Advisory Opinions - Can Tennessee Ban Transgender Care for Minors?

Episode Date: December 10, 2024

Sarah and David are joined by Tennessee Attorney General Jonathan Skrmetti to break down United States v. Skrmetti and what it might mean for the future of gender-transition treatment for minors. The Agenda: —How Skrmetti became an AG —United States v. Skrmetti —The Cass Review —The Gorsuch silence —The Equal Protection Clause’s scope —TikTok ban —The flagship debate Show Notes: —Vanderbilt professor’s amicus brief Learn more about your ad choices. Visit megaphone.fm/adchoices

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for all season performance. Visit a dealer today to learn more about federal and provincial purchase incentives on eligible models. Or go to HyundaiEVLeader.ca to learn how WAA keeps you going. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French. It's an action-packed podcast today. First off, David, we are going to talk about that Supreme Court argument

involving Tennessee's ban on gender-affirming treatments. And we've got a special guest, Tennessee Attorney General Jonathan Scrametti joining the pod. But lots of other things to talk about. Sarah, Sarah, shouldn't we start with the biggest scandal in America right now, which is how on earth only three SEC teams made the college football playoff? How is under what in what universe is Indiana a better football team than Alabama or Ole Miss? Like I, I'm ready. I have a lot of stuff on this.

I have a lot of stuff. David, you don't understand. I'm in a Purdue University of Texas household. So not only did the University of Texas lose in overtime, but for Indiana to go. I mean, it's not good. No, it's India. So Indiana did not beat a ranked opponent all year. I don't believe SMU beat a ranked opponent all year.

And I look, I have no love loss for Alabama. I mean, I was born in Auburn, but come on. They beat ranked opponent after ranked opponent, Ole Miss ranked opponent after ranked opponent. Does anyone doubt that Alabama would stop curb stomp IU? I mean, come on, but okay. But if you've prepared other things, I understand. I understand we can do other things.

I get it. All right, so here's what we're gonna do, David. We have too much for this podcast. This is gonna be in some sense, a two part podcast. We're gonna do what we can to get through the Tennessee argument, the TikTok DC Circuit decision, race-based admissions at the Naval Academy, a Four Circuit police case. Oh, another Four Circuit police case on felon voting, a 10th Circuit mass mandate. We've got debanking. That's definitely going to have to wait till the next episode. I've got to defend the flagship status of this podcast. And by the way, the word podcast, we've got another thing to do

on that. So too much to do in one pod. Let's see where we get. But David, before we go any further, let's talk to the Tennessee Attorney General. Welcome special guest, Attorney General Jonathan Scrabetti. Thank you for having me. So, you, I think we met when I was a 1L. You were arty, you were through with your clerkship, you were a lawyer by that point. You and I are buddies, but I wouldn't say we're best friends, but unfortunately for you, your best friends are my best friends. It's most unfortunate, I'm dreading this.

So, last night, I asked everyone to go through their old emails and find me embarrassing things that I could share on the podcast. So here we go. First of all, I found an email from you and I'm just gonna take the quote totally out of context, which is important, which is quote, nothing is too sketchy for me. Now Attorney General Jonathan Scrametti. I got one. Scrametti missed my

wedding because he booked a ticket to St. Louis instead of Kansas City. I found an email where I congratulated Jonathan on using the word fulcrum on his wedding website. Is this the best podcast you're doing? I would I would rather go back on some of the extremely hostile outlets at this point. I was I mean, at least Buffy the Vampire Slayer didn't come up. Oh, yeah. We didn't get into your TV habits. But look, you've actually had a really interesting career. Some of the emails that I found that I did not read because they weren't nearly embarrassing enough. Were you at the very beginning of your career at the Department of Justice?

Talking about how you were inspired to go into You know federal law enforcement work By some of the people you'd seen before so will you just run through sort of how you got to be attorney general because the Tennessee Attorney general is also an unusual attorney generalship. Yes. So I, it is objectively unreasonable that I got the job that I currently hold. I went to law school thinking I want to be an intellectual property litigator. And two

weeks in September 11th happened. And Phil Hyman, who had been the deputy attorney general under Janet Reno, was a professor. And he had a mini symposium on what the federal government's response was going to be to the terrorist attacks. He just said, if anyone wants to talk about the legal aspects of this, let's talk about it. And there were like six of us that walked away from the TVs after the second tower fell. And he ran through some of the legal options and what the country was going to do in response. And it got me really fired up to contribute. I wanted to do something to help America.

And I applied to every component of DOJ that had a criminal litigation aspect to it. I think I sent out 102 letters for internships. I got two interviews and one offer, and that was criminal tax appeals. So I went to criminal tax appeals for the summer at DOJ. I loved it. I loved the people I worked with. There was someone who would later also become famous who was in the tax division at that point. Rod. Rod Rosenstein. Yes. He was my Rosenstein. Yes.

He was my intern coordinator. Famous tax lawyer. Yes. And Leo Connor was the assistant attorney general. So I had no idea how lucky I was in terms of the people I was meeting at the time. So I was pretty sure I wanted to do DOJ. I went to a firm, very good firm, brilliant lawyers, my 2L summer. Third year of law school, we had the head of the Civil Rights Division come to Harvard and I tried to get all the 1Ls to sit next

to him so they could get internships and they were all shy. And half these people are federal judges now from that group. But I ended up sitting next to him and he had pictures on his phone from a human trafficking case that they had recently prosecuted. And there were no people in the pictures. It was just the brothel where the girls had been kept. And it was horrifying. And I really wanted to get the people who did that,

and people like that. So I applied to the Civil Rights Division through the Honors Program. Clerk for Judge Colleton went to DOJ after that. I was very, very fortunate to get that job. I did six months of DV misdemeanors in DC Superior Court. Hosting Domestic violence. Hosting Yes. Best boot camp a lawyer can get. And then the first place they sent me was Memphis. And I went down to Memphis, worked a police corruption case where the cops were robbing drug dealers

and then reselling the drugs with their gang members. So everything up to the moment that they walked away with the drugs was totally legitimate. They found drug dealers, they arrested them, but then they pocketed the cocaine or the marijuana and became drug dealers. It's a wild case. And as we were working that case, ICE and the

Memphis Police Department found a brothel network trafficking underage girls and it became the first sex trafficking case in Tennessee history, I believe. Certainly the first under the modern sex trafficking statute. And I got to prosecute that. And as I was working on that, there were more cases coming up in Memphis. It became about probably 90% of my docket. And I was back and forth all the time. We ended up with a presidential assassination conspiracy, racially motivated murder, police rape cases.

