Advisory Opinions - Barely Averting a Constitutional Crisis

Episode Date: September 15, 2026

Sarah Isgur and David French debate David’s latest New York Times column on the Missouri Supreme Court blocking a congressional map. Then, the two review two law articles: Andy Smarick of the Manhattan Institute’s elegantly simple piece on unenumerated rights, and University of Virginia law professor Caleb Nelson’s amazing yet horrifying publication on the unitary executive.  The Agenda: –Paying tribute to the victims and those who sacrificed their lives on 9/11 –The redistricting fight that favors Democrats in Missouri  –Andy Smarick: “How Judicial ‘History and Tradition’ Went Wrong” –Caleb Nelson’s article on the unitary executive –Is a teacher’s pride flag personal effects? Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. We will start with September 11th and some of the things that Justice Kavanaugh said while reflecting on that day and the White House. And some of the reactions to what Justice Kavanaugh said reflecting on that day in the White House. As well as I will pick a fight with David over the redistricting shenanigans in Missouri.

And we've got two articles. One by Andy Smerich on... text history and tradition, and the three questions judges should ask if they want to do it right, as well as a unitary executive takedown by conservative professor Caleb Nelson, who says, oh, you want to do originalism? Can I introduce you to the necessary and proper clause? And then we've got that second circuit case on the teachers with the pride flags in their classroom. Is this like Kennedy v. B. Bremerton? Is it like that bookcase out of the Ninth Circuit? what are these teachers allowed to have in their classroom? And why does this feel like every case we are doing right now?

David's got feelings on Garcetti and Pickering again. All this and more. Coming up on advisory opinions. All right, David, let's start with some news that happened on September 11th. First of all, we continued our tradition of bringing all of the Briscuit's classmates to a fire station nearby and dropping off goodies and treats and cars. But David, this was a new fire station this year for September 11th, obviously, because we're in Texas. This station had real fire poles. And I don't know if you've actually seen firefighters respond to a call in like real time, but we're there. A call comes. There are four fire poles situated in this firehouse. Men start streaming down poles. Like it was raining men in a literal sense. But one of them, David, my new hero firefighter, kept his cup of coffee in one hand while going down the fire pole and did not spill a drop. That is the firefighter America needs on September 11th.

I have never seen live deployment of the fire pole. Like, I've never seen that before. So that's a rare treat. David, I highly recommend people do this. It doesn't have to be September 11th. Just go drop off some treats, you know, bake. orange juice, cookies, whatever. Your local firefighters will appreciate it.

David, there's so much cool stuff. So first of all, there's a big, hosy thing, that's the technical term, attached to the fire truck, and it's like they pull off with it attached, and then it detaches and every single time, someone's like, what is that? It is to pump exhaust so that their fire station doesn't fill with exhaust. Genius! The fire station is filled with genius. things like this. That's fascinating. I've never thought about that before, but it makes all the

sense in the world. Yeah. Yeah. Wow. So visit your local fire station, especially if you've got young boys, Mike, I mean, I'm not saying your own girls won't love it too, but, uh, I will say our girls who came, they got to use the fire hose, like turn it on and off and stuff. The girls were having a great time. I bet they were. But David, something else also happened on the 25th anniversary of September 11th. Justice Kavanaugh. spoke about his experience that day and that it remains the most sort of memorable searing experience

of his life. People had reactions. David, I thought you could read to us one of said reactions. Yeah. So Justice Kavanaugh talks about it and he talks about, you know, one of the reasons why they attacked

was they hate our Constitution, they had our values, they had our freedom of speech. And, you know, this guy, he's a pundit, commentator, influencer, Medi Hassan, I think former MSNBC host, wrote, this is childlike ignorance in inanity and embarrassing to see from a Supreme Court justice. We are governed by right-wing idiots at all the highest levels of government. Okay.

Please read to me from Osama bin Laden's manifesto or whatever we want to call it. You are the nation who, rather than ruling by the Sharia of Allah, and its constitution and laws chose to invent your own laws as you will and desire. You separate religion from your politics, contradicting the pure nature, which affirms absolute authority

to the Lord and your creator. You flee from the embarrassing question posed you. How is it possible for Allah the Almighty to create his creation, grant them power over all creatures, and grant them all the amenities of life, and then deny them to which they are most in need of, knowledge of the laws which govern their lives.

So David, out of curiosity, what laws, what do we call the laws that we created and agreed to as a country? Well, it's the Constitution, as he says, yes. Oh, interesting. Now, look, he also says that he attacked us because of, you know, Israel exists, for example, and that we support Israel. But this is something that has been, and we're not going to spend a lot of time on this guys, but this has been something that has been bothering me for 25 years. And for 25 years, we have been confronting to varying degrees of intensity, radical Islamic terrorists. And for 25 years, we've been having people come forward and say, well, this is why they really hate us.

Here's the real reason why they hate us. And the meanwhile, the radical Islamic terrorists are very literate and write a lot and tell us with exquisite detail why they hate us. And one of the reasons, it's not the only reason, is they literally do hate our Constitution. our laws. And so, you know, this is something that I think is a persistent problem in America is that we'll have enemies who will say, this is why I'm doing things. And then a bunch of talking heads will pop up and go, let me explain to you why they really doing things. And then our enemies will say, no, no, no, perhaps I wasn't clear enough. Here's why I'm doing this. And, you know, It's just a stunning, and this goes all the way back, this is pre-World War II type stuff.

It's just stunning the unwillingness to accept the actual stated intentions of our enemies, and instead the overwhelming temptation to pull their violence into your grievance. And that is not how this works, guys. So I just, very briefly, I just wanted to get that out there. When we want to know the intentions of our enemies, one of the best places to go is to the writings and speech of our enemies. Well, per usual, I hope everyone reflected on September 11th, went back and read some of the articles, some of the new articles,

including former Fifth Circuit Judge Greg Costa's excellent piece in the Wall Street Journal about his year clerking at the Supreme Court on September 11th and the order that the court put out on September 12th. It wasn't particularly, you know, an important order of the court in terms of making law, but it was a signal that the Supreme Court was, in fact, open for business and would not, you know, would not shirk their responsibilities out of fear. So, Sarah, can I just share a quick story about a couple of days ago?

