Advisory Opinions - Alito's Preemptive Strike (Against ProPublica)

Episode Date: June 23, 2023

Sarah Isgur and Guest-host David French return from the Advisory Opinions live event for some Supreme Court bingo. Plus: -Opinion lightning round -Justice Alito's Op-Ed in the WSJ -Transgender care for minors at the District Courts Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgerd. That's David French. And it's like, that is David French. He's right here. We are at my house in Virginia recording this together a first time for Advisory Opinions. It's going to be a lot of fun. Here's what we're going to do. First time for advisory opinions. It's going to be a lot of fun.

Here's what we're going to do. We had two Supreme Court hand down days this week with eight opinions. So we're going to do a little Supreme Court bingo and explain what that is. We're going to run through five of those opinions at lightning speed, which is still going to take a while, probably. Then we're going to talk about Justice Samuel Alito's op-ed in the Wall Street Journal about Supreme Court ethics allegations. And wrap up with two district court cases on transgender care for minors. I think we'll have a good time.

It's going to be quick. It's going to go. And then next week, we're going to have the big hit parade cases coming down from the Supreme Court. So expect lots of content. So let's get right to it. First of all, a little Supreme Court bingo. It's finally getting fun. And for those who are new to the podcast, let me explain Supreme Court bingo.

This is where, generally speaking, each justice will write one opinion from an argument sitting. So if you know that there's only one case left that was argued in March, and there's only one justice who hasn't written an opinion in March, there's a decent chance that that justice is writing that opinion. So when you get to the end of the term and you don't have many cases left per sitting, you can start making some educated guesses. We've got 10 opinions left. I expect them all to come down next week. First hand down day will be Tuesday. So what do we have left? We've got Harvard and North Carolina, the affirmative action cases. We've got 303 Creative about whether a state can force a business to serve people,

etc. It's sort of the run on to masterpiece cakepiece Cake Shop. We've still got more v. Harper, that independent state legislative case that we thought was going to get digged months ago, still lingering. Nebraska and Brown are the student loan cases. Groff is the religious accommodation case. And Counterman is the true threats case. Basically, eight of the 10

are advisory opinions hit parade cases. All right, so what does Bingo tell us? First, for those two affirmative action cases, we're looking at Roberts or Alito writing them, which almost certainly means that the chief justice is writing the affirmative action cases. That will certainly be interesting. Now, for 303 Creative, that was from the December sitting. The only justices we have left are Roberts, Gorsuch, and Kavanaugh,

which means one of them is writing that. Interesting. For student loans in February, it gets hard because there were so few cases argued in February. In fact, a lot of justices haven't written. Not helpful. And then for that Groff religious accommodation case and the counterman true threats case, you've got Alito and Kagan either one of those could be very very interesting depending on which one you flip to right the presumption i think would be that alito writes 303 creative and kagan writes counterman true threats but flip them and it gets just as interesting yeah yeah it gets very interesting because kagan was in the majority on masterpiece cake shop if she's writing 303 Creative,

I don't think it's good for 303 Creative because the distinguishing factor between Masterpiece Cake Shop and 303 Creative is in Masterpiece Cake Shop, you had evidence of targeted state punitive action based on the religious beliefs of Jack Phillips, and you don't have that same kind of evidence here. So let me just say, Sarah,

just in general, I've been getting less confident in my pre-decision predictions on Harvard, on student loans, and maybe a little on 303 Creative. I still stand by them, but I'm a little shakier. Okay. Well, let's walk through some of the ones that were decided this week. As I said, we had eight. I'm going to highlight five of them in pretty quick succession here. So, and in no particular order. So first of all, we had a case on what I'll call statutory or legal innocence. This is the idea that, well, let me distinguish the two. What I think we refer to as actual innocence is when there is evidence that you did not commit the crime, like new DNA evidence, a new witness comes forward, someone confesses to it.

