Advisory Opinions - Arbitrary and Capricious

Episode Date: June 18, 2020

David and Sarah discuss the Supreme Court's ruling that blocks the Trump administration from ending DACA for now, return to their discussion over the Title VII ruling, and finish with the legal fight over John Bolton's book. Show Notes: -Supreme Court DACA ruling -Cass Sunstein on Gorsuch Title VII opinion -Atlanta Journal-Constitution piece on Bostock -David's piece A Conservative Legal Chernobyl? Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And once again, wow. Wow, Sarah. Didn't see that coming. Shoot, I did not see that coming either. I mean, it doesn't fall out of my chair shock me, but it does surprise me. And by what we're talking about is we are coming to you recording right now, two hours and 13 minutes after the Supreme Court released its decision in Department of Homeland Security et al. versus Regents of the University of California et al., better known as the DACA case. and DACA of course stands for deferred action for childhood arrivals this was the Obama administration policy of deferred action which not only granted dreamers people who were brought to the United States unlawfully as children who had who entered the United States unlawfully as children not only granted deferred action from deportation proceedings, but also granted them the ability to secure work in the United States,

work eligibility in the U.S. And by a 5-4 vote, the Supreme Court said that the Trump administration's rescission of DACA was arbitrary and capricious. It did not say that the Trump administration cannot rescind DACA. It did not say that DACA, that the Trump administration cannot rescind DACA. It did not say that at all. It did say that the way in which the Trump administration rescinded DACA was arbitrary and capricious and that it sent it back to lower courts on that basis. And so the Trump administration has to go back to the drawing board. And before we walk through this, Sarah, what was the source of your wow about this? Well, I think at like 10.02 a.m., I just texted you, OMG.

Yes. And what was happening at that moment is I, of course, was playing with the baby. Scott was on the computer refreshing, refreshing. And then Scott just starts reading the syllabus out loud to me like it's an audio book. And I was like, what? So 5-4 with Robert's writing. And I guess what struck me is this reminds me so much

of the ACA Obamacare opinion for reasons that we'll get into. Uh, meaning that opinion was not an outlier, which it sort of felt like one at the time. And I think it is to some extent felt like one to me for, um, you know,

the last eight years. Right. But this to me is a movement in an O'Connor esque fashion for Roberts. That is now you can point to, consistent moments. And this, paired with the Title VII case, is going to be a, is currently

a meltdown on the conservative legal right. Lots of text messages this morning between FedSoc folks, just what's the acronym? The shaking my damn head acronym. SMDH. Yes. Yes. Yeah. What about you? So I think, and we'll talk more about this. I'm going to walk through what exactly happened here in a minute. I think it's interesting to me that you went back

to ACA. I immediately went back to census case. Yeah. I went back to census case, and I'm going to explain why in a minute. But to me, this reek of census case. Do you think my O'Connor comparison is apt? Yeah. I think that, Rob, and again, this is speculation, but it will be fun to do a Justice Roberts psychological assessment after the term is over. Because by the end of this term, I'm pretty confident that Roberts will have reached some decisions that O'Connor would not have reached or that Kennedy would not have reached. That the center of gravity in the court has shifted, but shifted in a way that doesn't mesh nicely with any other justice. But that's fair. And then it's not a linear shift, but I think that this, this is so

institutional like ACA was and like census was actually, uh, because it doesn't, the opinion itself does not make sense. Yeah, no. And we'll, we'll go through this. I mean, the dissent, the dissenting concurring in part dissenting in part opinions, but you can just see them being like, what, how are we here? What are we doing? Yeah. How?

Yeah. The Alito frustration is dripping in like a three paragraph opinion. Yeah, exactly, exactly. So here's, let's just walk through this very briefly. It's a complicated, as every administrative law case ever is. If you walked through it in detail, I think people would start turning off, not just turning off their iPhones or however they listen to this, but throwing them.

And before you go into it, let me give some caveats, which is Scott, as Texas Solicitor General, worked on part of this in the Fifth Circuit. And I was at the Department of Justice during the letter from Attorney General Sessions and the Duke rescission memo as well. And the Nielsen second rescission memo that you'll all be explaining. But I want to be clear about my own involvement. And for those who are unclear as to who Scott is, for the thousands of new listeners who have tuned in just to hear our unique take on the Supreme Court, that is husband of Sarah, father of brisket. So I need to get him something that says that father of brisket. Okay, so let's go through this. So Obama administration enacts via a memorandum, and this is going to be important when I say via a memorandum, a program that it calls Deferred Action for Childhood Arrivals. This is a 2012 memorandum that said that the Department of Homeland Security, that essentially

has two elements to it. It grants forbearance, a two-year, you can apply and you get a two-year forbearance from removal. In other words, you get like a two-year safe harbor. But it was more than a forbearance from removal. You also had work eligibility and other benefits that attach to DACA. Now, when this occurred in 2012, people like me and perhaps you, Sarah, I don't want to speak for you, were jumping up and down going, you can't do this, Obama administration. There's this thing called the Administrative Procedure Act. And the Administrative Procedure Act says that if you're going to promulgate a substantive rule pursuant to any statutory authority, you have to go through notice and comment rulemaking process. And the Obama administration didn't do that. It just

issued a memo. Okay, so this becomes very important because DACA and another memo that was called DAPA, Deferred Action for Parents of Americans in Lawful Permanent Residence, which would have extended DACA-like protections to 4.3 million parents of U.S. citizens or lawful permanent residents, these programs were challenged in court the fifth circuit court of appeals enjoined the enforcement or enjoined the dapa program this went to the supreme court during the obama administration after justice scalia died and the administration and the supreme court split four to four in that case with justice ro Justice Roberts joining all four Republican nominees who are still on the court voted against DAPA. All four Democratic nominees who are on the court voted in favor of DAPA.