I was walking to class to teach at Lipscomb and walked right by the field that they had designated for all 2,97 flags, that this is the student veterans at Lipscomb University where I teach put out those flags. And I will tell you, you know, it's one of those things like, and I'm sure you've got these things that happen in life, that you kind of shove back because it's just kind of too emotional. Absolutely. And this is one of them. This is one of them.

And so I was walking to class and I saw those flags. And I just was overwhelmed by emotion. And I had intended to start my class by, I intended to start my class by telling the story, you know, that my perspective on 9-11 and to tell the class sort of what it was like to be, you know, because none of them, none of them were born on 9-11. 9-11, which is a very sobering thing, right? So I tried to explain to what it's like, and I couldn't get through it, Sarah. I just, like, in front of all these students, I just kind of lost it. Like, I got really emotional. And it was the flags that triggered it, which I'm very appreciative that our school does that.

You know, I think that if you've got younger generations and my class is law of war, and one of the points that I've been making to my class is one of the reasons why we keep doing this again, is that we literally keep forgetting what it's like when we do this. And that one of the reasons why war and particularly world war, a great power conflict arises periodically through history, is the great forgetting. We forget how awful it is. We forget all of the measures,

why we have all of these structures and institutions designed to stop this. We forget it. We think that our prior generations were ridiculous and silly. And we just toss it all on the dustbin of history. and then we make all the same mistakes. And I was trying to make that point. And man, I couldn't get through it, Sarah. It was rough.

It was rough. I also cried on September 11th. Each year I try to explain to Nate, who is now six, why we're going to the fire station. And in previous years, I keep this really high level. You know, firefighters ran into help people in danger, and many of them died the end of story, basically. This year, six years old, I thought he was old enough.

to hear more about what happened. And when I got to flight 93, oh my God. Oh, I can't even think it through. Like, I can't think it through. Yeah. And I just, I was trying to tell him they were heroes and, and I, that's about all I could get out. So, David, after that moment that we have shared together, I want to pick a fight with you. Because there is nothing more American post-25th anniversary of September 11th to argue with a fellow citizen. You wrote a piece in the New York Times about the Missouri legal situation, and we covered it so, so briefly. On the last episode, we got a lot of emails that are like, you guys didn't cover this

correctly. You're right. You're just right. We spent way too little time on it. We didn't go into any of the details about it. We were factually accurate, but you know what? you're getting it now. Yeah.

And one quick thing about that. We really were only focused on how is it that the Supreme Court of Missouri could go one way and how could the district court go another way, which is the least interesting part of this case. Yeah. We wanted to explain because it was a lot of confusion about who controlled at that point. And at that point, the district court controlled. In fact, I got an email from a group, David, offering an expert to tell us why the Supreme Court is the highest court in the land. And I was like, accepted this case.

district court decision is in effect. What you didn't invite them on? And they were like, we're sorry. And I was like, awesome. That was embarrassing for everyone. I felt awkward even telling them, but I felt like I needed to correct this if they were sending it out to other people. So, David, since we covered it, the Supreme Court has come out again overturned, well, overturned the district court. So now the original Supreme Court slash this Supreme Court decision is in effect. Missouri will use its old maps. But now let's get into the actual legal part of this. You describe anything you want to describe about what happened. And then I will tell you why your thesis is wrong. Okay. So let's go back to sort of the beginning, not the beginning, beginning, but the beginning

in Missouri. And the beginning in Missouri is a bill called HB1, which was designed as part of the sort of mid-census redistricting arms race that we've seen unfold, that they wanted to take Missouri from six Republican majority districts to seven Republican majority districts. And so HB1 passes. We saw this happen in Texas. We've seen it happen in California. We've seen it attempted in Virginia, but the Virginia Supreme Court intervened there and said that the Democrats in Virginia had done it wrong. We've seen it in Florida. We've seen it in a lot of places. And so far, it's resulting in about a net of plus nine or 10 more majority Republican districts around the country. You all have heard us talk about this.

It's not as clear cut as it looks on face value on its face, because to create those extra districts, you had to kind of weaken some of the others, so it could backfire, but nobody knows until November. But anyway, Missouri gets into it, passes HB1 in September of 2025, which changes the districts from 6-2 to 7-1.

Immediately after that has passed, there is an effort to put on the ballot a referendum to overturn HB1 because the Constitution of Missouri says that any law can be essentially reversed by referendum with limited exceptions. So the referendum is then turned in with more than 300,000 signatures in December. So by law, the Secretary of State at that point is working on a clock. And that clock expires August 4th at 4 p.m. Now, what's interesting about August 4th. That's the day of the primary. And so, yes, the Secretary of State has the ability to hold off on adjudicating whether this referendum is legally sufficient

until August 4th. He doesn't have to wait until August 4th, but he chooses to wait to August 4th. In the meantime, litigation starts to commence around HB1. And the Secretary of State is warned during that litigation that, wait a minute, you know, you have a referendum out there pending. Isn't this risky running a primary? Is this something that you really want to be doing running a primary when the referendum is pending? So the Secretary of State sits on the petition, doesn't do anything, doesn't do anything, doesn't do anything. And then in August 4th, on the day of the primary at 4 p.m., one hour before the deadline, says the referendum is insufficient. Well, why is the referendum insufficient? Because he says, Missouri law does not permit a referendum on a redistricting plan.