There was a mosque burning by a white supremacist group. Really interesting work, really interesting work, and a lot of trafficking cases. And eventually I got sick of airplanes. I got sick of Washington, D.C. I moved to Memphis to be in AUSA. I was very quickly set up with my wife, took a lot of help, a lot of effort. The church ladies are very motivated. got married. Do you remember how the word fulcrum would come up on a wedding website? I just like words. So we ended up having kiddos fairly quickly and I needed to make more money so I went into private practice. Did that for a few years and I got cold called by the

previous attorney general. He was looking for a chief deputy, could not find quite what he was looking for. So he hired a recruiter, they found me off in Memphis. I interviewed, I got the job, we moved to Middle Tennessee. Then the governor hired me to be his counsel and I did that thinking I'd do that through the end of his term, his second term, which is not until 2026. And the previous attorney general decided he didn't want to re up and our Supreme Court picks the attorney general. So it's a, it's a unique system. You need three votes for eight years, which is just wild. So I applied, I wasn't going to, I talked into it, didn't think I had a chance,

but I applied and I got the job, that was two years ago, and we've been full steam ahead ever since. Not that you're gonna trash the system in Tennessee that selected you, but isn't that a little weird to have the Supreme Court that presumably you appear in front of also be the one who picks you? So it is it is a unique system. But the flip side of the sort of awkwardness of that is you get you get AGs who tend to be and this is always so self aggrandizing.

But I look back at my predecessors and by and large, it's very true. You get people who are nice and who are good lawyers, and it makes for an office that's wonderful. We've got great lawyers in there. There's a lot of continuity. We don't have to put things on hold every two years to focus on either reelection or me running for governor. You know, everybody's just focused on being the best lawyer they can be. And it works out very well in practice. We've got a killer team in the office.

And it's not just the big high profile stuff. I mean, our eminent domain lawyers are great. Our tax lawyers are great. Top to bottom. I'm so proud of the people there. And I think a lot of it has to do with the selection process and the culture that breeds. Well, you've brought a lot of interesting cases in your still relatively short tenure as attorney general and one of them ended up at the Supreme Court last week.

We have held off on discussing this oral argument. So introduce the facts of the case, the question presented if you want, whatever, before we dive in. Sure. So Tennessee's legislature caught wind of a clinic in Tennessee that was performing pediatric gender transition procedures. So puberty blockers, hormone treatments, surgeries. And they were very concerned about this. They looked at the evidence. They had a number of hearings. They looked at evidence from other countries. They looked at evidence domestically. They looked at the evidence. They had a number of hearings. They looked at evidence from other countries. They looked at evidence domestically. They heard from doctors. It was a vigorous debate and ultimately a bipartisan super majority of the General Assembly passed

this law that prohibited giving kids puberty blockers, hormone treatments or surgeries for gender transition purposes. It was the first bill introduced in each house, so it's been called SB1 ever since Senate Bill 1. Did y'all win the case? We did not win the case at the trial level. Nobody had won the case at the trial level up to that point. Every federal district judge to weigh in on this had said that it was unconstitutional. There's about 20 states that have this law? At this point, it's 26 that have some form of it.

There are variations, but it's 26. We did not win the trial court, but we thought we had pretty good arguments. We thought that every district court that had ruled on it to date was wrong. And so we filed an emergency stay motion with the Sixth Circuit and we prevailed on that. Chief Judge Sutton wrote a short opinion promising a longer opinion to come. My number one judicial crush. Uh.

He had to take a pause on that one, y'all. You know. But is he your number one judicial crush too? No, he's a phenomenal judge. The opinion was great. The opinion that came after was even better and Judge Thapar was on the panel. Judge White was on the panel. I just thought Judge Sutton's writing on this case in particular is quintessential what you want in a judge writing on a really both controversial but sensitive emotional topic as well. Yeah and he was sensitive to it and that's important because there

really are people affected by this. There are people, parents and kids who are told you need to have this done. But if you look at the evidence, and we can talk about this a little more later, the evidence from every systematic review shows minimal benefit at best and the risks are enormous. So we got our opinion from Chief Judge Sutton. We got a longer opinion from Chief Judge Sutton and the ACLU and the US Department of Justice sought cert. I did not expect that to happen. So we filed our petition in opposition. I was not disappointed when the court granted cert here, but I was surprised. You never expect that your case is going up. AMT – Did you think about arguing it yourself?

No, no, I have an unbelievably good solicitor general. Um, at some point if there's a criminal procedure matter and the folks in my office who do criminal procedure work have had their arguments, I will certainly consider doing it. Uh, but Matt Rice is an absolute brilliant attorney. He's never argued in front of the court before and he certainly deserved, earned and justified the opportunity. Okay. I don't want to know how it went. I want to know what you think the vote like did you win at the Supreme Court?

I don't know. I'll know when the opinion comes out. Okay, the New York Times thinks you did, but there was a silent YOLO elephant in the room. You were in the room. You were watching Justice Gorsuch's face. Surely it was the number one justice that you wanted to hear from because of his opinion in Bostock where he had talked about transgender and sexual orientation status related to the word sex and employment discrimination, he didn't say a word. What was his face like? Were you, was he nodding anything? So I was about 10 feet from Justice Gorsuch and it looked like he was thinking really hard. I mean, like not to make like, it looked like he was paying very close attention

and thinking a lot about what was said. I mean, like, not to make like, it looked like he was paying very close attention and thinking a lot about what was said. I mean, there are complicated legal issues in this case. And... Yeah, I mean, let's break that down for a second to really top level what the first decision they're going to have to make is, is this rational basis review? Or is this a law that does distinguish on the basis of sex, which would get an intermediate scrutiny, in which case then you go to the second question. If it's rational basis, you win and everyone goes home. If it's intermediate scrutiny, then we do sort of have this balancing

test where we look at whether you, the state government, sort of have an interest that's important enough to overcome that. Intermediate scrutiny has been a hot mess since they've started it, but it's what we use for all sorts of things that we still discriminate on the basis of gender. Women's bathrooms, women's sports, all of those things we've said have important enough reasons that we can still discriminate on the basis of sex, but what's the old saying David? Rational basis, the government wins. Strict scrutiny, the plaintiff wins. Intermediate scrutiny, the judge wins. So that's the first question. Then we get to, you know, the question of whether you win. So just on that intermediate scrutiny question,

