I do want to mention two other fun things. Got a longer email from our AO listener who started as number one in line on Sunday morning with some details from the line. So he was number one, showed up early in the morning. And let's see. He was number one in line, showed up early in the morning on Sunday, says, I was quickly joined by a group of college freshmen and me immediately agreed to some sort of to be defined system for order before codifying and instituting it. However, spot number one in line was superseded by two 3Ls who claimed they had scoped out the area previously and were merely not staying because no one else was here yet. and were merely not staying because no one else was here yet. Whoa, 3Ls!

Now, you're lucky that James did not out you for what school you went to. I would have. And I would shame you on this podcast. That's the most absurd thing I've ever heard. We didn't stay because no one else was here? Yep, that's how it works if you want to be number one in line. You stay until someone else shows up to become number two. Before severe escalation, he continues, we instead focused efforts on obfuscating future bad line behavior.

And thus the list was created. In the end, the first ticket oddly went to someone in the other bar press line. We did not enact sophisticated legislation and simply advised a heuristic of democratic legitimacy, which turned out to be surprisingly effective. People took the list very seriously.

He also said there was one line sitter. And David, I hate when AO listeners do this. I say something strongly, definitively, my belief system, and then they undermine it and they make me question my beliefs. All right.

The name of the person that he was line sitting for was M. James is not a line sitter. This is the line sitter was line sitting for someone named M. Suspicions before real M arrived about this character permeated in line. And at some point, some line sitting compadres arrived, but he and they were deferential to the list. And upon briefing that the list was curated for only 50 people, respectfully took their proper place in line. They left soon after. Now, M joins the line here. The going rate for the service of the line sitter was,

David, wait for it, $40 an hour for 12 hours of guaranteed service. Wow! That's a lot more than I pay for a babysitter. Whoa. The person who

was taking the place in line paying the line sitter was related to the case had gone to harvard law school which i don't love um but was pregnant and there were a confluence of factors which all acknowledged as warranting the means employed you're pulling on my mom heartstrings here that the pregnant lady didn't want to sit in line for 12 hours and it's like her case of some kind. Actually, I say not Harvard Law School. This sounds like the person is related to the Harvard undergraduate admissions process. All right. All right. I don't know. That's tough. I'm changing my mind, David. Well, so what you have to do is set up a default rule,

which is no line sitting unless a nine-person commission from the remainder of the line grants a special dispensation. So, yeah, have a line Supreme Court. And we'll take a quick break to hear from our sponsor today aura ready to win mother's day and cement your reputation as the best gift giver in the family give the moms in your life an aura digital picture frame pre-loaded with decades of family photos she'll love looking back on your childhood memories and seeing what you're up to today even better with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame.

Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com.

Use code advisory at checkout to save. Terms and conditions apply. uh well david we've got a few minutes left should we talk about the attack on paul pelosi in san francisco yes and also i just wanted to very briefly mention the effort to try to get amy coney barrett's oh yes that's removed yeah yeah which one first let's do the Barrett book first. All right. Perfect. All right. So she's got a book coming out from Penguin Random House. And a coalition of individuals decided to petition to try to get the publisher to rethink its commitment to publishing Justice Barrett. And let me, there's a couple of hobby horses here for me, Sarah. Hobby horse number one is just

sort of the cancel culture angle. Please, you disagree with Justice Barrett. Justice Barrett is, this is sort of a classic cancel culture case, which I talk about, which my favorite definition comes from Nick Christakis, a Yale professor who talks about it as, look, you take a person or expression that is within the Overton window, broadly defined as that range of acceptable speech in the United States of America. You organize an online or otherwise group to try to either deplatform them or punish them for engaging in that speech. Classic sort of cancel culture stuff. I mean, I'm sorry, Justice Amy Coney Barrett isn't just mainstream. She's in the majority of the Supreme Court on the Dobbs decision, which is the main critique. So this is sort of cancel culture stuff. Penguin, to its

credit, has said, no, we're still publishing anyway. But then I have another hobby horse, Sarah. And it is when people who are smart, but smart maybe in some relatively narrow areas, smart, but smart maybe in some relatively narrow areas, try to move beyond their area and say things that are really ridiculous. So here is the key paragraph. Therefore, we believe that moving forward with Coney Barrett's book places Bertelsmann and Penguin Random House both in direct conflict with their own code of conduct and in violation of international human rights. What? What? And I went and I looked at the signatories, and that's a list of smart people, Sarah. There are smart people in that list of signatories and that a high school senior,

no, junior, sophomore, sophomore, high school sophomore should know that publishing a book by Supreme Court justice is not a violation of international human rights. So what the heck, guys? What the heck? You ruin your own credibility. And you feed into all the stereotypes, and it's not going to have an effect in this case. She's a sitting Supreme Court justice. And so all it does is provide evidence for the next time that it's more of a close call, that they're like, well, see, nothing happened to Penguin, so we're good. You're actually undermining your own future power and effectiveness and obviously destroying your credibility in the process. Yeah. Yeah. And, you know, I want to just say something a

little bit more about this sort of expertise thing. We see this a lot in our culture where people are smart or good or one area in one area or sort of called upon to therefore be seen as competent in many areas. You know, Elon Musk, for example, has done pretty remarkable things and put getting SpaceX off the ground and turning Tesla into a world-class auto company doesn't know, doesn't mean he knows how to solve the Ukraine-Russian war, right? But feels very free, of course, to believe that he does and to continually speak about it and therefore betrays that he doesn't know what he's talking about or is deeply influenced by some sources that are quite suspect.