And the 4-4 tie, that essentially goes to, that means that, in essence, the lower court ruling that is challenged is undisturbed. Okay, so DAPA was frozen. DAPA was stopped. But DACA still existed, okay? DACA still existed. And so the Trump administration, when the Trump administration came into office, when it when the trump administration came into office it attempted to rescind daca and it rescinded daca by memorandum okay so you had a memorandum that put daca into place you had a memorandum that rescinded daca this was immediately challenged in court by multiple groups of plaintiffs who said that the decision to rescind DACA was arbitrary and capricious in violation of the Administrative Procedure Act. So the argument was that a memo that was put in absent the Administrative Procedure

Act and defiance of the Administration Procedure Act without following any provisions of the Administration Administrative Procedure Act could only be revoked if the revocation complied with the Administrative Procedure Act. So that was the argument. Several courts issued nationwide injunctions against the Trump administration's decision to rescind DACA. The administration then supplemented its original justifications for rescinding DACA with the attorney general reaching the opinion that the initial, that the attorney general issued an opinion that DACA, the original DACA memorandum was unlawful, and it supplemented

this opinion with some policy arguments as to why DACA was a bad, in addition to being unlawful, why DACA was a bad idea. So in this basis, it goes up to the Supreme Court. And now here's what Justice Roberts does. Justice Roberts says, one, this decision is reviewable under the Administrative Procedure Act. It is reviewable under arbitrary and capricious review, which is typically quite deferential. because the Trump administration aimed its critique of DACA at the work eligibility programs and not the forbearance decision. And so therefore, it has to, if it's going to rescind DACA, provide reasons why it is rescinding both all the work eligibility benefits, but also the forbearance benefit remanded on that basis, which as a practical matter means that if the Trump administration persists in trying to rescind DACA, it won't be able to do it in this current term. Trump will

have to be reelected and persist in doing it. Now, the Roberts Court provided a, the majority provided a roadmap for actually rescinding DACA, but it said that it couldn't do it right now. Sarah, is that enough monologuing? Do you want to summarize the dissents or? Yeah, so we have a Thomas, an Alito, and a Kavanaugh writing.

And let me just recommend that if you, listener, are considering reading any of this opinion, and it's, you know, pretty long, I might suggest that you start with the Alito opinion. It's very, very short. So short, in fact, that I'm going to read about 50% of it to you right now, and it will not take long. Based on everything David said, what this means

is that the federal judiciary, without holding the DACA cannot be rescinded, has prevented that, it being rescinded, from occurring during an entire presidential term. Our constitutional system is not supposed to work that way. And then he goes on to his legal judgment. First, to the extent DACA represented a lawful exercise of prosecutorial discretion,

its rescission represented an exercise of that same discretion, and it would therefore be unreviewable under the Administrative Procedure Act. Second, to the extent we could review the rescission, it was not arbitrary and capricious for essentially the reasons explained by Justice Kavanaugh. That's pretty much the whole dissent of Alito. Kavanaugh's reasoning, by the way, is also worth reading over because he is taking issue with the difference between the first memo that says this is not a legal policy, therefore we're sending it, and the second memo, the Nielsen memorandum. Because as he says, basically what the court has said is that now they just have to go back and reissue the Nielsen memo, something they already did.

Right. So here's a line from Kavanaugh. The court's refusal to look at the Nielsen memorandum seems particularly mistaken. Moreover, because the Nielsen memorandum shows that the department back in 2018 considered the policy issues that the court today says the department did not consider, which is the reason that they failed to be able to rescind the memo. And then he says, although I disagree with the court's decision to remand, the only practical consequence of the court's decision to remand appears to be some delay. Under our precedence, however, the post hoc justification doctrine

merely requires that the courts assess the agency action based on the official explanation of the agency's decision makers and not based on the after the fact explanation advanced by agency lawyers during litigation. So all of that means is that like the only thing that was accomplished here is the delay that you cannot rescind this policy during a single term, which this is where Thomas, who it's going to be the first opinion as your first dissent as you're going through and reading it, listeners.

But I recommend my order better. Right. I mean, he's just like stunned. He says, in doing so, in the majority's opinion, the majority has given the green light for future political battles to be fought in this court

rather than where they rightfully belong, the political branches. In other words, the majority erroneously holds that the agency is not only permitted, but required

to continue administering unlawful programs that it inherited from a previous administration. So here's the part, David, that I find kind of stunning about this. The majority splits this up, just like you said, into two buckets.

Y'all know how I like my buckets. Yep. Bucket one is this forbearance issue, which is the prosecutorial discretion. Look, we're going to prioritize getting criminal illegal aliens out of the country. If you were brought here and you're a DACA and you applied and you've qualified as DACA, we're just not prioritizing you ever. Please go about your life. But the second bucket are these work permits and all of these things that Congress never gave DHS authority to do, which nobody, including the majority,

says is lawful. The majority in text and in some footnotes, Roberts has some very helpful language that the four other liberal votes don't, there's no opinion by the liberals, once again, sort of like Title VII. So they sign on to this. They sign on to the footnotes. They sign on to the fact that that second bucket is unlawful. Okay. I mean, can you think of anything where, first of all, they don't then reach the legality of it? Meaning if I have a rule that maybe I didn't rescind correctly, you know, it's a footfall error. Yeah. But that rule violates the equal protection clause of the Constitution and is racist,

that we're just going to send it back and make it go through the courts for a couple years and just leave the racist policy in place no way the court would obviously reach first say look there was a footfall here but there's a you know quasi harmless error standard written into administrative procedure actions as well and in this case because it was unlawful it doesn't matter because we can't leave the policy in place and And that's, you know, Thomas does get to that and says, the majority cites no authority for the proposition that arbitrary and capricious review requires an agency to dissect an unlawful program piece by piece, scrutinizing each separate element or bucket, if you're me, to determine whether it would independently violate the law rather than just to rescind the entire program. That's, I think, the heart of my beef, my beef

bucket, David. Well, my beef is this, okay? So if the majority is saying, look, you have provided sufficient reasoning that the part of DACA that most clearly, most clearly violates the Administrative Procedure Act, in fact, was unlawful and violates the Administrative Procedure Act. And then the part, but then the part that where you most clearly have executive branch discretion, this sort of prosecutorial discretion element,

that you got to give highly particularized reasons executive branch discretion, this sort of prosecutorial discretion element, that you got to give highly particularized reasons why the area where the executive branch has the most discretion, I would say properly understood, unreviewable discretion. And then we're then... Which is Alito's point. Yeah, and then we're going to not allow you to revoke

any part of it yeah the remedy here is what's shocking yeah yeah i'm not even like fine the forbearance thing they're right the first memo didn't include forbearance i don't you know okay but then the remedy was however because this other part's unlawful, at minimum, that part has to fall. But Roberts doesn't even get to that. Right. Exactly. Exactly. How? How, David? How? Can I give you, is it time to move on to our theories as to what's happening? Have we given sufficient law explainer?

I think so. I mean, I fear that there is no way to explain this in super plain English. I fear that. I fear there's no way to explain the majority's opinion in a way that makes sense. Like if you, listener, are sitting there saying like, yeah, but I don't understand how the majority's opinion makes sense. Like, you're correct. I don't know a way to explain why this works.

In fact, back to my Obamacare point, I actually thought the tax argument worked on its face. I don't know that this even works on its face. Well, and here's the thing that gets me is we're talking, the justice who wrote this majority opinion, Roberts, was one of the four justices who said DAPA was unlawful. Such a good point. So he's gone from DAPA was unlawful, like literally voting that DAPA was unlawful to saying the nearly identical DACA program

is going to stay in place until you can explain in detail why the whole thing is going to stay in place until you can explain in detail why every single element has to be removed. Even the parts I agree are unlawful. Right. Even the parts I agree are unlawful.

