Advisory Opinions - Bionic Judges

Episode Date: December 5, 2023

Judge Kevin Newsom of the 11th Circuit Court of Appeals joins Sarah and David to reminisce on past times and talk nerdy topics. Let Judge Newsom explain his concurring opinions and: -Lunches spent reading Supreme Court oral arguments -Humblebrags -Hiring (life-saving) clerks -Why he’s a skeptic of standing -Jurisdiction stripping -Why Judge Newsom can’t be a podcast host -Over aggressive judging and why it’s bad for democracy -What makes good writing -Adjudicating Alabama Show Notes: -TransUnion LLC v. Ramirez --David French's column on the Insurrection Act -Judge Newsom's favorite writing tool -Judge Newsom's opinions Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we have our long-awaited stellar guest, Judge Kevin Newsom of the 11th Circuit. We're going to talk standing. We're going to talk clerk hiring. We're going to talk health scares, college football, and the TV show for all mankind, like everything in between. And we'll make sure to get to jurisdiction stripping, something we just haven't talked enough about on this podcast. So this is a potpourri episode, everyone. It's long. It's fun. It's nerdy. It's weird. It's all the things that

Judge Newsom is. I hope you enjoy. Judge, welcome to the podcast. Thanks so much for having me, guys. You know, you and I have known each other for some time, not too long, but my understanding is you might know David longer than me. Yeah, so we're going to see Canada. And a fellow named David French was a young associate there and was effectively sort of the summer program coordinator among the lawyers. And so he kept the four of us entertained. And yes, so, you know, I sort of ended up going a different way. I, you know, went to a different firm, lost touch with David. And, you know, flash forward 15 years, my family and I have moved

back to Birmingham and I'm listening to a podcast. And I think it's Bill Kristol who was advertising the fact that he, in the run up to 2016, has a stealth presidential candidate who will make the world safe. And he mentions that it's a guy named David French. And I thought, well, that's interesting. I used to know a guy named David French. And then I realized it was the same freaking David French who had gone on to do all of these interesting things, including enlisting in the military and going overseas. And so this is a full circle moment for me. Wow. No, as a summer associate coordinator, did he do any particularly fun activities? Yeah, I'll tell you one thing he did that was amazing.

And we were fortunate. It was a small firm and it was a small summer program that were just four of us. And I remember that he organized these lunches where we would read recent Supreme Court decisions and sit around the conference room table with, you know, sort of bring in lunch and talk about them. It was amazing. No, no, Judge. I said fun activities. No, that's fun. What's not to love about that? I mean, I'm among friends here, right? I know.

Do you not host this podcast? Wow. Now, let's just find out whether this was, you know, causal. Do you know what the other three summer associates have gone on to do? I don't. Their names were... Because maybe David was just launching careers out of Nashville. It's interesting. Their names were Warren, Steve, and Juan.

And I can't remember last names, but I don't know. I'm sure they've gone on to do fantastically interesting things. Wow. So it all comes back to David French. It all comes back to David. Wow, Judge. I barely remember even being the summer associate coordinator. That's fantastic. That is fantastic. That comment suggests that it was a wilder summer than in fact it was.

No, I think the lunches spent reading Supreme Court oral arguments pretty much does it. Like, I think that tells us exactly how wild the summer was. Yeah, that's exactly how wild it was. We, unfortunately, so some of the backstory, Judge, is the firm had just split in two, which now, I think merged with, Ferris-Warfield merged with another firm. So it had recently split in two and had major conflict between the two sides. And as I recall, we did not have the largesse to bestow upon the summer associates that maybe traditionally we'd had. So I substituted it. You know, I substituted, you know, the trip up to Fenway like one Nashville firm did that summer. I substituted that with the lunchtime constitutional conversation, which far more edifying. Well done.

Well done. Yeah. It's funny. I've been in this conversation with my clerks ever since, you know, sort of I agreed to come on and they've said, do you think because I've told them I'm like, yeah, yeah, yeah. So, you know, Sarah, I, you know, sort of I text back and forth with Sarah and I actually know David from former life. And they're like, you know, Judge,

I don't think he knows you because there's no recognition in his voice at all when Sarah talks about you. Oh no. Well, Judge, we're thrilled to have you on the podcast, especially, you had a health scare recently. Yeah, crazy, crazy few weeks. Because you were supposed to be in D.C. for the

National Federalist Society conference and I was going to see you there and we were going to hang. Yes. And then you texted really nonchalantly, really, really like, oh, hey, I was feeling a little under the weather. And then why don't you just tell the rest of the story? Yeah, so I'll try to give you the short version. It's been a weird few weeks. So about almost four weeks ago now, I sort of was in my normal morning routine, which is to get up early, come down to the courthouse, I work out here and then shower up for work

and get ready here. So I was in the weight room and about halfway through my exercise routine, started feeling just sort of confused and lightheaded. And the next thing I knew just sort of found myself... By the way, this is all just a giant humble brag audience. Like, it's just for him to get to say, like, he was in the weight room. Yeah, that's right. Exactly. Exactly. It all comes back to the weight room. But so, but, you know, I just found myself down on like all fours just in near blackout. And once that wave passed, I thought, okay, like clear the cobwebs. I think we're good.

So I just finished exercising, went for a run outside, you know, decided not to use the treadmill to go outside. Ran around downtown Birmingham, came back, came up to my chamber, showered up, got out of the shower, got myself dressed. And the next thing I knew, I woke up in the sort of crumpled up in the corner of my bathroom and thought, well, that was that was bad. I think maybe I'll call my doctor and see what's going on. But before I could do it, had wandered down to my clerk's office and was chatting with two of my co-clerks and went out again. And, you know, I mean, they had to kind of bring me back. One of them brought me back and the other one called 911. The paramedics came to get me. Sort of the working assumption at the time was, and I'd been told before that I have a very low resting heart rate and that maybe I had just gotten a little dehydrated. But in any event, so they took me to

ER, admitted me overnight just to run some tests and, you know, filled me with IV fluids so I wouldn't be dehydrated. You know, put a portable heart monitor on me. And, you know, I don't know if you ever stayed overnight in the hospital, but, you know, they come in at an ungodly hour to, you know, take your pulse and your blood pressure and wake you up. So they woke me up at, you know, one in the morning or something. And I was sitting in the chair next to my hospital bed, just responding to text messages and went out again and sort of woke up who knows how long later, and stumbled out to the nurse's station to say, hey, can you read this heart monitor that's attached to me and tell me if I just had another episode or, you know, maybe just fell asleep? And so she said, yeah, I'll check. And she walked back in a few minutes and she said, yeah, you had a 12 second pause.

And I said, what does that mean? And she said, well, it means your heart wasn't beating for 12 seconds. And I was like, goodness, whoa, that sounds like way too long for one's heart not to be beating. And so in any event, they decided, the short story is they decided to give me a pacemaker. So I am now the proud owner of a Boston scientific microcomputer that runs my heart. It is wild, wild. But, you know, four weeks ago, and I feel pretty good, still a little sore and stiff, but I feel pretty good.

And really, above all else, I'm just so thankful to have something that can be fixed. I mean, you know, what a time to be alive when, you know, modern medicine has figured out a way to implant a little computer in your chest that runs your heart. So, you know, there's so many people who have things that aren't fixable and my thing is fixable. So I'm just so grateful. Can I just tell you in that whole story, the person who I feel most for are the two clerks. Oh, dude. I mean, it's interesting. I told them, I said, you know, I'm not trying to get all melodramatic and weepy on you, but I don't want you to forget ever that I think you might have saved my life if you hadn't been here. I don't know if I would have woken up. Maybe I would have. Maybe I wouldn't have. But like, I want you to carry that around with you. That's that's no

small deal. You know, you might well have saved someone's life. So it's just incredible. Incredible. So they do get a recommendation for future jobs or. Yeah, we'll see. We'll see. We'll see. Because they're relatively new in their clerkships. They haven't really proven themselves. That's right. Exactly. Otherwise. They've proven their loyalty to me, but nothing else. I like that, Judge.

Better work on those memos. Yeah. No unearned gratitude. That's right. Exactly. In this one area of life, yes. In this other, well, the jury's out. That's right.

We'll see. We'll see. Yeah. Why don't we talk a little bit about clerkship hiring, since clearly you hire at least clerks who know how to dial 911. That's right. But my understanding is you hire clerks sometimes at least before they even have first semester 1L grades. Yeah, it's not something I'm particularly proud of, but it is just sort of the state of things. You know, I recognize that there's a law clerk hiring plan.

