Advisory Opinions - Biden’s Supreme Court Commission Said What?

Episode Date: October 18, 2021

What do court packers have in common with Hugo Chavez? Take a listen to this action-packed pod to find out. Sarah conducts a symphony of Supreme Court commission analysis, including guiding a walk through American legal history to explain the commission’s surprisingly conservative comments. David discusses the legal issues roiling the nation’s most controversial school district. Show Notes: -Presidential Commission on SCOTUS Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Welcome to the Advisory Opinions Podcast. This is going to be a good one. I'm David French with Sarah Isger. And I have a feeling we had really contrasting weekends, Sarah. We did. Because, yeah. So what I was doing was I was hanging out with my friends from Iraq

at the Collins River in Tennessee and having just a fantastic time. You were reading the Supreme Court Commission report. Reading the Supreme Court Commission report. Not just reading, David. Also watching the whole meeting that was open to the public and broadcast. And just, I was luxuriating in it. It's, well, and I cannot wait. So here's what the podcast is going to be. We're going to begin with Sarah leading us through a discussion of the

Supreme Court Commission report, orchestrating the discussion like a maestro in front of a symphony. And then we're going to move into Loudoun County, Virginia, and some of the most contentious conversations, oh, I don't know, in America right now, there have been some developments, both reporting and legal, in that community. So we're going to talk about all that. I'm not going to tell you what they are yet. You're going to have to listen to a lot of the most contentious conversations we're having with some very interesting legal twists. So we're going to get there. But Sarah, do you want to know what I was doing while you were digesting the commission report? What? So this was kind of

funny. One of the guys came and he had a gift for all of us and we opened it up and they were oculus 2 vr headsets okay for all how perfect wow which was amazing like that that's a legit gift you guys yeah that's an outlet legit but here's the funny thing. At one point, we're in this cabin and all eight of us are together. We haven't been together, this group of eight guys, all of us, literally since we left Iraq in 2008. And at one point, all of us are on VR headsets interacting with each other in the virtual world. And not even though we're just a few feet away and not in real life, but having the best time doing it. But it was exactly something that we could do from hundreds of miles apart.

But let me just say, I know this is not a virtual reality review podcast, but you can tell the technology's getting there. It's not there yet, but when it gets there and it's like photo realistic and everything, I, there's some people who are never going to leave it. We're going to have a huge problem, Sarah,

but we'll table that for a cultural conversation, but let's, let's start constitutionally and Supreme Court. And my goodness, I'll just start with this. It's a well-written report. Incredibly well-written. Let's back up for a moment. Yes.

Lead us, please. Yes. Let us begin. So in case you have not been following this as closely as David and I have, President Biden at sort of when he takes office and the court packing stuff is all, you know, there's this you need to do first when you get to office and this and this and this. He creates a commission to look at potential reforms to the Supreme Court. creates a commission to look at potential reforms to the Supreme Court. It had 34, 36 members in originally devised. Its co-chairs are Bob Bauer, the former White House counsel under Barack

Obama, and Christina Rodriguez, a former deputy assistant attorney general for the Office of Legal Counsel, which remember we talked where the like professors of the Department of Justice, she is now a Yale Law School professor. And the treat that we all have is that this commission falls under all of the public meeting laws and the sunshine stuff. And because of that, they can't meet without us all getting to join in and kind of a bummer for them. And I thought initially that having 36 people, first of all, was a huge mistake, way too large that you would have writing by committee and it would be kind of nonsensical, who knows what. Um, and that because of the Sunshine Act stuff, they wouldn't really be able to write anything, draft anything, have any real discussion because it would all have to be public.

Okay. So here's how it actually went down. Basically, they took the 36 members and they broke them into working groups. And the working groups were to look at, first of all, the history of the Supreme Court, section one, we'll call it, to the size of the Supreme Court, court packing, right? How many justices there are? The tenure of Supreme Court justices, the jurisdiction of the Supreme Court, and transparency issues related to, you guessed it, shadow docket stuff. These working groups were allowed to work privately in limited ways, basically. And then they put together draft materials for discussion for the commission. That, though, they had to

release publicly, and that's what we're all looking at and what is being called, even by David here, the draft report, the report. It's getting lots of attention, which is awesome because these discussion materials were really, really cool and interesting

and smart and thoughtful and also deeply conservative, not in the political sense, conservative in the small c sense of conserving the current Supreme Court. And the writing, I have to say, for even being written by a relatively large working group, was just wonderful. If you are considering going to law school, may I also recommend listening to the public discussion that they held. It's available on YouTube. You can also get it on the White House website, which is whitehouse.gov slash PC SCOTUS. whitehouse.gov slash PC SCOTUS. And you can pull up the YouTube, which is fun. It is like the best of law school. So the makeup of the 36 members, there was like a far left contingent, a moderate left contingent, including by the way, the two co-chairs and then a like kind of lean right group.

In that lean right group, I'm going to include former D.C. Circuit Judge Thomas Griffith, Will Bode, friend of the pod. Jack Goldsmith, Caleb Nelson, and maybe even a little more than lean right, Adam White. Adam White, I think, is like the conservative anchor of the commission. However, right before these draft materials were circulated, all of a sudden, there were 34 members of the commission. were circulated, all of a sudden there were 34 members of the commission. And in fact, Jack Goldsmith and Caleb Nelson had been scrubbed from the list of commissioners. There was no announcement made about it. They just poof, disappeared. And the White House later in the day after the meeting was underway, and they weren't in the meeting either,

they weren't on the website, they confirmed that Jack Goldsmith and Caleb Nelson were no longer members of the commission. So that basically wiped out a good chunk of the lean right group. And while I reached out to my old professor, Professor Goldsmith, and he has declined to say why he left. I think that perhaps in about another month or so, and this is not based on what he told me, but after we have the actual report from the commission, which is due here in just a few more weeks in November, perhaps after that, we will have a better sense slash perhaps Professor Goldsmith, Professor Nelson may discuss why they left the commission. But the fact that the two conservatives, two of the lean right-ish folks left, I think you can have some guess as to why they left.

