Advisory Opinions - Butterfly Knives and Felon Voting Rights

Episode Date: August 10, 2023

David and a particularly congested Sarah plan to forward this especially packed AO straight to the Supreme Court. Does the Eighth Amendment enshrine a felon's right to vote and do people really think Jews have horns? Plus: -Trump protective order battle -Ghost gun regulation -Southwest Airlines attends religious liberty training -Butterfly knives and commercial firearm sales -Ohio ballot initiative -College football names -What if Saturn was where our Moon is? Show notes- -David's NYT column: I Don’t See a ‘Rogue’ Supreme Court 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 Isner. That's David French. And we have some great potpourri for you today. And also, David, I'm high on life and toddler cuddles, but I went to bed at 3 a.m. last night. And I've totally voluntarily and I was like super on Twitter, like deep into the morning hours, which is not why I was awake. So there's this term I understand in Mandarin called revenge bedtime procrastination, which I think is good. It's when you don't feel like you have enough control over your day that then when you get a little bit of time at night, you sort of build out that time into your sleep time because you want so badly to like have control. I would say that mine comes down to a few things last night. One, too congested to go to sleep. Two, too pregnant to take decongestant. Three,

the brisket is potty trained, but nobody explained to me that like for some kids, they're going to be so stubbornly potty trained that, and their bladders are still too small to hold through the night. But that means now you go back to a full wake up schedule at night. So like I knew I was going to have to wake up at some point to help him go to the bathroom. Yeah, that happened at 2am.

So I was like, yeah, I just might as well wait up because like, it's so painful when you get woken up. So might as well wait up for that. And then we have another bathroom problem, which is C number two, I'm super pregnant. So anyway, I'm actually not even sure I made the wrong decision. From three to seven, I got uninterrupted sleep, which frankly, I think is the longest uninterrupted sleep I've had in quite a while. So in other words, you're refreshed. I feel great.

And I might be becoming nocturnal. I don't know. Well, we're dragging over here at the French house because the school year has started. And so the French family tradition is very late to bed, late to rise. And all of a sudden, that gets shifted big time, the first of August. And so we're in the early to rise phase, but we have not adjusted the late to bed element yet. So... Why does it always feel to me that Southern schools start really early compared to Northern

schools? They seem to. Yeah, because when I was in school, like, yeah, it absolutely started in early August. But then when I went to like college and law school up North, it seemed like schools weren't starting till Labor Day. Yeah, it's a big difference, I think. Yeah, I mean, we've actually even started July 31st before. Whoa! Yes, yes. I kid you not.

And I think the Southern schools start earlier, and then we have a lot more of these random days off just sort of sprinkled through. Which is also annoying. It's extremely annoying because you have to keep track of a school calendar that has days off that are not

connected to any sort of holiday. I mean, yeah, it's strange. And it's not that the school year's appreciably shorter on the back end. So yeah. And then who wants to be going to school in the blazing heat of August? Right? It's odd. Yeah. no fun. Okay, anyway, we've got a great potpourri lineup. We're going to do the fight over the Trump protective order briefly, the ghost guns shadow docket from the Supreme Court, an interesting contempt citation coming out of Texas.

We've got two Second Amendment cases. On the one hand, butterfly knives, and on the other hand, commercial sales. Finally, some Eighth Amendment in voting, which David is very excited about and which I don't know, but I think he might be totally wrong about. We'll find out. And if we have some time, a couple minutes on that Ohio ballot measure that was voted on this week. I found it really interesting. I think David did too. And lastly, in my revenge bedtime procrastination, two important things came to my attention. Actually, many important things. I had a fascinating conversation with someone about what it would look like if Saturn was where our current moon is.

And this is pretending that like we could sort of freeze time and that we're not just like colliding and the whole universe would end quite quickly thereafter. But we're not even going to do that. It's that it seems like a lot of people don't know that it's common for other people to think that Jews have horns. What? And I was asked this my first week of college at Northwestern. So we need to discuss that briefly. I have questions for you, David.

I did not know that was going to be on the agenda. And David's like, what? They don't have horns? No, I'm like, wait, what? We're talking about that. And lastly, some great name recommendations coming from the world of college football. Let's start, David, with a case coming out of the fifth circuit that I think you and I might really disagree on. We have assiduously not talked about this in the green room because I don't know where you actually stand on it.

But I think we're going to be just like head to head in total disagreement on every point. Let's find out. Yes. Eighth Amendment and voting. a Mississippi law that states the eligibility for voters as their age, their residency requirements, and lastly, as long as they have not been convicted of, and then it lists a series of crimes, felonies, you know, murder, assault, la la la la la la. It's basically felons can't vote in Mississippi. So some plaintiffs sued, arguing that this violated the Equal Protection Clause

and the Eighth Amendment's prohibition on cruel and unusual punishment. In a divided Fifth Circuit panel, they struck down the law and in fact said that this did violate the Eighth Amendment's ban on cruel and unusual punishment to basically ban someone from voting for life after they've already you know served their time um there was a pretty fiery dissent from judge jones which again to disclose i clerked

for i don't think that's why i think the way I do about this, but I, you know, it's worth mentioning. Perhaps I am inclined to see the world her way for any number of reasons. Okay, so part of the majority's reasoning here was that in fact 35 states reinstitute felons voting rights after they've served their time, that that's a super majority. And therefore, Mississippi is an outlier state. And that's where you sort of get to the definition of cruel and unusual punishment because they're in the minority of states. David, I think you have thoughts on this policy. I'm also curious what your thoughts on the law are. And I think this might be a strong disagreement, perhaps because the stakes, to me at least, are relatively low here.

Yeah, so look, as a matter of policy, I don't like felon disenfranchisement. If you've served your time, if you've paid your debt, I think that felons should be permitted to vote. So just to be clear, once you've broken the law, you should definitely get to choose what the next laws are? Once you've served your time and paid your debt, yes, I do believe that you should be able to vote. Then you can make robbery legal? Good call. Okay.

You can make robbery legal? Good call. Okay. Yeah, you know, I don't know of many actual votes to make robbery legal, but yeah, so I think once you've served your time and you've paid your debt,

you should be able to vote. The question is really though, that's not really relevant to my policy view on the Eighth Amendment is, I mean, my policy view on the felon disenfranchisement is irrelevant to the constitutionality of it. So to me, the question is this, is the Eighth Amendment, is the meaning of the Eighth Amendment fixed by what was cruel and

unusual punishment at the time, which fun sort of side story reminds me of when Justice Scalia came to visit the law school when I was there. And there were a number of people who were sort of lying in wait after his presentation, ready to pounce on him and to sort of try to own Justice Scalia. You know, so law students who really didn't like him. And one of the points that they were going to attack him on was cruel and unusual punishment. And Justice Scalia diffused the situation by demonstrating his originalism to such a degree that they didn't know how to respond. Because the question was, this was in the aftermath of, do you remember this situation

years and years and years ago about an American citizen who was seized in Singapore, I believe, and accused of trafficking drugs and he was sentenced to flogging? Oh, I thought this was the guy who was sticking gum on cars and he was caned.

Caned, yes, caned. Okay. Yeah, but- Was it gum on cars? I was caned. Caned. Yes, caned. Okay. Yeah. Was it gum on cars? I thought it was drugs. I'm pretty sure he was sticking gum on cars. Okay. Well, anyway, the issue was caning.

Yeah. Was for drugs or for gum, it was caning. And so the question was to Scalia, well, what about caning as punishment? And Scalia was like, look, whatever was punishable in the late 19th, I mean, late 18th and early 19th century, so put them in stocks for all I care.