I've tried to be very transparent with the law schools and the students that I don't follow it. And there's a reason. I mean, I think I have some concern that the law clerk hiring plan favors judges and students who exist between, say, Boston and Charlottesville, you know, sort of along the Acela corridor. Because clerkship interviewing is difficult and expensive, right? It's not like firm interviewing where anybody's paying for you to jet set around the country. It's on your own dime. And so for those of us who exist in the rest of America, I think we're at something of a competitive disadvantage if we just wait.

And so I think there are a lot of us, you know, who have decided that, you know, the one way to sort of level the playing field is to try to identify the five stars early. And yeah, so that's what I've done. And to this point, I think I've done really well because I adore my clerk family. So yeah, so it's not a perfect system, but it's the system we have. How do you identify the superstars? I rely very heavily on existing clerk pipelines, right?

So like my sort of Harvard students will tell me about their successors and those people will tell me about their successors. I rely very heavily on professors at these schools who I trust. And, you know, I try to, I try to meet these people in advance by doing talks at law schools. So, um, yeah, I try to compensate for the, you know, sort of the absence of a full record by really getting to know people. And the honest truth is, I think I might hire a little differently than some judges do. You know, I always tell my clerks when we are scouting, you know, sort of the new class, I said, basically, here's what I want you to remember. We're looking for three things. Number one, is this person smart enough to do the job? And by that, I don't necessarily mean the smartest person you've ever met, the 180 on the LSAT, the, you know, sort of double Ivy Road Scholar rocket scientist. I just mean, is this person smart enough to do the job? Number two, does this person care, like really

care in his or her gut about doing the job excellently? I know that sounds kind of cheesy and Boy Scout-ish, but that's what I mean. And the reason for that really is that the honest truth is I've never been the smartest person in the room. I think I'm basically smart enough. And beyond that, I think I have just outworked people to sort of, you know, achieve anything. And so I'm looking for people who have that kind of grit and moxie. And then three, very important to me, is this person fun, like genuinely fun. Because, you know-

And again, we just, I want to note that when I asked you what was fun about your summer associate time, and we've talked in this podcast about what, for instance, Paul Weiss did. I believe they went to a Taylor Swift concert. There was a booze cruise. I mean, there was like crazy trips to New York and no boo probably or whatever. When I asked you, you said, David did this really cool thing where he'd assign

Supreme Court opinions and we'd talk about them over lunch. So I do want to dig in a little on what you define as fun for your clerks. I think the judge and I understand each other very well, Sarah. This is a fair critique. Maybe I've gotten more fun in my old age. Some people get crotchety. I also want to be clear, and I'm going to tell a little story on you, Judge, that you are best friends with one of my very good friends' husbands. Yes. And you were the best man at their wedding. Yes.

And you organized the bachelor party. Oh my gosh. Are we going there? Oh, this is pathetic. To Vegas. This is pathetic. And y'all did nothing interesting, I'm told. Because, yeah, you don't drink, you don't stay out late. Like, no, none of it. It's even worse than that.

Because there was a bachelor party, but it was not to Vegas. It was to an Orioles game at Camden Yards. Wait, are you serious? Yes. I just remember Rachel telling me that she was so unconcerned about the bachelor party because Kevin Newsom was in charge of it. Yeah. Yeah. Rachel had nothing to fear. The thing that I recall from that is that sitting right behind us at Camden Yards were, who I think then were a couple, Edward Norton and Salma Hayek sat right behind us at the baseball game.

So that's pretty- Behind you, you had better seats. Yeah, so a buddy of ours, another O'Scanlan co-clerk of ours, we're talking just so we're clear about John Cohn, who is just one of the best. And another O'Scanlan co-clerk of ours, a guy named Tom Ward, who was then at Williams & Connolly, who has, they have an Orioles connection, obviously. So we got the WNC seats for that event. for that event. So we were sitting in the seats next to Edward Norton and Salma Hayek. So that tells you something. But yes, in terms of lame bachelor party, this was an A plus. Oh, judge, the last bachelor party I organized, pizza and pickup basketball. There you go.

And we had a blast. David and I do understand one another. Yes, yes, we had a blast. But so Sarah, on the fun factor, I hope I've gotten a little bit more fun. So we don't necessarily in chambers sit around and read Supreme Court opinions. We do talk law plenty, but we do also have a ping pong table. There is a lot of ping pong being played here. We play doubles, which is super fun and very wild.

You each cover six inches? Well, no, because in doubles and ping pong, at least the way we play, when you volley it across the net, when it comes back, your partner has to hit it no matter where it goes. So there's lots of running around. It's really fun. And in fact, I'll tell you a funny story about maybe about two clerk classes ago. We typically play at about three in the afternoon. I'm on the night floor of the courthouse here. And we were down there playing wild and woolly as usual, lots of stomping around and yelling and screaming and cursing. And I came back to my office after the games and one of my clerks came back and he said, Judge, the federal marshal's just called.

And the judge on 8th, who is holding a trial. Yeah, I was going to ask about this. Asked if Judge Newsom and his clerks had any work they needed to be doing. doing. So now before we play, we send someone down to eight to literally look into the courtroom to make sure nothing is happening. Okay. So there you go. So that's sort of fun, right? Yeah. That's pretty fun. Although I'm worried about the clerk that's the weak link. Yeah. Well, it's interesting. I think now maybe the ping pong has become a reputation because I tend to get people by the time, you know, as you said, I'm hiring young kids. So by the time they get to me, they've clearly been training for a while because everybody always seems to be good. Like I bought this ping pong table so that I could, you know, sort of like demonstrate my superiority over these people. And now I'm typically like, you know, fifth or sixth in the pecking order. It's really pretty humbling. So ping pong is fun. You know, we like to do lots of fun stuff around Birmingham.

I like for the clerks to, you know, sort of soak up local culture. So, you know, do a lot of hiking. There's a swimming hole up in Northeast Alabama that we like to go to. In May, if the clerks so desire, we typically go to the Talladega 500, which is people watching at its absolute freaking finest. So yeah, lots of stuff. Lots of stuff. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura

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plus free shipping on their best-selling frame. That's A-U-R-A frames dot com. Use code advisory at checkout to save. Terms and conditions apply. David, I'm curious of your thoughts on the clerk hiring plan because Judge Newsom has raised something that I've heard from other judges about it sort of favoring. He points out like the flying that you would need to do. And so you try to then make all your interviews close to one another and that that can benefit that Acela corridor. I've also heard just because like people may want to stay in New York or DC. And so it's going to help those judges over the other judges if everyone's going at the same time.

But I actually think it favors the Newsoms over a lot of other judges, just like I think when they got rid of grades, that like if you're a top tier student, you weren't affected. But if you were an A minus B plus student, you now are undifferentiated from everyone below you, basically. And if you're a feeder judge, you're great. judge, you're great. The Judge Newsom's are going to be fine under any plan because people are going to think that they've upped their chances of clerking at the Supreme Court if they go clerk for a Judge Newsom type judge. Whereas like just great judges with good experiences, for instance, maybe they do something other than ping pong. They could be hurt by the hiring plan. I don't know. I was just curious, David, if you had hiring plan feelings. Well, Sarah, I'm sure I would if I knew what the clerk hiring plan was. So I either forgot or never knew what the clerk hiring plan was. But since Judge Newsom and I go way, our bond,

our bond has endured for decades. So I'm with him on it. Whatever, whatever he says. I like that kind of support. That's, that's, that's the kind of support I like. I got my clerkship during the sort of height of the second wave of the plan. Yeah. Yeah. I think we're on like 3.0 or 4.0 now. They've tried and it's failed and then they've tried and it's failed. And I think we're on maybe 3.0. So as a stand in for the audience that does not know the clerk hiring plan. Oh, you want us to talk about it? Just briefly, what is the clerk hiring plan? Just very briefly. Oh, it's just that there'd be like a week where all the judges and all the clerks sort of have

a sorority rush type situation. And it would be controlled by this oscar system um online but once a whole once a tipping point number of judges break from the plan that the plan quote unquote still exists there's still a week there's still oscar but as fewer and fewer judges participate then even more judges leave because then the newsoms of the world are snapping up the quote superstars leaving the dregs for the plan people which is at least I think they've even moved up the plan. But the plan used to be sort of that couple first weeks of 3L year of law school. And by that point, there's no clerks left now. Yeah, it's interesting.