If that's the case, you're always allowed to bring an appeal. That's new evidence of your innocence. But what happens when the law changes? And according to the new interpretation of the statutory law, you didn't break that law. Well, the Supreme Court said, tough luck. The majority in this case finding that if you've already appealed once for federal relief before the law was determined to be different, then you don't get to appeal again. And the argument that Justice Thomas was making is that Congress chose finality over error correction. You have Justices Sotomayor and Kagan dissenting, saying pretty much exactly what you think they would say at that point

about, wait a second. So we all agree this guy didn't actually break this law and he's just going to now sit in jail for 27 years. I mean, he's already served a lot of it. Justice Jackson filed her own dissenting opinion in this case as well. So in short, this guy was convicted of being a felon in possession of a firearm and one count of making false statements to acquire the firearm yeah if that sounds familiar don't we're not going to do that so he appeals his conviction and loses and And then the Eighth Circuit holds that, in fact, the government needs to prove that he knew he couldn't purchase a firearm. Well, they didn't prove that at court.

So statutorily, he's innocent. Nope. No appeal. He's done. Feels, seems unjust has unjust vibes surrounding it but we can't linger sarah we can't linger we can't linger and from a process standpoint this was interesting it dove into a lot of the history of edpa and relief and how habeas corpus turned into its current mess frankly for post-conviction relief at the federal level we might get to it later how about that yeah all

right next up pugin v garland all right these two guys were convicted one of dissuading a witness from reporting a crime, the other being an accessory after the fact. Under the law, as non-citizens, they are removable if they were convicted of an aggravated felony. And an aggravated felony includes state offenses, quote, relating to obstruction of justice. So the question coming out of the Ninth Circuit here was whether the intimidating a witness and the accessory after the fact, neither one of which dealt with ongoing court proceedings or investigations could count as obstruction of justice or whether obstruction of justice has to refer to like a specific ongoing thing of justice. has to refer to like a specific ongoing thing of justice uh majority of the court holding yeah no that definitely counts as obstruction of justice you're out of here cavanaugh delivering

the opinion for the court with roberts thomas lito barrett jackson joining sotomayor dissenting with gorsuch and kagan very interesting lineup here though if you've beenenting with Gorsuch and Kagan. Very interesting lineup here, though, if you've been following Justice Gorsuch's judicial philosophy, not totally shocking. And look, Kavanaugh's saying, no matter what you look at, the model penal code, the chapter in question at the federal level, chapter 73, is called obstruction of justice, and it includes all sorts of things like messing with witnesses. Obviously, this is what Congress meant when they said relating to obstruction of justice. The thing that I found interesting here was coming out of the Ninth Circuit. This was a 2-1 opinion with Judge Lawrence Van Dyke dissenting at the Ninth Circuit.

And it was a very, very spicy dissent about how the Ninth Circuit keeps recreating, redrafting law in order not to deport people. And it made it all the way to the Supreme Court. The dissent in this case was much more textualist with a little lenity thrown in here. Again, very Gorsuch-y, although it was Sotomayor writing. David wants to get through these. Next up. Okay. This one's pretty fun. It falls along actually the sort of quote-unquote partisan ideological lines of the court. And it's not going to feel that way when i tell you what the case is about it's about the confrontation clause this is samia the united states and basically samia falls in with a crime lord and as one does as one does and along with some accomplices allegedly although was convicted of,

murder for hire. And the evidence, by the way, they found the keys to the van, to her van, the woman who was murdered. She was a real estate agent. Pictures that they took of her dead body after they killed her. I mean, it was like, there's crazy, like bad criming here. Right. body after they killed her i mean it was like there's crazy like bad criming here right so one of the guys confesses but this guy doesn't and they're tried together okay so how and can the government use the confession of the one guy at trial when he's not going to take the stand where the other guy has the right to confront witnesses against him. Intriguing. Indeed, right? Yes. So the majority written by Thomas with Robert Toledo, Gorsuch, Kavanaugh, and Barrett joining says, all right,

here's the way, which is what the trial court here did. One, they changed the confession so that it didn't use his name. It just said other person. Okay. So me and another person killed her. Okay. And two, gave a limiting instruction to the jury that said, when it comes to bad guy's confession, you may only consider it as it applies to his culpability.