Was what Scalia said, which is the view that what is cruel and unusual punishment is fixed. It was what is cruel and unusual punishment is fixed. It was what is cruel and unusual at the time of the founding. What's the original public meaning of cruel and unusual? But the issue here is what does Supreme Court precedent say about what is cruel and unusual? And as the court describes in its majority opinion, that actually the way the Supreme Court is interpreting cruel and unusual is evolving standards of decency. So, for example, stocks would not be permissible

because we have reached a social consensus that stocks are cruel. And so, therefore, there are standards of decency that do change. What is the definition of cruel and unusual does change, and that's current Supreme Court precedent. And so, therefore, whether or not a state is an absolute outlier on a particular kind of punishment is very, very much relevant to the cruel and unusual analysis. So, my argument is that under existing case law, which says evolving standards of decency,

the circuit court's required to look at that. That's what they are supposed to look at right now under current Supreme Court authority. And so therefore, under that evolving standards of decency standard, the outlier status of Mississippi is very, very, very relevant. And so that's my basic argument about it. Now, the question of should cruel and unusual mean only what was cruel and unusual in the late 18th or early 19th century is a different question that might the spring court might take up but as of right now it says evolving standards of decency wow you are so wrong on this on like every

on every prong okay so first of all as i already said like as a policy matter um i think i would vote against felons getting to vote after they have finished their time. Uh, I probably don't feel super strongly about it, but if you're just asking me, like, what I would go in and vote at the ballot box, um, yeah, I think if you commit a felony, meaning our sort of most serious type of crimes, that you have forfeited the right to then help make our laws moving forward. That makes a lot of sense to me. Now, on the legal question, let me just read from the 14th Amendment,

which incorporates the 8th Amendment to the states. When the right to vote at any election for the choice of electors, for president and vice president, representatives in Congress, executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being 21 years of age, citizens of the United States,

or in any way abridged, except, here are the exceptions that the 14th Amendment says states can have. So just to be clear, basically states were not allowed, this is a 14th Amendment, right? It's a post-Civil War. They're trying to prevent discrimination

on the basis of race, et cetera, or previous enslaved status. So you have to let every male above the age of 21 who's a citizen of the United States vote, except if they participated in a rebellion or other crime. As in literally the 14th Amendment says that states can do this. Okay, so that's argument number one. Argument number two.

Even if I buy into your evolving standards of decency, which is the most BS standard I've ever heard of in my life. That's like- It's precedent. It's precedent. Night of the living dead stuff there. Just a zombie walking around earth.

35 states, like we're not doing math. Like, okay, well, it's a super majority by the most technical sense of the term. So Mississippi is an outlier. That's a super majority by the most technical sense of the term so Mississippi is an outlier that's a lot of other states now if you're saying Mississippi is the only state and by this evolving standards of decency we mean um you know it has to be cruel and unusual not cruel or unusual if it was or unusual maybe we would just be doing a head count. But how is it cruel to say that someone convicted of a felony can't vote? And I'm not even sure that

a supermajority makes it unusual when you've still got 15 other states, 14, I can't do math right now, very congested, as I said, congestion hurt my math skills, affecting the same policy that you have. So it has to be cruel and unusual, first of all. Lastly, this is a classic example of who decides. Who gets to decide this question? Are we going to say the courts? Are we going to say the legislature? And even if I take your point that the Eighth Amendment sets out some role for the judiciary, cruel and unusual, and that's incorporated against the states by the 14th Amendment, which says that you can limit voting based on a criminal record, even there, I'll give you all that and say, fine, it's a close call. Well, then who gets to decide? And of course, the answer should be when it's a coin flip, it should not be judges

who get to decide. That should be the most politically accountable branch, which in this case is allowing people to vote on the question, state legislatures, et cetera, and let the chips fall where they may. Now, separate to that, if people are wondering, yeah, but where does Sarah fall on the Scalia stocks question? Yeah, that's what I want to know. Where do you, yeah. So I think it's interesting

because you now have some, at least, folks who are on death row seeking to reinstitute types of the death penalty that had previously been found to be cruel and unusual. Firing ranges, etc. etc because as it turns out our standards of evolving decency and i'm putting that into serious quote marks are pretty wrong for instance the electrical chair is not more humane than a firing squad um i would argue and lethal injection probably not more humane than a firing squad. Now, like, death by hanging? That's probably not super humane, for instance, in terms of the likelihood that you will die instantly versus not. But, my point being,

there are now people who are going to be the recipients of this, who are saying that the evolving standards of decency thing has actually left people with less humane endings under the death penalty, but it looks more humane. You know, the lethal injection looks so sterile and, you know, not violent. So that's what we mean by evolving standards of decency? No! This is crazy. So I am for the death penalty recipient. If they would like to use some other means of the death penalty, I think they should have some real say in that, as long as it's been a, you know, past means, was at the founding, etc. I think evolving standards of decency is stupid. And I think felons shouldn't probably possess the right to vote. And I also

think that the 14th Amendment makes it clear that it is just fine for a state to do this, and that legislature should get to decide. And literally on every one of these metrics, David is wrong. Well, you know, you might be right, Sarah. You might be right. The Supreme Court might take one look at that decision and say, come on. Oh, this thing's going on bonk. It's not even getting to the Supreme Court. It's not going to survive sua sponte on consideration. because this is one of those categories and areas where the phrase cruel and unusual, if you don't look beyond the text, could have a different meaning than cruel and unusual.

So where text and original public meaning could diverge. If you're asking someone in the year 2023, is stocks cruel and unusual punishment? You would say, well, of course. And original public meaning would say, absolutely not. This was just common and not cruel at all. And so- And I guess I didn't really answer your question on stocks.

My answer is right with Scalia. It's not cruel, even if it is unusual. Interesting. Obviously it's unusual now. Interesting. But I also, when you said you may be right, I was expecting you to go full Billy Joel. You may be right. I may be crazy, but I just might be the lunatic you're looking for. You may be wrong for all I know, but you may be right. You may be wrong for all I know, but you may be right. No, I think it's an interesting question because if you're just reading the words on the page, it feels to me that there's a degree of clarity that is different than the clarity you would get from an original public meaning analysis.

Total departure. And you, we've ended up, you're exactly right on that point. We've ended up with something like the, I know it when I see it, porn analysis. And the difference is with porn, I don't necessarily have a better,

I mean, we can come up with better phrases, but the end result of how you're going to analyze it is always going to have to be something like, I know it when I see it. That's not true for this. Yeah, yeah. No, that's exactly right.

So yeah, I think it's going to be very interesting. I'm going to say, I'm with you, Sarah. I don't have, it's not one of these things where I'm sitting here with the strongest possible feelings on the subject. But it is just very interesting to me because one of the things that we fleshed out a lot in this podcast is the different that there is often a distinction between text and original public meaning.

And I think that's something that doesn't get talked about enough when talking about different kinds of judicial philosophies. And it is very interesting to see when you see it. And this is one of those where that kind of distinction is kind of easy to highlight and explain. Oh, you're so right. This is a great example of the difference between text and original public meaning because I got some pushback from people

who at various points in this podcast who were like, how can you ever divorce the text from the original public meaning? Because they meant certain things when they said those words. Well, cruel is a great example of like, yes, they meant things that we all consider cruel. But did they mean that those things couldn't change? They picked a word cruel that almost by definition evolves over time and they had to know that it evolved over time and i do find it sort of interesting david that i am generally more textualist than i am original public meaning

sympathetic and yet here i find myself finding the textualist adjective cruel so foundationless and like a little balloon floating around the air that I'm then drawn to the original public meaning because unlike sex and boss talk or some of our other examples cruel just has no meaning or it has all the meaning or you know know, like it's, it is so dependent on a current society. What if our society had become less interested in cruelty instead of more interested? Like what if we were a more cruel society? Well, certainly then the original public meaning should be a floor. Yeah. Caning and stocks was considered like, yeah. Yeah. So that's, I think, where I'm running into trouble on the cruel part, even though I agree with you.