He said, I mean, he does acknowledge that, you know, my second bucket is unlawful. Yeah. Yeah. So, okay. I have a theory. Okay. So here is my theory. So number one is we already know from Obamacare and we sort of know from overall jurisprudence

that once something reaches, once a program reaches sort of a sufficient level of real real world entrenchment and importance, Justice Roberts is not going to be keen on yanking it from the body politic. That he doesn't want the Supreme Court to be doing that. I think that that sort of, and DAPA never reached that. DAPA was frozen from day one. So DAPA was, for his sort of institutionalist, I don't want the court to be doing huge, major, big stuff regarding programs that are entrenching themselves

in the body politic. DAPA never got there. So that was like a freebie for him. I think there's also something else that's going on. And I think that there is an element of screw you Trump administration in Roberts right now. And well, did you see Donald Trump's tweet? Yeah. Yeah. So the president tweeted, do you get the impression that the Supreme Court doesn't like me? I actually I think he might have a little bit of a point there. I think there was something a little bit of a point there. I think

there was something a little personal about this. I'm going to agree with you. And I think it's, I think there is something that changed. And this is why I bring up census case, because there have been now three cases where the Supreme Court has ruled on super controversial Trump administration policies that have had differing explanations or differing substantial revisions to either the policies or the explanations before they reached the Supreme Court. So you had the travel ban case where Justice Roberts was a 5-4 majority. It was a very contentious 5-4 case upholding the travel ban that went through, as we remember, a travel ban 1.0.

It was sloppy both in language and execution, a travel ban 2.0 that got a little bit more refined, and then a travel ban 3.0 that was a much improved document that was ultimately ruled in favor of by the Supreme Court 5-4. So then you got several, you know, a year or so later, the census question. And this is whether or not you are going to have a citizenship question on the census. question on the census. And there was a straw, a lot of evidence, a lot of evidence that the administration was not exactly forthcoming to the court about why, and truthful to the court

with why it was doing what it did, that it was going to make a change in the form and then went hunting for the most plausible reason. And here's a key part of that opinion. Okay. It says the record shows that the secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering the Voting Rights Act, which was one of the justifications for the census question, enforcement in connection with that project. The secretary's director of policy did not know why the secretary wished to reinstate the question, but saw it as his task to, quote, find the best rationale. And so I think Roberts switched over against the administration pretty decisively in the census case

because he felt like that the Trump administration was not engaged in a good faith process. And I feel like there was a move against the Trump administration in that census case, that that's when the Trump administration in some ways lost Justice Roberts. And you can see hints of that in this opinion, because Roberts goes on at length to try to explain why the second and more comprehensive explanation for the DACA rescission was, in essence, just a post hoc rationalization after it provided a much more cursory and, in his view, less adequate initial explanation. Do you think I'm off base, Sarah?

Well, can I give my theory, which is just far less thoughtful than yours? Please, please. So this goes back to my non-engagement theory. Okay. Which I think some people have taken to mean something like judicial modesty. And I want to distinguish the two because judicial modesty. And I want to distinguish the two because judicial modesty is not,

you know, if there's a smaller way to go to rule, take the small route, something like constitutional avoidance doctrine, which we've talked about before. Judicial non-engagement to me, which is what I've said that John Roberts seems to favor, is finding a way through an elaborate game of Twister of getting the court as an institution out of election year and Obamacare was in 2012, and this case is in 2020, and there's other cases, you know, basically every year is an election year now, right, folks? But this opinion doesn't make a lot of legal sense, but it makes a ton of sense if you as John Roberts want the political branches to work this out

and want them to stop dragging the Supreme Court into their political fights. So he leaves the status quo in place and want them to stop dragging the Supreme Court into their political fights. So he leaves the status quo in place and makes them deal with it. And this is where I think Thomas's line is speaking directly to Roberts's institutionalism slash non-engagement, which is like, you think that you've left this in the political branches, but, and just to read it again, you know, the majority has given the green light for future political battles to be fought in this court rather than where they rightfully belong,

the political branches. Because by the very nature of leaving the status quo in place, you did put your thumb on the scale. Yeah. And the thumb is that the Trump administration, now let's assume Trump loses reelection in November. In December, the smart

thing that a lawyer would tell his client, Donald Trump, or a cabinet secretary, is write a lot of memos binding the next administration in all sorts of policy areas that literally just write a letter. It's fine. You don't have to do much else because they then have to follow this elaborate process to try to get out of it. And we can then sue and delay it for as long as we can. And that's where the thumb on the scale, like that's where I think Roberts has this wrong. Like it did work in 2012 to some extent with Obamacare, but everyone's like now in on the game and it's like, oh, well the Supreme court as an institution is not getting out of this. They're very much flailing in the mud in it now. There is no punting here. There's no punting because exactly what you said, if your view is one memo is going to trump the other memo, you've not said, you have not established a rule that says, leave us out of it.

And you're exactly right. I mean, and a lot of people forget the progressive legal movement, the progressive legal resistance did not invent the nationwide injunction tactic. Okay, this happened in the Obama administration to frustrate the Obama administration. I mean, they never got DAPA off the ground, right? And so if you think, if anyone thinks for five seconds that Joe Biden can come in and just sweep everything away without a host of conservative litigators sprinting, I mean, fighting each other, like in the anchorman brawl to get to be first. But in front of the DDC. Yes. To be first in to a favorable jurisdiction to get a nationwide injunction.

You're just, you've got another thing coming. I mean, this is, this is, um, what this is, is essentially a declaration that, and I, I like your, I like your, uh, formulations there. And I like your formulations, Sarah. And I think there's the census case. Why can't I say that? The census case actually goes to your theory because, look, this was about redistricting by the 2020 census form, which is going to have huge or huge consequences for things like redistricting by the 2020 census form, and which is going to have huge or huge consequences for things like redistricting and which has a lot of electoral consequences. And this was a case that was decided essentially by the time it was decided, it's kind of too late for the Trump administration to restart the process, to go back and to do it correctly. to restart the process, to go back and to do it correctly. So I've been chit-chatting with my mother today about this,

and she's not a lawyer, and she was like, okay, well, what happens now? And I do think that's a little worth going into because there is a case pending in the Fifth Circuit still on the lawfulness of DACA. That case was put on hold, more or less, because the DACA was rescinded and then all of this litigation was going on. Well, now we're back to that. So not only can the Trump administration, if they wanted to, re-rescind by just reissuing the Nielsen memo, more or less, but will they, A, David, I'm less certain this close to an

election, and B, it wouldn't accomplish what it was supposed to accomplish, which was this was always the bargaining chip to get both sides to come to the table in Congress over immigration reform. We're way too late for that at this point. By the time that rescission memo happens or anything else, we're too close to an election year. Both sides are just going to dig in and not give the other side a win of any kind. But that was the always thought of as the initial reason to rescind DACA was let's do real immigration reform by legislation. But in order to do that, we have to sort of reset the table so that both sides have an incentive to come. Right. And OK, so that's why I don't think they're going to keep DACA in place. I'm just going to flat out keep it in place.