You see this in a lot of our politics. One of the most obvious examples recently is an outstanding running back. That's not necessarily a great way to prepare for being a United States senator. You see this and some, this distresses me to say this about, you know, the military, but there's a lot of former generals out there who are quite frankly, just off the reservation. And one of the things you have to realize is that, you know, in the military, you can get promoted and you can get promoted very high in the ranks for some really specific expertise, some really specific skill sets. And that does not mean that you are therefore somebody who's wise in other areas of life. So we need to be a little bit less focused on either fame or credentials that you admire for good reasons,

but don't necessarily have a lot of resonance. Just a little bonus side Patreon content there. All right. The Department of Justice has charged someone in the attack on Paul Pelosi. We have a lot more details about what happened that night, which is good because just Twitter conspiracy theories abounded in the wake of this attack. Just all sorts of things that

had no evidence for them were based on the flims Department of Justice filing in this case to be more chilling than I expected about what happened that night. then the the state filing which we'll put that in the show notes as well provides even more detail along those lines and it's incredibly so he comes in he at two in the morning asked yes two in the morning uh he asked to see uh speaker pelosi uh paul pelosi says she's not there won't be there says he's gonna basically wait then says he's going to basically wait, then says he's going to break her, interrogate her. So essentially the goal is to detain her, to interrogate her, to threaten to then break her legs, break her knees if she doesn't answer questions to satisfaction. So what we have here is a hostage situation with an unbalanced individual where Pelosi actually pretty cleverly seems to convince the guy to let him make a call. Yeah, this part's interesting to me because it's a

little unclear. He convinces him to let him go to the bathroom. with the knowledge of his attacker. Yeah. Yeah. And then Pelosi is saying he does not need police. Correct. He's trying to get 911 to understand the situation. Someone I do not know has come into my home, broken through the window. They have appeared at my bed. No, I do not know who this person is. I am Paul Pelosi. This is my address. No, you don't need to send anyone. We're fine. And the 911 operator,

unfortunately, appears to take him at face value, isn't putting together what he's trying to say, that there is someone in his house. It's a little bit shocking because it would seem kind of obvious if you get a call at 3 a.m from nancy pelosi's husband saying someone he does not know is in his house but he's fine why did you call sir like you know like the very clearly a hostage situation and instead she calls for a welfare check which is good but it takes eight minutes for police to arrive and eight minutes on the one hand doesn't sound like much but just imagine how long eight minutes is in this situation and then you know some of the dialogue

here is it says i'm reading from the um from the, um, from the San Francisco, from the state filing, the dispatcher clarified that Mr. Pelosi was calling San Francisco police. Mr. Pelosi said that he understood and then asked someone, I don't know. What do you think? Another man responded, everything's good. Mr. Pelosi then stated, uh, he thinks everything's good. Uh, I've got a problem, but he thinks everything's good. Yeah. And they just don't pick up on it. Yeah. When the dispatcher told Mr. Pelosi to call back if he changed his mind, Mr. Pelosi quickly responded, no, no, no. This gentleman just came into the house and he wants to wait for my wife to come home. And the dispatcher then asked Mr. Pelosi if he on the hammer and then

the attacker hits him in the head with the hammer he's unconscious for three minutes he wakes up in a pool of his own blood the police rush in frankly we as a country are so lucky this wasn't worse. Oh, man. Thanks to a very, very thoughtful, clever response by Paul Pelosi. I mean, I think he handled that textbook, if you want to stay alive, in a hostage situation with a very unstable, mentally ill hostage taker. Yeah. It's horrifying, Sarah. This is horrifying. And the idea that people have been mocking it and joking about this just makes me sick. It just

makes me physically ill that this is happening, that people are mocking this and joking about this. And the details, everyone, not everyone, but lots of people on Twitter was question the narrative, question the narrative. I have absolutely no problem with waiting a while for full facts to come out. In fact, that's a very wise thing to do is to wait because a lot of the early, it's now clear where a lot of the early confusion came from. It came from the 911 call where Pelosi is trying hard to both get the police there without escalating the situation. So that created all the ambiguity in what was an even, if possible, more terrifying scenario than we originally thought it could have been. And the joking about it is just gross. It's just horrible.

And to be clear, ditto the Kavanaugh assassination attempt as well. Of course, of course. And I don't understand how people don't see a consistency here or rather an inconsistency in their response. Yeah. Again, it would be so destabilizing for our country

if a Supreme Court justice was assassinated, if the Speaker of the House was assassinated. Forget about your own political interests. Again, it would be very destabilizing to our government. And at the same time, we simply do not have the resources as a country to provide 24-hour security to everyone who could possibly be a target for political violence. You know, to provide 24-hour security is a three, three teams in order to do that, working eight shifts, eight hour shifts. And that's just for the person.