Okay. Well, the dissent is having none of that. I can imagine. So here's Justice Kagan writing for the dissent. Imagine a criminal case involving two defendants, John and Mary. John and Mary are arrested for robbing Bill. Before trial, John confesses to the robbery inbing Bill. Before trial, John confesses to the robbery in an interview with police, but John does more than admit his own involvement. He also points a finger at Mary. John says to the police, Mary and I went out Saturday night and robbed Bill. Mary, on the other hand, never confesses to the robbery. She maintains that she wasn't involved. In fact, that she never left her home on the night in

question. The government tries them together. At trial, it introduces a copy of John's confession into evidence and has it read to the jury by the interviewing officer. But John elects not to take the stand, leaving Mary's attorney without an opportunity to cross-examine him about his confession. The court's precedent bars the government from using John's confession in that way. All right, next example. Suppose, though, that the government redacts the confession to eliminate Mary's name. Mary still sits in the courtroom alongside John, but the

version of the confession admitted into evidence now includes a blank space where Mary's name belongs. And when the interviewing officer reads the confession to the jury, he says, deleted. So instead of Mary and I went out Saturday night and robbed Bill, what the jury hears is deleted and I went out Saturday night and robbed Bill. That confession too is inadmissible under our precedent. Now consider one last option. The government again modifies the confession to avoid the express reference, but this time instead of swapping Mary's name out for deleted, the government replaces it with the words a woman. A woman and I went out Saturday night and robbed Bill. In the face of precedent that would bar the government from using either of the first two of John's confession, a judge must decide what to do about this one.

Would its admission to violate Mary's right of confrontation? The answer should be obvious. A jury is still going to recognize that John is talking about Mary, for who else could the mystery woman be? This last version of the confession thus presents the same risk as the first two. The jurors will rely on John's confession when assessing Mary's guilt. Yet in today's decision, the court draws a line of constitutional significance between the first two examples and the third. In so elevating form over substance, the majority permits an end run around our precedent and undermines a vital constitutional protection for the accused. Yeah, I find that

pretty persuasive, to be honest. I appreciate the limiting instruction. And look, limiting instructions, I know that there are people who roll And look, limiting instructions, I know that there are people who roll their eyes at limiting instructions, but you literally couldn't do trials without limiting instructions. You really couldn't. It would be the easiest thing in the world to disrupt a trial

if you didn't have limiting instructions. Something as simple as the jury will disregard that comment. I mean, as an attorney, you could inject all kinds of nonsense in and if limiting instructions weren't effective uh or weren't deemed effective then it would be just a problem having a trial but in this case when you've got the other defendant right right there it's the trying together it's the trying together yes exactly all right that was a messy one next up united states v hansen we had talked about this

when when the argument happened because i found it interesting and i still do we're gonna have to put a pin in some of it but in short a guy who's a citizen of Fiji heard that he could become a US citizen through, quote, adult adoption run by this guy Hanson. So he flies to California, pays the $4,500 and is good to go, right? No, there's no path to citizenship through adult adoption. is good to go, right? No, there's no path to citizenship through adult adoption. And so they basically arrest the Hanson guy. There's a law that he's charged with violating that prohibits encouraging or inducing illegal immigration. He's convicted of this. The question is, over- over breath challenge. Does that violate his free speech rights?

Not really his free speech rights because over breath is about whether it sweeps in so much protected conduct that we strike down the law. The court says, not dog to that one. So Barrett delivering the opinion of the court, finding it's not overbroad. You can convict this guy of that violation of inducing illegal immigration. Roberts, Thomas, Alito, Kagan, Gorsuch, Kavanaugh,

joining, sorry, with Thomas in a concurrence. Jackson and Sotomayor dissenting. That's an interesting alignment. Yeah. I think we'll come back to this one because over-breath when it comes to free speech issues actually is something this podcast is deeply interested in, but it's not going to be today.