I'll be very interested to see if they were in the same working group, for instance. And we'll get to the working group that they may have been in when we talk about the rest of these draft materials on Thursday, because I think it is quite clear that the court packing, which is we'll talk about the historical section and the court packing section today. And we'll say the tenure jurisdiction and transparency sections for Thursday, or y'all will all get way too bored because the court packing section, I don't think a Professor Goldsmith and Nelson

would have quit over. So a question that we are left, a big picture question is sort of this project, why it's being undertaken, the motives behind it. And in the end, they had 180 days to then put together this report to the president. Is anyone going to be able to sign this? Of the 34 commissioners that are left, yes, two conservatives left. But there are liberals, the far left people are threatening to walk as well. Larry Tribe said, as is with these draft materials, he would not be

able to sign onto it. That will be fascinating. So I want to stop there on just our big picture discussion before we go into sections one and two, David, um, what was the purpose of this in your view? Will they be able to achieve that purpose or any other purpose? Well, you know, Will they be able to achieve that purpose or any other purpose? Well, you know, one of the interesting things to me about the materials and in particular, the setting the stage portion of it, the genesis of the reform debate and the commission's mission, context, context was the word that kept coming to my mind. And the reason that word kept coming to my mind, maybe it's because this is the way my mind is framing a lot of today's debates, because I feel like so many of our debates are devoid of context. We act as if the precedented is unprecedented constantly,

and the fact that what we believe is unprecedented is in fact precedented actually contributes to polarization and to panic and to rage and to anger, etc., etc. And so one of the things that I thought about it was that this was a lot of context. And I thought it was helpful context, quite frankly, the way in which in setting the stage and the way that setting the stage document did was to show really what I might call sort of waves of contention and waves of fury that have buffeted the court over the years. And so by providing that context and stating previous reforms and previous debates and talking about previous reforms and previous debates in a fairly readable and comprehensive way, what I thought it did is it set the stage for what's to follow in a very,

very effective way. And what was interesting to me about the context was it highlighted how much contention there has been over the Supreme Court, but also it did acknowledge that particularly in the area of judicial confirmations in recent years, that tension has been escalating. So when it comes to controversy around confirmations, the tension has been there for a long time and it is escalating. And I think that that is a key takeaway. But I just thought, especially that first part of it, the setting the stage, was tremendous for, it was a tremendous short history of court reform and court controversy that, you know, I wish every politically interested American would read, quite frankly. And luckily or unluckily for our advisory opinions listeners, I'm going to read some of it to them now. Oh, please. So I just found different parts of this really interesting and helpful. So for instance,

it starts with Judge Bork. That was a real question that I had is, are they going to? Because on the right versus the left, literally do not agree on where the problem with confirmation started. The right always points to Bork and the left sort of has this like series of things where it actually happened to the left people first. Even though like Borking is a verb, I think the right has the better argument. Maybe we shouldn't consider it to have started with Bork, but that culturally it did.

And this started with Bork. And the second I saw that, I was like, whoa, this is a very different document than I thought I was going to be reading. So when the Senate rejected President Ronald Reagan's nomination of Judge Bork to the court in 1987, Judge Bork's supporters contended that he was a highly qualified nominee who was subjected to deceptive and inflammatory partisan criticism and whose record and views were mischaracterized by his opponents. They coined the term borked, which is now recognized in the dictionary as meaning that a nominee had been subject to unfair treatment through, quote, an organized campaign of harsh public criticism or vilification.

Defenders of the Senate's treatment of Judge Bork, by contrast, asserted that he received an extensive hearing at which he had an opportunity to present and defend his views at length and that his nomination failed by a bipartisan majority vote after a floor debate. Now, what's so interesting about that to me? A, again, starting with Bork is just a fascinating choice to me. But also, the pro-Bork people it was unfair he was vilified like they get all of this like mischaracterized the term borked and then it's like people who didn't like bork said he got a hearing and it failed bipartisanly what they don't mention is the specifics of why he was criticized. And in fact, in the public meeting, Yale professor Justin Driver, he started the conversation and he started it with exactly this. And he said, there were

other people whose nominations were blocked because of their views, including one of the nominations in the early 20th century, name I'm forgetting, and that he would like to see a more extensive treatment of what Bork had said and written that caused his nomination to be blocked. There were other people who pointed out that, in fact, a big difference between Bork and Garland is that Bork got a hearing. So to be Borked maybe means, you know, you didn't like that you were criticized on your views, but to be Garlanded is stealing a seat. You know, that, that was sort of the overall point. So fascinating fight over the legacy of judge Bork playing out in the commission.

And just that alone would have gotten me to buy tickets to this entertainment. But then, and again, I just want to emphasize, that was page two. I'm now on page three. My jaw was dropping reading this. I could not believe how deeply, again, conservative with a small c, this recitation of the court's history that's a very good way of describing it um several witnesses who testified or provided written submissions to the commission observed that partisan conflict over nominations has occurred throughout the nation's history particularly in election years according to one witness historically the senate has confirmed nearly 90 percent of supreme court nominees when the president's party is in power, but fewer

than 60% of nominees under divided government. Similarly, the same witness observed that over 80% of nominees are confirmed when nominated in the first three years of a presidential term, but barely more than half when nominated in the fourth election year. election year. I mean, it never mentions Judge Garland and it never mentions Amy Coney Barrett, but this is the pushback, right? That it's not

stolen, that this is just how the system has generally worked. And I want to get to the stolenness of the conversation here in a minute because I think that whole conversation is worth quite a bit of our time. Well, that segment doesn't mention Garland and Barrett, but a couple of paragraphs above it talks about Garland and Barrett as the,

some of the escalating incidents. Yes. But like, this is like, then it's even worse, right? Cause they mentioned Garland and Barrett and then it's like, and here's the pushback to all of your complaining. Whoa. So I, okay. I do want to talk about the stolen seat thing. So, David, the conversation goes like this. Judge Garland was nominated with nine months, 10 months to go in President Obama's term.

He wasn't given a hearing. And then when President Trump wins, that's Justice Gorsuch's seat. That seat was stolen. Kavanaugh didn't get an FBI investigation proper to the allegations against him by Dr. Christine Blasey Ford. Bozzie Ford. They're not really arguing that seat was stolen, but it's bad. And then- Illegitimate. Illegitimate. And then Amy Coney Barrett was nominated just a month before the 2020 election and confirmed. And that seat was therefore stolen too, because it was the same but worse than the Garland seat. Now the pushback on this, of course, is that only one of those two seats can be stolen. And I would like to have a conversation

about whether the word stolen is appropriate. And I wanted your thoughts on whether you think it's unfair, fair, if that's not the way you even think about it. Well, so as a matter of not to get too pedantic about it,

but let's get pedantic about it for a minute. This is advisory opinions. I mean, that's true. That's true. What am I saying? Pedantic is our brand. That's right.

Charmingly pedantic. How about that? That would be. Yeah. So as a matter of just sort of constitutional process, and I don't even want to put the word just in front of constitutional process, let me just say this. As a matter of constitutional process, the stolen seat narrative is just bogus. The Constitution was followed in all of these nominations. In other words, a nominee was put forward. There's an advise and consent process that is followed by the Senate. The Senate did not consent to a nominee. It did consent to another nominee.