And if his administration doesn't come forward with or drops the objections that were raised and doesn't follow the path that Roberts lays out, how is DACA going away? You're going to have to... Well, so that's where you get to the second one, which is this pending case in the circuit on the lawfulness of DACA.

Now, what's interesting on that one is they already have conceded that the forbearance bucket that I talked about earlier, they're not touching the people trying to say that DACA is unlawful. So we're now only talking about the work permits

and sort of extra legal, non-congressionally authorized stuff that DHS did in the initial program. So that's how DACA will fall, I think, but only that side. The forbearance side will stay in place, as you said.

But also imagine a world, David, where Joe Biden wins and Democrats take the Senate, which I've written about this. It's not likely, but it's not not possible by a long stretch either. Like it's very much in play. So you could have similar to what happened in 2008, a democratic sweep of both houses of Congress and the White House. And then they can do a legislative fix here, which I think goes to Alito's point of like, so you had the American people elect a president. One of the first things he did was try to rescind this program and he couldn't effectuate it for four years. That is not how our Constitution is supposed to work, but it will be a very frustrating

and undermining thing for our institutions as a whole if roughly 50% of the country didn't get what they want. Right, and it will happen. It will happen to Joe Biden. I mean, we can just count on this. I mean, this pattern,

which started again before Trump, will continue after Trump. And Roberts gave it additional fuel. And I think of all of the dispiriting aspects of sort of the breakdown of our constitutional lawmaking, and this is something we actually vented about in the dispatch pod yesterday. We've had a breakdown in the constitutional lawmaking process. And this never should have been like the Obama administration shouldn't have had to do this in the first place. Congress should have done it. And then we wouldn't be dealing with any of this. But Congress, what it was said a dozen times, had tried

to do something about this issue, and it just failed over and over again. And most of those, frankly, weren't good faith attempts. Right. Right. And here's where it even failed more, because the Obama administration, it's not just that Congress failed to reach a legislative solution for the Dreamer issue. It's that then the Obama administration defied the process that Congress had already set into place for how you create new regulatory rule, new regulations. So it just flat out defied the congressional structure. And you would think, you know, institutionalism is kind of a fuzzy word. But there is an institutionalist argument here.

If you're trying to restore, you know, some congressional authority into our, into our balance of powers, the separation of powers in the United States constitution that you would sweep aside DACA and say, at the absolute least, it should have gone through the APA rulemaking process. At the

absolute least. And by not doing that, it's gone. It's out. I'm sympathetic to that. I am. But at the same time, when the process is so broken, it gets more broken. The broken process doesn't fix itself in some small areas and then start following the rules. It's the broken windows theory of congressional legislation. Yes. Well... You know, if the windows are, you know, broken out and there's litter everywhere and you walk by, are you going to put your empty Coke can in the trash can? Are you going to just sort of toss it? And I think this APA violation that you're speaking of about the initial memo is a Coke can version of this.

Yeah. I mean, you're right. I mean, it is, it is, yeah, it is a Coke can version. We are just, oh man, buckle up y'all buckle up. Okay. Well, let's go, uh, let's, we have some postscripts from Monday. Well, do you want to start postscript number one? We're talking about postscripts on the Title VII decision, which has created an enormous wave of commentary, anger, anguish, jubilation, celebration. So we thought it would be worth some additional time in this podcast to say, what are we thinking of it now three days later? So Sarah, you had some thoughts.

Well, first of all, Bill Torpey at the Atlanta Journal-Constitution did some just wonderful journalism since the opinion came out. And I want to give him a shout out by name because this is the journalism that I think is good because it goes beyond sort of hot take journalism. You actually have to go call people and do work. And here's the paragraph from his story that I thought was delightful. And I think more journalists should write like this, by the way. So if you're out there listening,

journalists, uh, shout out to this guy, Bill Torpy as a guy who sweeps up after the news. I thought it might make for a good backstory to find out what knuckle-dragging troglodyte separated a good, caring man from his dream job just for being gay. I did some investigating and found out it was Teske. So this is a judge named Teske, and he calls Teske. And Teske says, I'm glad the Supreme Court came down with that decision.

As a lawyer and a judge, I believe that gays and lesbians should not be discriminated against. I avoided this going public before with this because I'm glad Bostock won. But there's only so long he can hide from the truth. Dun, dun, dun. So what is the truth? What is it? Bill Torpy is asking Uh We knew from the start of his employment that he was gay that was 10 years before he was fired He wasn't fired for being gay this guy the guy who fired him used to go out with him Sometimes every weekend with his partner He knew my kids my my mom, my dad. We became very close.

That's why it was very hard for me to let him go. My mom and dad loved him. However, it turns out, and this is an allegation, obviously, that $12,294 was spent incorrectly by an auditor. So basically this guy was embezzling money for quasi-personal use, certainly unauthorized use. And so he was fired for that. The reason I bring all this up, A, it's great journalism. B, as is so often the case with Supreme Court cases that make big law, the facts are very messy. This guy is 100% going to lose

his case that he was fired for being gay because there is overwhelming evidence that everyone knew at his job that he was gay for years and that he was fired for financial mismanagement. Again, whether he did financially mismanage or not will actually be kind of irrelevant because there's evidence that that's why he was fired. And so after all of this and all this litigation, he's going to lose his case. Yeah. I mean, that was, I read that and it was fascinating, but not surprising. And one of the things an awful lot of people don't realize is a huge amount of litigation occurs before you really dig into the facts, the case, because you will have a motion to dismiss in a case. And that motion to dismiss will be based on the presumption that everything that

the plaintiff says is true. Or you'll have a motion for summary judgment. And the motion for summary judgment will again not be based on, will not treat the court as the trier of fact. It just says, even if you accept the allegations, the evidence in the plaintiff's favor, there's insufficient, as a matter of law, the plaintiff will lose. So these cases are often run all the way up and based on assumptions about the facts that are not true. In fact, this is one of the ways, I would say this is a predominant way in which civil litigation occurs. And I did this countless times as a commercial litigator. I would constantly file motions to