Perfect example of the difference between text, where cruel and unusual would mean whatever we currently find cruel and unusual, versus original public meaning would be what did they find cruel and unusual? Yeah. You know, I think about it similarly with the phrase keep and bear arms. So if you're talking about keeping, having arms in your home or bearing, having arms outside your home as a general matter, as a general proposition that the text answers that. Do I have a right to keep arms? Yes. Do I have a right to bear arms outside the home? Yes. But that doesn't help us much for outlining the limits of the right and where can state regulation come into play? And that's an example where original public meeting in these limits, in these ambiguities can be helpful.

But the bottom line is you still have text and cruel and unusual. I agree with you in particular. That's a great point about the word cruel. It is not self-defining. It does not have a fixed meaning. and so that's where that evolving standards of decency line might actually be somewhat textualist in an interesting way. Yeah, yeah, that's horrifying.

All right, I can't wait to see the en banc vote on this one. It's going to be lit, as the kids say. Fire. But, you know, I would actually, if you were thinking long-term bigger picture, the Fifth Circuit should actually deny the en banc vote because there's no way the Supreme Court wouldn't take it up then. The problem will be that the Fifth Circuit will reverse en banc. And so then it'll be in line with sort of the vast majority of other courts who have looked at these cases and not struck down felon anti-voting laws, in which case the Supreme Court probably won't take it. There's really not a circuit split

here, even though it's an interesting question. It's not one that sort of merits their consideration, which would be a shame because this would be fun to have them weigh in on. Yeah. No, it would be very interesting. And I do think as we have sort of more originalist and textualist heavy, more originalist and textualist heavy judiciary and jurisprudence, that this distinction is going to be fleshed out, hopefully in greater detail. Man, so Gorsuch would be all up on your evolving standards of decency.

He might be. No, no way. He's gonna see it like I do, which is a balloon floating with no one holding the string. Right. And again, if you agree that the original public meeting sets a floor, as in you can't become more cruel than they were,

then you're stuck. Like, you're with me. Yeah, it would be interesting. It would be very interesting to see two oral advocates going at it over this very point. I think that would be fascinating. I think we just did it. I think we're good now.

I know, I know. Well, should we just forward this excerpt of the podcast to SCOTUS? 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 digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Okay, well, that was really fun. Now let's talk about protective orders for Donald Trump. The fight over the protective order.

Now we're talking about the DC Trump case. This is on the January 6th related election stuff. The special counsel has asked for a protective order barring Donald Trump from talking about on social media and otherwise things he would learn only through the discovery process, as in stuff that the prosecution gives over to the defendant, including grand jury material. The prosecution understandably argues broadly, don't try this case in the public arena. It's going to make jury selection that much harder. Also, this is grand jury material. It's not meant to be publicly disseminated. So no.

And Donald Trump, understandably, I think, responds, I'm a candidate for president. I'll talk about whatever I want. No way I'm agreeing to some broad protective order where you get to determine what I talk about. You're going to hand over the stuff and I'm going to say whatever I want about it. The judge in the case, so there's the substance of this discussion, David, but there's also the process. The special counsel's office has to basically everything in every case so far said, we're free anytime, anyplace, weekends included, nights. You know, they're into revenge bedtime procrastination too over in Jack Smith's office as best I can tell. Donald Trump's team, not so much. Now, their response,

again, on the process question of when they would have this hearing, was interesting to me because everyone else seemed to read it as, this is Donald Trump's team trying to delay the trial. So the question was, would you have this hearing on Thursday or Friday?

Again, special counsel's like, whenever, wherever. What's the hips don't lie? Shakira. There's Shakira in this. There's Shakira. And then Trump's team said like, look, Donald Trump's not going to be there,

first of all. Second of all, one of our lawyers has to be down in Florida because there's a hearing down there also with the special counsel's office. I'll just note right now, I do think that that is a very reasonable thing. The special counsel's office basically gets to have as many staff as they want. Not literally, but many, many lawyers the Department of Justice has. They can move on to these cases if they need to.

of Justice has, they can move on to these cases if they need to. A defendant should not have to hire up extra lawyers because two cases are running at the same time and the judge refuses to allow the lawyer to sort of move between the two cases. I don't mean that Donald Trump can't afford that. I don't mean that's in some sort of like, there's a statute I'm pointing to. I mean, just in terms of how we generally treat defendants. If the lawyer needs to be down in Florida for a hearing on Thursday, don't schedule the hearing on Thursday.

Like that's a very legitimate reason why the lawyer cannot be in your courtroom also. Even if the client is raising money hand over fist from grandma to afford the legal team. I know. Again, I'm not saying I like it in this situation, but as a general matter. You're right. You're right. Yeah. So they had this response of why they couldn't do Thursday.

And then it was like, and obviously we can't do Friday. Let's do Monday or Tuesday. So not surprisingly, the judge was like, so Friday it is. Exactly. So that hearing will be friday so people saw this and were like aha the trump team's just trying to delay the trial to which david here's my response and i want your response on substance and process but on the process look if you actually want to delay a trial doing it as a game of inches isn't actually really going to get you what you want. This isn't a delay tactic. This is the tactic of a team who has looked at the judge that they have and decided that there is no upside to trying to win favor with the judge.

As in they won't win over the judge in any way. over the judge in any way. So instead, you do the opposite, which is you needle the judge into making either little errors or antagonistic comments that you can use for recusal motion down the line. They do not have grounds for recusal right now, despite what Donald Trump said. But Lord knows they'd love a recusal motion if they could put together one. So needle her into doing things that could help you substantiate your recusal motion. Two, get her into a position where she assumes that every legal argument coming from your side is meritless and as a knee-jerk reaction, denies it in the hopes of getting one great reversible nugget on appeal or interlocutory, you know, review, whatever it is. But like, get her to be more antagonistic to you, not less.

Yeah. You know, that's an interesting strategy that is, I will say, almost invariably doomed to fail in this sense. That, number one, look, guys, if chewing out counsel was grounds for recusal, a large percentage of federal judges would be recused on any given day in the United States of America. Because guess what? Judges chew out counsel all the time. Now, that doesn't mean that won't play in the court of public opinion. Oh, look, poor us.

We got chewed out by the judge. Look how biased the judge is. But Donald Trump's main jeopardy right now is not in the court of public opinion. His main jeopardy is in the court of public opinion. His main jeopardy is in the court of law and trying to goad a judge into lashing out. That's not goading them into recusal. I mean, the idea that you can recuse just because a court has chewed out attorneys who are recalcitrant in scheduling is like a day that ends in Y in the court system.

No, but you look for something that is real to hang a recusal motion on, which we don't have yet. So this is all hypothetical. But then you want to have little ornaments on that recusal motion, which will include comments that the judge has made to lawyers that could be viewed as no longer's sort of funny as you say this is actually so closely watched that it'll be very hard to do that in a vacuum but in a normal version of this the person reviewing it will have no idea that you were a d word for months all they're going to see is the one time you got held in contempt for something that seemed petty. Yeah. Until you get the opposition to the recusal motion that outlines your D-ness at length. Yeah. But you're also right, David, there's a public aspect to this, which is they would love to have a contempt citation because then publicly you're going to have a whole bunch of people saying like, wow, she won't even let the

lawyers operate, you know, blah, blah, blah. Yeah, exactly. Now, so I think that for a judge to, for the judge to allow. Do you know how much money they would raise on a contempt citation? Oh my gosh. You know, and the funny thing is it's all short-term gain, which could equal long-term pain, but they're just in a move the chains position right now because you're trying to get the trial pushed as far as you can get it pushed. You're trying to win the Republican primary, no matter who else you're alienating. Because you can't run for president in the general unless you win the primary. Then in the primary, it becomes a different kind of short-term game. But I would be really surprised, quite frankly, Sarah, if a federal judge presiding over what could be the trial of the new century just allows herself to be goaded into some sort

of disastrous overstep. I mean, I'm not saying it's impossible. I'm just saying I would fall out of my chair in shock if something like that actually worked. But, you know, I've fallen out of my chair in shock before, but I just don't see that. I just don't see that working. Okay, substantively, protective order.