So a lot of this language, and I'm really on a hobby horse for a while now, of one of the problems that we have in our discourse is that we use falsely inflammatory language on purpose for the sake of dramatizing a point that would not move people otherwise so that's not if it's not a stolen seat i mean just to say it's a stolen seat does not make it a stolen seat constitutional process was followed in both instances now here's the here's that but that's the beginning of the inquiry, not the end of the inquiry, because then there is a part of the inquiry about sort of fairness or unfairness. Are this, is this a positive precedent or a negative precedent? And my critique of the Republicans in the Garland situation was not giving him a hearing.

was not giving him a hearing. Now, I understand that, I understand and I think the brass tacks reasons why, Sarah, and I'd be very interested to hear if you agree with that, is that McConnell was protecting his members by putting everything on him, by putting everything on him,

he was protecting them from the pressure of a preordained no vote against a witness who might present themselves very well and effectively in a confirmation hearing in a way that a lot of Americans would say, what's the problem here with this guy? And giving him a chance to make his case that would then put pressure on the American people. I think that was a pretty basic political calculation by Mitch McConnell to, as I said, protect his members. Now, the Amy Coney Barrett situation, here's the bottom line. If the principle is when we control all branches of government or the relevant branches of government, we're going to hold a vote and we're going to confirm a nominee. I totally understand the Amy Coney Barrett confirmation process, but that's not what a lot of Republicans said. nomination was to justify their reaction to Merrick Garland was as a matter of just basic fairness and principle, when a nomination occurs so close to election, the American people need

to weigh in, which they then abandoned immediately when Amy Coney Barrett was nominated much closer to a presidential election than Merrick Garland, much closer. So from a standpoint of, are there basic principles that apply other than we will use the power that we are granted constitutionally? If that is the principle, fine, say that. Okay, say that. We will use the power we are granted constitutionally. But if you're trying to establish another artificial principle to make yourself look better on cable news, well, then the question is, do we hold you to your word or do you not? And my general inclination is we need to have a nation where we're more apt to hold politicians to their word. And that was my objection to a lot of the Republican conduct in the Amy Coney Barrett

nomination, even though Amy Coney Barrett is somebody I wanted on the court. I wanted Amy Coney Barrett on the court, but I also wanted senators to be honest. Okay. So that's the short version. If you're saying stolen election, I mean, a stolen nomination, no, no, no, no, no, no. Constitutional processes were followed. If you're going to say there were cynical political manipulation to try to make this process look somehow more majestically principled than it was will guilty on that. I totally agree. And it sort of falls under the stupid, but constitutional,

right? I think that, um, what Republicans did in both cases, um, or at least in one case, meaning like they should have picked one or the other, but,

um, it was obviously constitutional and predictably bad for the country. You know, overly partisan, cynical, hypocritical. I want to read. So actually, we're not going to talk about court packing yet because these are very different conversations. It's the genesis of whether anything is going on has illegitimized the court or has been sort of unfair or unconstitutional or stolen. in which they quote from a McConnell-Grassley op-ed from February 23. And it says, not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising that year. It is necessary to go back even further to 1888 in order to find an election year nominee who was nominated and confirmed under divided government as we have now. So as you will note, of course, McConnell and Grassley being very careful to lay out their reasoning. And interesting to me that the commission included this.

It also then in the next sentence includes, Republicans also repeatedly invoked the then Vice President Biden's own remarks as a senator in 1992, that the Senate has a tradition of withholding action on any nominations for court vacancies during presidential election years. The Republicans branded this the Biden rule, though Biden himself labeled this claim

a distortion of his actual views. It then goes on to say that some Republicans, it actually says, while the Senate Republicans announced their position in broad broad terms that our decision is based on constitutional principles the identification or statement of the principle varied and of course mentions your point that some republicans were just saying election year because that was easier to talk about on cable news thinking surely god doesn't have such a sense of humor as to have this come up in October of 2020, just the next time up, proving us hypocritical. So I agree with you on your assessment of that.

I do think it was unwise. I think that McConnell's reasonings were somewhat along your lines, but I would add also that he saw a no-lose scenario. If he allowed Garland to become a Supreme Court justice, that doesn't help any of his members, doesn't help the Republican cause, doesn't fire up the base to come vote, etc. If he doesn't allow it, I think he absolutely believed Hillary Clinton would still win. But sure, there's a 1% chance that we get a Supreme Court nominee out of it if Trump wins. Fine. And if Hillary Clinton wins, Garland was going to be a reliably liberal vote. And so even under the worst case scenarios, as people like me were talking about at the time, where it won't be Garland. If Hillary Clinton wins, she will withdraw the Garland nomination

and put in someone else because, frankly, the Obama folks knew that Garland wasn't going to get on the court. That's why they nominated someone who they thought was super hard to attack and arguably moderate. They also thought Hillary Clinton would win, withdraw the Garland nomination and put up someone far, far more liberal. Harold Coe was mentioned at the time. That's the guy, by the way, who was the dean of the Yale Law School and just recently resigned from the State Department as an advisor because he thought that the Biden immigration policies were too right-wing, cruel, illegitimate, etc. So that's who was going to get that seat when Hillary Clinton won. And McConnell was getting criticism from people like me saying, why wouldn't you just confirm Garland? He's the more moderate choice. You're going to end up with Harold Coe. And I

think McConnell's implicit answer to that is there's no difference in terms of how they will actually vote, regardless of their temperament, et cetera. We'll never find out. But I think that's an interesting part of the McConnell real politic calculation that he made. calculation that he made. All right. So I just want to skim through the rest of the history section, because if you are a student of the Supreme Court, want to be a student of the Supreme Court, if you were an undergrad or high school, or have just forgotten some of the history of the Supreme Court, start on page 19, and it is amazing. And it's not that long. Like for 15 pages, you can get this fantastic history of the Supreme Court.