I'm torn on this question, I'm torn on this because I thought that Justice Gorsuch's opinion in Bostock was pretty persuasive that sex, by definition, does include then sex stereotypes and things like that. But Matthew Rice made a pretty compelling argument, and Justice Barrett repeated it at one point, that neither boys nor girls can use these drugs to transition. And the flip side of that is, of course, a boy can take testosterone if he is going through precocious puberty, but a girl cannot take testosterone. And that distinguishes on the basis of sex. And this gets to what I thought was,

well, it was one of the more contentious pieces of it, David, and I'm sure you and I will talk more about it. This was the loving point, right? And I think loving V. Virginia is important here because in the loving case about interracial marriage, Virginia's law, they argued that it didn't discriminate on the basis of race because neither a black person could marry a white person nor a white person could marry a black person, if you will. Talk a little bit about just the sex discrimination, rational basis versus intermediate scrutiny and those types of arguments. Sure. And, you know, there's been a lot of commentary online about Justice Jackson's questioning. I think a lot of it's been very unfair by people who don't understand legal reasoning.

I nevertheless think that our side is correct on that. But you know, she's saying if you have two identically situated people who are only different based on one characteristic, then you can't prevent one from doing something because of that characteristic that you allow the other to do. But in the medical context, you're never giving someone a drug in a vacuum. There's always a condition that you're trying to treat. And so it's not like you're just handing out testosterone to boys. There are all sorts of reasons you can't give testosterone to boys. There are laws against it. It's a controlled substance.

There are medical standards of practice that involve that. And the effect of testosterone on boys is different than the effect of testosterone on girls because of inherent differences that aren't superficial. Yes. And, you know, so you're not just giving it to boys, you're giving it to treat specific conditions. And there are medical outcomes expected that are different between boys and girls. So the condition's different. The effect is different. You're not talking about like versus like. And if we're in a legal world where the mere fact that boys and girls are

physiologically different means that the government is not allowed to regulate parts of medical practice, that seems like an absurd place to end up. Miami Metro catches killers and they say like an absurd place to end up. Christian Slater, special guest star Sarah Michelle Geller, with Patrick Dency and Michael C. Hall as Dexter's inner voice. I wasn't born a killer. I was made. Dexter, Original Sin, new series streaming December 13th, exclusively on Paramount Plus, a mountain of entertainment. And we'll take a quick break

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Stock Exchange and top ranked in its field. To learn more about how Legal Finance from Burford can help your business, visit BurfordCapital.com slash AO. This episode is brought to you by Dyson On Track. Dyson On Track headphones offer best in class noise cancellation and an enhanced sound range, making them perfect for enjoying music and podcasts. Get up to 55 hours of listening with active noise canceling enabled, soft microfiber cushions engineered for comfort,

and a range of colors and finishes. Dyson On Track headphones remaster and finishes. Dyson On Track. Headphones remastered. Buy from DysonCanada.ca. With ANC on, performance may vary based on environmental conditions and usage. Accessories sold separately. David. General, first, thanks for being here.

Do not call him General. Not on this podcast, David. Sorry, sorry, sorry. I'll just say thanks so much for being here. Sarah tries to make me less polite and I'm constantly resistant to this. Okay. You can call him attorney general.

You just can't call him general. I hesitate to say anything more for fear of what other dirt she is withholding. Well, thank you for being here. Really appreciate it. Let's talk about that standard of review issue because it was very, very clear to me from the oral argument that that really is

kind of the ball game. As Sarah was saying, if it's rational basis review, then almost certainly the sixth circuit is upheld. If it's intermediate scrutiny, it would be remanded. To level set here, explain sort of the current law regarding reviewing a legislative or governmental determination of legality or appropriateness or suitability of a medication. So as a general matter, sort of as a, let's say this is not involving treating gender dysphoria. Instead, you've got a drug that is say,

I don't know, treating treats cancer or treats heart disease or something like that. As a general matter, if I'm seeking, if there is a drug that has not been approved for use, what's my legal posture in challenging that denial of approval? As just as a general matter, outside of the gender affirmation context.

I'm not an expert on that area of law, but it's an uphill battle. Yeah. The government has the authority to regulate, state government has the authority to regulate the area of law, but it's an uphill battle. The state government has the authority to regulate the practice of medicine, the practice of pharmacy going back centuries. The federal government through the FDA has significant regulatory power as well to say which drugs are approved, but the states have plenary power to prohibit use of drugs. And it's a political question.

The legislature weighs the evidence, the legislature decides, and your legal options to challenge limits on available drugs are pretty limited. Yeah. I think Judge Sutton said it pretty, had an interesting way of saying it in his opinion, which is usually the Constitution doesn't come into it. In other words, if I'm arguing for access to a given drug for a given condition, I usually am not arguing a 14th Amendment right to that. And I was thinking that what's interesting about this case is that I don't think people quite understand

that what the plaintiffs were asking for here really is a degree of deference to their medication wishes that is greater legally than you have in other contexts. In other words, if I'm approaching the court with a different medical condition, I'm not getting intermediate scrutiny applied to the decision. And so I thought that's something that I think a lot of people didn't quite understand is they were asking for a heightened sort of level of consideration more so than the typical

plaintiff would get in this circumstance, which they would be entitled to if there was a sex distinction here, because sex distinctions lock in intermediate scrutiny. One of the questions that I had was, as you're talking through this and as you're dealing with, you know, as you're interacting with court and your opponent, what is your, how are you making the argument that this is not a sex distinction, this is an age distinction, that what's the salient difference here is sex versus age? Well, I mean, it is an age distinction.