I think, you know, the idea, the idea of the plan is sound. The idea of the plan is sound. It's to, you know, sort of allow law students to settle in, to create a record, you know, without sort of being bombarded with this three year out opportunity during their first semester of law school. I totally get it. And the truth is, like, I have hired people on plan, so to speak. So for instance, you know, like in my, what now, 2026 class, you know, I've got one guy from Yale who's a plan guy, really so happy to have him. And one woman, so he's a 3L at Yale. And then one woman who's a 1L at Yale, who I hired, you know, she seems absolutely terrific as well. And so, you know, there are on-plan hires and off-plan hires. I tend to hire off-plan most of the time, but occasionally, you know, I'll hire on-plan. And that, I think that shows that there are people, there are still brilliant candidates, you know, sort of available on-plan. But I confess that, you know, I don't, I'm not slavishly devoted to the plan. All right. You've been teaching a class at Stanford. Yeah. I think you're actually set to teach it with Akilah Marr at Yale. And I've been teasing this podcast as our standing expert

podcast. And, you know, you've got a couple areas of expertise here. One, you teach this class, and I'm curious what all you teach about standing in your class. And two, you do standing in your job. Yeah, yeah, yeah. So yeah, so the class, I taught at Stanford in the fall. It's basically a two-week sort of short course that I teach for, you know, two or three hours every night. Taught it at Stanford for two weeks in the fall. I'm going to co-teach it with Akil at Gale in the spring. It is basically sort of an advanced topics and FedCourt's seminar. I say seminar, although at Stanford, I had 23. At Yale, I think Akil and I already have 50. And so I'll see how exactly it is that you manage a seminar of 50 people. But it's absolutely designed to be sort of a no-holds-barred, freewheeling exchange of ideas. I had the time of my life at Stanford. And basically what I did, it's a very selfish endeavor. I chose a handful of topics that sort of by virtue of the job have become interesting to me.

And so, you know, standing, we can talk a good bit about standing, but so, you know, I do standing. We talk about jurisdiction stripping, the 11th Amendment, habeas, qualified immunity, ERIE, certification, nationwide injunctions. And is there any overarching theme or is it just things that Kevin Newsom likes? It's basically just things that I like. Things that I like. And I mean, I guess the extent there is a theme, what I think makes these topics interesting and what makes the law interesting more generally is when there are issues that divide the usual bedfellows, right? issues that divide the usual bedfellows, right? And so, for instance, like in the 11th Amendment space, we, you know, I have the students read an article by John Manning, you know, sort of the

Bort Scalia clerk, John Manning, and then also one that Will Bode and Steve Sachs co-wrote. And in Qualified Immunity, I have one that Will Bode wrote and then one that husband of the pod, Scott Kellery. Right. Um, and so I, you know, I think it's, I think it's important to demonstrate to students that, um, and again, I hope this doesn't sound too Boy Scout. two very different things. And that so-called conservative people or so-called liberal people may have very different views about discrete legal topics and for very good reasons. I think it's important that students understand that. And so I try to use these topics to drive that point home. Oh, man, you're just going to have to tick through a bunch of these because all of those sound really interesting to me. So fun. So fun. Well, can I ask, direct to the start teaching just a little bit? Because I am, there is one thing that is, you said, that I think is really important that a lot of longtime advisory opinions listeners, I think have really started to absorb.

But a lot of folks more broadly or newer listeners may not absorb. The law is different from politics. or newer listeners may not absorb, the law is different from politics. That is, that one statement, I think, is jarring to a lot of people because they will often think that the law follows politics. In other words, that once I know who has nominated you,

once I know something about your background, your FedSoc, your not FedSoc, that that renders everything else predictable. And it doesn't, it doesn't, as we have discussed many, many times. So amplify on that point a little bit as far as, you know, when you say the law is different from politics,

what comes next when you're explaining? Yeah, it's interesting. I spent, typically each year, I will try to develop sort of one talk that then I will sort of, you know, trot around the country giving. And last year's talk was called, I think the title was, On Being Predictably Unpredictable. And the point of the talk was that if we, I'll just say formalists, you know, people who take written law seriously or who purport to take written law very seriously from, you know, an originalist perspective, if you're talking about the Constitution, from a technical perspective, if you're talking about statutes, regulations, contract, whatever. If we mean what we say and faithfully adhere to those methodologies, then the results of the cases should be

pretty unpredictable. You know, I am going to render decisions, write opinions. You know, I was appointed by a Republican president. I assume people think I'm pretty conservative, but I am going to decide cases that come out the other way. And if I don't, then I must be doing something wrong because, you know, I purport to adhere to a methodology that is agnostic to politics, to results, to outcomes. results and outcomes always sort of sync up with what you might assume about my politics, then I must be doing something wrong. And in fact, in my, the most important question that I ask clerk applicants during the interview, you know, we do some, you know, sort of get to know your chit chat and we do some, what I would call kind of soft substance. I don't really do bull in the rank type interviews, but I, you know, give the clerk or the applicant an opportunity to sort of choose his or her field of battle and then we engage. But the most important question that I ask is,

tell me about an against type view that you have about the law. If know, sort of comes in with a, you know, sort of FedSoc-y looking resume, then I want to know, tell me about a legal position that you hold that you think might make sort of the FedSoc crowd wonder if you've gone swish. And that's a really important question because that indicates to me that the person either can or can't separate the job of the judge or the job of a clerk from his or her priors. And if you can't, it's just not going to work for me. Right. Because that's what I find kind of magical about the law. What I find magical about the law is that it exists like it is a real thing, an objective enterprise, not perfectly mathematical or scientific. I'm not so Pollyanna-ish to believe that, but that it is an objective enterprise that can be sort of found and discerned and applied neutrally. And that's why I want to do this. If I wanted to be a,

you know, sort of a stump speech politician, I'm in the wrong spot. There are probably ways to get paid more money to do that than I get paid now. So yeah, so I mean, I just, again, I hope that doesn't sound, you know, sort of cheesy, but I just, I really believe this stuff. And I try to hire people who likewise believe it. Can you walk through some of these topics then? Standing, 11th Amendment, QI, and how, and with that theme in mind? Yeah, I mean, so standing is a good one, right? I mean, so now I can't purport to be, you know, sort of, I'm not really a broad guy. I don't know everything

there is to know about standing. But, you know, I have, like, I've come out of the closet as a skeptic of the Supreme Court's modern standing doctrine in terms of, you know, sort of Lujan to Spokio to TransUnion. I guess a few years ago now, I unburdened myself in, Sarah, a concurring opinion, this time not to my own opinion, but a concurring opinion in a case called Sierra versus Hallandale, in which I just said, you know what, I think the current standing jurisprudence, and in particular, the injury in fact requirement is just absolutely made up, made up out of whole cloth. And I think made up for not stupid reasons. I sort of understand kind of the felt need to stem the tide of increasingly explosive litigation that arises out of the, you know, sort of the burgeoning administrative state or whatever, I get the policy, you know, sort of behind a tightened standing doctrine. I just don't think it has any real root in constitutional text or history. And so, you know, I've tried my best to explain

that I think current doctrine is riddled with all sorts of difficulties and inconsistencies. And my own view is that we ought to just go back to the only textual hook that there is for the standing doctrine, which is, you know, the phrase case or controversy, and try to figure out what a case was ordinarily understood to mean. And I think anyway, that the best evidence from dictionary definitions and sort of framing era practice is that the term case simply meant a cause or a dispute in court. a cause or a dispute in court. And I think there's some evidence for that in cases that have always been deemed to be within the federal subject matter jurisdiction, but that don't entail a standalone actual injury in fact. So for instance, claims for nominal damages,

claims for nominal damages, hitam actions, criminal prosecutions. Nobody disputes that those are cases and they, you know, they were litigated and adjudicated as cases from the very beginning. But in none of those cases is, does the plaintiff, so to speak, have this freestanding injury in fact of the sort that the modern doctrine would require?

So, you know, I'd be inclined to just, you know, sort of reinvent it. Now, I think, Sarah, to your point, and to the point that David was making earlier about separating sort of law and priors or preferences, I think my theory of standing would blow the doors off the hinges of the courthouse in terms of how many plaintiffs would be entitled to sue. And my view basically is that is what it is. That is what it is.