So, right, we're going to start with Article 3 and what that says, which is basically nothing. It says there's going to be a Supreme Court. We'll figure it out later. And why that was, because they were arguing over how it would be structured, and they punted to later. We'll figure it out later. And why that was because they were arguing over how it would be structured and they punted to later. They'll figure it out later. And so then you have the Judiciary Act of 1789, which we all think sets up, you know, the Supreme Court. And then it's just all been off to the races since then. Not so. And this lays it out so well that the Supreme Court as originally created was not what we would recognize. First of all, it was six justices. They were all writing circuit, and there were six circuits. And their jurisdiction was totally different than we

would think of it now. You then get to 1801 Judiciary Act, where they're like, think of it now. You then get to 1801 Judiciary Act, where they're like, oh, crapola, Thomas Jefferson is going to win this. Let's make sure that we limit his power as much as possible. And so they say that basically the next time a Supreme Court justice retires, it won't be filled. So they move the court down to five justices. But then Jefferson very much wins and his Democrats sweep the Congress. So they pass the Judiciary Act of 1802 that undoes all of 1801. And the justices then were back to writing circuits. They were back to six of them. The jurisdictional stuff is all messy again. And this write-up, I think, has just one of the best conversations of Marbury versus Madison and Stuart v. Laird, which get sort of, I don't know,

summarized a little incorrectly most of the time. Like when we teach AP history, it's like Marbury versus Madison established judicial review. Not actually. Judicial review had been going on prior to Marbury versus Madison, even at the Supreme Court. And Marbury versus Madison was like the most clever use of political power. And basically what it, I mean, I think does is establish the Supreme Court as a co-equal third branch for really the first time. And it does that not through, hey, now there's judicial review, but more like, well, John Marshall is smarter than all of you and a political animal just as, and can now place the Supreme Court in this politically viable, legitimated, nonpartisan position that was brilliant. And they talk

about Stuart v. Laird not getting enough attention, so I want to read their summary of Stuart v. Laird. It required the court to rule on the constitutionality of the Jeffersonian Congress's 1802 repeal of the 1801 Judiciary Act. The question presented asked first whether Congress could validly abolish the circuit courts, violating Article 3 of the Constitution, which stated that federal judges were to hold their office during good behavior. It second asked whether the justice could be required to sit as circuit judges. The court upheld the constitutionality of the 1802 repeal act, found that the reorganization of the inferior federal courts was within Congress's power, and held that the validity of the circuit writing had been settled by practice and acquiescence.

Some commentators have characterized Stewart as a more overtly political and perhaps more consequential decision than Marbury. And I love this quote that they include from Chief Justice Marshall, his own thoughts referencing Stuart B. Laird. Chief Justice Marshall himself seemed to have remained skeptical about the basis of the decision, referring in an 1823 letter in ironic tones to, quote, the memorable distinction as to tenure of office between removing the judge from the office and removing the office from the judge. So that was just delightful. Highly recommend their version, their history of Marbury versus Madison and Stuart v. Laird in its fullness

on pages 18 and 19. Then they walk through the Jacksonian court, the court around the Civil War, still not a court system that we would recognize even after the Civil War. It's really not until this 1891 act that they establish the federal jurisdiction as we would recognize it,

the appellate levels of review, no more riding circuit, the certiorari process that we would recognize. It's still not exactly as the Supreme Court has set up today. There were some changes made since then, but we would recognize it for the first time in 1891 in a way that before that, you're not even really, you're going to be like, wait, huh? There's an automatic right to appeal to the Supreme Court, but only on these certain things. And some district courts are doing admiralty only and what? It then walks through FDR. And of course the court packing history there, which is also interesting and a little misreported that like FDR raises it, it's smacked down and that's the court packing history there, which is also interesting and a little misreported that like FDR raises it, it's smacked down and that's the end.

It actually, it lasted quite a long time. And then it very abruptly ends with a discussion of the post Brown v. Board of Education changes that were floated. And what's interesting about that to me is the way that it ends and it bullet points the various changes that people wanted to make after Brown v. Board of Education. Of course, this is the case that establishes that segregated schools were unconstitutional. is that it basically implicitly is comparing the post-Brown folks to the now folks, in my view,

and the post-Brown folks being disfavored. These are the racists, remember, the pro-segregation folks who wanted these changes. Let me just read some of what they were suggesting. An amendment making the Senate the final appellate court with power to review decisions of the Supreme Court in cases, quote, where questions of the powers reserved to the states of the people are either directly or indirectly involved and decided, and a state as a party or any wise interested in such questions. Okay, so that would just make the Senate the supreme court an amendment setting term limits for federal judges and revising the methods of selecting them a procedure according to which if one-fourth of the states disapproved of a decision by the court that weakened states rights

the decision would be rendered null unless three-fourths of the states approved it. I don't even understand how that math would work. A proposed court of the union drawn from judges of state Supreme Courts with the power to review decisions of the Supreme Court with respect to the rights reserved to the states or to the people by the Constitution. Lastly, reserving to the states the right to sole and exclusive jurisdiction of public school systems in the separate states. And this is literally the last part of this entire section. None of these proposed amendments came to pass, but they demonstrate the broad range of Supreme Court reforms that have been proposed from across the political spectrum by critics of its decisions, its procedures, and in some cases, its authority. The end of that draft material section

on the history of the court. Fascinating to me because it's basically implying, A, you are in the same boat as these people and or B, beware the court reforms that you implement because you may not be in political power next time and it can be used for ill

as much as you think you are using it for good. So that's my summary of the historical how we got here draft material, section one of the report, so to speak, David. Any other big picture thoughts? Do you agree with my assessment that it ends really abruptly and weirdly and in a way that is really critical

of this whole project project yeah yeah it really it it really surprised me it's almost like uh i i felt like it was the kind of thing where oh crap we're about to reach the word limit okay let's we gotta end it we gotta end it we got We're at the word limit. It was really an interesting choice and way to end it. Nothing on Roe, nothing on the Warren court. I mean, fascinating. Yeah, it was really fascinating. And then I got to say, just to segue into the membership and size of the court section of it, what really stands out to me is that when you read part one and part two together, you get a sense that there are at least voices on this commission who are of the opinion that most of this controversy is an artifact of chance. And the artifact of chance is this, is that although Democrats have won, have been in the

presidency for 16 of the last 28 years, so that's eight years Clinton, eight years Obama versus eight years Bush, four years Trump. So there's been more Democratic governance that the overwhelming majority of the most recent Supreme Court nominations have occurred under Republican presidents. So, which is an artifact of chance. It's when did justices choose to retire? When did justices pass away? And so what we have is a sense of that where the court, and then to magnify it,

so where the court doesn't reflect the America's national elections. So it's the court is too Republican for what the American people have stated of what they want in the presidents who nominate the court. And this also fits in Sarah in a really interesting and intense way with the underlying sense on much of the left that the system is stacked against them anyway constitutionally by the electoral college and the Senate. That there are more people who wear blue jersey than there are people who wear red jersey, but by the accident of geography, the people who wear the blue jersey are at a disadvantage in our electoral system.