That the Missouri law does not permit this. And that is the basis. Now, later on, he also attaches an attorney general opinion that describes some other bases. But the core basis is Missouri law does not permit a referendum and overturned redistricting. So this rockets up to the Supreme Court of Missouri, which is a lot of people have asked, what's the composition of the Supreme Court? It's interesting. It's a Missouri-Plan state. And so which makes it a little bit, it's not as neat and simple and tidy as to say this is like five Republicans, two Democrats. It's a Missouri-planned state, which is intentionally designed to sort of create some

sort of a degree of bipartisan consensus, but it's a Missouri plan state, and the Supreme Court ruled seven zero, not only that the redistricting plan was subject to referendum, but that the redistricting plan, because the referendum was timely filed and was legally sufficient, that the redistricting plan under which the primaries were conducted was never in effect. In other words, the filing of the referendum petition essentially held in abeyance the entire redistricting effort. So it was never the law and it is not the law, is what the Supreme Court of Missouri ruled. Now, at the same time, some candidates who were candidates for office had filed a separate federal case seeking a temporary restraining order and an injunction requiring the use of the new maps. So this goes up, Stephen Clark, who is the chief judge, I believe, in Missouri,

puts issues a TRO prohibiting the use of anything other than the new map for the election in November. And one of the grounds for that is disenfranchising of primary voters. It goes up to the Eighth Circuit. Eighth Circuit, a very, very short opinion, leaves Judge Clark's ruling in effect. Rockets up to the Supreme Court. Supreme Court, in an unsigned order, says, Nope, stays the district court's TRO. And at that point, the Missouri Supreme Court, this is tangled, sorry guys, the Missouri

Supreme Court had already issued a show cause order, ordering the Secretary of State to come at 10 a.m. on Thursday to Missouri to show cause why he wasn't in contempt. Because on the day that the Supreme Court of Missouri issued its order and the district court issued its order, the Secretary of State sends out guidance saying, you will use the new maps in November. So here comes to the Supreme Court in Missouri hearing at 10 a.m. Just a few minutes before the hearing, the Supreme Court of the United States had stayed the district court's order.

And so at this point, there's just basically no basis for the Secretary of State to use the new maps. So in comes the Secretary of State's lawyer. Sarah, just speaking as a former litigator, I would be, that is the last person I would want to be on that day in Jefferson City, Missouri is the lawyer for the Secretary of State. And as when this was all unfolding, if you watch the hearing, which is really, it's not a very long hearing. It's 37 minutes. I watched the whole thing. You really get the impression that he's got, he's stuck between a rock and a hard place because he's got a secretary of state who's been very aggressive. And oh, by the way, in the intervening period after the Missouri Supreme Court issued a.

its order striking down the use of the new maps and putting the referendum on the ballot. There's a lot of talk in Missouri about, well, the judges have made their order now let them come and force it. That's kind of nullification talk in the air, right? So the Missouri Supreme Court is not amused. And it was very clear, Sarah, that they wanted to hear one thing and one thing only from the attorney for the Secretary of State, which is the new maps are out. They're not being used. And instead, what they got was a lot of hemming and hawing, like we're putting it, we're carefully considering it. We're putting this under close consideration. We want to act in a way that's consistent with the injunction, but after that hearing, at the very conclusion,

the chief justice says to the Secretary of State, don't go far from Jefferson City. A pretty not-so-veiled threat that we might hold you in contempt. So shortly after that, both the Secretary of State and the Attorney General put out a statement saying, we're going to comply with the Missouri Supreme Court. Crisis averted for the moment. The Missouri Supreme Court issues a ruling that says they were in contempt, but they have purged the contempt by pledging to uphold or pledging to comply with our ruling. So where things now stand is that the federal litigation isn't over. The Supreme Court didn't end the federal litigation. It just ended the stay or ended the temporary restraining order that was going to prohibit the use of any map other than the new maps for the November

election. So that's gone, that's over, but the federal litigation will continue. But as of right now, the only binding legal ruling in effect in Missouri is one that says these maps were never the law, because once the referendum petition was filed, that essentially holds the maps and abeyance. And my point here was that what you watched was an awful lot of legal case. gamesmanship that, in my view, gave the Secretary of State walking into the Missouri Supreme Court. We've talked about the doctrine of clean hands. He was not walking in with clean hands. He was

walking with filthy, dirty hands and then flirts with outright defiance of court rulings. And so this was, in my view, just an extraordinarily egregious example of legal gamesmanship veering in to outright defiance as found by the Missouri Supreme Court and inexcusable. And you want to raise money for the Secretary of State of Missouri. So make your case, Sarah. How dare you impugn my motives, sir? I just went ad hominem right away. Love it.

Okay. This is a line from your piece. I wanted to walk through this situation in detail because it's indicative of exactly how MAGA attempts to fix elections. David? So I don't dispute any of your facts. In particular, I just want to underline that the Missouri Supreme Court is almost all Republican appointees to that Missouri Supreme Court who ruled against the Republican favored map. However, nothing that the Secretary of State did was unlawful. Now, I don't like what he did and like blah, blah, blah.

I don't think you and I, like, disagree on sort of the moral fabric of this, if you will. But he was allowed to wait until August 5th to do this. The primary was on August 4th. If you wanted to have different rules of the game, the legislature needed to pass different rules for the game. So he didn't violate the law by using the new map to hold the primaries. Was it a good idea? Was a good stewardship of his state and their resources and of concern for the voters? No, none of those things, right?

But lawfulness, it was. Lawfulness, lawful, it was. Lawfulness, it was. Grammar, it wasn't. Okay. Then there's all these lawsuits. I agree with you that the Missouri Supreme Court, I mean, they did, in fact, hold him in contempt and then simply say that he had cured the contempt. but this all happened at a very short period of time. Again, don't love what he said or what he did,

but he didn't actually defy the Supreme Court and this was all happening in one day. So don't love it, but don't think that that was some sort of constitutional crisis that, you know, happened in 12 hours such that the court couldn't even hold him in contempt without him already curing the contempt. And then, David, I would like to compare this. Like if this is maxed, with the fixes in, I think what was missing from your piece was this is becoming quite common. Again, doesn't make it good. I don't like it. But what Democrats did in Virginia with their redistricting maps was not different in any meaningful way from what Missouri just did except proximity to a general election. If you remember, Virginia Democrats, right, push through new redistricting maps after voters

had approved a nonpartisan redistricting commission. They're like, oh, Texas is redistricting. We need to redistrict that again. They violated the Virginia Constitution in several respects to do this as the Virginia Supreme Court ended up holding, created this new map. And then when the Virginia Supreme Court struck it down, they went to the U.S. Supreme Court when the U.S. Supreme Court didn't overturn the Virginia Supreme Court, which was never going to happen, as we said, David.