So like taxpayer standing. As a taxpayer, I don't like the way that the, you know, Congress appropriated money to do this thing. Can I sue? Well, I think't like the way that the, you know, Congress appropriated money to do this thing. Can I sue? Well, I think so the way I would tackle it is the question really is whether you have a cause of action. And the way this comes up in cases like Spokio and TransUnion increasingly is, you know, Congress creates a right and gives people a means of judicially enforcing it in a statute. At that point, I think you have that there is a case.

There is a case. There is a, you know, a cause or a dispute in court. Union, what the court says is despite the fact that Congress has created in an individual plaintiff a cause of action, that plaintiff nonetheless does not have standing because he or she does not have some additional thing, this injury in fact. And I just don't think that that's really squarable. So in your taxpayer standing hypothetical, I think the real question for me would be, and I'd have to do the work to answer the question, is whether or not you have, you know, what I would call a cause of action by simply by which I mean, you know, a right that has been made judicially enforceable, either at common law or by statute. Right. And so in theory, the idea would be that, well, you don't have a right. There's a

preexisting right that that X amount of dollars go here and Y amount of dollars go there, that if you're angry that there's too much money being spent on national defense, or you're angry that Congress has authorized a military conflict, or perhaps that there's a military conflict that Congress hasn't authorized, that the question wouldn't be, are you a taxpayer? The question would be, what right do you think you possess that is being vindicated here? Yeah. And, you know, does the law give you a means for enforcing it? Does the law purport to give you a means for enforcing it? And, you know, again, I don't want to pretend to be the world's leading

expert on standing as it exists across the board. The cases that I have tackled and sort of have been the focus of my critique are these cases in which Congress creates a right and a right of action, and the Supreme Court says, nonetheless, no standing. And one of the things that's strange to me about the Spokio and TransUnion line of cases, and we can talk about this a little bit. You know, I know you guys have been down the history and tradition rabbit hole. But TransUnion, you know, Spokio and TransUnion are another place in which history and tradition crop up. The court says in Spokio and TransUnion, you know, history and tradition and form our understanding of Article 3. And more specifically, you know, the plaintiff has to show a harm that has been traditionally subject to a lawsuit in American courts. And then somewhat even more specifically,

what we mean by that is that you need to be able to show a close common law or historical analogy to the cause of action you seek to vindicate now. And what's odd about this, and this gives rise to my concern about sort of what it is that tradition is doing in this history and tradition sort of framing, history and tradition sort of framing, is that so like in TransUnion, for instance, the court says, well, the analogies that have been put before us here are these privacy-based torts like defamation, intrusion upon seclusion. And the court says, yeah, those are sufficiently analogous. And now we're going to look to see how close sort of the connection is. What's strange about that to me is that that doesn't really have any root in the language of the document, because I can see, I think I can understand two sort of either of two originalist approaches to standing under Article 3. One, selfishly is my view, that we ought to just try to understand, try to get our head around

the original understanding of the meaning of, or understanding the term case by reference to dictionaries, ordinary usage, historical practice, you know, sort of framing our practice.

I think that shows that a case is simply a cause or a dispute in court. The other, I think, fair originalist understanding of Article III might be, we're going to require a close common law analogy. But in order to meet that test, you're going to have to show us that your claim matches a common law claim that existed in 1787. What I don't quite understand is the court's current view that, well, looking at, you know, these privacy-based torts, which by all accounts were effectively invented by, you know, Samuel Warren and Louis Brandeis in an article in the Harvard Law Review in the late 19th century, that's good enough. It's kind of like vaguely old-ish and thus traditional.

And now we'll sort of adjudicate it that way. So basically, you know, state courts informed by law professors can, you know, sort of give rise to, you know, sort of rights, causes of action that are vindicable under Article 3, but the United States Congress cannot, that just seems 180 degrees wrong to me. So, you know, I've got, I've said more than I should probably about standing. But, you know, one thing that's important to me is that I try really not to have takes. I think a lot of people have takes. I try not to have takes until I feel like I've done the work. So, you know, I get asked all the time, like.

You'd be a terrible podcaster. I know, seriously. It would be so boring. Four episodes per year. So like, you know, even though, for instance, I teach in this Stanford slash Yale class, I teach qualified immunity. Not surprisingly, because it's sort of, you know, one of the topics to show where I get asked all the time, like, where are you on the qualified immunity debate? And I just have to say, I haven't done the work really to know. It would just take me a long time to realize, you know, there may be a case or an opportunity that requires

me to do the work. And at the end of that, you know, maybe I would have a settled view. But I think a lot of people have takes before they do the work. I would just rather do the work before I very reluctantly had a take. And so, you know, standing is one of these areas in which I feel like I've done sufficient work to have an informed opinion. But I try like not to do it. I try not to have an opinion until I feel like I've really done the work. So an area that I feel like I have definitely not done the work on and therefore our podcast audience has been woefully under-informed about is jurisdiction stripping. Oh, yeah, yeah, yeah. So I think jurisdiction stripping is fascinating. And I'll confess again, again, I'm going to have to kind of go narrow here because... But explain it all to the listeners as well. Yeah, yeah, yeah. So basically, the overarching question here is to what extent does Congress have the Exceptions Clause that says, basically, this deals with Supreme Court jurisdiction in particular. And it says, and I'm paraphrasing, but except in, you know, with respect to the cases in which the Supreme Court has original jurisdiction.

In all other cases, it will have appellate jurisdiction with such exceptions and under such regulations as the Congress shall make or some such. And that suggests to me on its face that Congress may have plenary authority to remove, to make exceptions to the Supreme Court's appellate jurisdiction, which is most of the jurisdiction that it exercised. And, you know, there's been a raging debate about this for a long time. I think the text and the history suggest a pretty broad authority for Congress. arguments on the other side. Most famous, Henry Hart, you know, had a view that you, that Congress could not exercise its exceptions clause authority in any way that undermined the Supreme Court's essential role in the constitutional order. That was his phrase. And so then you have to ask, you know, sort of what is the Supreme Court's essential role?

And, but in any event, I just think it's a fascinating topic. And I think you might ask yourself just in the real world, for instance, when the Supreme Court say granted cert in Dobbs, why didn't a Democratic Congress and a Democratic president step in, pass a law, and deny the Supreme Court's jurisdiction over cases related to abortion? Would it have prevented that decision? Maybe. I mean, you know, one answer might be, well, because we don't think Congress has the authority to do it. I'm just not sure about that. One answer might be, well, because that would leave lower courts without, you know, sort of a parent in the room, so to speak, a check. So, you know, jurisdiction stripping, I think, is another, it's just another issue where I think politics should pretty much bleed out of it. It's just a technical, legal question because, you know, sometimes it will benefit those on this side of the aisle. Sometimes it would benefit those on the other side of the aisle. you're left really to debate issues of, you know, sort of constitutional structure and order, which I just find fascinating. So, Judge, this is fascinating to me because we've been having this longtime conversation on the podcast about judicial ethics and the Supreme Court and

how much of a role does Congress play, can Congress play? And there's an interesting question about this in connection with jurisdiction stripping. Could Congress say, here's your ethics code, Supreme Court. You adopt this ethics code and you keep all the jurisdiction you have. You can refuse the ethics code, but if you refuse the ethics code,

you're gonna lose X, Y, Z parts, aspects of your jurisdiction. You know, loaded question about that. But it really does raise a lot of unanswered questions because you haven't really seen very many efforts at jurisdiction stripping. Yeah, you're exactly right about that. I mean, you know, historically, there are these little blips, right? So like in the, what, the 70s? In the 70s, it was about, you know, school busing or something. In the 80s, it was about school prayer, you know, abortion. In the 90s and 2000s, maybe it was about same-sex marriage, whatever. But you're right, David, they never go

anywhere. They never go anywhere. And I guess the question is, do they never go anywhere because Congress has made an informed constitutional judgment that it lacks the authority or, you know, just for lack of political will or what? I just think it's like an unexercised constitutional power. And, you know, one thing that I've wondered about, this is so geeky, but I actually wrote a student note for the Harvard Law Review about this when I, because like an exceptions clause case, if you can believe it, like sort of came to the court in the, what, 95, 96 term or something. And they ended up sort of dodging the question. But so that's what engaged my interest about it. And my theory then was, you know, we've come to live in a world in which sort of a post-Marbury, post-Brown,

post-Cooper versus Aaron world in which sort of rightly or wrongly, as a matter of first principles, the U.S. Supreme Court does have effectively the final word about what the Constitution means, right? Sort of whether you're, you know, sort of, you know, I know that there are departmentalists, but like in the real world, the Supreme Court tells us what the Constitution means, and then everybody else pretty much gets in line. And I just wonder if, you know, if Congress actually does have sort of robust jurisdiction stripping authority, including under the Exceptions Clause, then might that authority either serve as a counterweight, sort of a constitutional counterweight,

to the Supreme Court's, you know, sort of effective judicial supremacy with respect to meeting the Constitution, or, and maybe this is an and slash or, is the unexercised authority. Like when Congress opts not to exercise its authority, has it effectively ratified what the Supreme Court is doing? And I just wonder if it's, when I say missed opportunity, I don't really mean that I have sort of in my mind that Congress should or shouldn't exercise it. But I wonder if Congress should take its exceptions clause authority more seriously. which Congress gets to flex its constitutional muscle, you know, there are a few ways, I suppose. One, and this was, you know, sort of subject to Sarah's ha-ha earlier, you know, maybe when Congress enacts legislation, it should think the big constitutional thoughts first, right? Like, do we actually have authority under the Commerce Clause to do this? Might this violate the First