So I think you take those two things together, the chance, the happenstance of when vacancies occurred, with the sense of structural disadvantage that people on the left feel about the very electoral system of representative democracy in our country. And those two things are combining together to create a real sense of alarm that the whole system is stacked against them. And I think that you can kind of see, they don't talk about the composition of the Senate and Electoral College, but they do do, commission does talk about this disparity. And I think that is where not only are you getting a sense of urgency about the present court, but a sense of despair about what the future court will look like, if that makes sense. And I think that's motivating a lot of beyond a ruling on this issue or that issue. I think that's motivating a lot of the calls for massive court reform to try to sort of match the court to where the left feels the great weight of America is

or the preponderant weight of America is, if that makes sense. For sure. You know, the interesting thing to me is look at the ages of the Supreme Court justices, and it will show you how interesting this overall conversation is because of that same chance that created three openings in such a short period of time. such a short period of time. So Stephen Breyer is 83 years old. The next oldest justice is Clarence Thomas, who's 10 years younger, 73. Samuel Alito, 71. Sonia Sotomayor is 67. John Roberts is 66. Elena Kagan is 61. The rest are even younger than that so what I see here are you know one opening coming relatively soon in the form of Breyer's seat

and then another chunk that are all going to come around you know roughly could come around the same time and then another chunk coming up behind that. So there's going to be these blips of openings and they're in between, you know, Justice Breyer and Justice Thomas is 10 years of age. You could easily therefore have 10 years or more of gap between a Supreme Court opening. You could have two presidential terms with no Supreme Court nominees. You could have three in theory. Yeah.

And I think that that is something that both sides should think really carefully about. And the right who is cheering on like, ha ha, we got three this time. How will you feel if you lose five next time? If there are five openings and under a single president, because it's not just possible. I think it's quite likely if you look at some actuarial tables and these two bumps, the, um, you know, mid sixties to early 70 bump and the, you know and the 50s bump that are each going to come along here,

high likelihood of more than three openings happening under a single president. So just, you know, if the shoe's on the other foot, I think everyone should take a deep breath because this was chance, but it is predictable chance. Yeah, yeah. So the court packing section, which is of course what everyone wanted to talk about, and a friend of the pod, Katie Barlow, tweeted, is anyone actually starting with this first section

or is everyone skipping ahead to the court packing section? To which I was horribly offended. I was like, no, the history section's amazing. But we will talk about court packing section to which I was like horribly offended. I was like, no, the history section's amazing. Um, but we will talk about court packing today. Uh, again, it walks through the history of those three seats, the Gorsuch seat, the Kavanaugh seat and the Barrett seat and a lot of detail. But then, whew. Um, I actually think again, the, the historical Section 1 is very small-c conservative, maybe more so than the court packing section, actually. It's just that no one wanted to get into the argument about how the Judiciary Act of 1801 and 1802 were portrayed. Maybe that wasn't as sexy as a headline. But I do want to read this one section of the court packing one.

In some countries, alteration of the size of a country's high court has been a worrying sign of democratic backsliding. After his election in 1989, Argentinian President Carlos Menem worked to draw greater power into the executive branch. And in 1990, he successfully added four new members to a five-member Supreme Court. In 2004, Hugo Chavez in Venezuela reigned in judicial independence by expanding the size of the constitutional court from 20 to 32. In 2010, Turkish leader, uh, Erdogan's populist party consolidated control over the Turkish con Turkish constitutional court by expanding its membership from 10 to 17 and altering the process by which judges were selected. In 2010, the populist Fidesz party won a narrow majority

in the Hungarian parliament and quickly went about consolidating power, including through the addition of several new seats to the constitutional court. In 2018, a package of judicial reforms in Poland for sitting judges off the bench and dramatically expanded the size of the Supreme Court. Stable democracies since the mid-20th century, however, have not tended to make such moves. Subtle, real subtle. Yeah. Wow.

Yeah, to me, when I read that, I thought, well, that's your sort of like in Texas Hold'em when you turn over those last couple of you turn over those cards and you've got the four of a kind and it kind of ends everything

barring crazy circumstances yeah when I read that I thought well there was nothing subtle about that. Nara was there. And it directly hit at the primary critique of court packing, both in the sense that the principle of expansion to achieve political result raises the likelihood, of course, not just that it's a sign of degrading democracy, but then you get into an endless cycle and you're tempted to have an

endless cycle of it. And then the other thing that it does is what it demonstrates is how such a move would be received by the team that is victimized by it. It would be seen as a direct assault on the constitutional order, even though it would be technically legal, which brings us back to the first point that we talked about earlier. Doing stuff that's technically legal and constitutional, because the report makes it quite clear that it's within the power. There's no constitutional problem with court expansion. Ooh, although that comes up as quite the discussion during the public meeting, which I want to get to, but please continue. Because you're right, the report says there's no constitutional problem. So no constitutional problem with it. So technically, as a matter of

you just hold your hands up and say, we're doing this because we can do it, is not the end of the inquiry. It's not the end of the inquiry. Because we can is not a good enough reason in our American republic. And so, you know, because we can is not something that is going to be persuasive to a giant chunk of the American people, particularly the people who are seen as victimized by the outcome. And so, you know, that's again goes back to the Amy Coney Barrett situation. I pulled up, you know, quotes from a few folks. Lindsey Graham, this was during Garland, if an opening comes in the last year of President Trump's term and the primary process has started, we'll wait. Nope. Unless it actually happens, in which case we absolutely will not.

Exactly. Ted Cruz, it has been 80 years since a Supreme Court vacancy was nominated and confirmed in election year. There's a long tradition. You don't do this. Margot Rubio, I don't think we should be moving on a nominee in the last year of the president's term. I would say this if it was a Republican president. And that's the thing is these things destabilize even if they are legal. And it was very interesting for me to see the court point that out. So you mean the commission, not the court. I mean, yeah, the commission. Sorry. So things that they discussed in this section.

Going from nine to 13 judges right now, justices. Doing two now and two after the 2024 election. Doing one in each of the next four presidential terms. Doing a rotation slash panel system where perhaps the judges sit in three justice panels, or perhaps they are pulled from the circuit judges and pulled up to be justices for limited amounts of time. And like who that fully knows, um, and 15 justices, but it's five picked by Democrats, five picked by Republicans, and then five picked by those 10 justices. And then every presidential term gets to pick two justices forever. So there's no set number of Supreme Court justices. And then there was another one which would require ideological

balance on the court, whatever that means. Okay, so obviously there's some constitutional problems with some of these. I'm going to start from the bottom. First of all, requiring ideological balance, the draft doesn't even really get into that because that's bonkers sound. As they note, such ideological balance is not required in Congress, let alone the country. And so no, just no. The two justices per term, I actually think is the most interesting. Yes, you would have a varying number of Supreme court justices, but I think it would lower the temperature on everything, including the outcomes of cases, potentially, um, of just, you know, there's going to be a ton of justices. And so there's no point

in overly gaming this, but they do point out some problems with, of course, having a hilariously different number of justices and perhaps just continuing to expand. Okay. The 15 justice idea is clearly unconstitutional under article two, section two, the five Democrats, five Republicans, then five picked by the, those. First of all, article two, the five Democrats, five Republicans, and then five picked by those. First of all, Article 2, Section 2 says how Supreme Court justices are nominated and confirmed. It would obviously violate that, so you would need a constitutional amendment. And second, to so entrench the current two parties, is that really what anyone wants or thinks is wise, let alone constitutional, of course. Then the rotation panel system,