Who has the better argument? As a general matter, the prosecution has the better argument. It is not unusual at all for courts to enter various kinds of gag orders during the pendency of publicly prominent litigation to limit the ability of either side to taint the jury pool, that is something that is relatively common. Now, the wild card here is it is not relatively common to have protective orders when the defendant is the former president and current Republican front runner. Nothing about that situation is common at all. But I've been in litigation, Sarah, where the judge imposed a total gag order. Total, so total that I briefly considered challenging it, but thought it just wasn't, you know, what's the Stanford phrase? The juice wasn't worth the squeeze. But gag orders to some extent are not unusual. And I do think that Trump has heard his cause with some of his social media ranting. Because the argument that the prosecution would make is,

okay, he could pull some discovery information that names specific individuals and names specific witnesses and things like that, exposing them to intimidation. I think on substance, it's a pretty solid motion. But as a general matter, absent compelling reasons, I think gag orders should be disfavored. But this is not, let me put it this way.

If John Gotti was the defendant and John Gotti tweeted out, if you come after me, I'm coming after you, the gag orders that would descend upon that litigation could be seen from outer space. So with President Trump, though... But this isn't John Gotti, and I don't mean in terms of criminality,

although I also don't mean that, but like, or rather do mean that, but for sort of speech purposes, in the context of a political campaign where he's getting attacked all the time by Chris Christie or Mike Pence or even Ron DeSantis now, to some increasing extent, at least, saying, you come after me, I'll come after you,

has a totally normal meaning. And by the way, I don't think it's totally fair to say on the one hand, Mike Pence gets to attack Donald Trump every single day as a candidate. Oh, but Donald Trump can't attack him back because that's witness tampering. Well, wait a second. That also cannot be the case. Well, this is a protective order regarding discovery materials. It's not saying that Donald Trump can't call Mike Pence a little Mike Pence, which he does. Yeah. Yeah. Or say that Mike Pence is lying, which he said. Yeah. But that specific truth post that you're referring to, people were like, aha, this is proof that he's,

you know, obstructing, witness tampering, all these other things that actually, I think we should talk about in another podcast as sort of the level needed to reach that. But like, again, if you're only talking about a criminal case, like John Gotti, fine. But you're talking about a presidential candidate and he's running against the guy.

So yeah, you're going to need different standards there. Yeah, well, that's why I think the discovery of a protective order that is focused around discovery materials as opposed to a gag order, which is saying you can't talk about the case, are different things. I think a protective order focused around discovery materials is more defensible than a gag order telling a presidential candidate you can't talk about the case. So I think of those as different things. And then the other thing about a protective order, if you're, there's still still absent some sort of seal ruling, you know, put some sort of order putting some materials under a seal, they can still file court papers and the court papers, like the prosecution's court papers, can contain evidence, including discovery material.

material. And so it's not exactly the case that it's this sort of a, it's not the same thing as a gag order. So I do think the substantively, a cautiously drawn protective order has merit. But this is not, a lot of the commentary around this seems to confuse a protective order with a gag order. Not exactly the same thing. So here's what I think the real problem is. Satisfy the law. This is just a reality problem for the defense. On the one hand, you need the defendant's help in preparing your defense. That's just true.

On the other hand, your defendant is not going to be able to keep straight what he learned that falls under the protective order and the other stuff. So not sure what you do about that. Just not tell him any of the stuff you're learning that would be covered by the protective order. Well, then he can't help as much with his defense. Tell him the stuff that's covered by the protective order and run the risk that he forgets that he learned that thing from the protective order, well, then he can't help as much with his defense. Tell him the stuff that's covered by the protective order and run the risk that he forgets that he learned that thing from

the protective order and that thing from some like online crazy. But as I said, not a legal problem. That's a very practical problem. And we'll learn what happens at the hearing later this week. I think regardless of what you and I think of the substance or the process, I think we can guess the outcome of this hearing. There will be a protective order. Spoiler alert. Yeah. Yeah. No. Yeah. I agree with you completely, Sarah. There will be a protective order. Just the precise contours of it, we've got to wait for. All right, next up, the Supreme Court issued an interesting stay, not interesting really for any other reason other than a 5-4 stay on a lower court decision that had blocked the Biden administration's ban on ghost guns. So let me unpack that a little. Biden administration has an ATF regulation

banning ghost guns, as in kits where you make your own gun versus, you know, the kind you buy from someone that has a serial number and all of that. And David, I'm sure you'll have a variety of corrections, but in short, if your gun doesn't have a serial number, that's banned under this no ghost gun rule. So someone sued, a judge found that the plaintiff was likely to win and issued an injunction against the ghost gun rule. It goes all the way to the Supreme Court. In 5-4, the Supreme Court says, nope, rule gets to stay in place while this gets litigated. Why is this interesting? A couple of reasons. One, the lineup 5-4, it was Kagan, Sotomayor, and Jackson, plus Chief Justice Roberts,

don't think that's shocking anyone, and Justice Barrett. So it's two of my three three threes, but Justice Kavanaugh in dissent, it must be a weird feeling for him. It's so rare. So A, the lineup is unusual. B, substantively for all the complaints that we hear about the emergency docket, the so-called shadow docket of the Supreme Court, and David, this fits in really nicely with a piece you wrote for the New York Times this week, when the outcome is something that one side likes,

they sure are silent about their process arguments. Yeah, you know... All of a sudden, the shadow docket, not some huge sky is falling moment this week when the shadow docket put back into place the Biden administration's ghost gun policy while litigation pending. But the shadow docket is horrible

when the reverse occurs. Yeah, I'm starting. Well, maybe starting is the wrong word. I'm really tired of a lot of the Supreme Court commentary. You refer to it as goldfish memory, and I really liked that. Yeah, so I wrote a piece for the Times, long piece for the Sunday opinion.

And the basic point was, look, the Supreme Court is not rogue. It is not illegitimate. It is conservative. Those are not the same thing. Illegitimate and conservative are not synonyms. And I also made the point that conservative is not a synonym with MAGA either, by the way.