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a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Last up, we have the immigration case. And David, this is definitely one that we're going to spend more time on. It just came out this morning. You and I have not gotten to spend a ton of time with it. But Texas and Louisiana sue the federal government for basically not enforcing immigration laws enough. The idea being that the Biden administration limits removal of aliens to those convicted of serious crimes. And so what happens is that Texas and Louisiana have folks getting out of prison who are removable under the law. In fact, the law says shall remove. And the Biden administration is not removing them if they're convicted only of these smaller, less important offenses.

smaller, less important offenses. So they sue. The district court finds that they have standing because that's obviously a monetary injury as they're having to incarcerate these people, healthcare, yada, yada, plenty of monetary injury. And so the case goes up to the Supreme Court. Yes, this is an immigration case, but really it's a state standing case. And we keep having these state standing cases. A lot of them keep getting kicked. This one actually gets decided with a majority holding that no, Texas and Louisiana do not have standing, but there's a real fracture as to why you have the chief justice Kavanaugh, Kagan, Sotomayor, and Jackson saying that the reason why the states don't have standing is because this is not a cognizable judicial injury. You want us to tell the executive branch to prosecute more people?

We can't really do that. Then you have Thomas, Gorsuch, and Barrett saying, no, no, they don't have standing. But the reason why they don't have standing is because there's no redressability. We can't force them to prosecute more. And there's various reasons why. And then you have poor, poor Justice Alito sitting here by himself in dissent. Justice Alito says, of course course they have standing under our law. And remember, Justice Alito has been high on his standing horse now for some number of years

that standing seems to only get ratcheted one way in these cases. Right. And really since Mass v. EPA, where Massachusetts was given standing to sue on, you're eroding our beaches by not enforcing environmental laws. So this will be a very, very, very important case moving forward on this state standing question, but it also was a little limited because of the immigration context that it was in. Also a fascinating breakdown where you have a new but common breakdown on the court. It's the Chief and Kavanaugh and Kagan, Sotomayor, and Jackson

in one camp. It's Gorsuch, Thomas, to some extent Barrett, I mean, this case is Barrett, and Alito. And this term has been very fractured in that way of where people are going to fall. Can I jump in on this just for a bit? I've been on the sidelines during the summaries, but now I'm ready to enter the fray, Sarah. And I agree with you that this is limited. I definitely agree with you. But this is one of those cases that is making me less confident in how i thought about another case and that's the student loan case because one of the key issues in the student loan case was standing and how attenuated standing was or the state agency plaintiff involved and this is not saying i'm not saying that this case means that that case

will be decided in a surprising way on standing. I'm just saying it raises my eyebrows a bit because it runs counter to a trend that we've seen for a long time where these states are able to sort of come in and say, a federal mandate or a federal policy change has cost us money. And then therefore, the fact that we've been caught, that's cost money, even if it's not a huge amount of money, is going to grant us standing and the ability to sue. And so again, I'm not saying that this is going to dictate the student loan case. This is not precedent that dictates student loan. It is precedent that causes eyebrow raising and maybe a tiny bit of side eye at student loan case. I'm still thinking they're going to find standing in student loan. I'm just less sure of it. Am I wrong to be a little less sure, Sarah?

I think this whole term should make us less sure of our predictions. Yeah, boy, isn't that the truth? Yeah. But they are our predictions. They're still our predictions, but just more trepidation. Yeah. All right. So that's our Supreme Court roundup for now. As I said, some of these we'll revisit again over the summer, dive into overbreath, dive

in more to standing, especially after we get the student loan case. And we have two big standing cases decided this term as we think about those future state standing issues. And even the pork producers case, I'm going to throw in there, not as a standing question, but as a sort of what states are doing in litigation. Can I posit an idea also for a future podcast? Yeah. It'd be fun to get a third person in here, an expert on the Supreme Court's race jurisprudence to harmonize, however, the combination of Alabama Indian Child Welfare Act

and Harvard and North Carolina. What do they collectively say something interesting? We put a pin in that. Yeah, yeah, absolutely. All right, so David, Juneteenth is one of my favorite holidays for a few reasons, but let's be real. One of the reasons is because it's a Texas-based holiday. Born in Galveston, right?