dismiss or after discovery motions for summary judgment saying, hey, court, even if everything that they say is true, they still lose because of the law. And so this is why something like this can happen. If he alleges that he was fired because he was gay, even if he was not fired because he was gay, you treat that as true for purposes of the legal argument. So that's a fun postscript. I have a second postscript. Cass Sunstein wrote an interesting piece for Bloomberg, and he notes that Title VII of the Civil Rights Act, 1964,

the whole thing that this was about, let me just read it quite quickly. It is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation terms, conditions, or privileges of employment because of such individuals' race, color, religion,

sex, or national origin. This case was obviously about sex, David. Right. However, Cass Sunstein points out that in 1979 the supreme court ruled that notwithstanding its text that language that i just read permits affirmative action and again it says you cannot discriminate against any individual with respect to his race and the reasoning that they used for that was despite the text, quote, a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers. So they said in that case that the primary concern of Congress at the time, again, not what's in the text, but the concern of Congress was, quote, the plight of the Negro in our economy. And therefore,

it was to open up employment opportunities for African Americans, and therefore, affirmative action was lawful, to very, you know, summarize that quite quickly. But if you remember our conversation from Monday, this was all about the text for Gorsuch. That's why this came down to the word sex. And we had all four liberal justices joining this opinion and Roberts signing onto this with no concurrences, no like, well, I mean, I agree with the outcome, but, and Cass Sunstein's point is, uh, well, if we're doing this by the text now, and we all now agreed that, uh, the 1964 civil rights act is only what the words say, then discriminating against an individual on the basis of race positively or negatively, uh, will be a no, no. positively or negatively, will be a no-no. So I think he's got a great point that this ripens some of these affirmative action cases. And there are some pending, if you remember Harvard, like on the higher education stuff with discrimination against Asian students.

And those are ripening as we speak on the vine. Yes. Yeah, I thought that was very interesting and fascinating. And it goes to an awful lot. I mean, there's not just Title VII. There's Title VI, banning race discrimination in educational programs. There's Title IX with sex discrimination. And it has, the way a lot of these things have been interpreted is to essentially ban only what you would call invidious discrimination. In other words, for sort of malicious or hostile discrimination. But beneficent discrimination, benign discrimination, has been long held to be completely appropriate as a matter of discrimination law.

And that is a very, very fascinating point. And it will be interesting to see. Consider me skeptical, Sarah. Consider me skeptical that we're going to have a sweeping away of affirmative action or race conscious diversity programs as a result of that, as a result of this. Well, you know what? Frankly, though, we've got five votes on that. Like because Roberts, if you remember, in one of his more famous lines said the best way to end discrimination on the basis of race is to end discrimination on the basis of race. But and then you have Gorsuch saying he's going to read this by its text alone.

And then you've got the three others. I mean, who am I shaky on here? Yes, you are absolutely correct, Sarah. Who are you shaky on? But we're also talking about institutions that have been in place. Yeah, when the case gets ripe and it just happens to be OT23, I've got problems. Right, exactly. Because you're running up, you have one theory of jurisprudence

running up against another theory of jurisprudence. And I wonder which one will win. Okay, so... You've got some postscripts. I have a postscript. And here is this. Can we please, please, please stop talking about this Title VII case

as the end or a fatal blow or the end of or demonstrating the bankruptcy of the conservative legal movement, please? Say more. Okay. So we've seen a lot of this. Josh Hawley has been railing on this. Others you've seen all over on Twitter that what is it we've been trying to do here? What has the conservative legal movement ever accomplished. And I, you know, look, I have a memory. I remember the state of the law in the United States on all of the issues and all of the matters that the, quote, conservative legal movement cares about. I remember how prevalent textualism was as a judicial interpretation method. I'm familiar with how prevalent originalism was as a judicial interpretation method.

I'm familiar with this. You remember using whale blubber to light lamps? Yes, I remember all of it. I took my horse and buggy to Harvard Law School. Uphill both ways. Uphill both ways. Uphill both ways. And I remember, and to argue that because Justice Gorsuch in particular was persuaded by a textualist argument on Title VII, and by the way, can we please stop distorting what he did? He did not redefine sex. He did not redefine sex.

I think this is an important point. Explain that because I underline that. What he said was sex means exactly what it meant in 1964. That it is a biological male-female. This is determined by biology. It is not determined by gender identity.

And that he is not redefining sex. What he is saying is under the 1964 definition of sex, you cannot discriminate against a person on the basis of sexual orientation or gender identity without also discriminating on the basis of sex as defined in 1964. That's what he was saying. He did not redefine sex.

He said that the... By the way, footnote, I'm pretty sure we're the only podcast that is defending Justice Gorsuch this week. Like, on the one side, they're saying, like, yeah, but, and on the other side, they're like, he's terrible.

So, like, maybe we're the Gorsuch stan podcast for this week. Yeah, I mean, you know, look, his, I think, what you had was Alito the Gorsuch-Stan podcast for this week. Yeah, I mean, look, I think what you had was Alito and Gorsuch both agreeing on the definition of sex. And so many of the people who are critiquing this case won't say that. They will say that he's redefined sex and explicitly he didn't do it. Where Alito and Gorsuch disagreed was on the implications of that definition. That's what they disagreed about.

Okay. So, um, so anyone who's saying, well, that what Gorsuch did was redefine sex. They've already lost me. Okay. Because what Gorsuch did was he took the definition of sex and applied it in a way different. And, and Alito, and he went back and forth on this i mean this this was not and you know i i just i don't believe that this was the easy slam dunk kind of case that uh a lot of people on the right are saying it is because they're not wrestling with what with what gorsuch actually did which was to apply the biological definition of sex as understood in 1964. But so anyway, I also am annoyed with the motive thing that you you and I were texting about

on Monday night that for some reason, when you disagree with a Supreme Court opinion or really anyone's opinion on anything, Twitter or otherwise these days, you can't just say, like, I think this is wrong here. The reasons why it's wrong policy policy, policy, or poor logic or whatever else you have to say. They did this because of some character flaw in them. And in this case, I've seen a lot of like, Justice Gorsuch did this because he likes Washington cocktail parties in the editorial pages of the New York Times. Correct. Oh, I mean, based on what, like, please stop attacking people's motives for doing things. Why don't we just discuss why you think they're wrong? Because I think there's great arguments for why Gorsuch was wrong. Yeah. And Alito made them. And Kavanaugh made them. Yeah. So that's my little beefy beef. No, I completely agree with you. And why did I find it particularly ridiculous to apply