They went on this tirade about needing to pack the court and how the U.S. Supreme Court is, you know, conservative, corrupt, and undermine the rule of law and the Supreme Court for no reason except partisan gain. How is that not indicative of exactly how Democrats attempt to fix elections and cause constitutional crises? Again, I do not want to excuse what happened in Missouri except to emphasize that nothing they did. actually was unlawful. This is why we have a legal system. They're both not good things that they did, and they both did it for just sort of gross partisan gain, ignoring their own state constitutions to do it, and then lashing out when the courts said they couldn't do it. They seem really similar to me. So why is one a constitutional crisis, and one is totally fine? Two big distinctions. Two big distinctions. One, no contempt holding in Virginia. You have actual contempt of court found in Missouri.

which is a meaningful legal difference. Number two, there was never a primary held defiantly under old, under the new maps in Virginia. But it wasn't defiant in Missouri. It was lawful to hold the primaries with the new maps. But here's the difference, Sarah. He was warned. He was warned by courts. Don't do this.

Like if you're at risk when you're holding the primary, then he holds the primary. And then he tries to use the fact that he held the primary. to bind the courts into the new maps. But Virginia Democrats did something very similar, right? Remember, they held the referendum after people told them that that would be an unlawful referendum that would violate the Virginia Constitution because they passed it during a special legislature.

They passed it while an election was going on, all the reasons that it was eventually struck down. They held the referendum anyway, and then they used the fact that they held the referendum as the main reason that the Virginia Supreme Court shouldn't and couldn't strike down their new maps. That seems really similar to me. Again, it was totally lawful what they did

because no court had said they couldn't do it. In fact, the Virginia Supreme Court intentionally held off until after the referendum had been held. Here, the Missouri Constitution said he didn't need to do anything until after the primary was held with the new maps. That's a problem with the Virginia Constitution and it's a problem with the Missouri Constitution

that they both allowed actors who did not have voters' best interest in mind to do these things. I mean, Virginia spent, it was something like $80 million on that referendum, David. So it looks very similar to a primary election in a lot of ways. Both to me seem like morally bad and lawful. I would say morally bad, worse in Missouri and unlawful, because we actually have a contempt ruling here. Like we have actual a Supreme Court of the States.

But the contempt. But the contempt wasn't holding the primary election. Remember? Right. Like, the contempt is for threatening to hold, you know, to continue to use the new maps. Nothing actually happened, though. He didn't use the new maps. So if all you're hanging your hat on is that the constitutional crisis was that he put out

a statement saying he was going to use new maps. Okay. Well, he's defying. So it's the senior election official in the state directing defiance of, the Supreme Court of the state, after a Supreme Court ruling, that the Supreme Court then found to be in contempt. And then when offered at the hearing, at the hearing on the contempt motion, still bobbing and weaving and not clearly stating that you're going to comply with the court while there is an enormous amount. Oh, and by the way, senior elected officials, of course,

are doing all the trash talking about the Missouri Supreme Court that you might imagine. Again, same thing happened in Virginia. We are looking, though, at an actual directive from the Secretary of State in defiance of the Missouri Supreme Court. That was found to be in contempt. That is a material difference between gamesmanship. It's a material difference. I will grant you the material difference. I just want to note that, like, the thing didn't actually happen, right?

So I don't like it. As I said from the beginning, I don't like either of these. But I don't think one side owns constitutional crisis in our elections. I'm going to say I'm a little more alert to MAGA after January 6th. Okay. Take out January 6th. Obviously, that one side owns... Yeah, yeah, no, like 100%. I mean these types of things. Like when you compare Virginia and Missouri, I don't think there's a difference in kind, even if I agree with you that the contempt order makes it a difference in degree, certainly. Yeah, I think I think contempt order is different in kind than degree.

I think gamesmanship is degree, illy defiance is kind. Okay. January 6th, I just want to be very clear. If you wrote a whole thing about how because January 6th, I am on alert for, you know, constitutional crises caused by MAGA, like no disagreement here. This is just about the Missouri situation versus the Virginia situation. I don't know. It seems like both sides are willing to do shenanigans.

for partisan gain. No shock. There, don't like it. Still a thing. Okay, David, when we get back, I want to talk about two articles, one by Professor Caleb Nelson on the Unitary Executive, and I'm going to ask you whether you're a hard uni, a soft uni, or no uni at all. And we'll start with Andy Smarek's piece on text history and tradition 2.0 with a little Glucksburg thrown in. We'll be right back. Hi, this is Sarah Isger, the editor of SCOTUS blog, the gold standard for independent insights and analysis of the Supreme Court. I want to invite you to sign up for our recently launched SCOTUS Blog Plus. This gives you access to, among other things, our daily newsletter, Scotus Today, extra deep dives on the court,

live insight behind our coverage from those reporters and experts, most familiar with the Supreme Court. super interesting stats on the court you won't be able to get anywhere else, and even text alerts now on the latest decisions, orders, and assignments from the court as they're announced. This also helps SCOTUSBlog to continue doing what it does each and every day. You can sign up for SCOTUSBlog Plus as a founding member for $199 a year at SCOTUSBlog.com or just visit our website at scotusblog.com and go to Plus. David, starting with Andy Smerich of the Manhattan Institute, an excellent piece that's actually pretty short, very readable that we will put in the show notes. Let me read to you from the piece.

In Washington v. Glucksburg, 1997, a unanimous court ruled that there is no fundamental constitutional right to assisted suicide. Footnote from Sarah. David, we needed to have talked about Glucksburg way more on this podcast. So just like huge apologies to all your listeners. Totally. We're sorry. Yep, I'm going to be talking about Glucksburg in my class. Okay. Here we go. Back to Andy. The court acknowledged the existence of unannumerated rights, but explained the judges cannot invent rights that suit their own sensibilities. If a court wants to name and protect an unenumerated right, it must show that the right is deeply rooted in America's history and traditions.