That in fact, if you're going to look at the Supreme Court, you're going to understand it by Supreme Court, you're going to understand it by reference, not to the Trump right, but to the pre-Trump right. That's where you're going to get your understanding of the Supreme Court. And what's the evidence of that? Well, oh, the evidence of that is absolutely freaking abundant. The notion that the Supreme Court of the United States is sort of this outgrowth or this arm of MAGA is completely belied by their actual record from swatting aside the election challenges, swatting aside the census changes, for example, swatting aside the independent state legislature doctrine, finding a racial gerrymander in Alabama, exposing Trump's tax returns to congressional, I mean, you can just go piece by piece by piece by piece through Supreme Court precedent, and you're going to know that it is not some sort of MAGA court. You also can go

through Supreme Court precedent in the recent years, and you're going to know that, guess what? in the recent years, and you're going to know that, guess what? Progressives have repeatedly had a fighting chance at the court. Bostock, for example, Indian Child Welfare Act case in the latest term, for another example. Allen v. Milligan, the Alabama Voting Rights Act case, for another example. So what you're dealing with is a court where the members of the court have particular legal philosophies. And when you understand what those particular legal philosophies are, you can argue your case in harmony with those philosophies and make headway. And then the other thing that I said is all of this gets completely forgotten. You have this gold, and I was referring to Ted Lasso, how Ted Lasso talks in one episode that a goldfish has a 10 second memory and that everyone

focuses on the last thing the court did that reaffirms their priors. And so as we talked about at the end of this last term, everyone got very angry. Not everyone, but a lot of people on the left got very angry with 303 Creative. They got very angry with Harvard and North Carolina cases and immediately began to talk about the Supreme Court term as if the Alabama case, as if the Indian Child Welfare Act case, et cetera, didn't even occur at all. As if Morvey Harper, this incredibly important independent state Act case, et cetera, didn't even occur at all. As if Morvey Harper, this incredibly important independent state legislature case, had never happened. It's just right back to rogue, illegitimate, overreaching. And then you get this ruling, which is pushing back on gun rights, for example,

crickets chirping on Twitter. Nobody's talking about this. And so it really is remarkable the extent to which Supreme Court commentary, whether it's critical from the right, and I talked about Josh Hawley saying that the conservative legal movement had failed because of Bostock, a take that did not age well after Dobbs, for example, or the left with all of this rogue illegitimate language really is goldfish memory.

It's the last thing that occurs that reaffirms their priors is the thing that people are going to talk about. And it's really frustrating. And a lot of folks who are much more, who are actually attuned to the court, such as by arguing in front of the court and have to prepare for it,

know all of that is bogus. They know that you can make arguments to this court. It is not just some sort of partisan machine. And this is yet another example of that and ramped. and this is yet another example of that and ramped. Liked the piece. Was surprised that you didn't bring up the Warren court example because I think one of the most important takeaways

is conservatives not the same as illegitimate. Liberals not the same as illegitimate either. There was a time when the court was incredibly liberal. Right. But not illegitimate., but not illegitimate. Right. Not illegitimate. Absolutely. No, I actually had to cut hundreds of words. I'm sure. Yeah. I mean, it's so hard to write a grand unified theory piece, basically, because in order to really make the piece what you grand unified theory, it's like, here's 10,000 words.

And they're like, yeah, we're going to publish 1,000 words. And they're lucky. Well, you know, there's two big points I wanted to make. One is, if it's not MAGA, prove that. Then what is it? Prove that. So you had to really outline what would MAGA jurisprudence look like? What would that be?

And then versus what do we have? And they really are fundamentally different from each other. I also think it's really helpful to highlight that for every Dobbs, there's a Bostock. And for both sides, right? Like, you're mad about Bostock? What about Dobbs, there's a Bostock. And for both sides, right? Like, you're mad about Bostock? What about Dobbs? Are you mad about Dobbs? What about Bostock? And you can do that like just down almost every line. And I guess for me, this gets almost to like my defined big case. Because my, I think, reverse experiment would be, okay, you don't think that the Voting Rights Act case was a quote-unquote big case, but if it had come out the other way,

would you have thought it was a big case? Yes. Then it would have ranked as a big case. Well, no, that cannot be how we define big cases based on the divisiveness of the outcome, because then big is defined as divisive, which is circular. So, you know, if Dobbs had come out the other way, would it have been a big case? Yes. I think everyone agrees that would have been a big case either way. I think same with Voting Rights Act, same with Morvey Harper, etc. And so then you've got to expand your list of big cases and to bring us back to where we started.

That's where I think this emergency docket ruling makes this important. If it had come out the other way, if the Supreme Court had said, no, the ghost gun ban is not in place while litigation is pending, I think you would have heard a lot of people saying this was a big deal.

Instead, we're the only ones talking about it. Well, and this is something that is... I don't really mean that. Please don't come to me with every person who's talking about it today. Yes, other people are talking about it. Right. But there's a substantial difference, right? And this goes to kind of a human temptation that we have, which is if something happens that we agree with, well, of course, of course. Loss aversion, man. Yeah, this is what everybody, all reasonable people agree. And just for once, the Supreme Court is reasonable.

So we never amplify that because we think it shouldn't be, that should be the norm. That should be the default. Our view of the law should be the norm or the default. And so therefore every departure becomes the huge thing that you amplify and you just forget about all that occurred, even contentious, consequential cases that agree with you. Oh, well, that's just what they should do. I mean, what am I going to do? Give them credit for doing their job? You know, like that's sort of the attitude that people have.

Now, if you're wondering why I'm not talking more about why Justice Kavanaugh, for instance, was in the dissent on this application for stay, we don't know. There was no writing in this case at all. So yeah, and we'll probably never know. But look, it is also the case that the emergency docket standards have been muddy when we do get explanations, yada, yada.

So, fun times had by all on that one. Okay, next up. David, there was a lawsuit about Southwest Airlines. Yeah. An employee of Southwest Airlines sued, arguing that she had been discriminated against because of her religious beliefs about abortion in this case.

She won her lawsuit. At the end of that lawsuit, the judge said Southwest Airlines needed to send out an email to their employees saying that they may not discriminate against flight attendants on the basis of their religious practices and beliefs. But instead, Southwest Airlines sent out an email that it does not discriminate against their flight attendants. And a follow-up memorandum about civility, which was why they disciplined her in the first place. So it was totally undermining this verdict, basically saying they didn't violate the law.

And yeah, you still need to be civil or else. didn't violate the law and yeah you still need to be civil or else when in fact what was found was that they did violate the law and this like guise of civility violated her um free exercise beliefs okay so the judge got pretty mad about that and uh issued a contempt citation, strongly worded contempt citation, in which the Texas judge, Brantley Starr, ordered that the three Southwest Airlines lawyers attend eight hours of religious liberty training this month as part of the sanctions, and that they must take the training from the alliance defending freedom, pay for their travel expenses, find a time that's convenient for ADF, etc. David, I found this pretty interesting as a remedy. I think it's very important to note, though, that this is a sanctions remedy, not a lawsuit remedy.

Those are pretty different things, actually. Second, as Rafi Melkonian pointed out on Twitter, a relatively minor sanction like this is very unlikely to get appealed. Businesses just do it. It's eight hours. Get it over with. Move on with your life. Yeah.

They're not super appealable to begin with. But it raises a broader question, David. A, are judges issuing diversity training sanctions a good idea? B, are judges picking organizations that are certainly seen as being on the ends of the ideological spectrum, ADF being unquestionably conservative, I see a lot of people on the hate group stuff. The Southern Poverty Law Center designated them a hate group. They fought that, are calling them extremists. For my purposes in this question, that doesn't actually matter. It doesn't matter if you agree or disagree with that. They're on the ideological spectrum, certainly. So if a judge ordered, for instance, systemic racial bias training from the southern poverty law center

for lawyers you know from some other company would we think that was okay go um so this is a really good question because i've actually been involved in a case where a judge ordered that the ACLU conduct training, right? Didn't, in that case, I was tangentially involved in it. It was part of a, I was not litigating that case, but members of the legal team that I supervised were litigating that case. And, you know And the bottom line was the identity of the trainer was less important than the content of the training.

And so the question that was really at issue is what were they saying? Were they training in a way that was contrary to the law? Was the real issue. It wasn't so much the identity of the trainer. And so I think that that is, A, I do not like a court sort of farming out training to a different group. I don't like that. I don't like if it's the ACLU.

I don't like if it's the ADF. I don't like if it's SPLC or Beckett or whatever. Farming out to a private entity, I don't like. Is that going to be unlawful to do that? I don't think so. I don't think so. If there's a problem with the content of the training, that's a different issue.