this to Gorsuch? Because I read the oral argument in the case and I saw what they were doing was not, they were aiming everything at textualism. They were aiming at a particular judicial philosophy. That's what they were doing. They were aiming at a particular judicial philosophy. That's what they were doing. They were aiming at a particular judicial philosophy. They were not making the, you know, a positivist or purposivist argument. They made a textualist argument. I mean, they were singing Gorsuch's song. And okay. So anyway, anyway. All right. We got to get to Bolton. Well, wait, I got it. I'm not, I've still got my other thing about the conservative legal movement. Oh i got sidetracked okay i got sidetracked all right i arrived at law school in august of 1991 that was a little bit over a year after the case a famous case called

employment division versus smith that was a 1990 case, majority opinion by Antonin Scalia, that ripped the guts out of the free exercise clause of the First Amendment. By the time I got to law school, the following things were completely up for grabs. Whether the free exercise clause was essentially a viable aspect of the First Amendment, absent evidence of very, very explicit targeting, equal access to a wide variety of public facilities, whether or not speech codes and nondiscrimination law were going to trump standard exercises of First Amendment speech in higher education. And also up for grabs, also at issue was the fact that Roe v. Wade was absolutely ascendant. And even though Planned Parenthood v. Casey reaffirmed the existence of a right to abortion, it did open up the door to a lot more abortion restrictions that were available by the time I got to law school. I mean,

the idea that the conservative legal movement has been a failure, when you compare where it was when I started at Harvard Law School and our Federalist Society was this tiny group of embattled, divided people who couldn't decide if we were more libertarian or social conservative. I don't even know what to say to somebody. The expansion of religious liberty jurisprudence, of First Amendment jurisprudence, the expansion of abortion restrictions since 1991,

August 91, when I got into law school, is just really pretty incredible. And you will see continued expansion, well, will, you'll likely see continued expansion through the rest of this term. So can we please not overreact to the title to seven decision and can we please not write the obituary of the conservative legal movement because people disagree with a textualist judge's good faith reading of the text um i'm okay kind of i. I'm kind of with you.

I think you come at this like you have your pet issues that are just much higher on the list. Religious liberty is so high on your list, and that's been heading in a certain direction. I think there is valid frustration.

I actually think the more valid frustration is on the DACA opinion for conservative legal movement. Oh, I agree with that. Apocalypse arguments valid frustration is on the DACA opinion for conservative legal movement. Oh, I agree with that. Apocalypse arguments, which is what the Federalist Society and conservative legal movement was about was a process point of how you arrive at decisions instead of just, you know, willy nilly. We got nine people up there. Let's say what they think. people up there. Let's say what they think. And I think that's where the DACA opinion is a little terrifying to the conservative movement, because here you had John Roberts,

you know, not brought up to the conservative legal movement, but pretty close to it. Young guy, D.C. circuit, looked great. His hearing was fabulous. And then you've got this DACA opinion that the process is thrown out the window. fabulous. And then you've got this DACA opinion that the process has thrown out the window. I think the conservative legal movement ending over Title VII is silly because the process was followed. You just may not like the outcome of the process. It was an intra-family fight over textualism versus literal textualism versus originalism. And frankly, I think it'll be studied for a long time to come as the definitions of the different factions within the conservative legal movement, which

actually means, by the way, that the conservative legal movement is alive and well if we're having these fights. DACA, on the other hand, is a big, big problem. No, I'm going to agree with you on that. I think that from the ACA on, if you are looking at Justice Roberts' jurisprudence, it's been pretty clear, and you're right, I do emphasize the First Amendment an awful lot. I mean, it is, Sarah, after all, the First Amendment. I was not criticizing your emphasis. I'm saying your heart is perhaps in a different place than some folks' emphasis. And so their frustration, you know, you may not share their frustration. Right. No, I do. I will say that my emotional attachment to the First Amendment is superior than my emotional attachment to the Administrative Procedure Act. superior than my emotional attachment to the Administrative Procedure Act.

The Administrative Procedure Act with a face only a mother could love. But I do intellectually understand the incredible importance of the Administrative Procedure Act, and as well as I have a greater emotional attachment to the separation of powers and the alleged, or the intention of the founders that the Congress be supreme. So I do get all of that that you're saying. What I object to, any legal movement that is going to rely on a huge number of human beings with lifetime tenure that arises out of, and by the way, the conservative legal movement has never been ideologically or philosophically monolithic. It hasn't. If you go to FedSoc in a law school, you have a coalition of people in there who are everything from sort of like old school establishment Republicans to, you know, um, libertarian nerds who read every last thing that Cato publishes. It's an intellectually diverse within a movement within the broad right

side of the, um, judicial philosophical spectrum. So when you talk about conservative legal movement, it was not something that had a single philosophical outlook and a single judicial philosophical definition. It was more properly described as contrary to and dissenting from the dominant legal theories that existed in the 60s, the 70s, the 80s, into the early 90s, where the conservative legal movement really began to almost kind of reach parity with these other competing, more progressive philosophies. It was never one unified, unitary thing that would yield unified unitary judicial results. So it has to be looked at in toto. It cannot be looked at as this decision or that decision is inconsistent with this unitary thing that I think that it is.

Does that make sense? Toto. Toto had that great song. Really a big fan of Africa, as you know. Yes, and Pitbull's adaptation in Aquaman. Perfect. I'm obviously partial to the Weezer version. Okay, so

we need to talk about Bolton, but the hearing is tomorrow. So I think we should save the bulk of Bolton for Monday, but I think we've got to lay some groundwork today. So, John Bolton was set to publish a book. He tried to go through the process to publish a book when you've been a senior administration official with security clearance, and that really wasn't going anywhere. So he just went ahead and published it.

The Trump administration sued him earlier this week, and then last night filed for a TRO. They have Judge Lamberth on the D.C. District Court. That hearing is tomorrow. So we'll definitely talk about how that hearing goes, but I wanted to talk about some issues raised by security clearances and classification and the lawsuit itself. So first of all, David, I had the exact same security clearance process that John Bolton had, believe it or not. He was national security

advisor and I was nothing. You were not nothing, Madam Spokesperson for the Department of Justice. I was not national security advisor. So I think that will just come as a surprise to people. He was probably read into more compartments than I was. But our process, if I wanted to publish a book in terms of my contractual obligations are the same. There was the top security clearance and then the secured compartmentalized.

So it's TSSCI security clearance. And you sign two different documents. And each one, among other things, says that if you do want to publish anything, you need to put it through pre-publication review, where there's a pre-publication review office, basically, where they look to make sure that you didn't accidentally, or perhaps not accidentally, include classified information in what you're going to publish. Two important points on this, David, before we get into John Bolton's specific legal issues. One, if you publish something false that you claim that it's classified, it's not classified. This becomes very relevant in leak cases, which we call them leaks. And we treat leaks as if like me gossiping is a leak and me

leaking classified information is also a leak. So from now on, I'm going to refer to these for when we're talking about Bolton as the unauthorized disclosure of classified information, not a leak. Leak is gossip. So in cases about unauthorized disclosure of classified information, not a leak. Leak is gossip. So in cases about unauthorized disclosure of classified information, what often happens is that a part of the intelligence community will come to the Department of Justice and say, we've had an unauthorized disclosure, find them and prosecute them. So the FBI will go and track down the person. It's very difficult to do, but actually, you know, they do better than you'd imagine.