This is 1997, let me remind you. That is, for a right to exist despite not being found in the Constitution's text, That right must have been recognized for ages. In this case, history and tradition clearly demonstrated that there is no longstanding fundamental right to assisted suicide because lawmakers had banned the practice for centuries. If the policy area is not covered by a right named in the Constitution or deeply rooted in our history, it's open to lawmaking. That was the punchline of Glucksburg. Okay. Then he has this great geometry example, David. We all would accept that a circle is a closed shape. Once someone establishes that squares exist and are also closed shapes, we wouldn't say squares are the only non-circle closed shapes. Instead, we would say that squares prove the

existence of non-circle closed shapes. Perhaps other such shapes also exist, triangles, ovals, octagons, etc. We certainly wouldn't forever limit the universe of non-circle closed shapes to the instances for which we currently have evidence. Here's a non-geometry example. Imagine my HOA doesn't permit fences. I plant a string of high hedges along a short stretch of the property line separating my backyard from the neighbors. The existence of that short string of hedges does not mean that this is the only limit to my neighbor's property. It doesn't mean that his property expands outward in every direction except for where I put those bushes. His property has other limits. But why would I only put hedges in that small location? Because my neighbor and I have a good

relationship, but sometimes my wife and kids want a little extra privacy when playing in the pool. I put hedges in only that area because that was the only barrier I thought necessary given the conditions I faced. I have the authority to plant hedges elsewhere, but I have never felt the need to do so. You would be entirely wrong to infer that I planted only those hedges because I knew that I was prohibited from planting hedges elsewhere. Conditions, not recognized limitations, explain my limited hedge planting. The judiciary ought to be very careful about using history and tradition to limit the ability of today's officials to govern.

Before inferring that yesterday's regulations reflect the limits of governing officials' authority, judges and justices should ask three questions. All three will help courts consider alternative explanations for why other regulations were not created in the past. Number one, David. Do we have any evidence that yesterday's lawmakers wanted to legislate in the area under consideration? but did not do so because they believed such legislation was unconstitutional. Two, is there any evidence that today's challenged regulation was needed in previous generations?

Three, if today's conditions are similar to those in the past, are today's political, cultural, or economic sensibilities sufficiently different to explain why today's officials would legislate in this area when previous generations' leaders did not? David, do you know what made me so angry about this piece? It falls into that bucket of things that are so obvious that nobody wrote before. I know. I know. I was like kind of mad reading it as well.

Like it's so. How dare he say the thing that I didn't say? You know, it explains very well. It's so clear. And I would urge you, we'll put it in the show notes. I'd urge you to read the whole thing. And it takes things in a different direction. direction from some of my critiques, which are like, why are we looking to define the right

by looking to non-judicial bodies in the absence of any evidence they were actually interpreting their constitutional obligations? Like, why is the Kentucky state legislature in 1872 and creating law that functionally serves as precedent for a court in 2026? That's always been one of my principal critiques because the current court doesn't defer doesn't treat congressional enactments as essentially binding precedent when interpreting those enactments. So my issue has been much more sort of mechanical as opposed to philosophical, I suppose you would say. And he's basically saying, wait a minute, you know, why do you think that the legislature looks at these constitutional provisions and said, we're going to legislate as much

as we possibly can to expand the power of the state as far as it will possibly reach in this moment. And then therefore, historically, we are the example for how to interpret and bind sort of the future courts with very different circumstances. I just thought it was very, very well explained. And the distinction between Bruin and Glucksberg was brilliantly explained. So, David, I want to take these three questions and apply them to two different cases. One, abortion. So I'm going to walk through the questions, and let's think of abortion and whether it is an unenumerated right to the Constitution.

Do we have any evidence that yesterday's lawmakers wanted to legislate in the area under consideration, but did not do so because they believed such legislation was unconstitutional? No, quite the opposite. In fact, we have legislation banning abortions. Two, is there any evidence that today's challenge regulation was needed in previous generations? Yes, there were abortions. through history. If today's conditions are similar to those in the past, are today's political, cultural, or economic sensibilities sufficiently different to explain why today's officials

would legislate in this area when previous generations' leaders did not? You know, that one's a little bit harder. There has been a certain change in culture and about, you know, women being in the workforce and a whole bunch of other things that we allow women to do now that we didn't allow them to do back then. So that one's kind of an interesting, outstanding one I'll say. Let's do guns. What do you want to do? AR-15s or- AR-15s.

But real quick on that last point, if abortion regulation is rooted in knowledge of the humanity of the fetus, I would say that, you know, on the one hand, you were talking about changing conditions for women. On the other hand, I would say we have a lot more knowledge of the independent identity and nature of the unborn child than we did before. Like the whole concept of DNA, right? And the concept.

That's so funny, David. I was reading this all last night, the history of like Darwin, Mendel, genes, heredity, DNA. Like, it's shocking how recent. Like, our actual understanding of where babies come from is. So shocking. So, Sarah, you were reading about DNA. I was reading book two in the dungeon crawler Carl series. So.

Which is so good. Both. My book was so good. How dare you impugn otherwise? Okay. Now let's apply it to guns. Sure, let's do the AR-15s. Okay.

Is there any evidence that today's challenged regulation was needed in previous generations? There may be listeners who disagree with me on this, but I would argue that, no, there was not such a dangerous gun that people thought was, you know, causing mass shootings, et cetera, that they felt like they needed to ban. if today's conditions are similar to those in the past, are today's political, cultural, or economic sensibility sufficiently different to explain today's officials would legislate in this area when previous generations' leaders did not? Again, like changes on the ground, like mass shootings, public schools where people can go in and mow down kids.