Absolutely. Yeah. And that's really beside the point. I just wanted to say that. You just wanted to put that out there. Yeah, because then on June 20th, this appeared in my inbox and i sent you a holy wtf yes which i'm not sure how that works grammatically but i got your meaning because okay this is what pops in my inbox pro publica misleads its readers wall street journal op ed justice samuel. Alito jr. And I was like,

Oh, I don't. Okay. What? Wait, what? And then I read down and this is the editor's note appended to the top. Justin Elliott and Josh Kaplan of ProPublica, which styles itself quote,

an independent nonprofit newsroom that produces investigative journalism with moral force and quote, email justice Alito Friday with a series of questions and asked him to respond by noon Tuesday. That's the day this publishes. They informed the justice that, quote, we do serious, fair, accurate reporting in the public interest and have won six Pulitzer Prizes, end quote. Here is Justice Alito's response. In the Wall Street Journal. So I know we need to back up.

Yes. Because the ProPublica story then publishes as well. Yeah. So in short, ProPublica says two big things. One, that Justice Alito accepted private airfare and a fishing trip, salmon fishing in Alaska, I believe, from a wealthy businessman named Paul Singer. Right. Second,

though relatedly, that Justice Alito heard several cases that involved entities that were related to Paul Singer. So as in, there was money and there's a conflict. And Justice Alito didn't recuse himself. Justice Alito responds by saying, look, there was no possible way to know that these entities were related to Paul Singer. Basically, he runs a hedge fund and invests in them. And the court, you have to list your conflicts of interest when you file at the court. And that's what they go through. They don't do additional research to find out

whether there could be additional conflicts and so justice alito is saying like look there's uh this is one of the lines during my time on the court i have voted on approximately 100,000 certiorari petitions the vast majority received little personal attention from the justices because even a cursory examination reveals that they do not meet our requirements for review. To ensure that I am not required to recuse, multiple members of my staff carefully check the names of the parties in each case and any other entities listed in the corporate disclosure statement required by our rules. Mr. Singer was not listed as a party in any of the cases listed by ProPublica, nor did his name appear in any of the corporate disclosure statements or the

certiorari petitions or briefs in opposition to certiorari. In the one case in which review was granted, Mr. Singer's name did not appear in anything. So he's like, I was totally unaware. Yeah. He's like, second on the reporting issue of whether I should have reported the private

flight. Same exact answer as Justice Thomas. The rules say hospitality. Hospitality was assumed not to include transportation. And I was told by all the other justices that came before me that those were the rules and that's how we interpret them. The end. So David, there's the allegation.

Yep. There's Justice Alito's defense. Yep. And then there's the medium. Would you's justice alito's defense yep and then there's the medium would you like to walk through any of those okay i would like to walk through all of them so but but not at terror not at profound length so first on the allegation as far as the substance the technical ethics of uh of alito's, I think he's on solid ground. Look, the hospitality rules were the hospitality rules. We know from the Thomas discussions that the custom, the practice, the policy was not to share the hospitality, including transportation, gifts related to hospitality, including transportation. transportation, gifts related to hospitality, including transportation.

Now, does that mean that because there was no ethical prohibition on this, that this is the kind of thing that we want Supreme Court justices to do? That's where I'm more dubious. That's where I'm a lot more dubious. A big part of the institution of the court is maintaining the... And I know that the appearance of impropriety has a legal definition to it, but also a colloquial definition of appearance of propriety. And let's just face it, the vast, vast, vast, vast, vast, vast, vast majority of Americans do not ever hop a ride on a private jet. Not once, not five times, not 10 times.

They just don't do it. And they definitely don't hop a ride on a private jet with people who then might be coming to them potentially with a legal case. potentially with a legal case. So the vibes, I've talked about this before, and say, you do have to pay attention to the vibes when you're in this position. And that is, again, not saying it's unethical as a matter of law, but we do have to pay attention to the vibes.