Identity of the trainer, I don't think that's going to be, I don't think there's a legal problem with that. But the one thing that I've done in the past is when a defendant, we didn't trust, say, Sarah, that a defendant would revise their policies in accordance with the court's order. We asked that the court, that the order or that the defendant be placed under court supervision. In other words, all policy changes must be approved by the court. And we're able to do that successfully.

So in other words, you weren't delegating any sort of evaluation to an outside organization. You were saying, hey, court, they've already demonstrated that they are not trustworthy. We're asking that the next statement or the next comment be approved by you. It's something that we've done in the past. Did that to Georgia Tech when we sued to overturn the speech code. And the judge placed Georgia Tech under five years of supervision. You cannot change your speech policy for the next five years without my approval.

So I think something like that is preferable. I don't love farming out training to outside organizations, but as you said, this is a sanctions order. It's going to be hard for me to see that there's going to be a real legal flaw with that. I just don't love it. And again, it's nothing to be hard for me to see that there's going to be a real legal flaw with that. I just don't love it. And again, it's nothing about ADF or ACLU or whoever. It's just these external organizations.

I don't think that's a great practice. So here's my reaction. I think I agree with everything you just said. You know how when you get pulled over for speeding, I think I agree with everything you just said. You know how when you get pulled over for speeding, there's the ticket that may affect your driving record if you're in a state with points or something like that or your insurance. That's supposed to be the punishment, right?

The money is part of that ticket and punishment. But what's the biggest punishment when you get pulled over? They make you sit there for 15 minutes or so. The whole punishment is you were speeding and now you're going to be late to wherever you're going. The later punishment is the money, but there's the immediate consequence of, I mean, they could do that so much faster. They don't do it because that's part of the punishment. So here, I would feel really differently if this were a training for Southwest employees writ large. But it's not. It's for three lawyers who were actually the cause of the problem here. They're lawyers. Frankly, they already know the law in this area. They were

choosing to not think too hard about it. This is about wasting their time. It's eight hours per lawyer, and it's going to be by ADF, which I think the judge probably rightly assumes that maybe these lawyers aren't too familiar with, slash like, like there's other parts to the sanction order. So for instance, to your point, David,

the judge did not just tell them to send out an email this time. Now he wrote the email for them. I'll just read it to you. The United States District Court for the Northern District of Texas ordered Southwest to issue the following statement to you, colon, this is part of what is being sent,

like all of this. So the thing before the colon. On December 20th, 2022, Southwest Legal Department issued an email to all flight attendants entitled Recent Court Decision Regarding a Federal Court Judgment Against Southwest and Transport Workers Union Local 556. The email said, the court ordered us to inform you that Southwest does not discriminate against our employees for their religious practices and beliefs. The United States District Court for the Northern District of Texas subsequently found that the statement's use of does not discriminate was incorrect.

Accordingly, the court has ordered Southwest Airlines legal department to issue the following amended statement, colon, under Title VII, Southwest may not discriminate against Southwest flight attendants for their religious practices and beliefs, including, but not limited to, those expressed on social media and those concerning abortion. Okay, there's the double colon thing, which isn't great, but otherwise, David, to your point, that's the equivalent. In fact, it's a step beyond the court reviewing emails being sent to employees about this case. He's like, you know what? We're not playing this game anymore. You got one chance to write your own email and you wrote that I basically found that you didn't discriminate. No, no, that's the opposite. Let's try again. And frankly, that email I thought could have been a

lot more strongly worded in really clarifying the difference between does not and may not. Then of course, there's the certifying that the three lawyers have attended the training and paying all the attorney's fees and costs for filing this contempt and motion to compel order. So look, the attorney's fees and costs, that's your ticket, right? But the waiting, I mean, that's the eight hours. And so, yeah, I think this is going to stand just fine. Uh, and I'm with you, David. I don't love this as a sanction, but it's going to stand. No problem. Next up, little second amendment fun. So a circuit, Ninth Circuit panel, striking down Hawaii's ban on butterfly knives. Now, butterfly knives are similar to pocket knives in size and sort of use. but for those who aren't familiar,

butterfly knives have a split handle where you can take one side and flip it with your wrist and the other side of the handle flips into your hand and now you've got a nice stabby knife or just a nice knife to use on your boat or anywhere else for normal purposes, depending on who you are, I suppose. There was a ban on the sale of those in Hawaii or possession of those in Hawaii. The panel struck that down as saying, no way. These were in common use at the time of the

founding. We're applying Bruin analysis, history, text, and tradition. You can't have a ban on butterfly knives. A second case, though, by a district judge held that commercial sales of guns are not even encompassed by the Second Amendment, so there's no need to do a Bruin text history and tradition review of this regulation because the regulation, a different regulation here, was only about the commercial sale of guns. Those are pretty different opinions, David.

I'm just curious if you have any overarching thoughts or feelings as I think that the butterfly knife will not go to the Supreme Court. And I think this commercial sale thing probably won't even survive even the Ninth Circuit panel. But we'll see. Yeah, this is... Okay, Sarah, here's a question I have. Is it possible that there's some judicial trolling going on here?

Of just you and me? Yeah, definitely. Just trolling advisory opinions. No, I mean, so I think that the text history and tradition test and the Bruin test is quite obviously kind of thrown a wrench into the works in the lower courts. They don't know how this is all going to work out. So they're kind of stabbing blindly in the dark about it. And I also feel like some of the courts are like, who might not necessarily be the most committed to the court's jurisprudence,

could be taking it, as in this case, how do you say, the reasoning was because the Second Amendment doesn't say the right to sell, keep, and bear arms shall not be infringed, that obviously the right to sell arms doesn't exist. My mother would refer to this as flim-flamming around when I was a child. My mother would refer to this as flim-flamming around when I was a child. Yeah, it feels like flim-flammery slash trolling that's not going to be upheld on appeal. And then on the butterfly knife case, so I was first intrigued by it because as you put in Slack, you spotted it first, all credit. When you put into Slack, there was this part of it. I was intrigued by it because as somebody said on Twitter, on my first read, I'm not sure how this reasoning doesn't

cast doubt on federal machine gun prohibitions. In other words, that the reasoning upholding possession of a butterfly knife as protected by the second amendment could also be used to legalize more widespread ownership of machine guns. And I went and I looked and I was reading the text and I was thinking, I'm not quite sure how we get there because it says, to determine whether a weapon is dangerous and unusual, we consider whether the weapon

has uniquely dangerous propensities and whether the weapon is commonly possessed by law-abiding citizens for lawful purposes. The gap between a butterfly knife and a machine gun. I know. On that scale is enormous. And if you actually read the opinion, it's really all about knives. Yeah, it's all about knives.

And the history of knives in the country and that like obviously everyone had a knife. Yeah. And this doesn't even really get to whether or not you can bear a butterfly knife. It's just whether you can own a butterfly knife, like have a butterfly knife at your house. And I think they're going to this, they highlight, we give little weight to these statements talking about butterfly knives are an integral part of a Filipino martial art and et cetera, et cetera. And then there are conclusory statements that butterfly knives are associated with criminals. And it says, we give little weight to these statements. Common sense tells us that all

portable arms are associated with criminals to some extent. And that's the justification for saying, well, this could open the door to machine guns. No, go back and read right above that where it says uniquely dangerous propensities commonly used, whether the weapon is commonly used by law-abiding citizens for lawful purposes and has uniquely dangerous propensities. No, machine guns are not commonly used

by law-abiding citizens for lawful purposes. And yes, they have uniquely dangerous propensities. So this was not a case that's really going to have much to say at all about machine guns, except perhaps sort of reaffirming under that analytical framework that machine guns, in fact, are bannable, even under sort of this text history and tradition test. So I found the case to be somewhat not consequential as far as sort of this very basic Second Amendment analysis. But the commentary around it was hyperbolic, shall we say. Yeah, I mean, interestingly, for the Ninth Circuit,

these were three Republican-appointed judges, and it was unanimous, but I'm not sure that actually matters in this case when you're dealing with knives, for instance. Right. But we'll see. Well, okay, that's the end of the legal potpourri part of the podcast.