The statute draws a line based on minors versus adults. But the reason I don't think it's a sex distinction is because the physiological differences that make it a sex distinction in the eyes of the other side are inevitable parts of being human that are highly relevant to the practice of medicine. So in Bostock, whether or not you're transgender does not have a formal impact on whether you're able to do your job. It is purely incidental. Here, when you're talking about certain drugs for a prohibited purpose, if the bodies that

the drugs are being applied to are different and they have different effects depending on who's receiving them, it's a necessary part of medicine that you take that into account. And so the flip side would be to say if there's a difference in treatment between males and females, then substantial portions of the practice of medicine are presumptively unconstitutional. And you would have to give a pregnancy test to every man who showed up with abdominal pain. So, our argument is the condition is relevant, it's not just the sex. The effect of the treatment is relevant, it's not just the sex. The effect of the treatment is relevant, it's not just the sex. And so sex truly is incidental where

you're barring drugs for a certain purpose and it just so happens that the nature of the drug prohibited varies, but everybody's prohibited from getting hormone treatment. Now with respect to puberty blockers, there is no difference. It's the same drug, I believe it's called Lupron, and you're prohibiting everybody under the age of 18 from using those drugs for transition purposes. Now there's a more elaborate argument that because you're looking at transition purposes, that in itself is sex discrimination because there's an attempt to identify as the opposite sex. I think that's a pretty attenuated argument. But at the end of the day we're talking about the practice of medicine, we're talking about risks to kids, and if

you're going to draw a line based on age, looking at kids, and there's any sort of distinction in the impact of medicine based on sex, and there very often is, then you're constitutionalizing a lot of medicine that has never been constitutionalized in a way that's not very helpful for the practice of medicine. And it seems like undue legal formality at the expense of biological reality. So, on the one hand, what standard of review is applied, whether it's rational basis review or intermediate scrutiny,

is not really connected to, say, the emerging information about the efficacy or effectiveness of the puberty blocker, cross-sex hormone treatment. So in one sense, it feels like that's sort of its own issue. But in another sense, I do wonder, how do you perceive some of the new information that has emerged since the case was launched or since the law was passed, such as the CAS review,

which established that there's just not a lot of evidence for the effectiveness of this treatment. How much do you think that that emerging information out of Europe, out of the Cass Review is gonna impact the court if at all? Because as I was saying, the standard of review rational basis for intermediate scrutiny wouldn't necessarily be impacted

by a Cass Review, but the CAS review is hovering out there as a very significant development in understanding youth treatment of youth gender dysphoria. I mean, I think it's highly relevant because it forces the court to recognize that if they take a constitutionalized approach to this, then regulators won't be able to react to new data. There's significant new data that's come out.

There was a lot of evidence before the CAS report showing that efficacy was a question here, but the CAS report is highly relevant. It's highly persuasive. It was referenced very explicitly in the argument. And I think that sounds a cautionary note for the court. If you're looking at whether intermediate scrutiny applies in a context where there is developing medical evidence, that may be a reason to look really hard at whether intermediate scrutiny actually applies.

It also, to me, suggests that this may not...it further emphasizes this is not strictly sex discrimination, because if you're relying on evidence coming in about efficacy and that seems to be relevant to the case, well that's not a simple matter of treating like differently, then it shows that there's more complexity involved here, because we are talking about not just the sex, but also the treatments and the effect of the treatments. And that would cut against an initial holding that this is purely a matter of sex discrimination and not something more complicated. You think more about high level judicial philosophy than almost anyone I know. So I want to go up to 50,000 feet here. Justice Kavanaugh

echoed a question he had asked in the Dobbs argument, who decides? And I think it's this really interesting tension between the Supreme Court as a counter-majoritarian institution and at the same time a, you know, representative government that is supposed to leave everything that we can leave to those democratic branches so that we can have change. I mean, you mentioned constitutionalizing stuff. That's the idea of not allowing politics, the majority, to be able to control these things whether at the federal level or at the state level. It's obviously a question that Justice Kavanaugh thinks about quite a bit in all of

all of these cases about what the proper role of the Supreme Court is and it seems like a theme that runs through administrative law cases Executive power even congressional power to some extent and it came in this case as well I was curious what your thoughts were on how we think about who decides because there's some things we don't want the majority to decide That's right. And all of that comes from the people. We have a constitution because the people ratified it. We have elected representatives because the people elected them to work within that constitutional framework. In the constitution, the people have drawn lines and said,

the government may not intrude on these rights, but it's very important that the court does not take the power that the people have given them and twist it into an elitist mandate to impose law on the people. They are only authorized to limit the government to the extent that the people have authorized them to do so. And where the people say no, First Amendment context, it's easy for the court to step in and exercise its power. Where the people have delegated authority to different branches of government, it is essential for the court to maintain those lines and ensure that no branch bleeds out

and acquires power that the people have not authorized. But when there's no constitutional grant of authority to the court or where it's very, um, very debatable whether the people have authorized the court to have that power, the court needs to be humble. The court needs to be modest, not because it's bad for the court to exercise its power, but because the court's power is constrained just like every other branch's power is constrained. And so here where there is not a clear constitutional mandate for the court to constitutionalize this medical practice, I mean, there are different ways of framing this, but I think the frame that

leaves democracy in action is the better frame, not just for this case, not just for the outcome, not just because this is an area where the people should govern more, but because the more power we keep with the people, the more we allow representative democracy to make decisions, the healthier and more accountable our democracy is. It's delegitimating for the court to do more than it should. And the people need to recognize that they are ultimately the decision makers. If they feel alienated from the process, then the entire system starts to break down.

So we need to ensure that where the people have given themselves the authority to hold their directly elected representatives accountable to make these decisions, that those officials are making the decisions and that they're accountable to the people. Last question, we're gonna talk about debanking as well. And I know that's an issue that you've worked on.

Top level thoughts, totally without hearing what we're actually going to talk about. So we have seen over the last few years, a very aggressive move to insert ideology into the financial system. And traditionally, these are neutral transactions, you know, your credit worthiness, your criminal history, which may be related. A few other factors are allowed to come into play, but the financial institutions aren't trying to put a thumb on the scales to support favored sides of a given cause.