That didn't exist back then, though churches existed, which again, like sort of has mass gathering of innocent people. So, David, what do you think of the question? now that we've applied them? Oh, I think those are just tremendous questions. And I think that's why those who have a broader reading of Second Amendment rights, I think really need to reckon with this formulation because to simply say, well, you know, if I had a brown bess on above musket above my hearth, that's exactly the same

thing as having an AR-15 in my safe. It is not. It is not. And the idea that the founders would look at something with the capacity. and firepower of the AR-15 and sort of just think, oh, that's exactly like a brown best. That's what we meant. That's what we meant. Everybody gets one of those, I think, is a giant stretch, even as much as you want to say

that, well, if an AR-15 is the civilian equivalent of a rifle, not a rifle, a musket, carried by a British regular or a member of American militia, they're not the same thing. They don't have the same capacity and capabilities. and so they're just apples and oranges under this test. However, that's not the only, this is what frustrates me about text history and tradition. It can actually get more restrictive of the right in some ways, because if you're looking at it like this, all of a sudden questions one and two do not cut in favor of the AR-15 at all.

What does cut in favor of AR-15? What is an argument that cuts in favor? Well, one of them is, well, what is the core, as the Supreme Court said, in Heller, what is the core of the right? The core of the right is self-defense. Okay, if the core of the right is self-defense, the next Heller step is then, well, arms that are in common use for a lawful purpose are going to be sort of presumptively covered, in part because if you're in a common use, in other words, millions and millions of people have these for lawful purposes, I would argue that is intimately connected to the right of self-defense. Because to sort of say, you are not entitled to own a very, very common arm that is in circulation used by civilians and criminals alike, it's in essence to say your right of self-defense, we are in this current condition of semi-automatic weapons existing in the world that we are putting you, the law-abiding citizen, at a disadvantage for the core purpose of the right, that we are removing from circulation a lawful, previously lawful arm in common use

for a lawful purpose, self-defense. And I feel like that's the stronger argument than, well, you look through history and you don't see much regulation of a brown best and, you know, a bowie knife or these knives or other things that could kill a lot of people at once were regulated to some degree. Well, that's your comparator. That's so flimmed. That's such a actually flimsy way to think about a right when we know the right has a core purpose is articulated by the court of self-defense. And the question should be, does this regulation impermissively infringe upon the core purpose of the right? So, yeah, I found that to be very helpful and I think interesting to show how malleable the sort of the text history and tradition

test can be in a way that, you know, right now, Second Amendment enthusiasts like, like text history and tradition, why? Why? You switch out some of the composition of the court and you apply that same test and everybody's back to, well, what we really actually have is a right to a single shot, you know, non-repeating rifle and or handgun. Wow. So, No, I thought Andy's piece was just, again, Andy, if you're listening, you ticked us off, you made us mad, but in all the best ways. So I think questions one and two are critical and perfect. I would nix question three.

I would change question three entirely. So like question one is the lack of legislation? Is there any evidence that's because they thought it was unconstitutional check? Very important to ask. Question two, did they face any of the similar conditions? Mass shootings, the existence, like the ability to abort a child are both like good examples of the conditions faced or not faced at the time. Yes, very important to this. Question three, I think, is like mealy mushy stuff. Are today's political, cultural or economic sensibilities sufficiently different? Like, no, no, no, chuck that out.

I would just say, are the reasons for legislators passing this, like is the animating, you know, cause, so fundamentally different from what was faced at the founding that the founders couldn't possibly have legislated about it? Because it didn't exist, you know, AI. I agree with you on question three when you, the way, when you articulate it like that. When I first read it, I read it almost like a compelling governmental interest condition. Yeah. You know, is there a compelling governmental interest now that did not exist? That's what I want it to be. Yes.

Yeah, that's my charitable. Would we agree on question three would be, is there a compelling governmental interest that? Okay. Or, yeah, compelling, I think, with the strict scrutiny language or I would even make it stronger, maybe, overwhelming. Whatever. Look, we've come back together again after our grievous rift over Missouri. Okay. Gosh, okay, all is well.

All right, David, I want to talk to you about UVA professor Caleb Nelson's amazing and horrifying Unitary Executive article. I say horrifying because I consider myself a soft uni. Like, I'm pretty into unitary executive. I take it basically for granted that the people who work for the president need to do what the president says, because otherwise they're accountable to nobody. And that in order for presidents to be politically accountable, they have to actually be able to control what happens in the executive branch. You know, I say soft uni,

because there's some examples of like really hard unitary executive folks. So I'm like, well, I don't know about that. But I don't know. Like maybe I'm a medium uni. Like I'm pretty, I've been pretty unied. I would call you medium uni. Yeah, I think very much so. Yeah. Okay. So, David, I'm going to read this to you. In response to fears about the practical consequences of unitary executive theory, Chief Justice Roberts seems likely to offer a simple piece of advice. If you are worried about letting the president override statutory structures and dictate how all federal departments and agencies use whatever discretion the law affords them, and if you are also worried about giving the president the practical ability to demand that agencies exceed their lawful powers by accepting the president's expansive interpretation of what those powers are, then you should try to elect good presidents.

Uh-oh, right off of that. Wait, what? Oh, no, I think you're right. Okay, so let me skip down a little bit here. As befits a theory that was propagated by lawyers in the executive branch, some of whom are now on the Supreme Court, unitary executive theory effectively requires us to trust the president to act in good faith, to execute the laws as he understands them, subject to the possibility of occasional reversals in court

if he gets things wrong in a way that the courts can correct. At the same time, unitary executive theory emphatically does not trust Congress to use its own authority under the necessary and proper clause to create the conditions that it deems most conducive to faithful execution of the law. Although members of Congress might say that tenure protection for decision makers guard against the risk

that the president either will misunderstand the law or will want decision makers to defy it, unitary executive theorists tend to be more cynical about Congress than about the president. Indeed, one of the most insidious consequences of unitary executive theory may be the message that it sends to people who work in the executive branch. Because the theory purports to be grounded in the Constitution, it invites people at all levels to tell themselves that they are authorized, indeed required, to disregard contrary statutes and to use all of their powers to accomplish what the president wants. In practice, that is a message that elevates one-man rule above written law,