Amendment? You know, I'm not really sure the extent to which that actually is going on in the real world. Congress also gets to participate in the constitutional and sort of constitutional decision making by advising, or the Senate does, by advising and consenting on nominees. And this is, I think, another way. Like, might Congress have a role to play in the development of constitutional doctrine by either exercising or not exercising its exceptions clause authority? So I don't know. I just think it's a fascinating topic. And it's one that not many people have sort of thought about. And so I love sort of planting the seed, just sort of like throwing the grenade into the middle of the room in one of these classes at Stanford or Yale and sort of watching people react to it. at Stanford or Yale and sort of watching people react to it. It is fascinating. And, you know, look, I mean, not to be too cynical here. We don't want, we try not to be too cynical on advisory opinions.

But if you can kind of track over the last, it's not just the last few years, but last few decades, anything that would require Congress to be, to exercise its authority more vigorously, they're not doing. They're just not doing. Instead, they're shedding. They're just shedding their review authority, their oversight authority.

They're just shedding it to the executive branch. And often that also means the judicial branch is being called in as everything gets shed to the executive. The executive promulgates regulations. Regulations are immediately challenged in court and off we go. As just a general matter, I did a piece this weekend on the Insurrection Act, for example, and how the law is so flawed. It's just so broad, undefined words and remarkably broad. And yet you just were at this point where you feel like if you're yelling at Congress, here's an obvious thing that needs to be fixed. And here's some ways to fix it. It's just, it's just all bluster now. It's just all

commentary. It's the parliament of pundits. And so here's my inner cynicism that there's not been any real wrestling with jurisdiction stripping because that would mean Congress would actually have to get more vigorous. make them more likely to be held accountable by voters? Or does it allow them to complain about something more? Because they're going to pick the complaining more and the accountability less right now. Yeah, I totally agree. And I love, I listen to you guys every week, twice a week. And I love the fact that you both say from time to time, Congress, do your freaking job.

And, you know, because I've your freaking job. And, you know, because I've had people, and this is sort of part of like, I guess, what's it like the very core of my judicial philosophy, such as it is. But, you know, I have people ask me all the time, like, sort of, how can you be sort of a formalist? And again, I use the label formalist to, you know, sort of capture both originalism and textualism and, you know, related things. And I tell them that, you know, my concern is I don't really it's you know, there's a chicken and egg problem. I'm not really sure where it started, but, you know, sort of the courts are doing more and more. And the more that the courts bite off and do, the less the political branches and ordinary Americans have incentive to engage and sort of, you know, do their own thing. And, you know, I sort of worry that, you know, but of course, that, you know, those on the other side would say, yes, but the court simply must step in because, as David says, Congress won't do its job. And so the courts and agencies have to kind of manage

and massage the system to just make society work. And at some point, my thinking is that at some point, the courts simply need to say, we're not doing this anymore. We're simply going to read and interpret and enforce the written law. going to read and interpret and enforce the written law. And if that creates weird or bizarre or perverse effects, then maybe at some freaking point, uh, the political branches will wake up and do their job. And even more fundamentally, um, you know, ordinary Americans will begin to

think about the constitution and constitution and sort of federal law again and um i just worry that that you know if we're constantly just sort of fighting the fire that's in front of us and trying to keep society moving in the right direction we i mean as courts then there will never be an incentive for congress for the political branches to re-engage in a way that's meaningful that you guys are described um someone's got to sort of like declare a halt to it at some point and try to reinvigorate sort of democracy. And I realize that sounds, again, sort of, you know, civics education-ish, but I think that over-aggressive judging is just sort of bad for democracy. I mean, this is my analogy of the Supreme Court needs to reintroduce wolves to Yellowstone,

right? Like, yeah, it's going to be a little weird at first. Yes. Yes. There could be some bad consequences even at first. Some things might be left to languish, some huge political problems. But it wasn't the court's job to fix Congress not doing its job. And if it does, you end up with this. I think it's even worse than you say, because the judges also cannot be held accountable for unpopular decisions. And some things are meant to be left to popularity contests.

Very few things aren't. It's supposed to be majority rule with minority rights. But not all, not everything is minority rights. Yeah, I agree. And, you know, I've tried to be, I try not to be shy when I'm writing opinions. If, you know, if I feel bound by the law to a result that seems weird or perverse,

then I try not to be shy about saying, you know, like, okay, so, you know, this is how I read this statute. You know, we think this is sort of the correct reading of the statute. We get it, that that seems a little weird or that that may be intention with what, you know, sort of suggestions and legislative history or purpose or whatever Congress might have meant to do. But it's sort of Please, please tell us we're wrong and redo it. And, you know, I don't know. I guess that's, it's a long game view because I recognize that in the short term,

you're having, as Sarah says, to endure some growing pains. But I guess I'm just kind of a long, long game guy. And what I'm- Well, you've got this pacemaker. You're in it forever now. Yeah, it's funny. I've told people, sort of back to the pac pacemaker that, you know, another silver lining here

is that I have officially eliminated one cause of death. Like other, other horrible things might happen to me. I might get hit by a bus this afternoon, but I can tell you what will not stop is my heart. Yeah. My heart will keep on freaking beating. So. Is bionic judge taken on Twitter? Ooh, I should look for that. Yeah, yeah, yeah. Now I'll confess, you know, I'm a Twitter lurker.

I've only once posted anything to Twitter. And that was when my older son, I have two boys, my older son graduated from high school. So I, you know, put together a little montage of cute photos and, you know, just sort of told him how much I loved him and how proud I was of him. And my second son is about to graduate high school. And so he'll get a Twitter post and then I'll go back to my lurker status forever, I think.

Well, there might be more milestones in their lives yet. I guess that's right. I guess that's right. High school graduation may not be the end of your pride in your voice. Yeah, it's like you've peaked, my boy. You graduated from high school.

Okay, we need to talk about the concurring with yourself. Okay, okay, okay. And the role, we need to talk about writing, what makes good writing in the world of Judge Newsom, when you concur with yourself, and maybe also just what the role of concurrences are. Aren't they, in some sense, advisory opinions? Oh, I love this. I love this.

Okay, this is so good. Okay, so first, just about writing generally. For better or worse, I have a writing style. You know, I'm often asked about it. You know, I guess Sarah, I'm so grateful that Sarah likes it. Some people like it. I think some people don't. You know, for, I guess, for lack of a better descriptor, it's conversational. And I've never like aspired to a writing style. It's not something I like set out to accomplish. It's just how I communicate. You know, I think people have a natural voice. And, you know, some people's natural voice might be conversational. Others might be much more formal. And what I tell my

clerks is, you know, when you're writing stuff to me, you know, if you're writing me memos, don't feel like you've got to write like me. Don't try to write like me. Just write like you. Like, find your voice and be authentically you. And that's sort of the only way I know to do it. But when you're writing draft opinions, sound like me. Well, you know, the honest truth is I tell people all the time, look, I don't want you to have your feelings hurt when I'm a very heavy, heavy, heavy editor. And I said, I don't want you to have your feelings hurt when I rewrite your drafts. It's not because they're no good. It's because I love doing this. Like, this is

sort of what the American people hired me to do. And I love doing it. It makes me happy. And so, you know, for again, for better or worse, the opinions are going to come out sounding like me. But, you know, sort of my own personal view about legal writing is that, you know, within parameters, people should write the way they talk. And, you know, we communicate orally the way we do for a reason, just to, you know, to communicate content and ideas and to persuade. And I just can't quite figure out why we would think, well, but when we put pen to paper, we should do it totally differently. That just seems kind of weird to me. And so I, you know, I don't dictate opinions, but they might sort of sound like they've been dictated because I just

talk and write basically the same way. Um, and I, you know, I tell people, I only know how to be one guy and it's this guy, you know, I'm like the guy who's on this podcast is the same guy who writes the opinions is the same guy who has dinner with this podcast is the same guy who writes the opinions, is the same guy who has dinner with his family, is the same guy who goes to Alabama football games. I just don't really know how to be somebody else. And so I just think like authenticity in writing is very important.