But here's the reason why you don't see many prosecutions because then the FBI goes back to the intelligence community and says, okay, we found the person, we're going to charge them. And the intelligence community says, oh, but then we'd have to say in court publicly that the information that person said was true.

And then our foreign adversaries will know that it's true. Nevermind. Thanks for finding out who it was. Bye-bye. So because the government always would have to say, yes, that is how we did that thing. It's a problem. Now, why is it relevant here?

Because it means that the president can't claim that what Bolton said is false and also classified. It can only be one or the other. And that puts them politically in a little bit of a bind, which I think is interesting. Okay. Now, he can say that parts of the book are false. Which is what he has said.

And parts are classified. And he's not going to tell you which one's false. Well, if he says something is that some of the most explosive stuff is false, then it... But in court, in court, they're going to have to distinguish. Exactly. Yeah. And they have not yet, if you notice in the filings, said anything about what parts they claim are classified. Okay, second point, big picture. So what it says is that before you give any, like, of your manuscript to anyone

without a security clearance, it has to go through pre-publication review. Right. So most people think that just means, like, you can't publish a book until it's done this. That's not technically what that means. You know, let's assume David, that you're my attorney. Yeah. For my book. Um, I really can't show you my book so that you can go talk to my agent or my publisher and everything else because that violates pre-publication review. Do you know what else it means? It means I can't email it to you. It means all of the things you're supposed to do

with classified information would apply here. And so the reason I bring this up is because I think you've got a bit of a selective enforcement issue that's always been lurking with the pre-publication review process because nobody puts their stuff through pre-publication review process because nobody puts their stuff through pre-publication review until they have a book deal. And they don't have a book deal until basically their attorney has sort of already looked at it. It's been emailed around a little to a limited set of people often. We're talking maybe six people, but those six people don't have security clearances. And so the government has treated pre-publication review to mean publication in stores everywhere coming to a theater near you. But what the publication word actually means there is any public dissemination.

Yes. Yes. So there are other aspects of this, picking up where you left off. One is how much time... So Bolton has... This is a breach of contract case. It's broad as a breach of contract case. And I didn't have the TSSCI clearance that you had. I just had secret clearance. So I only signed one of the two forms that Bolton signed. Oh, David, how sad for you. Such an underling, a peon, a peasant. I know. I know. I feel so small. I hope I've emasculated you on your security clearance. I feel so small. Only a secret clearance. But this is a breach of contract action, but it has constitutional implications without question. So what's interesting about some of the facts here is that this pre-publication review took a long time and was not complete. Why does that matter?

Well, if you're going to block publication of information, you cannot hold on to it indefinitely. In fact, there's some case law, not Supreme Court yet, but there's some Fourth Circuit case law that says you probably have to do this within 30 days. Number two, you're going to have to have super specific criteria that prevent this from becoming an unconstitutional prior restraint, criteria for decision-making. And one of the interesting things here is Bolton actually, after a months-long process, was told,

and a back-and-forth negotiation was told that the book had been cleansed of classified information before somebody else came in and said, oh, no, it hasn't been. And so that's going to cause a court to look a little bit skeptically at this.

Also, the interesting thing is this is a lawsuit against Bolton, not against his publishers, but they're trying to get the publishers. The book right now is in warehouses. The book is in the hands of media figures. This book is out there. It is. No, it's like it's the best example of the horse has left the barn, and now you're trying to shut the door. The horse is running around the New York Times editorial room. It's on Stephen Colbert's show. The horse literally was in Stephen's house on TV. I mean, Bolton doesn't have...

What's Bolton going to do? Run around to a bunch of warehouses and collect a book in wheelbarrows? Well, it doesn't even ask for that. It asks for the court to instruct Bolton to ask the publishers not to distribute it, which is a bizarre phrase that I've never seen before. Yeah, it's very bizarre. So if I were Bolton or Bolton's attorney in this case,

Chuck Cooper, who again, I've worked for, I would send a nice little short email to said publishers and warehouses and distribution venues and say, Dear publisher, I am instructed by the court to ask you not to distribute my book. XOXO, John Bolton.

Right. And why is this a... Obligation done. Why is this a breach of contract case? Because there's actual pretty on-point case law regarding enjoining publication of classified information as a constitutional matter. In the Pentagon Papers case,

the Supreme Court reversed injunctions against New York Times and Washington Post publishing classified contents of the Pentagon Papers. And there, by the way, we knew the information was classified, and they were making an argument that it would harm national security. Yes. So a much higher bar was cleared. Yes, exactly. Exactly. A much higher bar. And the other little trivia point is Judge Lambreth is on the record critiquing government over classification. whole pot on that he's right oh could we not i i have a whole album side on that sarah um so anyway uh my basic assessment and we'll see what the judge says but my basic assessment of this case is that this is this is an attempted prior uh and an attempt at an unconstitutional prior restraint um we'll see if the judge agrees. I'm not sure that it is. I don't know that I think it's that they're even trying to have prior restraint at this point.

I think that this is DOJ being put into a bit of a tough spot where the president says, sue the bastard. And they tried to come up with a way to do it that wasn't, frankly, you know, sanctionable under Rule 11. And so they have that language in there about the court instructing bolton to ask his publisher not to publish which is not prior restraint to me and then to i hear you i hear you no here is this here is uh letter f of the complaint or of the request for relief declare that pursuant to Federal Rules Civil Procedure 65D2, this order binds defendant's agents and other persons who are at active concert

or participation with defendant or his agents if they receive actual notice of this order, including Simon & Schuster, Inc., and other such persons in the commercial distribution chain of defendantants book. Okay, so maybe there's a prior restraint aspect, maybe not. And then two, they're looking for all the revenue from the book. Yes, they are also looking for the revenue, for sure.

So those are the, you know, two issues certainly that we'll look for tomorrow. But I also think that Bolton has this great safe harbor, if you will, that on April 27th, he got an email from the head of the pre-publication review person where she said, quote, she had completed her review and was of the judgment that the manuscript draft did not contain classified information. Now, it is absolutely the case that that person has a boss and that person's boss, Michael Ellis, has said he disagrees and he wanted to review it himself. And upon reviewing it, he's not so sure. And that's why the process needed to continue going. To your point, there has to be an end to the process. There has to be a timely end. And second, at the point that Bolton had this email, I think a judge is going to push pretty hard on the government to say, okay, well, then you needed to be more specific and you certainly need to go faster. That was April 27th.