You safeguard an incredibly important American institution. And this goes to the other justices of whatever ideological stripe who have hitched a ride. Okay. The second, because I know, we know, and we know from the New York Times editorial that we talked about before that justices appointed by Democrats have done it too, right? So this is not exclusive behavior by Republican appointed justices. Number two, the medium. It was about, so this is something that, and look, there's no reason that Justice Alito would know how this goes, right? How, when you get what you believe to be an unfair critique, there is a way in which you

can respond to the unfair critique that actually dramatically elevates it versus minimizes it. And I will tell you one way to dramatically elevate an unfair critique. It is to go ahead and publish a pre-buttle in one of the most widely read newspapers in America. Now, a lot of folks on the right loved it because they said hey look he's punching back he's not taking any crap you know all of this stuff but the bottom line is the fact that a supreme court justice took to the pages of the wall street journal to pre-butt was actually more newsworthy than the allegation so it served perversely enough to sort of elevate the whole thing and look when i say that i am saying that out of hard earned experience as to how rebuttals of attacks can elevate the attack and make it far more prominent than it otherwise would have been. And so I think that

that's one of the issues here. On the law, I think he's quite solid, right? I think he's quite solid. I just, I do wish, I just do wish the justices were not taking private jet flights, unless it's a government jet on government business, right? But these private jets, and I totally get the idea that, well, it's going to cost some to have marshals with you and things like that. So that was his defense, that if he had flown commercially, that according to Supreme Court policy, basically, U.S. marshals would have had to accompany him. So taxpayers would have had to pick up not only the flights of the U.S. Marshals, but then the accommodations of the U.S. Marshals. It would have been quite expensive on taxpayers for him to take this trip. Whereas if he flies private,

there's no security concerns. And so he saved taxpayers money. I'm not there with that. I mean, look, I have sat in coach next to senators and members of Congress who are getting out of D.C., heading back to Nashville. There's a good chance if I'm in D.C. now, if I head back to Nashville, if I was heading back to Nashville this afternoon on Southwest, there's a pretty good chance I'm going to run into one of our congressional delegation because they get out of Dodge on Friday frequently. So it's not too much to ask even high-ranking government officials to take commercial flights if this flight is safe and if they have security. And when I travel with members of Congress, I don't think there's any security around. No, but justices are different. So marshals are required to attend to justices

in a way that senators and congressmen, they've actually changed the rules now where they can choose to pay for security out of their campaign funds. But taxpayers do not

pick up the bill for security for any members of Congress or the Senate. To be super clear, I am not remotely saying marshals should not be with them. Especially after the attempt

on Kavanaugh. Absolutely have the Marshalls, but I'm saying that the private jet stuff, I can't help it, Sarah. It bothers me even when it is technically ethical. And you and I, in our positions we think hard often oh we think hard about conflicts we think hard about uh you know I know like the times has policies regarding who you can deliver speeches for and you know all kinds of things like that and so we have to think hard about these things even in our position and we're not deciding say row so here's a few things i think one remember that the ethics rules have been changed yeah so now everyone agrees you do have to disclose the private flights so let's separate this out a little bit the real issue is the

disclosure question not whether they take the private flights in the first place. They're still allowed to take the private flights. You just have to say who paid for it, basically. And David, I think your point is you shouldn't really be taking the private flights. Yours isn't a rules and regulations that he failed to disclose. Yours is like, maybe don't do it in the first place.

Yeah, I mean, I do feel better if there's disclosure sort of in the sense that it's transparent. If somebody comes in a ProPublica five years from now and says, Clarence Thomas, you still flew with Harlan Crowe, well, Clarence Thomas can say, and it's been in the disclosures ever since. sense. So I do think that is ameliorates the situation. I have no question about that. I do. I have a hard time getting, and it's just, it's a sense, it's a feeling. Maybe it's my inner Jacksonian that I have like a tiniest sliver of because I'm from Tennessee and you kind of breathe it in every now and then just a little little bit so the disclosure rules have been changed so you're fine on that front right substantively you don't love it don't love it um and this is on the again the accepting hospitality transportation all that stuff okay i'll give you all of that okay the recusal thing is the dumbest thing ever oh yes it's not even a real allegation i

don't know how justices are supposed to divine every human who might have an interest if that's not what's disclosed in a piece of paper that's required to be filed what are they supposed to do start googling and propublica's point was like it showed up in news articles yeah okay so they're they're now required to read every like how would that work yeah so i'm a hard no on the recusal allegation and think that's particularly silly okay so then at the end of the day you have a disclosure rule that everyone agrees uh either didn't cover this or nobody was acting like it covered it beforehand. So much so that the rule has been changed and you've got your bad vibes. Fine.