Now, I recognize that for people whose authentic voice is like mine, you know, it sort of is conversational. I think we, us conversationalists, need to be very careful because there is a line that shall not be crossed. You know, this is a serious job dealing with serious disputes that matter to real people. And so there is a line that shouldn't be crossed. And so what I guess what I'm sort of aiming for is just sort of ordinariness in legal writing. And yes, I mean, that's sort of my thought about legal writing generally.

As for the concurrences... Do you have writing book recommendations or grammar books that you find delightful, etc.? Or are you not into that sort of reading about writing? It's interesting. I'm just not into it at all. At all. It's sort of whatever it is, again, for better or worse, it's just organic. I've never sort of like read about writing. I try to like read lots of things and listen to lots of things. But I don't think I've ever read, truly, I don't think I've ever read a book about writing.

And then now the one thing I'll confess to is that I am addicted to thesaurus.com. You know, I spend a lot of time sort of agonizing over words, like what's precisely the right word here. And I remember a little vignette when I clerked for Justice Souter. Justice Souter had just a few drafting rules for his clerks. And one of them was that you could never use italics for emphasis under any circumstances. And his view was, if you have to use italics, then you simply haven't found the right word. So keep looking. Try all caps bold is fine, but no italics. But yes, so I'm not sort of that hardcore about it, but I do really agonize over individual words. But no, I haven't, I've never read sort of a book about how to write well. I just try to, you know, sort of read good things. And I don't even really know what good things are. You know, I read high-minded stuff

and low-minded stuff. And I guess somehow it sort of informs organically when it is that I do. But, you know, I just know how to do it one way. And, you know, so I'm not afraid of the one word sentence or beginning with a conjunction or, you know, I love my end dashes more than anybody in America. I'm going to fight you for that, Judge. you know, I love my MDashes more than anybody in America. I'm going to fight you for that, Judge. The most underappreciated punctuation mark is undoubtedly the MDash.

Absolutely. Because we talk in MDashes. You're exactly right. Exactly. We don't talk in sentences. We talk in MDash. Exactly. Exactly.

But so, Sarah, to your question about concurring, yeah, so I think it's fair to ask whether these are little mini advisory opinions. My own view is that really the reason that I write, maybe I don't know if it's so many, but the reason that I write concurring opinions is because I have a very settled view about what courts should do in the main opinion. The opinion that binds the parties should do little, should do sort of the bare minimum to decide the dispute, sort of given the law before the court, and should not go off on tangents, should not,

I think, you know, engage in alternative holdings. one of the things that really just drives me to batty is when appellate courts will issue an opinion that says, you know, the defendant wins because of A, and even if not A, then it would be B, and if not B, then C and D. All of that stuff is just like dicta piled on top of dicta piled on top of dicta. If it's A, then it's A and be done with it. And so I have a very sort of firm view about what

courts should do in the opinion of the court. So my view is, if I have something else to say, something that I think might be useful, you know, to sort of advance the discussion of the law or whatever, then I will say that for myself on the side. It doesn't, I don't ask anybody else to join it. It doesn't even purport to bind the parties. It's just, you know, sort of my view. And the idea, and so again, it comes from this sort of like dual sense that on the one hand, when deciding cases, courts should say less, not more. But on the other hand, that judges do have some obligation to try to advance the understanding of the law. And so if I feel like I have done the work and have something that might be useful, whether people want to sort of accept it or reject it or shout it down or mock it or pick it apart or whatever, fine. I'll just put it out

there. And if it causes ferment and advances the larger discussion, then I take the W. We love them. No, we are very big fans. They're great podcast authors. I know. And then there's that. I'm really aiming just to keep you guys employed. There is that. Thank you. We appreciate it. I'm glad you cut to the chase there, Sarah, because that is,

it's sort of like there's the flair. Judge Newsom has concurred with himself. All right, let's dive in. You notice how little we actually talk about your opinions because we're like, yeah, yeah, the case was decided this way. But anyway, there was this concurrence that we need to get to.

It's funny, my clerks tease me because I guess I've like fallen into this rut in these concurring opinions. It's sort of at the end of the first sort of the introductory paragraph, I tend to say, you know, blah, blah, blah, blah, blah. Let me explain. And so sometimes my clerks, when one of these goes out, will send me these emojis that just say like, you know, let me explain, you know, sort of judges on a roll.

Let me explain. So maybe I need to vary the phrasing a bit. All right. So, so judge, we're winding down. You've been incredibly generous with your time, but from context clues, you're, you're in Birmingham. You just mentioned Alabama football games, which puts you on the wrong side of the divide. I was born at Auburn, but the whole world, well, I mean, the whole world that I follow online has been consumed with the controversy of the weekend, which was, of course, did Alabama earn its spot over Florida State? And I'll just read the stakes here. This is from The Ringer, my favorite sports

website. The Playoff Selection Committee's decision to exclude the Seminoles, an undefeated Power Five conference champ, is unprecedented in the nine-year history of the event. So, Judge, adjudicate this. Did Alabama deserve its slot? did Alabama deserve its slot? Oh, it's a great question. So I'll just confess my biases and priors out front, right? So I'm an Alabama fan. And you know, when you live in Alabama, people need to understand, like, I didn't go to Alabama. My parents didn't go to Alabama. Their parents didn't go to Alabama. None of that matters. But I can never remember being anything other than an Alabama fan, right? You're one or the other. And so I've been an Alabama fan and I've seen the tough years, right? So I, you know, I didn't, I don't really remember the Bear Bryant era. I'm not quite old enough for that. But I remember the down years in between. So I have been loving life for the last, you know, it's what, 12 to 15 years. in between. So I have been loving life for the last, you know, it's what, 12 to 15 years.

But so in answer to David's question, I think that if the committee's charge is to put the best four teams in the playoff, then they got the best four teams. If the charge instead is to choose the four most deserving teams or those that have sort of, you know, sort of done what needed to be done, then I think it is very sad that Florida State got left out. I mean, here I think is what sort of cinched the deal, really, was that Alabama looked, you know, no one thought that Alabama could beat Georgia on Saturday. Alabama looked

really good and really dominant at the line of scrimmage in that game. And then you watch the Saturday night game. And even though Florida State won, wow, did they look anemic. And so I think the committee just thought if we put Florida State in, they are going to get boat raced by someone. The committee just thought if we put Florida State in, they are going to get boat raced by someone. And so it's tragic because, you know, Jordan Travis is an amazing player. And for him to feel like somehow this is his fault for getting his leg broken two weeks ago is a shame. But, you know, if they hadn't already decided to go to 12, this would have been the straw that broke the camel's back. And so I'm excited that next year this won't happen, at least at so, you know, sort of critical a juncture between four and five, I guess between 12 and 13. But at some point, you know, you sort

of lose track. The stakes between 12 and 13 are much lower than between four and five. And I also think, I haven't seen somebody make this point yet, but I also think the fact that the committee last year said no to Alabama and yes to TCU. And so they made the opposite choice because I don't think anyone really thought that TCU was better than Alabama by the end of last season. But Alabama had those two really close, tough road losses in the SEC

and TCU had done, it was deserving. It had done everything that it needed to do But Alabama had those two really close, tough road losses in the SEC. And TCU had done, it was deserving. It had done everything that it needed to do and then got obliterated in the final. Just obliterated. And I think that- I liked his term, boat race. I've never even heard that. And I love it.

It just like onomatopoeically sounds like you just got crushed. Got boat raced. Yeah. So, but yeah, so David, priors aside, I think the committee got it right. Heartbroken for Florida State. No, priors aside, you decided, you did the opposite of what you said your goal as a judge was, that it should come out the other way from what you actually want. And this time it did not at all. Well, but only when the law requires it, Sarah. Only when the law requires it.