If you want to stay for the rest, feel free dave and i are just going to chit chat about that interesting ohio ballot measure this week so to set it up basically ohio has a referendum process you can get a ballot a constitutional amendment on the ballot if you have signatures from 44 of the 88 counties, and then it is passed into the Constitution, the Constitution rather is amended, if you get a majority of the vote. So people immediately in the wake of Dobbs were like, oh no, this means that a lot of pro-choice people are going to put ballot measures on the ballot, both for the purpose of passing pro-choice stuff, but also for the purpose of ginning turnout in an election. And lo and behold, that's exactly what happened. So the, you know, Republicans in the state tried to preempt that by putting this

ballot measure on ahead of that ballot measure for a special election, this ballot measure would say that you have to get signatures from all 88 counties and it would raise the threshold for amending the constitution from 50% to 60%. So if you vote yes on this, you are for making ballot measures harder and understanding why this came about, you know, on that pro-life side of the argument. If you voted no, you're for keeping the status quo and or on the pro-choice side of the argument. Drumroll, the no votes won by a lot. It's looking by about 15 points, meaning that the status quo wins out.

So a few things to note about this from my end, David, and then I want your reaction. Number one, someone else pointed this out, but I think it's just a really smart thing when it comes to ballot measures. Yes has an advantage in polling, literally just anything you ask, that people are a little bit more inclined to say yes. No has an advantage in polling, literally just anything you ask, that people are a little bit more inclined to say yes. No has an advantage in voting.

Again, regardless of the topic, people are a little bit more inclined towards the status quo when they actually go vote. So right off the bat, the no votes had an advantage and the polling was not going to show the extent of their advantage. Great. Number two, what in the world would make Republicans think that the types of people who

are going to turn out for a special election in August over a ballot measure are going to be the types of people who then want to limit their power in voting and ballot measures. That would be a weird, self-defeating form of direct democracy. I think you're like not just swimming against the tide or climbing uphill. Like it's really hard to see how this was going win. Just from, again, not even substantively, just like, hey voters, come vote on whether you'd like to have less power in voting. Cool. Third bucket. Aside from the pro-life, pro-choice specter around all of this, you had a bunch of different other organizations weigh in

too, like Fraternal Order of Police came out against it because they want to be able to have ballot measures on there to defeat the state legislature when they need to. On the other hand, you had the sort of state chamber of commerce-y types and businesses come out in favor of it, not because they care about abortion, but because they want a way to prevent, you know, various types of minimum wage-y ballot measures that will be hard to defeat, you know, raising the standard for when those would amend the constitution. So it turned into a whole bunch of other stuff. And if you're curious about the money, the yes side spent slightly more than the no side. I think it was like 15 million to 11 million, something like that. And turnout was about 3 million, which to give you some indication in the last senatorial election, it was about four and a half million.

So actually incredibly high turnout for a special election in August for what that's worth. All right, fourth is, and this is where I think David's going to feel the strongest. This is another, this is four for four, David, on the abortion ballot measure question to the extent you see this as an abortion ballot measure. Take it away. on the abortion ballot measure question to the extent you see this as an abortion ballot measure.

Take it away. Yeah, so that's the thing I'm mostly interested in. I think there was a possibility of sort of a pro-life voter who would say, there's a possibility of a pro-life voter who could say, I would vote to keep our heartbeat bill, but I don't like this change

sort of from a democracy standpoint. But I don't know how many people that would be because the bottom line was this was really seen as a proxy vote over the coming abortion referendum. I mean, this is how this was cast. And now I think the no side did a good job of saying, well, however you feel about this, you shouldn't be making it more difficult to amend the constitution. I think there were some voters there. But the bottom line is, I think, Sarah, we're reaching this point.

voters there. But the bottom line is, I think, Sarah, we're reaching this point. And that is, if the abortion issue is on a ballot cleanly, in other words, only thing you're voting on is the abortion issue, the news for pro-life, the pro-life movement has been really grim. And it's not just in blue states. So it's Kentucky, it's Ohio now, I think what we Montana, Kansas. So that's the the four that you mentioned, all four red states, all four have had a grim result so far on ballot measures. However, if the pro-life issue is tied to a politician that voters otherwise like, in other words, so it's not clean, it's not the only issue, there's a lot of evidence that pro-life politicians, including pro-life politicians who signed, for example, heartbeat bills, can win their elections. win their elections. Kemp, Brian Kemp in Georgia, for example, DeWine in Ohio, for example. So that's why we're seeing, I think, a lot of the pro-choice movement moving towards trying to make this a referendum issue as opposed to trying to make it front of mind for voters when they're voting on politicians that might otherwise have

a pretty good approval rating. And so I think that's kind of where we are now. And that is, if the issue is all by itself, there's just no real indication right now that the pro-life movement's going to win that. If the issue is combined with a politician who has that voters otherwise like, that politician can win. And I think that's just where we are right now. And so a lot of these arguments you have on sort of the pro-life side that are extremely vitriolic, internecine battles on the pro-life side that are very vitriolic, so between the quote-unquote abolitionists who want to pass laws criminalizing and punishing women criminally who seek abortions is kind of beside the point now because what you're having to deal with is a blunt electoral reality that right now there isn't a lot of evidence that the pro-life position has popular public support at all,

even in red states. And so this is a tough, tough reality for the pro-life movement to grapple with. And I think it just wasn't prepared for it. And I don't think it was necessarily, and I have to admit, I'm somewhat surprised by the extent of the pro-choice backlash to Dobbs. I think I was quite accurate in saying that Dobbs would not disrupt American democracy. American democracy has accommodated Dobbs quite easily. It has not disrupted American democracy. In that sense, totally right. In another sense, this idea that actually maybe the pro-life and pro-choice forces are more evenly matched electorally, I thought they might be. I don't think they are.

It is sort of fascinating that Republicans gave away their best, one of their strongest electoral arguments. Now, you know, you could argue, well, at some point they had to, for 40 years, they promised voters that they'd overturn Roe v. Wade. You can't just keep promising that and promising it. But I think my concern is what both parties will learn from this, which is don't fix problems that motivate your voters. And I'm always thinking about immigration, always. Both sides use that issue to motivate their voters. And if you look at what happened in the wake of Dobbs, what I think both sides are going to take away from that is never fix it because your voters are just not going to reward it once it's gone.

And that's it. Well, you know, and I also wonder how many pro-life voters sort of think, well, Roe's gone, our work is done. No, exactly. Immigration's fixed, so I don't need to vote on whichever side of that issue I've been voting on. Yeah, exactly. And it's interesting to me because the number of people I sort of encounter who have consciously have that, consciously have that attitude, it's really pretty remarkable. It's sort of like, wow, got rid of Roe. States right now. It went up during the Trump years and Trump's presidency, first presidency since Jimmy Carter to end with more, a higher abortion rate and ratio than it started. And then it dipped a little bit after Roe when some of these state laws went into effect. But the latest

indication says, I mean, dipped a bit after Dobbs. But the latest indication is that it is now back to pre-Dobbs levels. So at that higher level than when the Obama administration ended, which is pretty remarkable. So this is, you know, and this is one thing I wrote when Dobbs was decided, this is not the beginning of the end of the abortion debate. It's the end of the beginning of the abortion debate in this country. And I think an awful lot of people were just caught completely flat-footed by that. All right, two finishing items. One, many of you have sent in baby names. None of you have named our baby as far as I'm concerned, but this person does win the award so far, which is sending me college football's all-time, all-name team.