and it is not a message that the Supreme Court should be reinforcing. So David, he's right, first of all, just as a descriptive matter, that unitary executives pretty much only look at the vesting clause and think the necessary and proper clause is unrelated to this conversation. It's not that it doesn't exist or doesn't have. important purpose, like McCullough v. Maryland, necessary and proper, like, good, good. But it has nothing to do with creating independent agencies. Okay, so descriptive matter, check. He's right. As a originalist matter, David, I got to tell you, I think he kind of just crushes the originalist case

for vesting clause unitary executive theory. I mean, he's a originalist. He is a conservative law professor who just dismantles this. This has been part of Federalist Society originalism basically for all 40 years. And Caleb Nelson just coming in here like Leroy Jenkins. You know, it's interesting. I have been getting a lot of consistent and thoughtful correspondence that says Unitary Executive has to be scrutinized on originalist grounds

and it cannot withstand rigorous originalist scrutiny. And I have been quite persuaded by this, Sarah, over the time. Now, I will say you have to start with text. Of course, originalism starts with text. And it refers to this thing called the executive power in a very unhelpful way. You know, as Cato, the anti-federalist said, it's vague and inexplicit. And so this is... So am I.

And so right there you have a very... vague and inexplicit phrase, the executive power. So this is when originalism comes in and says, what is that? What's the original public meaning of that? And I'll tell you who really kind of started to persuade me that maybe I'd been drinking a maybe a bit more Fedsock Kool-Aid than originalism Kool-Aid was Yvall Levin. Because Yuval comes in and he goes, what this is supposed to be. And he uses phrase, I think, when talking to Ezra Klein in an interview.

He said, and Yvall, if you're listening, please correct me if I'm misstating this. something along the lines of that the president is the steward of laws enacted by Congress. That that's in essence what the executive power is. He's the steward of the laws enacted by Congress. And I think that's the more fundamentally correct reading, which is less relevant to the, this is where I'm a soft unitary executive. I'm still quite persuaded that the president, this independent agency construct where they're outside of the president's control, they're outside of Congress's immediate control,

they're kind of floating in the ether, no. I'm from structural, for structural reasons, structural originalist reasons, this is, I believe, within the president's authority. That was a bad way to try to create independence. But I am wondering, Sarah, I am wondering, was INS v. Chata wrongly decided? So this is the legislative veto case. This is, This is sort of a hallmark of kind of structural separation of powers, et cetera, but was INSV Chata wrongly decided? Because if the president- Lots of Fed Sok people are coming around to say yes. Yeah.

So like in the Congress do your job formulation that you and I are very fond of saying, one of the best arguments back at us is we tried. We tried. We were looking at a very difficult situation with the necessity of complex webs of regulation and very complicated industry and energy sectors, et cetera, et cetera. So we wanted to create a world in which there was a deployment of expertise, but at the same time we wanted democratic accountability. And democratic accountability was through the legislative veto.

And why would you say that this is unconstitutional? Because this is, lawmaking is our job. And it's not the president's job. And if the president veers out of our designated lawmaking lane, we get a say. And so I'm wondering, honestly wondering if INSV Chata screwed things up more than we realize in addition to being not exactly originalist. And I would love some listener pushback on this point in the comments or emails because I just drank the Chata Kool-Aid for a long time. And now I'm not so sure, Sarah. You're coming around that same direction?

I need to marinate some more. I don't know where I am anymore. I'm lost in a world of necessary and proper clause. How dare you? It's a tough one. All right, David, when we get back, I want to talk to you about this pride flag case. Can't wait. Okay, David, if you remember a few weeks ago, we had a case of a school administrator, like a district-wide administrator who had books on his shelf behind his desk that discussed or were about trans-related issues. And he lost his case. He could not have his books on the shelf behind him. And we talked about that at length. David, you and I came out the other way. We said that we thought probably having those books on the shelf was not much different than, you know, wearing a pin on your shirt or having a picture of your spouse on your desk. Right. That books on your shelf was probably more like personal effects than part of the government speech aspect to this. And we know, we pushed each other,

like, what if it's mind comf, et cetera? But, you know, we basically were like, yeah, I think he can have books on his shelf that the school doesn't agree with. Okay. So here, David, we have teachers who want to put pride flags in their classroom. The school or, you know, the school, ordered one of the teachers to take down two pride flags that hung on the walls of her math classroom also told the teachers they could not place pride flag stickers on their classroom doors. Now we have the appendix, David, that shows the picture of the flags, which is a little bit relevant here. Yeah. These flags are probably four by six feet. They take up a good majority of the classroom wall, and it's on two of the walls. So two of the four walls have large

pride flags. The school said take them down. The teacher said no. Lawsuit ensues. Teacher loses. So the outcome is actually the same. In both cases, the teacher can't have the books on the shelf about trans, anti-trans stuff in that case. Here, the teachers can't have the pride flags and the pride stickers, like, as decorations in their classroom. David, here's the problem. I think you and I think this case came out correctly. Rout row. Yeah, I think it came out correctly, but under the wrong test.

But I'm not as sure as you might be, Sarah. So let me walk through my thinking here. So everyone who listens to advisory opinions for more than 90 seconds knows I hate the Garcetti opinion, which essentially says, if you're a government employee and engaged in on-the-job speech, you have, there's no First Amendment protection there at all, which displaced a Pickering test, which was if you're speaking on a matter of public concern, you have First Amendment rights, but there's a balancing test that weighs free speech against the disruptive free workplace. So in other words, you're going to be presumptively

protected, but there are conditions at the workplace that could arise to the level of no. So here's where I am on it, Sarah. I compare this case to the Coach Kennedy case. This is the praying football coach case. And this is why I bring it up, because I think this could be challenging for some of our listeners. The core issue there,

because if him leading prayer was part of his job duties, then he loses. The Supreme Court said that when he's by himself in the end zone, even though he's in full view of the public, he's got his whistle on maybe, he's still wearing his, you know, whatever high school t-shirt.