Yeah. Yes. Thank you. It should be deserving. You guys are just wrong. It should not be best. That sounds like some judicial living constitutionalism if I've ever heard of it. Of course, it should be deserving. That is the charge. Yeah. And I will say to David's point and Sarah's got her finger on something because to be clear if the committee

really wanted the four best teams I think Alabama would be one of those four but I'm not sure they've got the best four. I mean, I think Ohio State might be

one of the best four. Frankly, I think Georgia might be one of the best four. Wait, are you now excluding Texas? Are you getting revenge on me for saying that your take was wrong? No, I'm just saying I noticed who you left out on the floor. I mean, Texas might be one of the best. Wait, are you now excluding Texas? Are you getting revenge on me for saying that your take was wrong? No, I'm just saying. I noticed who you

left out. Yeah, yeah, yeah. I mean, Texas might be one of the best four, but I'm just saying like, if the, if the criteria really is the best four, I think it'd be hard to say that Georgia, for instance, isn't one of the best four. They lost by what, three or four, after having won 29 games in a row. You know, so. Well, you have the Texas, Georgia, Alabama triangle of everyone losing to each other. Yes. Right, right, right.. You know, so you have the Texas, Georgia, Alabama triangle of everyone losing to each other. Yes. Right, right, right. And, you know, it's what's crazy about it, too, is if Alabama had lost to anyone else, if Alabama had lost to an FCS team, I think they would have been obviously in. And but having lost to Texas made it really complicated for the committee because

you can't ignore that head to head win, even if it was two months ago. Alabama getting in means Texas gets in. Yes, I agree. I agree. Yeah. And as soon as you had Alabama, there's no way when of the 25-year history since you've started the singular national champion

from BCS to college football playoffs, in 25 years, there have been 15 SEC titles and 10 everybody else. So the idea that in that environment, you would say no to the SEC champion. I would. Sarah. That's Sarah's mic drop moment. To be clear, I think I would I think they maybe got two right of the four. I think Georgia

probably should have been in Florida State. Absolutely. I think the Georgia one's a close call. But Florida State isn't a close call because it was supposed to be deserving. Yes, when you do everything right, you win. That's the text in history, my friends. Y'all are doing some sort of strict scrutiny bulls**t. Oh, gosh. Oh, gosh. Come on, Sarah. We'll see if that survives the editing tour. It's not even strict scrutiny.

It's intermediate scrutiny. It's just whatever y'all think. Best? Sarah. This is amazing. This is nonsense. I can't believe that Judge Newsom just spent an hour building up his credibility on this podcast to light it on fire. No, no. Okay.

Okay. Hold on, Sarah. As the person who's been following college football longer than anybody. You don't even know what sport we're talking about. I've been following college football longer than anybody here. And this argument is what college football has been about for a century is this argument. And and the i'm very excited about the 12 team playoff i think as a matter of competitiveness and fairness yes absolutely we can all agree that that the problem needed to be fixed and it is being fixed and i agree that the difference between 12 and 13 um i'm but but once we go to 12 and 13 i think that my position gets even stronger that it should be the 12 most deserving teams, not the 12 quote unquote best teams. You're not even going to be able to define best when you get to 12 versus 13.

And by virtue of the fact that I will be vindicated at the 12 to 13 line, that it will be a deserving question. It means I was right all along. Oh, I like you framing your own rules. I do. Okay. No, but like you framing your own rules here. I do, yeah, I'm good. Okay, no, but I'm still, arguments have been so much a part of college football that I can still right now to this day make an argument that Bo Jackson's Auburn team

that went into the bowl season number three was the only one of the top three to win its bowl game, but somehow did not become number one because I think number five, Miami, had beaten the number one team. Oh, so to be clear, you thought that they were deserving of... Best. They were the best. Gosh. Bo Jackson on his own. I mean, what a generational athlete. Just unbelievable. I think I saw some statistic the other day that one year, Bo Jackson, like, I don't know, hit 32 home runs and had like, you know, 90 RBIs and ran for 1,200 yards, you know, in the NFL. It's just unbelievable. you know, the NFL. It's just unbelievable.

Oh, it's insane. It's insane. And it's such a shame that his career was cut short. Yeah. You know, and the other guy who doesn't get enough attention for his athletic prowess, Deion Sanders. No doubt.

Now he gets it all for being coach prime, but the guy's an athlete? Are you kidding me? Yeah, it's nuts. The best cornerback in the NFL and almost was in a World Series MVP. Yeah. Almost.

If the Braves had beat the Blue Jays. Anyway. Unbelievable. Now we've gotten to the fun part of the podcast. Let's go. All right. So before we break, and I don't know how much of this is going to make the editing, but do you want to hear an amazing Bill Pryor story?

Give you a little two for one. Yeah. David will appreciate this too as an Auburn fan. So, uh, 10 years ago, uh, Bill, uh, came into four tickets to the iron bowl. So he asked if, uh, my boys and I wanted to go with him. So my sons then were, let's see, would have been like what, 11 and eight. Um, and so we go, we, the, the tickets are two and two. So my younger son and I are sitting together and then Bill and my older son are sitting together. And David will remember this well, this was the kick six game. And so, you know, we're all Alabama fans. Alabama lines

up for this 57 yard field goal, comes up, you know, sort of a little short. Chris Davis runs it back 109 yards for a walk-off win. And MJ, my son who's sitting with Bill Pryor, said, and Bill, I should have prefaced the story by saying, so Bill's about 10 years older than me. And so he really does remember the Bear Bryant glory days in a way that I don't. And so I tease him, like, I'm a fan. He's like a zealot, like an absolute zealot. And so as Chris Davis is running toward Bill and MJ who were in that end zone, and MJ says that Chris Davis got to about the 30-yard line, Bill Pryor turned to him and said, let's go. And walk out of the stadium before Chris Davis, you know, crosses the goal line.

My son Chapman and I meet them out outside the stadium. We walk back to the car. Bill is just in a swivet. And so it's clear that we should not be talking. And so it's silence from, you know, from seat to outside the stadium, from stadium to car. We get in the car. It's still silent. We get on the interstate. Finally, I decide, I've got to try to use this as a teaching moment for my kids. And so I just kind of piped up and I said, listen, boys, I know we're Alabama fans. That sucks. That's a tough way to lose a football game. But let me tell you this,

Like that's a tough way to lose a football game. But let me tell you this, that may go down as the most famous play in college football history. And you were there to see it. And that's pretty cool. He was like, what the actual hell are you talking about? There was nothing cool about that. You have betrayed me. We are no longer friends. It was amazing. Just absolutely amazing. And it's funny, my son, MJ, who gave really like the keynote speech, so to speak, at my formal investiture, told that story to the assembled masses with Chief Judge Pryor, sitting right behind him. It was amazing. So fun.

We had a similar, not similar, except that Northwestern played Purdue basketball this weekend. Oh, sure. Alabama-Auburn football, Northwestern-Purdue basketball. I get the connection. Yeah. Well, my marriage is an inter-conference marriage. And it's a problem. And it's really a problem on nights like that. So I know everyone was watching the game. But basically, Purdue's very, very highly ranked.

Like, the highest ranked team right now? Oh, yeah. Yeah, yeah, yeah. And they're winning, but not by enough. And I said something around halftime, like, man, honestly, that score should be a lot more lopsided than that. And Scott did not say anything to me. Didn't even look at me.

Just continued staring at the screen for all of halftime. And then, of course, Northwestern ends up winning the game. It was not great at our house. And so the next day, I showed him the little meme that says, you know, my sports team lost. And the next little thing is like, this has no impact on my life whatsoever. And there's no reason why it should ruin my day.

Next thing is blank. And the next one goes, but I'm gonna effing let it. Yeah. And I showed I just I didn't even say anything. I just showed it to Scott that did not make things better. It did not. That's because he was already in that. I'm gonna effing let it move. Right. That's right. I didn't show it to him soon enough. We were 10 years ago. I was with my sister. She lives in Huntsville, Alabama. My brother-in-law, her husband, huge Alabama fan.