Yeah. And this was, you know, a month went by of still ongoing, still ongoing, still ongoing. Right. And why send the email? Why communicate that to Bolton that there is no classified information? Yeah, this is, this is, it's hard for me to, again, judge will decide, but it's hard for me to see him winning. Okay. So we'll wait and we'll see how tomorrow goes. And we'll certainly, you know, revisit this on Monday with fresh feelings from judge Lamberth. So last topic, David, we haven't talked about Corona virus in a while. And a lot of folks, you know, are saying that this will affect an entire generations view on the world.

And this is their nine 11, you know, with a new baby in the house. I'm very, you know, I think about this of like how I'm going to explain what was going on when he was born and all of these things. And you mentioned that you were re-watching

The Americans, which I also watched earlier. And my generation, it's 9-11, right? So I was in college when 9-11 happened. So the first time out of the protection of my parents' home and the world is falling. And it was a very impactful moment, obviously,

but I think impactful all the more so because of my age. And then we go back to the Great Depression and World War II and anyone who was coming of age in 1968. And then we kind of think about you guys, and we're like, meh, you guys were fine. That's why you're kind of selfish bastards. Wait, Gen X? Us? No. Yeah, yeah.

Selfish? Yeah, you're the bad guys in every story. Oh my gosh. Yeah. Oh my gosh. I mean, greed is good, right? That's your model. But the Americans brings up an interesting point.

You were coming of age during the 80s. And so I wanted to ask you questions about what that was like and what you feel your trauma was. Yeah, you know, number one, I just really have to recommend The Americans. It is a tremendous television show. And I was very reluctant to watch it

because I thought the premise sounded a little strange. Following a deep cover KGB agent family as they navigate their espionage against the United States in the 1980s. No, but it's really, really good. And we're rewatching it with my 19-year-old son. And it's just fascinating to relive because they do an excellent job of recreating sort of the chaos and the concern and the sort of the background level of alarm that constantly existed when the United States and the Soviet Union were facing off at the height of the Cold War. And these seminal moments where something would happen and you didn't know what came next, but you knew if a certain series of events went poorly,

what came next could be beyond catastrophic. And I was 12 years old during the Reagan assassination attempt. And what they do really well in the show is recreate sort of the chaos and the immediate moments after that where Al Haig seems to declare that he's in charge. And this sort of interesting Soviet reaction because Haig was a

general. And is this a coup? You know, the Soviets wondering if this is a military coup from this very hawkish guy and then the FBI scrambling to figure out if there was any Soviet involvement in the assassination attempt. Then, you know, as the series progresses, you get to the shoot down KAL 007 in 1983, where a Soviet fighter shot down a South Korean civilian passenger jet, dramatically increasing tensions. And it was, I think, two months after that. September, I went back and looked at the timeline. September 83, KAL 07 goes down. November 83, ABC does this TV miniseries called The Day After. And this is pre-fragmented media. This is when sort of everybody watched the same stuff. And I cannot overemphasize the trauma the day after inflicted on my classmates.

This was a TV show picturing a nuclear holocaust. And let's just say, if you haven't watched it, ignore the hokey special effects, but it really does a great job of showing the awful, helpless, horrible fear that would ensue when all, if you were in the Midwest, and then I'll never forget it. I'll never forget it, Sarah. I'm watching it. And there's these normal Americans and they're looking out and they're watching the ballistic missiles launch from the launch pads that were scattered in the upper Midwest. So they're watching the ballistic missiles launch from the launch pads that were scattered in the upper Midwest.

So they're actually seeing the American Minuteman missiles launch, and they know it's all coming to an end. And then the air raid sirens sound, and there is nothing you can do. Nothing. And, oh my gosh. Oh my gosh.

Yeah, so I think that's what's interesting. 9-11 is this event that happened. That's what's traumatic for millennials. But what happened for Gen X was the fear of an event that never happened. And I think that there is a lot of discounting of that shaping a generation just because it didn't happen. And we forget that you were told any minute it could. Well, and the other thing I think that is, that we've kind of lost sight of is that anti-communism. So we look back at, you know, we watched Mrs. America, remember that? And we've talked a lot about that. And Phyllis Schlafly came up as a defense policy expert. You know, right now,

because America is a hyper power, America is the dominant military power on the planet. And, you know, while there's regional challenges from Russia or regional challenges from China, I mean, no one legitimately thinks that either one is quite yet or near close to can match us in our overall military capability. Throughout the late 70s and through the 80s, we did not feel like that. We felt like the dominant military power in the world was the Soviet Union and that there was a real potential that this totalitarian dictatorship was had, you know, you talk about the arc of history, that the arc of history was on its side.

It had overwhelming power. And so defense policy, which is now much more niche, was front and center. Anti-communism was front and center. And the fact that we were able to defeat that ideology without a catastrophic war is a really underappreciated aspect of American history. And we sort of have underappreciate the extent to which anti-communism is sort of the single most salient aspect of any given person's ideology was not just defensible, but in many ways was, you know, played putting your priorities in the right place at that time.

And now we look back on it like, oh yeah, we won that. We were always going to win that. But that's certainly not how it felt. And on that note, I'm going to finish up with reading you some of the tweets from the president since we've been podcasting.

Good. The recent Supreme Court decisions, not only daca sanctuary city census and others tell you one only one thing we need new justices on the supreme court if the radical left assumes power your second amendment right to life secure borders and religious liberty among many others are over and gone uh as president united states i am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again. I will be releasing a new list of conservative Supreme Court justice nominees, which may include some or many of those already on the list, by September 1, 2020. If given the opportunity, I will only choose from this list, as in the past,

a conservative Supreme Court justice. Based on decisions being rendered now, this list is more important than ever before. Second Amendment, right to life, religious liberty, etc. Vote 2020. Oh, boy. So you know what, David? We'll have plenty to talk about on Monday. Yes, we will, including, in all likelihood, some of these Supreme Court cases where I feel like it's likely. My once in future Espinoza, you mean, where like every single time Scott last night is like, what opinion do you think is coming out tomorrow? And I was like, Espinoza, which I know I've said listeners for like seven weeks running. It's really funny at this point.

It's like a joke. Well, stay tuned. This is the time to be an advisory opinions podcast listener. Now is the time. Jump on board this train. It has unstoppable Supreme Court analysis momentum at this point. I think that's fair to say. Wouldn't you, Sarah? Totally. I mean, that's not biased at all. It's just true. No, we have unstoppable momentum in offering incisive Supreme Court analysis, along with just the best pop culture takes on the internet, frankly. All right, David.

All right. Until next time, this has been the Advisory Opinions Podcast with David French and Sarah Isker. Bye.