There are just some great ones and they're almost all pretty recent ones. Unfortunately for TBD Keller, most of these you need both names. It's not just the first name that is awesome, but I'll read just a few of them here. Fudge Van Hoosier played at Tulane in 2012. Boogie Knight played at Monroe in 2018. Brodarius Ham at Auburn in 2017. Wynn Homer, BC 2012. Guy Wimper.

Jet Toner. God's Power Offered. That is just strong for Howard. Well done, Howard. Wonderful, Terrific Mons. You just gotta love that mom that she named her son Wonderful, Terrific. Oh, that's so encouraging.

And then we get to my all-time favorites here. Dude Person. That's sort of the opposite, man. I think your dad named you. I'm just going to be honest about that. He is currently playing for Central Arkansas. Pig Cage is also currently playing for UT San Antonio. And last up, oh, I already said Jet Toner at Stanford,

played in 2016 to 2020. Jet Toner feels like they're doing what I'm doing, which is looking around the room and naming things that they see, but maybe they gave birth in a cubicle. Well, that goes back to my, you know, the comment about names of what just sounds good.

Like what just kind of rolls off the tongue. So we'll just go back to my sister's suggestion of a name that sounds good, just rolls off the tongue. Fuselage. We had a joke in college with my roommates

that like, in terms of just beautiful sounding words for daughters, chlamydia and gonorrhea are actually both lovely names and you can't use them. And how dare they take chlamydia from us, which would be beautiful. And you know, when you think about it, like Clytemnestra and gonorrheal, both historical names that are pretty close actually,

but I would say Gonorrhea is more beautiful than Goneril from King. Well, it is absolutely to my utter distress that I was reading a news article recently and I came across somebody with the first name of Aragorn, which I've been suggesting since day one. Always very consistent. Yes. which I've been suggesting yes since day one always very consistent yes

and I believe if I'm remembering the article correctly is someone named Aragorn and they were actually a criminal oh

yeah so bummer well look Pig Cage here reminds me and he plays at you know

UT San Antonio like I mentioned so it's very possible that his parents maybe know about one of the most famous naming stories in all of Texas history, which is the wealthiest family, the Rockefellers of Texas, if you will,

with the Hogg family, H-O-G-G. Incredibly famous, incredibly wealthy, the Kardashians of their day. And they had a baby girl. And as sort of a like, we dare you, they named their baby girl Ima. That's right. Her name was Ima Hogg and that's real.

But then this lore built up around it that they had a second daughter and they named her Yura. That is not true. Ima Yura. So maybe Pig Cage's parents were like, I dare you, man. This kid is going to be an incredible football player and we're going to name him Pig Cage. So ha. So good for you, Pig. Okay. Last thing, David, there's this meme going around the internet. Tell us a time that like you experienced racism but it was funny and i bring this up because it

appears that like a lot of people aren't aware of this and i think it goes to actually something we've talked about on this podcast which is for instance that sanford lawsuit about diversity training where they force jewish people to be with the white people and talk about their privilege and treat them as if they're the same as white people. Yeah. And so if you don't know about like pretty common anti-Semitism that ethnically Jewish people experience, you may just not know that that is stupid to some of us. Ethnically, I'm a halfie for what that's worth so my first week in college I was asked by someone in totally well intention I want to be very clear this person was not being racist or not intentionally you know whatever your definition of racist is but this person meant

this in a very well intentioned way where are your horns that is a thing that actually happened yes and then Shoshana Weissman on Twitter, she was saying how this happened to her mother when she went down with her college roommates to visit their families or whatever down in Texas and that she was asked the same thing. And again, while I'm sure that some people actually say this and mean this in a very derogatory way, it sounds like in both of these examples, the people were genuinely confused about horns. Now, I think this raises a lot of more interesting questions for me as a halfie. You know, is this a recessive or a dominant gene within Jewish ancestry?

Or do you just get littler horns? Are they made of keratin? Like, so can you file them down so that you could hide the horns? In which case, like, you can ask all you want about where the horns are, but like, you'll never see them. So maybe they are still there.

But I was just curious, are you aware of this thing, whatever we're calling it? I am not. I mean, I've heard, like, I've seen some stuff about it online, but I thought it was just like a joke, you know, that, that this was not something that people actually thought. But yeah, I, when I grew up totally divorced from anything approaching

antisemitism because... Because there were no Jews. Exactly. It's really easy not to be anti-Semitic when there's no Jews. So when I went to law school, I was, you know, that was literally the first time I, you know, I made Jewish friends and also the first time I ever started to learn what, you know, modern anti-Semitism was. And I was frankly shocked, A, that it existed and B, how prevalent it was.

And it just keeps existing and it just keeps being prevalent. It's unbelievable. Yeah, I mean, and again, this goes to my like point about Jews feeling offended when they're told that they're the same as white people. Because also, this wasn't the first time I'd experienced something like this. In fifth grade, I moved to a new school in a new part of the state. And the only people I was allowed to be friends with in like the social hierarchy were the two other non-white students because I was not considered white because I was half Jewish. So again, this is just sort of a larger point on like assuming people's experience is the problem

with diversity training, how people think about their own racial identity and how there's been really interesting studies recently about how that's evolved, meaning people change their racial identity over the course of their lifetime. And as we become more multiracial, how that's going to change things. So I just found that to be a really funny meme online of the name of time you experienced racism, but it was funny. And there's been some really funny ones out there, by the way, David, if you're following that meme. I'm not following it. I'll follow it.

But two things. One, this goes again back to what you're just saying, our discussion of the Stanford EEOC claim from months and months and months ago was, I'm not going to say that I am an expert on all the various philosophical nuances of white supremacy, but one thing I've never encountered is white supremacists who say to Jews,

greetings, fellow whites. It's so true. Never seen that. Never heard of it. So the Stanford complainants have a freaking point. Yeah. Okay, so the best one I've seen of this meme is a guy who said that when he was in college,

his, like this, you know, frat bro or whatever started, you know, he was talking about his East African origin and this frat bro starts clicking at him. And he goes, dude, that's so racist. You don't even know where I'm from. And without missing a beat, he says, the frat boy says something like, I bet you're from Eritrea.

And like nails it. The point being like, there's two people who are, you know, really keyed up on this sort of thing, like hyper progressives and super racists. Yeah. Right. Well, there's that funny skit from like two years ago of the racist and the super woke person. Yes. In total agreement.

Yes. Yeah. Oh, gosh. And total agreement. Yes. Yeah. Oh, gosh. All right. Epic podcast in terms of length, if nothing else.

But I enjoyed it. We had points of disagreement, points of agreement. We brought in some politics. It's like an old AO episode, David. This is like a throwback. It is. Absolutely. And you know what's funny is the increasing legalization of American politics means that even our August, which we used to take a break from law on,

we can't take a break from law in August anymore. I know. I know. I already, we've got other things to talk about on Monday already lined up. Oh, yeah. And we have a possible funny Willis-Fulton County indictment next week. Oh, yeah. I forgot about that. I'm blocking that out. Yeah. I'm reallyon County indictment next week. Oh, yeah. I forgot about that. I'm blocking that out. I'm really done with indictment weeks.

But at least I got this week to be sick off from indictments. That was a nice gift. Yeah, that is good. Thanks, indictment gods. Alright. Bye, OYO listeners. We'll see you next week.