I was born at Auburn. So we're watching it. It's over the Thanksgiving holiday weekend and we're watching it together. And the kick six happens. And it's one of the most remarkable things I've ever seen in sports. And I'm losing my mind until I turn around and I

see my then 10 year old nephew weeping, weeping, just tears streaming down his face. And then my like kindly uncle side kicked in and I was like, okay, I'm going to chill out right now for a minute. But then when I got in the car to leave, before I even turned on the car, I pulled it back up on my phone and rewatched it just to enjoy it fully in the privacy of my own accommodations. Yeah. And I don't think that Alabama's win this year, miraculous as it was, like, white will ever take the sting off that G6. But it was, like, of the same ilk. Just so bizarre.

Such a bizarre ending to the game. Alright, Judge. If you have time, I've got a legal hypothetical for you. Okay, I'll try. I'll try. I just want you to issue spot. Alright. I'm paying attention. Because I need a smart person. I've talked to smart people about this hypothetical already. Very smart lawyers.

And none of them are grappling with it very well. Now, remember, I said I'm a smart person. I've talked to smart people about this hypothetical already. Very smart lawyers. And none of them are grappling with it very well. So let's see. Now remember, I said I'm only smart enough. I said I've never been the smartest guy in the room, so you may be barking up the wrong tree here. We're gonna try it out. I'm gonna try. So there's a show called For All Mankind on Apple Plus TV.

And the premise of this show is what if the Soviets had landed on the moon first? And so they land on the moon at the beginning of July,, shocking the world like nobody even knew they were close. So it's actually, it's basically what we knew at the time, but then all of a sudden, the Soviets are on the moon. And all the characters are the ones we know. It's Deke Slayton, it's Neil Armstrong, Buzz Aldrin, like they're all there. And even the Apollo 10, Apollo 10 becomes a big deal, right? Because Apollo 10 is the practice run that they do around the moon,

but they don't actually land. And so then a lot of focus on, well, then NASA, did you screw this up? Why didn't you just land Apollo 10? We would have been the first on the moon. The Apollo 10 guys are in theory the same. It's Gene Cernan, for instance, they reference, but they've created this character, Ed, and Ed was on the Apollo 10 mission. Ed does not exist

in real life. And so the lawyer part of me was like, wait, you've kept everyone else the same, except you now created Ed who's on Apollo 10. Why not just use one of the real Apollo 10 astronauts? And my lawyer brain was like, there must be a reason that they've done this. It must have like some defamation problem, whatever they're going to do to this Ed character, they didn't want to do to the real astronauts who were on Apollo 10. Gene Cernan, though, aside, I'm not sure which of the other two he's going to replace. They haven't mentioned the other ones yet. So here's my defamation question. Because this whole thing, it literally starts on the day

that it's going to diverge from our timeline here. If they had used, let's say, Gene Cernan. But now you're in a timeline that never actually happened. And Gene Cernan in this other timeline becomes a, I don't know, something, the most horrific thing you can think of, right? A child molester, whatever. Could Gene Cernan, again, imagine Gene Cernan's alive right now, sue for defamation? What are the issues that you would consider in this case?

Yeah, I mean, I guess, so help me here, the elements of a defamation claim are publication, so I assume we have publication, a false or misleading statement or characterization, I guess. Yeah. And reputational harm, is that right? Yeah, yeah. I mean, I would guess you have, I think you have all three, right? Don't you, Sarah?

Don't you have? But is it false? You can't prove what would have happened in this alternate reality where the Soviets land on the moon and Gene Cernan becomes a child molester. i'm gonna get sued for defamation like i'm actually testing this yeah it's done it's over you're done you just let me off the hook um i mean i think i guess it would depend on whether um the element of the defamation claim is actual falsity or misleadingness uh if it's misleading, then I guess

Cernan might still have a claim, right? Maybe if it has to be objectively, verifiably false, maybe not. I don't know. I'm really struggling to figure out why they've created this character, Ed. I think you're identifying a pretty good reason because even if they think they could win the case, it is, you know, you would like, you would start to raise contextual issues. So for example, if you say, well, this is a false timeline, this is a, and everyone who's watching the show knows it,

but everything about every other historical character is correct, except we've added this extremely defamatory element to this one actually, then I think you're, you might have some issues there because contextually everything else flows along with sort of their real bio. And so in that kind of circumstance versus one where there's a clear departure in the timeline where, you know, Bulls, Buzz Aldrin defects to the Soviet Union and Neil Armstrong, you know, Buzz Aldrin defects to the Soviet Union

and Neil Armstrong, you know, if you just saw everything go haywire, I think that would be obvious, versus everything plays it straight, except for this one poor guy. That might be a different, kind of a different issue, but yeah. And interestingly, Sarah,

in sort of like a full circle moment here, back to TransUnion, with like sort of whiplash alert, but back to TransUnion, right? So when the TransUnion court was looking for a common law analogy, they chose defamation. The misleading credit report had never been divulged to a third party. And so the court says they don't have standing because publication is an essential element, the claim of defamation. Therefore, because now we have a sufficiently close connection to a common law analogy. The court acknowledged, though, that the information in the credit file was not objectively false, but was misleading. And so the court said, even though defamation requires falsity, the misleadingness of this is like close enough to make it a valid common law analogy. And so in TransUnion land, to the extent misleadingness qualifies here, there at least would be a valid common law analogy if Congress had created a tort for your Gene Cernan would be plaintiff. I feel like that would have been a great concurrence. Yeah, right on.

Okay, next time. Next time. I'll put it in the kitty. I'm only a couple episodes into this show. So far, the sort of funniest moment, because I'm sort of like, where are they going to go? To your point, David, like, is everything just going to sort of stay the same?

I don't know. But everyone said it's a good show. There's a moment where Ted Kennedy gives an address right after the Soviets land on the moon. And he says that he's coming back to DC to hold a hearing on how this happened and what went wrong at NASA, particularly looking at Apollo 10

and the decision not to land. And he says he's canceling a party in Chappaquiddick that weekend. Oh my goodness. Okay. So I assume Ted Kennedy's going to be president in this alternative timeline. That is amazing. That's amazing.

Yeah. And the timeline actually does work out. Chappaquiddick was just days before the moon landing. Wow. I did not know that. That's interesting. July, I believe, 16th to 19th was the Chappaquiddick hangout. And right on the 20th to the morning of the 21st is the movie wow it's so we'll have

to put that we'll have to put that show in the queue we've been watching um we love we love ted lasso so much that we started watching this show called shrinking that's also an apple tv oh love shrinking oh my gosh is it it's so good well yeah we we absolutely love it. Now, do you watch, you've got one son still in the house, one blown the nest? Yep. So my older son is a junior at USC and my younger son is a high school senior. Likewise, looking to get as far away from his parents

as humanly possible. Apparently, he's likely to end up either at Oregon or Washington. He was just like, how can I get farther away than Los Angeles? Oh, there's schools in Hawaii. You don't know. That's right. Exactly. Yeah.

Well, Judge Newsome, what an absolute treat to have you as a friend of the pod to come on the podcast for this long. You're setting records here for sure. Love it. We're moving towards the Joe Rogan length. Well, y'all are so, so kind to have me. You know, again, David, I'm so glad to renew

your acquaintance. And now I'll tell my clerks that he does know who I am. At least now he does. If he didn't before, he knows now. Our bond should, no one should have ever questioned our bond. I mean, it was cemented in the summer of 1996. There you go. There you go. Yeah, 95. 95, 95. Unbreakable. Absolutely.

Unbreakable bond. Yeah, no question. And Sarah, thanks again for everything. Oh, and I should have, hold on. I actually want, Sarah mentioned the health scare earlier. Here's what I want. Here's, maybe this can be the mic drop moment. So Sarah sent me, to help nurse me back to health,

Sarah sent me a care package from Rancho Gordo Bean Company. And here was the enclosed message. Sarah, do you mind? No. Beans, beans, they're good for your heart. The more you eat, the more you dot, dot, dot, write well-reasoned judicial opinions for years to come. Speedy recovery.

So Sarah. That's recovery. So, Sarah. That's perfect. So sweet. Thank you so much. But did I win? Did I beat out the other notes that you got? Oh, this is a keeper. I still, I mean, I know your listeners can't see this,

but this is, I have it here in my office with me. He does. He does. Verify. Good. Suck it, John Cohn. That trumps all the casseroles that we received in the wake of the pacemaker implantation. Southern casseroles, though, are pretty good.

Yes. All right. Thank you. Thank you, Judge. We look forward to many, many more eloquent concurrences concurring with your eloquence in the majority opinions to come. You guys are the best.

Thank you so much for having me.