He's just coached the game, and he's right there in the end zone in full view of the public, and he's praying, is that his speech or is that on-the-job speech? And the Supreme Court said that is his speech. Very public. Why? Now, what about the pride flag? Would a reasonable observer look at that and say, that's the teacher's speech, or is that the school speech?

And this is where I think it gets, to use the term from Neil Gorsuch. It's a matter of judgment. How much is a fixed display, a fixed large display, as opposed to a small display, how much does a fixed large display on contentious issues represent the teacher's speech or would a reasonable observer say this is part of the instruction? This is part of the classroom. And I think that's a difficult call.

but I feel like the same way about the pride flags, four by six, is if you put up a Christian flag four by six, that is taking up that much of the classroom. I do not think that that necessarily communicates that this is under Garcetti, that this is individual speech. Now, under Pickering, what would be the circumstance here? Number one, is this a matter of public concern? Obviously, yes.

But number two, workplace balancing. All right. Is this a situation where you want in your workplace? Is it reasonable to say, hey, look, we're not going to allow large portions of the classroom space, instructional space, to be taken up by personal messages on sort of a viewpoint neutral basis that we're going to say that personal messages in the classroom. So a sticker on the door is one thing, a four by six flag, that covers a bunch of the wall is the other thing.

The Pickering test requires these kinds of judgment calls. And I would say a 4x pride flag or a 4x Christian flag would be opening up a bit more of Pandora's box for the work on the workplace disruption, the workplace management front compared to this question that you get into with Garcetti of whose speech is it, which I think is, as we illustrate from the Kennedy case, It's not always as clear cut.

It's not always as clear cut. Okay, so here's one of the big differences to me. First of all, the school district says these teachers are welcome to wear pride flag pins. They're welcome to have a picture of their spouse on the desk. This falls into the same category of a crucifix, your lunchbox, things that are quite obviously the teacher versus this like, you know, very clear government speech. And then we have this fuzzy area in between. here's the difference that I see David. The teacher in the first example, or that it wasn't a teacher, actually.

So the school administrator in the first example was not in a classroom. They had their private office that was, I'm not even sure if it was in a school, but if it was in a school, like, students occasionally walked in there. The books had never come up in any meeting with students until after the lawsuit or after the, well, yeah, it was like the school told them to take the books down. he said no, lawsuit was filed, whatever. Then students come in and start asking him about the books. Then the books become a subject.

Okay. But up until that point, they're just books on a shelf. Here, this is a classroom. The purpose of putting things on the wall of the classroom is curricular. That's why you have, you know, ABCs, a calendar with the months. I mean, I was recently in a first grade classroom, David, and I will tell you everything on the wall. You know, be kind, the values of our classroom. Like, those aren't the teacher's values.

They're the school's values. Now, the teacher has some latitude to decide how to phrase those values. But at the school walked in, it was like, heck, no, those aren't the values of this classroom. You know, punch everyone on site. The school could obviously say, please take down the punch everyone on site sign because it's so clearly government speech in this case. That being said, you could easily, in my view, transform the school administrator book case. into something far more curricular, that his job, for instance, is to read to students. And there's books on the shelf to do so. Yeah, that would sound pretty curricular. You know, that the books are

more on display. Again, more like they're on the walls of like, here are the values of our school type thing similarly situated to the pride flags. That would change my mind about the books as well. But this one seems like a really easy case. A four foot by six foot flag on the wall is obviously government speech. Literally, David, the picture is it's like the desks are right there. Yeah. I mean, under Garcetti, to me, this is like a no-brainer. Like, this is so different from putting a picture of your family wearing a pride flag, a pride sticker. So different from that. you're taking up substantial portions of the instructional space in the classroom. The American flag is much, much smaller than either of the two pri flags that I'm looking at.

Yeah, yeah. Under Garcetti, like, you know, I would say Coach Kennedy is on sort of the outer bounds. You know, that's where that's, I didn't like the outcome of that case for what it's worth. Yeah, I think you're, you know, I think you make a really good argument against the outcome of that case. I do. My argument for that was more about coercion and the obviousness of the coercion of the students. Frankly, I could apply that test here as well. It's pretty clear in this classroom that you could be punished for having opinions that differ from your teacher. And it's clear what your teacher's opinions are on something that once again is not curricular. Same as Coach Kennedy. We weren't teaching the Bible when he's praying. Just like, I don't think this class has a curriculum. on LGBTQ stuff in this public school.

So the coercion stuff is a real problem for me in public school. And that's what transforms it into like in that ambiguous area, moves it over into the government speech side. Yeah. No, I think the outcome here was correct, either under Garcetti or under Pickering. Because I think it's important to say and to note, for those who are saying, David,

if you do Garcetti, if you get rid of Garcetti, it's chaos. It's like dogs and cats sleeping together and all of that in-time stuff. No, no, no, no. There's two parts to the Pickering balancing test. There is the public concern. And then there's the interest of the workplace. And it would be very easy, very easy to craft a rule that allows for personal expression

of things like pins and flags, I mean, pins or books or pictures and things like that, but not permitting instructional space to be taken over by personal expression. I think that that would be a very easy kind of regulation or rule to enact. So I think this is correct either under either Garcetti or Pickering. But by golly, if the books on the shelf are correct under Garcetti, then the giant flag on the wall is correct under Garcetti as well. All right, David. Well, this is starting to feel like Matt Damon, but once again, apologies to the circuit cases we didn't get to.

And we've added one to the list. I really wanted to get to the Loperbright case applied in the immigration context by the Fourth Circuit. Conservatives applying Loperbrite with liberal outcomes. Also, David, another one to add to the list now. We have a marijuana case where it's legal in the state. Obviously, it's still illegal at the federal level. So what about contracts? Can you enforce a contract to sell weed?

So once again, apologies to all of our circuit cases. We'll get to you next time. David, the next advisory opinions we do will be our live advisory opinions at the 26 Scotus Blog Summit term preview. And we will be term previewing the heck out of OT 2026 with Amy Howe. I'm super pumped. Oh, I can't wait. It's always great to have Amy. Nobody does it better. So I'm really looking forward to that. See you there, buddy.