But all of a sudden, there's been an effort to create a lot of friction for people engaged in disfavored conduct and a lot of friction for people who engage in disfavored conduct. And this is terrible. It will spin out of control. It will undermine the prosperity that our country has spent centuries and generations achieving. And it gives the government and concentrated power in the hands of private actors far too much opportunity to immiserate political opponents. We

did a letter a few months ago. Did y'all catch? He does love words. Immiserate was a great one. It's a great word. We did a letter in I think April and it was related to AI oversight at the Department of Treasury, but it touches on some of these principles. You know, there's an effort to bake favored ideological positions into emerging AI systems, into algorithmic systems. And it just doesn't work. Like you want an adversarial process that fairly allows everybody to give their best shot at providing value to people. You don't want financial institutions to distort that because once they start distorting it,

you lose the benefit of the adversarial process and everybody's horse off. Attorney General Jonathan Scrametti, thank you so much for joining us. And it's always a treat to have you in our nation's capital. Flee though you must and will. I'm so excited to get back to Tennessee. Thank you for having me. Well, David, that was really fun and interesting. It was, it was.

And I'm glad we got to spend a little bit of time talking about the argument because, you know, once again, we're in the situation where a lot of the coverage of the case is just at odds with what the case is about. So, top line is the case is not in the first instance actually about should minors receive so-called gender-affirming care, receive so-called gender-affirming care, medical interventions, it really is to what degree of deference do we owe the Tennessee legislature when it was weighing that question. And I think it was a really interesting, it's an interesting sort of civic education moment for folks to realize that if you're, if you are reading about a legal challenge to a law, one of the first

questions you need to ask yourself is what is the standard of review here? Because as soon as you know the standard of review, you really do know the terms of the argument and the discussion. And this is going to be a standard of review podcast. I mean, that's the thing that the people have been wanting for a long time, is a standard of review podcast. But the basic reality is, let's just, we've walked through this, but I think this, we're approaching this from an interesting perspective

because most of the cases that we talk about, Sarah, are cases where right off the bat, they implement a fundamental right. So it's the First Amendment, it's religious liberty, et cetera. So most of the cases Amendment, it's religious liberty, etc. So most of the cases that we talk about, because they implicate fundamental First Amendment rights, they have a higher level of scrutiny. Street scrutiny is what we're going to be talking about with the D.C. Circuit. You might think, well, wait, okay, does a gender ban on so-called gender

affirming treatment, wouldn't that implement a fundamental right? Wouldn't that implement a community, a marginalized community, transgender Americans, and be subject to heightened scrutiny? But no, there wasn't a fundamental right implicated in this case. And so, therefore, the question then becomes, what's the standard of review? And the default, when there's no fundamental right implicated, when there's no suspect class, in other words, a class protected specifically under the law, it's rational basis review. And rational basis review almost always means the government wins. And so a huge part of this oral argument was the plaintiffs

trying to get out from rational basis review. And that's something that you talked about, Sarah, obviously with the attorney general, but this is what the case really, this is what the case is more about almost than anything else is what's the standard of review. Cause if it's rational basis, the plaintiffs here have no chance of winning at all. And if even if it's intermediate scrutiny, I don't think they have a great chance. But rational basis, they just have no chance at all. So let me give two different versions of this case, because I felt listening to

the argument, yeah, it was a little bit of just two different worlds. So one world was, um, if a boy walks in and says, I want a deeper voice, this was Justice Jackson's example that she used throughout the argument. Boy walks in and says, I want a deeper voice, I need testosterone, he can have it. Girl walks in and says, I want a deeper voice,

I need testosterone, she can't have it. That is clearly discriminating on the basis of gender, intermediate scrutiny. Or boy walks in and says, I want hormones to transition to a different gender. No. Girl walks in and says, I want hormones to transition to a different gender. No. The two genders are treated the same.

Which is it? And that those were really, it was the two different concepts of the world that the justices were talking about. I did, I mean, I'm glad we got to talk about loving V Virginia. And I'm so glad that Scrimetti mentioned that he thought the coverage was unfair to Justice Jackson on this, because I thought actually her point was pretty well taken, that even if you treat the two genders the same, if it is discriminatory, it doesn't matter. The problem in loving is that, yes, a black person couldn't marry a white person the same as a white person couldn't marry a black person, but underlying that was this obvious de jure inferiority, discrimination. It was not

treating the two races as equal, even if facially it was neutral. That's not the case here. This isn't a secret discrimination against girls where they're treating girls and boys the same. The loving example would be more like boys can't play on the girls team and girls can't play on the boys team. Even though we all think girls sports are inferior, for instance, or something to that effect. That's not really what this is either. So David, this brings us to what we think the punchline

from this argument is, when we did not hear from Justice Gorsuch. Right. I mean, totally silent. I don't think I can think of any other argument. Certainly not one that went on this long. Right. Or we didn't hear anything from Justice Gorsuch.

And remember the reason we didn't hear from Justice Gorsuch is because of boss stock. This was in the world of Title VII federal law, unemployment discrimination about whether the word discrimination on the basis of Title VII federal law unemployment discrimination about whether the word discrimination on the basis of sex included, in this case, a funeral home that fired someone born male who was wearing women's clothing and someone else who was fired for being gay. So did it include sexual orientation and gender identity? Gorsuch writing for the majority said, yes, it does. Because in order to know what that person's doing wrong,

for instance, you have to look at their sex, right? If you're wearing a skirt and you're a woman, that's fine. If you're wearing a skirt and you're a man, that's not fine. That is based on gender stereotypes in this case. Same with, you know, if you married a man, you're fine, if you're a woman, but if you married a man and you're a man, you're not fine. This led to a revolution on the right, the near dissolving of originalism and the conservative legal project. I think it has had all sorts of effects. You can argue that the Dobbs decision came out the way that it did because of Bostock. So here we are. The thing we all knew was going to have to happen after Bostock.