So that's not their house. That's not their spouse, their kids, whatever else you think might also be destabilizing. In this case, for instance, when she wasn't at home, it is not possible as a country for us to provide that level of protection for everyone. for everyone. We need to be better at not providing the fodder for the mentally unstable. In both cases, by the way, David, the people were not on the political spectrum as we would recognize it whatsoever, but they were clearly getting content off of people on the political spectrum, if that makes sense. So lots of what the Pelosi attacker was saying were things that have been said by right-wing commentators. Lots of what the Kavanaugh attacker was saying were things that were said by left-wing commentators. These two people are mentally ill, wildly wildly unstable and do not fall along any

political spectrum that i recognize uh this pelosi attacker was it appears on a pretty far left-wing life and political beliefs for a long time and then perhaps his mental illness overcame him it's a little unclear from some of the history um and again, I just don't, I don't think it's helpful to talk about what their political ideology of a mentally ill person is. Here's one thing that's important. And what we do know is that extreme rhetoric works different ways on different people. So if you're talking about extreme rhetoric being, you know, if you're talking about extreme rhetoric, if you're talking about, say, an accountant in Des Moines reading Family Man in Des Moines, reading Q stuff and maybe diving into it a little bit, they're just going to generally tend to be angry and maybe send a few dollars to, say, a Marjorie Taylor Greene or something like that. But the more unstable a person, the more the extreme rhetoric lands on them in a different way. And we know this. We know this. One of the things that I've tried to tell people is

we learned a lot about how extremist rhetoric fosters violence during the war on terror. We learned a lot about that. And we learned a lot about how extreme rhetoric, when filtered through a population, can distort the population to where, of course, not everybody becomes violent, but where people become more sympathetic to violence, they're excusing violence. At another end, they're sort of funding, you know, they're not committing acts of violence in themselves, but they're funding extremist organizations. And then the actual call to violence lands upon a particularly unstable percentage of the population, and they act on it. And so this idea that, well, because he's not mentally stable means that we're absolved of responsibility, I think is just completely wrong. And the other thing that,

the other thing that I think is really important is we have to realize we've been lucky. Okay. That sounds weird to say that we've been lucky, but think about this, the congressional shooting, the baseball shooting could have, if the guy was a better shot, could have resulted in the assassination of multiple members of Congress, perhaps enough members of Congress to actually change the balance of power in the country at the time. That would have been a nation historical event. The January 6th riot, we're very fortunate that there was not a higher death toll there. That required a ton of officers collectively, when in every other ordinary situation, they would have been able to use deadly force, choosing not to use deadly force.

We are very fortunate that Paul Pelosi lived through that hammer attack. We are very fortunate that the Kavanaugh assassination attempt, the guy rethought it at the end. These are all things that are not the product of being good, but the product of being lucky. And so we really need to absorb that as we're thinking about what's going on. And here's another thing we need to absorb, Sarah. Here is a statistic that should absolutely chill us and go straight to your point about how we can't, we can't handle, we don't have the resources to handle all the threats. Since 2016, threats of violence against lawmakers recorded by U.S. Capitol Police have surged from roughly 900 cases in 2016, which was a lot and way too many 9,625 in 2021. 9,625.

That is a sign of a society and a sickness right there. Well, I don't want to leave it on that. So look, Tuesday, we will have more oral arguments to talk about, David. And since it will be the midterm election day when this podcast is released, I thought maybe we could talk a little bit about election law, some of the cases that have already been filed, hand counts. I think the RNC has filed something like 75 lawsuits already and perhaps what will be expected moving forward. So plenty to deal with next time. plenty to deal with next time. And David, we've had a topic that we have not gotten to for weeks now that has been on our list, if we have time, which is to see whether we can counter your terrible pop culture tastes in movies, for instance, with perhaps better musical taste. And so that is a topic, it's perennial. Look, we're not going to get to it today, let's be honest. But

I do want to talk about what's on David's, you know, Spotify playlist. Is it terrible? Maybe. It's amazing. It's amazing. I just created a new one called Old and Awesome, which is all my favorite songs from high school. Old and Awesome, David. That's how I describe you to my friends. I don't know which one of those words I'm going to think about more. But I will agree to it only if you agree to sing excerpts of the songs you know best. Hilarious. In true advisory opinions fashion. Hilarious. So, no, I'm looking forward to that discussion. That'll be fun. And then we're going to, of course, answer, since it's going to be election day, and we have many listeners who no

doubt want to know about this for their own purposes. How close constitutionally can you get to a polling place with your gun and body armor on? Which is apparently an issue in Arizona. Look forward to that. Look forward to that. All right. On that note, thank you so much for listening to Advisory Opinions. Please rate us. Please subscribe. And please check out thedispatch.com. And we'll be back on Tuesday.