And then no recusal required because it was impossible to know about the conflict. So that's the story. This is where the medium part comes in, David. You're aware of the Barbra Streisand effect? Yes. You want to tell the listeners what that is? I'll get this slightly raw, but basically some pictures are taken of Barbra Streisand

and she sues. Nobody cared about the pictures beforehand. Upon suing, though, everyone sees the picture. So if the point was to protect your privacy from these photos, it had the exact opposite effect. Nobody I don't think would have particularly noticed this story because it's not a particularly good story. We already knew about the flaws in the disclosure rules. Again, that Breyer, Justice Scalia. This was very common. And then the recusal thing I don't even think is a real allegation because

I don't understand what the alternative is. Responding in the Wall Street Journal, wildly unhelpful to the cause. If the cause is, I don't want to give this oxygen. It's also wildly unhelpful because this trust in the institution has been falling. So it took a hit after Dobbs. That has started to rebound by January. There is a clear, clear drop based on these ethics stories. This is elevating

another ethics story. And that's what I don't like about it. I would also just from a comms perspective note that it's a real thing when a reporter sends you a series of questions related to their reporting and gives you a week to respond.

If you then scoop them basically by doing this or giving it to another outlet with your defense in it, etc. Because what it means is next time they're going to give you an hour to respond. And more importantly, they might do it to your colleagues as well. So just again, from a comms director perspective, this is a very, this is a shots fired, not high risk, a guaranteed change in relationship thing to do. And I know that Justice Alito doesn't care about the relationship with Joe Publica. But if you're the New York Times now, are you going to give Justice Alito a week to respond? Probably not.

Well, and, you know, let me go back to the medium for a minute. And look, I have high respect for the Wall Street Journal as a media institution. But if your argument is, and one of the reasons why trust is undermining the court is that the court is being seen as a partisan institution. One thing you don't want to do is go to your best pals in the media, people who've long sort of defended Thomas and Alito and other members of the court, because remember, this is the editorial page of the Wall Street Journal, not the news, and sort of contribute to this idea that it's our team versus their team. I could imagine a situation where it might be prudent for a member of the court to write an editorial or maybe a couple of members of the court to sort of explain their

approach to ethics and to try to be transparent as to why they made the decisions they did. But might it be more prudent to, instead of going to your partisan friends uh to go to another outlet that is maybe i'm not going to say any outlet is specifically neutral certainly not any editorial page is specifically neutral but it's just i think it compounded the problem of elevating the issue by elevating the issue within an editorial page that is very much known to have taken a side on all of this. All right, David. Next up, transgender minor care cases. Yes. So, this is a subject that deserves a longer discussion, Sarah. And sadly, we're already running out of time because I have a class to teach at the American Enterprise Institute.

So, trust us, listeners, we're going to deal with this issue at more length because I can guarantee you the cases we're going to talk about are going up on appeal. And we actually don't talk about district court cases that often. But this is a very important, a very contentious national issue. And you had a Clinton appointee in, oh gosh, Obama appointee in Arkansas and a Trump appointee in Indiana, both block enforcement of their respective states' bans on certain forms of transitional medical care for minors. And what was interesting about these cases is they were both discussed through the

frame of sex discrimination. Now, you might think, where is the sex discrimination here? Isn't this a ban on transitional care regardless of your biological sex or regardless of your gender identity, whatever the transitional care is? And the response is very reminiscent of Bostock. So this is a Bostock style analysis. And for those who don't remember what Bostock is, Bostock was the Gorsuch opinion in a Title VII that said that Title VII, which bans discrimination in employment on the basis of sex, included sexual orientation and gender identity because it was impossible to conceive of a situation where gender identity discrimination or sexual orientation discrimination didn't depend at some level on sex discrimination. In other words, if you fire somebody because he shows up with his