Article 3, Section 1 says there shall be one Supreme Court. So by having panels of Supreme Court justices, the draft at least treats that as not constitutional. It says that previous Supreme Court justices have even weighed in on this. Chief justices have weighed in on this, including Chief Justice Taft, once President Taft, saying that he thought it would violate Article 3, Section 1 to have panels. But during the discussion, Justin Driver says he actually thinks that should get built out a little more with the arguments for why it might be constitutional. So for instance, we still call it the DC Circuit, even though they sit on panels, there's en banc review, they speak for the court, and you can always review it as a larger group. I thought that was really persuasive from Professor Driver and would like to see more

on the constitutionality of that. It got kind of short shrift in this draft, I think because people just thought it was not a real idea in the sense that it doesn't really solve anyone's problem. The way you would have to do it to actually solve anyone's problem is to say, yeah, there's panels and only Sotomayor, Kagan, and Breyer are on the panel that decides constitutional questions. And then we have a panel that only does, you know, Admiralty, and that's going to have Alito and Thomas. And that, of course, would perhaps have some one Supreme Court problems. I thought the rotating up from the circuit judges was an interesting idea that maybe deserved a little more discussion. But of course, the main discussion was on simply going from nine justices to 13 justices. And while the draft treats that as definitely

constitutional, this is where the conversation became Professor Will Bode versus Professor Andrew Crespo. So Will Bode, friend of the pod, was on the podcast to discuss coining the term shadow docket, as you remember. He clerked for Chief Justice Roberts. He's considered pretty center, but center right leaning.

And Andrew Crespo was the editor-in-chief of the Law Review my year. So he and I went to law school together. We did not particularly know each other. Like, obviously, we knew each other, but we weren't buddies. And he is, I would consider him one of the far left members of the commission. But their back and forth was fascinating to me. So first of all, Professor Bode makes the point that while he is an originalist, this commission is not an originalist panel. They're not supposed to have an originalist report. And so they should have

to explain why they think that it is constitutional to go from nine to 13 justices, because from an originalist perspective, of course, the number of justices moved and there was no set number. perspective, of course, the number of justices moved and there was no set number. But in a norm based constitution, he says he gave three options. A, there are no purpose based limits on what Congress can do, which he pointed out that many members of the commission do not believe. B, there are some limits on purposebased reasons that Congress can do something, but changing the number of justices doesn't fall under those norm-based limits. And he's like, fine, but then you need to explain that because I don't see any principled reason why that would be the case. Or C, there are some norm-based limits on what Congress can do. For instance,

doing something for purely partisan reasons. But this change in court membership complies with those reasons, as in members of Congress are not seeking to do this for partisan reasons. And he used this great analogy on jurisdiction stripping, that members of the commission, for instance, believe that you could not strip the Supreme Court of jurisdiction for purely outcome partisan reasons. We don't like Shelby County or we don't like Citizens United and therefore the Supreme Court can no longer decide Voting Rights Act cases or campaign finance cases. And there's been a lot of academic debate over the constitutionality of that. And he says, why wouldn't that same rule apply to increasing

the number of justices? Isn't this actually just jurisdiction stripping in a different format? I thought that was such an interesting argument. And he gave this analogy, which he even said, he's like, this is going to make people angry. He thought that the draft went too far in validating the court packing ideas. And he said, imagine that there was an election commission like our commission, and it was looking at whether GOP state legislature should be able to cancel elections when they don't like the outcomes and send a slate of electors of their choosing. He says, you could submit a report that said, this is probably lawful under article, you know, under the constitution, but probably not prudent.

He's like, I would highly object to such a draft report because it is so destabilizing and so, uh, you know, uh, undermining our democratic norms. We should treat it like it is. Um, Andrew Crespo lobs the ball right back. And I actually think it was worth quite a bit of discussion. And I want to hear your response. Because his answer was the court was already packed, not that the seats were stolen. And this is what I appreciated. And I thought it was a really intellectually more honest argument than the stolen seat thing, which I find to be, as you said, David, like a little bit of silliness, frankly. I think it was bad and wrong and other hypocritical, but it wasn't stolen. It followed the constitutional process. Crespo's point, however, is that the court packing began with

the Gorsuch seat when they allowed the court to go down to eight people, they were changing the membership numbers of the court. And then they changed it again when they nominated Gorsuch and brought it back to nine people. And that if that sort of manipulation is considered court packing, then this becomes a far less radical idea. In fact, it is simply a response to the previous court packing. I think that is worthy of discussion. Now, former D.C. Circuit Judge Griffith responded and said, the D.C. Circuit's numbers have changed all the time because the Senate refused to confirm judges. And in fact, we don't think that the DC circuit was packed and unpacked and that there's anything going on. It's just that sometimes the Senate confirms people,

sometimes there's partisan reasons they don't, and that's not court packing. But I actually think that the commission, it would be smart to reframe the stolen seat argument in terms of Crespo's point about the packing argument if they want it to be taken more seriously. Yeah. No, I mean, that's a better argument than the stolen argument, which is just cable news talking point stuff, quite frankly, rabble-rousing cable news talking point stuff, quite frankly. Rabble-rousing cable news talking point stuff. And I get what he's saying, but it's a reach to me.

It's a reach. Yeah, I mean, I think the real issue is it's not so much court packing. They just left a vacancy for an abnormally long time on purpose, but with no intention of that vacancy being left open indefinitely. Well, in fairness, they did say that even if Hillary Clinton won

and they still controlled the Senate, that they would potentially, certain Republican senators said they may not confirm a judge under, a justice under a justice under a president Clinton. And so in that sense, at how long would they have needed to have left that open and have an eight seat court for you to agree that that was court packing? Well, our court. Yeah, that was court unpacking. Yeah. Anyway, we need a different word court

unpacking. Yeah. I mean, I think that the idea that it was, well, even there the problem becomes it cannot be a permanent change unless you could guarantee a permanent division of government. The court is still set at nine justices, but a permanent division of government and combined with a permanent promise not to appoint and confirm in the absence of United Government, then you've got an argument about a real change in the size of the court. Otherwise, what we're just talking about is a long, how long does, you know, how temporary is temporary. But yeah, I, I found, I, you know, I, the bottom line though, for me, and I think that back and forth that you describe is very interesting

and it's a lot more interesting to say that there was maybe not so much court packing, court manipulation, court size manipulation. That's a much more interesting argument than stolen seat. Yeah. Much more interesting. Yeah, so the reporting coming out of this section of the report has been, you know, the commission pours cold water on the court packing idea. I think that undersells. Like, it was an ice bath.