Same with the sports stuff that's coming as well. All of that is coming from the Bostock progeny, and yet we didn't hear from Bostock's author. Now for actual votes, that probably doesn't matter because you can count to five without Justice Gorsuch. And we did hear from everyone else. I thought most importantly, we heard from Justice Kavanaugh and his who decides line, the same line he used in Dobbs. That's kind of a done deal as far as I'm concerned.

While I thought Justice Barrett was maybe a little more circumspect, not much. So I think you've got five votes upholding Tennessee's law with or without Gorsuch. But the level of scrutiny matters, David, beyond this case. I mean, you're talking about if it's rational basis, they win. If it's intermediate scrutiny, they might also win. But, and obviously I mentioned this when we were talking to Attorney General Scrimetti, I want them to find intermediate scrutiny. You want them to apply intermediate scrutiny and still uphold the law or apply or just send it back and see how it goes?

Apply intermediate scrutiny, uphold the law. Let's put this thing out of its misery. But I think that not applying intermediate scrutiny could have a lot of downstream effects for women, including in cases that conservatives really care about, like women's sports. So if this just applies rational basis review, you could have states also passing laws on this topic, but just the other direction, eviscerating women's sports for all intents and purposes. And it would be like, well, rational basis review. So I do think this is about gender and sex.

Therefore, I think it should have intermediate scrutiny. I think because it involves medical treatment of minors, it passes that. I also think this was a conversation in the argument of like, well, according to the government's, sorry, the Tennessee government's argument, this is not age restricted, right? They could make these same arguments and just ban treatment for adults as well. Not if it's intermediate scrutiny, because the government's interest would be so much different for an adult compared to a minor who can't consent at this point. And the parents really shouldn't be able to consent

to that on their behalf either. So I'm not with you. I'm mostly with you, but ultimately not. Okay. Okay. And here's why, because I think what we're dealing with here is not a sex-based distinction, but fundamentally an age-based distinction. And so if it is fundamentally an age-based distinction,

there's no intermediate scrutiny. And here's why I say this is fundamentally an age-based distinction, because if you are a man who wants to, or a boy who wants to take testosterone to deepen your voice, and then you're a man who wants to take testosterone for whatever reason, maybe, you know,

you're training for sports or whatever and, and, and you want like more strength and vitality. I, you know, I don't know, train maybe you're training for a race. I don't know. I've, I've known people who've done that both boy and a man can take a testosterone to enhance male characteristics. And under Tennessee law, the boy can't take estrogen, but the man could take estrogen.

So, I mean, so the distinction here is really an age distinction, not a sex distinction. So if you drill down both the boy and the girl, they're restricted, but a man and a woman are not restricted. So at the fundamental reality of the law is this is an age restriction, not a sex restriction. And since it's an age restriction, it needs that rational basis review. I thought one of the most persuasive of the amicus briefs was the Professor Blumstein brief from Vanderbilt Law School, really good brief. And he actually did what I wanted to see done, which is a

long discussion. Parent parental rights were not a part of this argument. That's something, you know, we've talked about parental rights in the context of these treatments before. That was not a part of this argument. And the amicus brief that he wrote, which we can put in the show notes, was not really aimed specifically at the parents' rights argument, but what it was aimed at is age distinctions in the law really do matter. They're very, very important. This is a traditional element of state jurisdiction and that parents really do mainly have the choices for treating the children that the political branches give them and that this has been the long formulation in the medical treatment world.

And he goes through sort of the history of it and why. And I was very, very persuaded, Sarah, that if you undermine the age restriction here, you're going to do some real damage to the American legal superstructure around healthcare and children's rights and the protection of children. And so I think this is fundamentally an age case. So the other interesting thing about this is when you went through the oral argument, it was almost as if you felt as if there was some pre capitulating on sports going on. Yeah, for sure. Well, the solicitor general in particular was like, yeah, let's not worry

about sports. We're not going to argue that. Yeah, exactly. Like, nope, nope, nope, we're not going there. So that was fascinating to me that even Elizabeth Prelogger, who was a very effective advocate for, you know, as she always is, was really bailing out. I mean, she was throwing sports overboard, man. She was throwing sports overboard to save this law. It was really fascinating to see. But I just, at the end of the day, think this is an age distinction, not a sex distinction.

Okay. I find that remarkably persuasive. And just to remind everyone of where the different advocates stood. So Elizabeth Prelogger arguing on behalf of the federal government, well, the executive branch at least, she just was taking the position on rational basis

versus intermediate scrutiny and just said this should be intermediate scrutiny and send it back down more or less. and just said this should be intermediate scrutiny and send it back down more or less. Chase Strangio from the ACLU, by the way, the first argument for Chase, also the first transgender advocate in a case about transgender rights,

it was a whole lot of bright lights and high pressure. And I thought Chase did a really wonderful job arguing what is probably a losing position, did it calmly and with enormous... I don't know what the right word is, David. It was, it sounded very comfortable to me. Even a couple of laugh lines, like it worked. And I contrast that from some people who go up there, think they're losing,

and get testy with the justices who they think they're not going to win over, impatient that they have to answer their dumb, dumb questions. So, shout out to a first-time advocate who I thought did about as well as any first-time advocate I've ever heard. And then Matthew Rice, obviously, as Attorney General Scrimetti mentioned, arguing for Tennessee. So, David, I find your argument persuasive. I want to talk about just one other thing that I don't think will come out in the opinions. I don't think. But boy, it was an interesting moment from Justice Barrett.

And it's about sort of who is protected by the Equal Protection Clause, historically speaking, theoretically, legally. Her point was, boy, it seems to me that all of our Equal Protection Clause jurisprudence deals with groups that had been under de jure discrimination, meaning discrimination by law, not de facto discrimination or cultural discrimination. She asked the advocates, can you give an example of de jure discrimination against someone who has a different gender identity or an example of any other equal protection clause group that did not have de jure discrimination?