male date, if a woman shows up with a male date, they're not fired. But if a man shows up with a male date, they're fired. So the distinction is sex. Here, very similarly, the argument was we're going to do an enhanced level of scrutiny that says this is actually sex distinction because under, for example, Arkansas law, a woman can receive surgery, breast enhancements, breast reductions, things like that to accentuate their femininity. But a woman cannot receive, for example, surgery to minimize, in other words, to transition away from their femininity. And so the argument was very linear in that Bostock fashion. Now, that doesn't settle the matter. What it does is it exposes the analysis to a heightened level of scrutiny. And at that heightened level of scrutiny, the courts were saying that it doesn't pass that heightened level of scrutiny. So, notice how this was a Bostock analysis. And I have to be honest

with you, Sarah, I'm skeptical of that because the bill itself, these bills themselves are aimed at a specific practice that is not sex limited. It is a practice engaged in by both sexes. So the aim of this is not to engage in sex discrimination. It is to prevent a particular medical practice that is engaged in by both sexes. And so I didn't find the sex discrimination analysis compelling. And we're going to talk about this more, but what were some of your initial thoughts? Yeah, I don't even think it's a close call. I found both decisions pretty confusing. Not that there wasn't some other way to reach it, but the Bostock way. I think Bostock is so distinguishable from this for the reasons you laid out, but also let's even take your example. Well, no, women can also get breast reduction surgery. Right. That minimizes your

stereotypical sex characteristics. Yes. Right. That's not being banned. Right. Neither male nor females may take, may go through this procedure. It's just not sex-based. Now, that is separate from the policy question, which I find interesting as well about parental rights versus government prevention of child abuse. And whenever you heard one of those, I'm sure you had some cringe reaction, but take those as the two extreme.

Of course the government can step in and prevent parents' rights, quote unquote, from doing some things if they're abuse if your kid says i really want to take methamphetamines you don't have the parental right to be like oh fair enough take some meth cps gets called right and we don't blink at that on the other hand the government can't say uh can't mandate that you must read The Very Hungry Caterpillar before bed. You have a parental right not to read The Very Hungry Caterpillar. Right. Again, I'm trying to give sort of now extreme examples, right? Where gender affirming care meets somewhere on that spectrum. And you, as a voter, get to make some of that decision, right? And

then the question is, what do the courts have to say about who gets to make that decision, where it falls on that spectrum, and whether the government has the ability to make that decision? And I'd also say this, okay, on the parents' rights rights issues because i have written previously that i support laws restricting permanent medical interventions for minors okay i oppose the violation removing trans kids from parents homes okay oppose that strongly well how do you harmonize those two things it's easy traditionally the state has in fact regulated medical care for minors quite explicitly and comprehensively for example it's hard to get a tattoo in some states a tattoo which is a minor medical intervention intervention by comparison

to what we're talking about here on the other hand david states would not be permitted to ban circumcision, probably. True. That's true. And that is permanent. It is defacing, if you want. Come up with your term. It doesn't change the way things work. Yeah. Well, and that's why we need to talk about this at longer, at greater length, okay? So, there is a tradition of state regulation of medical interventions on minors. Okay. The extent of that is debatable. We should have a longer conversation. But there is also the case that parents have traditionally had a right to avail themselves of legal treatments without interference from the state. from the state. And so if a parent is receiving a legal treatment on behalf of a child for the state to come in and try to separate that family, to me is monstrous. The question is, should that treatment be legal? That's the question. And does the state have the authority

to make it illegal? That's what the question is. And we'll need to flesh this out. It's a topic that is not conducive to five minutes. But this is just your sort of initial issue spotter, listeners, because we'll be diving in more. I love it. All right. We will pick this up again Tuesday of next week when we get more hand downs. Again, we're down to 10, And we're expecting big ones every day starting Tuesday next week at this point, I would say.