Oh, yes. cells like it was an ice bath and there were five or six members of the commission who were very upset and i think shocked to read this section of the draft remember if they weren't on the working group they saw it you know not that long before we all saw it and you know, Larry Tribe was, I think, the most outspoken, breathless one about his shock and disappointment at this section of the report. And, wow, there is going to be a lot of pressure over the next three or four weeks until they release the final report to the president. And, um, I think we will see a large scale change to how this is presented because of those five or six members on the commission who are very upset by this, but the cat's already out of the bag, right? Like we already have this, these draft materials, which I think you could see a report that's basically like you asked us to look at this, we don't agree. And then that will basically not count. And it will be these draft materials that count. And that to me is fascinating. I mean, totally an interesting look at how group dynamics

work, writing by committee, working groups, what the public meeting laws cause, which is that all of us got to see this. If there weren't sunshine laws, that would have been changed internally. We never would have seen this draft section. And what would have been released would have been far more like, I don't know, court packing, maybe so. And so a really interesting distortion by the sunshine laws, which in this case, obviously obviously I think are for good, but definitely changes how a group can deliberate. So that's my overall take on the first two sections.

The next three sections coming on Thursday. I thought this was like so much fun. It was very fascinating. It was very fascinating. I think you're right on the court packing. It was very fascinating. It was very fascinating. I think you're right on the court packing.

The fundamentals of the court packing argument is that once you mention Chavez, it's hard to turn back. It is hard. It's really awesome too because they don't even say like Chavez bad. They just like list all these people who are like, you probably don't like the way that Erdogan's running his country

or Poland or Hungary or Venezuela. Yeah, exactly. Exactly. That is a word that once that name escapes your lips, it is hard to yank back or Erdogan, but especially Chavez. I mean, that's crossing a threshold. And even if a final report is substantially different, this is still going to sit there and you're going to hand somebody in debate a talking point that says, wait a minute, as this, as the membership and size of the court initial report said, this has often marked a degradation of democratic norms and an increase in authoritarianism, i.e. and then go with the example. So I was so, let me just put

it this way. None of this was what I expected. No, me neither. And kudos to the drafters. It was a brave thing to do because they knew they were going to get pushback from their own side. And this is, to me, similar to those other people, we could name some of them, who have stood up for the continuation of our constitutional norms through the last couple years, or really, let's call it December of last year through now. And both sides are having people stand up and say, no, I want to hand this off to my children the way I found it, and against a lot of opposition. And so good on them. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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So let's not spend too much time on Loudoun County. Let's do just really two quick things. One is we have mentioned a number of times and especially mentioned last week in connection with the report that we talked about at length about a horrible case. In fact, a horrible series of abuses out of Rutherford County, Tennessee, and a big ProPublica report about it. And so there's also a lot of talk about a horrible incident in Loudoun County. And so originally the report came from Daily Wire, and essentially the story had a few components.

One was that two teens had been accused, or two teens had been victims, alleged victims of sexual assault. accused or two teens had been victims alleged victims of sexual assault um one at least one of these sexual assaults alleged sexual assaults appear was uh the claim was that it came from a gender fluid male assaulting a young girl in a bathroom and that this had been covered up by Loudoun County schools and that some and that the father of the of the one of one of the girls who'd been allegedly sexually assaulted had been sort of a poster child had become made by made by some people as a poster child of an out of control parent. But in fact, he was a very, very angry parent because of a sexual assault against his daughter. In fact, he was a very, very angry parent because of a sexual assault against his daughter. And so you and I said, let's see more reporting on all of this. And so some more reporting has emerged. And this is a report from the Washington Post by Jasmine Hilton, Hannah Natanson, and Justin Juvenal.

And it begins like this. A teen accused of sexually assaulting a fellow student at Loudoun County High School in May is also accused in a second sexual assault less than five months later at another county high school. So this is, you know, reporting confirmation of accusations of two sexual assaults. It says the alleged assault first in May and second October sparked anger from parents who showed up at a local school board meeting and blasted school officials for their

handling of the incidents and the students enrollment in a new school after the first allegation. Boy, howdy, that is a legit complaint that if somebody has been accused of sexual assault, that they've gone ahead and enrolled them in a new school. That's worth a lot of inquiry. And then the parents of the victim of the first alleged sexual assault issued a statement Thursday through the Stanley Law Group blaming school officials. They asserted that the charged youth is, quote, gender fluid and the incident occurred in a girl's bathroom, those details have not been confirmed by authorities. So one of the most explosive allegations is that this was enabled perhaps by a bathroom policy or by someone's gender fluid identity. That is not confirmed. So that's where we are on this. If interesting, it's a more, if anything,

it's a more interesting conversation about due process and the conversations we were having two years ago about the due process due to someone accused of sexual harassment, sexual assault in these school contexts, and that the men weren't getting due process. They were just sort of summarily punished before any process had happened. And in this case, the parents saying that, well, this was alleged, therefore he shouldn't have been allowed to attend school. I am very sympathetic to that argument, but I want to put it in that context of, well, in some contexts, you think that the boy should have all process before punishment. And now in this context, you think there should have been punishment, i.e. not being able to attend school before process. Those are pretty directly contradictory to me.

Yeah, that's a very interesting point. That's a very interesting point. contradictory to me. Yeah, that's a very interesting point. That's a very interesting point. But one of the things that we have not seen is we've not seen, for example, police reports. We've not seen what kind of evidence existed at the time of the allegation. There's just a lot we don't know because one of the things we do in this country is, in fact, if somebody has been accused of a violent crime before trial, we will often incarcerate them and we'll hold them pending trial depending on the evidence in the case. And so that's a lot of what we don't know here. Here's an alleged assault, an alleged crime. We don't know all of the

evidence in the case. And so there's so much we don't know about the decision to allow this youth to go to another school. So yeah, I mean, there's a lot of still known unknowns, but you raise a very, very good point, which is how much due process should there be before you say to a student who's been accused of a crime, you cannot attend school pending the resolution of your case. That's a great question. And the gender fluid aspect of it, we still just don't know that at all. There's also a bathroom problem in that a man can assault a woman in a bathroom with the policy being men are absolutely barred from the women's bathroom. IE, if you're going to rape someone, perhaps the bathroom policy isn't what's

stopping you from committing that rape in a bathroom. Um, at the same token, obviously, if they had a bathroom policy where it was expected that anyone could use whatever bathroom they wanted, regardless of their gender or even gender identity, perhaps. And it made it such a norm that nobody would have noticed, for instance, a male going into the girl's bathroom and that would have stood out otherwise, or that it doesn't allow the woman some ability of self-defense. Like if a man walks in the bathroom and you know a man's not allowed to be in there, maybe you immediately would start fighting or screaming or something.