Because obviously, lots of laws, women can't be lawyers, can't own property. I mean, that's obvious, obvious on race as well, and not just black, but Chinese, and Mexican, and all sorts of other things. That would be ethnicity. And there were some examples. Certainly, there were laws, as we know, of course,

on sexual orientation, criminalizing sodomy of course, but there, I guess, according to the advocate, were also laws on cross-dressing that criminalized that as well and transvestite type stuff. Barrett has an interesting point. Obviously, I don't know the history. She seemed, it would seem like a genuine question from her as well. Just an interesting note, I wonder if we'll see like a footnote or anything on that, or whether it was just a like interesting point, but actually,

this has a little bit of history of both, even if it looks different than gender or ethnicity or race. But it gets to Justice Kagan's questions, what's, isn't this discrimination on the basis of trans status, not discrimination on the basis of sex, which went back and forth. Is this discrimination on the basis of trans status is an interesting question, but then that gets back to the Amy Coney Barrett issue, which is, is discrimination on the basis of trans status going to be inherently seen as constitutionally suspect in some way? And so that, you know, that was an interesting part of this. And I expect we'll see some discussion of that

when it comes to in the concurrences, in the dissents. I think we'll see some interesting discussion in that question. But I think at the bottom line is, you're looking at a situation where a state has moved in to protect children from a course of treatment of dubious effectiveness with known profound side effects.

So if you just remove this from the category of the culture wars, let's just remove culture wars from this for a moment and say, should a state be required to permit kids to be treated with treatments that have dubious effectiveness? In other words, there is not comprehensive studies showing that this is actually effective, and that also has profound side effects. And when you remove it from the trans culture war argument, the question almost answers itself. This is a situation in which, and if you removed it from the culture wars, Sarah, people would be clamoring for regulators to do something

after the side effects were quite well known and after you began to see some of the malpractice lawsuits that have emerged. And it's very interesting on the very weekend that, or on the Friday after the argument, there was this piece written by Jesse Singel in The Economist talking about a lawsuit filed against one of the real pioneering doctors in, you know, quote, so-called gender-affirming care for minors. And it's a, you know, it's a lawsuit sort of talking about how, from a de-transitioner talking about how they were

kind of pushed at every stage into this conclusion that they were not really a girl, they were really a boy. And the dramatic medical interventions and all of the effects on her body just were unbelievably profound. And so this is a situation that if you remove it from the culture wars and you just talk about the side effects compared to the known or lack thereof benefits, you would see this,

that question answers itself. This is traditional classic state regulation. So then the question becomes, does this therefore now become sort of a special category of extra protected treatment because it involves trans youth? I don't see, I don't think there's a constitutional category really for suspect classes get superior access to unproven medication.

What are we doing here? So I think that when you really remove it from the culture wars element of this, the outcome of this case becomes more and more of a foregone conclusion, but we'll see. I mean, we count to five from the oral argument, Justice Gorsuch was quiet, things could change, who knows how this will turn out.

But at the end of the day, when you remove it from the culture wars, the sort of the legal clarity of the case comes more into focus. Some things require a lot of work to grow, like plants, hair, babies, or your savings. But when you run a business, you already have enough on your plate. Scotiabank's Right Size Savings for Business account can help you grow your savings with ease. For a limited time, open a new account and earn up to 4.65% interest for the first six months.

Before you know it, your savings will grow without you even noticing. Ooh, which reminds me, I need a haircut. Conditions apply. Ends December 15th. Rate is annual, calculated daily, and will vary based on account balance. Visit scotiabank.com slash Right Size Savings for full details. All right, now we move on to more intermediate scrutiny, but this time it's a debate between intermediate scrutiny and strict scrutiny. That's the debate over TikTok. So the DC circuit, a unanimous panel opinion written by a Reagan appointee joined by an Obama appointee and a Trump appointee. It reflects the bipartisanship of the act itself that is in question here.

This is about the Protecting Americans from Foreign Adversary Controlled Applications Act and deals with whether TikTok must divest from bite dance and bite dances controlled by the People's Republic of China in order to operate in the United States. So people have called this a TikTok ban, but it's really a divestment requirement. Now, my understanding is that China has since passed a law

saying that you cannot divest an algorithm that was previously owned by a Chinese controlled company. So in some ways it will be a TikTok ban, or at least a ban on what you know is TikTok. Of course, they could still sell the name TikTok and the user base, if you will, like you all have that app on your phone. But the actual thing that the app is that algorithm seems like seems like it's not gonna get sold. Still worth a lot of money though, David. This thing still could very, very well get sold.

So the fight here was not over whether this implicates the First Amendment. We got some emails about, you know, this seems like my First Amendment right to receive information. You're right. Nobody's disputing that. The question is, what level of scrutiny is it?

Is this a content neutral law? Or is it content-based or speaker-based in that case? Basically, it is about TikTok, but it also would apply to any other company that meets the same factors as TikTok as well. What the two members of the panel said, in this case, judges Ginsburg and Rao, were, look, I don't know, it's either intermediate or heightened scrutiny. But for our purposes, let's just say it's heightened scrutiny, strict scrutiny, y'all. And it still passes because here the government has a compelling interest. That's the national security interest, both about Americans' data being collected and

about the manipulation of content by a foreign adversary into Americans' phones. Also, it is narrowly tailored. And yes, TikTok, we know you've come up with various things, including a proposed national security agreement, where you would pinky swear that basically you would spin off TikTok so it's one level removed from ByteDance, and tier the data and say that certain types of data would not be accessible to the People's Republic of China or the government. And basically the US government was like,

we have no way to check that. We don't have the resources to monitor it. And even if we did find a problem, how would we enforce that? So no, I'm sorry, we just decided that was not a viable way to move forward. We spent years talking about it. It didn't work. And so in the end, Congress and this bipartisan majority passed this bill.

By the way, Judge Srinivasan in his concurrence just said he would flip this. He would say that it's intermediate scrutiny and basically is also fine. So either way, tick-tock, not doing well. David, before we talk about next steps, thoughts on this decision. Yeah, I thought it was actually quite shrewd for the majority, for the panel to go ahead and just do, just go through strict scrutiny

because I think it does satisfy strict scrutiny. I think it's had, obviously would then satisfy intermediate as well. But I think to just sort of say, okay, look, there is a real argument of whether strict scrutiny applies versus intermediate, but why have that argument? Let's just go straight to strict scrutiny. You know, the national security interests

that were articulated were pretty compelling that there is the People of Republic of China's efforts to collect data about persons in the United States. This is something we've talked about. You're carrying around in your hand just an absolutely incredible intelligence collection mechanism person by person. And then number two, this was the free expression element, the risk of the People's Republic of China covertly manipulating content on TikTok. And as the panel said, each of these, both of these constitute an independently compelling

national security interest. And I think that the analysis of the importance of the national security interest compared to the precision of the remedy which was just divest just divest so that it we're not even asking you to change content we're just asking you to change or demanding that you change ownership that is narrowly drawn that's a narrowly tailored and so I think it is and I and I do get the concerns of First Amendment advocates here. And I think that had the court applied intermediate scrutiny, there would be, I think, more cause for concern. I think actually by applying strict scrutiny, what they are saying by applying strict scrutiny is we're not watering down our First Amendment jurisprudence here.