Something that, by the way, we do not expect or require of rape victims. I just want to be clear about that. But that it would change that dynamic in the bathroom, making it easier to ambush, surprise, and assault someone. All things we don't know. And that, I suppose, will be relevant

to a discussion over the bathroom policies. In Loudoun County, this very specific county in Virginia that has just been the center of the critical race theory stuff, the bathroom policy stuff, parents at school board meetings being arrested. Like all three of these are happening in a very overly reported way in this one suburban D.C. county.

Now here's the other interesting little piece about this. The parents, so school board meetings happened. The parents spoke out against a policy put in place by the school board several months later in August allowing students to use bathrooms that match

their gender identities. At the time of the alleged incident, the policy was not in place. So there was not a policy in place allowing people to use bathrooms that match their gender identities. So this is still, you know, what we have is dreadful. What we have is dreadful, which is an accusation, allegation of two separate sexual assaults, one several months following another, and where a student who was accused in the first one was allowed to go to a different school. The circumstances of allowing that, as Sarah and I just said, look, there are circumstances where evidence is so compelling of criminal activity that you impose restrictions prior to adjudication. That's a common part of our criminal justice system. And there are circumstances in which restrictions prior to adjudication are inappropriate.

So there's a lot we don't know here, but when you're dealing with sexual assault, rape, the equivalent, it is not an affront to the Constitution, for example, to have high bail requirements or sometimes have circumstances where someone will be even imprisoned awaiting trial. Well, and fascinating here, the father who went to the school board meeting got very animated. He was arrested for disorderly conduct and resisting arrest, I believe.

He was sentenced to 10 days in jail. So he got jail time. I mean, as it turns out, it's a suspended sentence, but he was sentenced to 10 days in jail. And I think that is aggravating the situation a lot as well. The district attorney in that area personally prosecuted the case. And I think that that has perhaps sent a message that one of these things is going to be treated really seriously by the authorities and the other one not so much until there's a second sexual assault alleged against the allegation brought

against the same student. I mean, that to me is where like that is the nightmare. So the nightmare being a second sexual assault, just to be clear. The nightmare being a second sexual assault, just to be clear. Yes. Yeah, exactly. So, and now staying in Loudoun County, there's also a lawsuit that has been filed. Now, this is directly relevant to a lot of our discussions that we've had on anti-CRT laws. And so the lawsuit has been filed by my former colleagues at the Alliance Defending Freedom, and the ACLU has gotten involved. And this is something that, again, it's Loudoun County, it's making national news.

And this is a lawsuit filed by ADF against a policy that requires teachers to use preferred pronouns in school. And there are two things that are really fascinating about this. One, from a legal quirk standpoint, is that this was filed in Virginia state court under the Virginia Constitution. Now, why would you do that instead of filing under the federal constitution? Well, one of the reasons why you do that is that the case law regarding teacher-free speech in the federal constitutional context, K-12 teacher-free speech, is really not favorable, as we have discussed quite a bit. That there is a broad consensus in federal courts that if you're a teacher K through 12 and you're operating in, according to your official duties,

that your free speech rights are, shall we say, slim to none, okay? So what do you do if you're a smart attorney and you're wanting to protect your clients from saying things that they believe not to be true. And that's one of the key issues here is that if you're calling somebody who's a biological male, she, what these plaintiffs are saying is we're not, that's not just, that's violating our conscience. And it's just not true. You're compelling us to say things that are not true.

And so what do you do if federal law is really unfavorable? You file under state law, state law. Now, what's interesting about state law is, as, you know, reading through some of the injunction papers, state law says is that the First amendment protections of the virginia constitution are co-extensive with those of the first amendment which means essentially federal um constitutional law is going to be quite persuasive but it's not binding it's not binding on the virginia constitution except in the sense that virgin Virginia cannot be more restrictive of free speech. It cannot be more restrictive, but it can be more protective. The same with the religious

liberty claim. Virginia cannot be more restrictive, but it can be more protective. So this is going to be very interesting to see if Virginia courts choose to be more protective of free speech and religious liberty of teachers than the federal system. So that's quirk number one about this. And quirk number two, well, maybe there's three. Quirk number two is the ACLU is weighed in, Sarah, against the teachers. Yep. Against the teachers. Essentially saying the teachers do not have the free speech rights here. They can be compelled to use preferred pronouns. And some of the reasoning is

otherwise they're engaging in harassment. And then point three is, where does the anti-CRT crowd fit in on this? Because they have been arguing at length and at volume that teachers really don't have any free speech rights at all and that their speech can in fact be commandeered by the government. And it's absurd to suggest otherwise. So does that mean we'll see some of the anti-CRT folks filing an amicus brief in this case

against the teachers who don't want to use preferred pronouns? So many layers to peel here, Sarah. And an interesting case in terms of how those cases will be brought in other state law contexts as well. Yes. I mean, this is going to be, we're going to see, I think we'll see other cases brought under state constitutions. But one of the things, I mean, I'm not going to beat the hobby horse here. I don't like the Garcetti decision that just stripped teachers, or in most instances, certainly at the college arena, not so much, but has been interpreted to essentially strip teachers, K-12 teachers of constitutional rights, in the workplace. I have long, long consistently disliked that opinion. And I do wonder if we're going to see a federal case that's going to present that back to the court.

But I'm not sure that the court would revisit it. In fact, I'd be very skeptical of argument that would revisit it. We'll see. So on Thursday, we're going to go through the rest of the report. It'll be much faster because as Lawrence Tribe said today, those are the parts of the report that are really hard to do. And second, we had two summary reversals out of the Supreme Court today, both dealing with qualified immunity and definitely some messages being sent to the circuit courts out there on qualified immunity in some of these police cases. So you are going to have a ton of thoughts on that and I am pumped to hear them. Yes. Oh my goodness. We were just starting recording when I knew these decisions had been handed down.

And I started reading and I had to stop myself. So, yes, I'm going to have thoughts. So stay tuned. Come back on Thursday. As I always say, please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts and please check out thedispatch.com. Thank you.