We are saying that this is so important and so compelling combined with narrowly drawn that it passes the strictest level of judicial inquiry. And I think that was smart. I think it's correct. I would be surprised. The question I have, Sarah, if you apply strict scrutiny and you're the DC Circuit, ordinarily, I would say absolutely just because of the importance of this case that the Supreme Court will take it. I'm not 100% sure about that. Okay. So on Monday, TikTok filed its emergency application for a stay because this law is going to affect in a couple of weeks. Yep. My prediction is that a bipartisan bill at a time, and I mean super bipartisan, right? Not the like fake bipartisan where you got two votes from the other side, actually bipartisan

bill at a time when the Supreme Court, and I'll borrow from Justice Kavanaugh, who decides? Like, they're wanting Congress to do more and step up. And this is like a premier example of Congress actually addressing a problem after a president tried to do so through executive action. Right, exactly. This is exactly what they've set up here. Now, that doesn't mean that if Congress does something and it violates the First Amendment, we're just like,

well, at least Congress is doing something. We should give them the benefit of the doubt. On cert, I would agree with that. On an emergency petition where Congress has acted in a bipartisan fashion the district court and the unanimous panel Mm-hmm all agree. I don't see a world in which that emergency petition does much In fact, I'd be surprised if we see a dissent. It's possible. We could see a statement but even then I'll be surprised. I think that one's just gonna be a no. And if we do see a statement,

it'll be more about these standards for emergency docket stuff and less substantive. Now, of course, they lose the emergency petition, let's say they go up on cert. As you said, David, this is a lot of Americans. It's a lot of money. It involves national security. This is the type of decision

that falls into the Supreme Court's national importance bucket. You know, it's not a circuit split, blah, blah, blah. So in that sense, like, yeah, they'd be likely to take it. But again, I don't know, bipartisan Congress, every judge in agreement who's seen it so far, if they take it, my prediction is that they'll affirm it. I'm with you. I think there's a decent chance they don't take it. I'm close. I think they take it. But like 60-40, they take it instead of... If there were even a dissenting opinion,

I would... Yeah, it'd be 80-20 for me. Maybe 90-10 that they'd take something like this. I would be mildly surprised. Well, let me put it this way. If they didn't take it before, I would have been super surprised. Now I would be still surprised, but more mildly surprised if they don't take it because you hit on a key point here, Sarah. Highest level of scrutiny. And then every, this was Reagan appointee, Obama appointee, Trump appointee.

This was every judge has looked at it, come to the same conclusion. If there was ever a case where the Supreme court would say, you know, the DC circuit is just fine here. This would be that case, even on a very, very important, this would be that case. So I just, when I read the opinion, I had this flair go up in my mind. I wonder if this is solid enough and sort of clear enough and limited enough. Where the Supreme Court would just leave it be, just cert denied. Again, I would be surprised if that was the case, but less surprised than before. Also, amazing lineup here just at the DC circuit. You had

the Knight First Amendment Institute, Columbia University filing a petition in support of TikTok. You had the racial justice community nonprofits in support of TikTok, and Amicus Curie on behalf of First Amendment law professors, Cato Institute. On the other hand, on the side of the government, as in supporting the divestment, you've got former national security officers, the campaign for Uyghurs. You've got a ton of states' attorneys general.

And then at the same time, the law firm and lawyers filing the brief on behalf of TikTok for the emergency application is none other than Noel Francisco, the former Solicitor General under Donald Trump at Jones Day, a notably conservative practice within the more conservative and a still liberal law firm. So again, David, very bipartisan across the board here. Yeah, yeah. I mean, this is, there is an interesting, when it comes to some of these tech cases,

we're really in a world where older ideological categories are becoming quite blurred, because we've already talked about another TikTok case, this involving the algorithm and the blackout challenge, where you had Obama and Trump appointees combining to hold TikTok liable or to say that TikTok could be liable for the blackout videos. So there's some interesting, we're moving into a different arena of American politics, a different sort of epic of American politics, and we're moving into a different really period in American jurisprudence.

And a lot of sort of the old categories are not going to map so neatly onto our ideological tribes any longer. And this is a good example of that. By the way, can I just read the states that filed on behalf of the bill? Yeah, please. the states that filed on behalf of the bill from Get to TikTok. Montana, Virginia, Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, Oklahoma, turning the page, South Carolina, South Dakota, Tennessee, Utah, and 19 other states it says. Yes.

That's like everyone. I know. Well, we'll, I bet by the next, not the next episode, but the next week, we may actually have an answer on that emergency petition. We'll see. David, we're going to save the Naval Academy, the police case, the mask mandate, the felon voting and debanking for the next episode and get straight to the most important topic, which is an attack directly on the flagship podcast here. For those who are new to this podcast, we have

always referred to ourselves as the flagship podcast for the dispatch. And then on the dispatch podcast last week, Jonah Goldberg went off on this totally unexpected, I mean, angry, violent tirade, I would say, David. Yeah. If words could ever be known as violence. Yeah. Yeah.

Mm hmm. And he said that in fact, whatever ship the Admiral is on is the flagship and that since he and Stephen Hayes own the dispatch that they're the admirals and I'm the captain and it doesn't matter that the cap, you know, what ship the captain is on that it's the Admiralty that decides well, I called out for help on the podcast and asked for any JAG officers or anyone else with knowledge of Admiralty law to weigh in and David, did they ever? Oh, this is fantastic. OK, I cannot wait to hear.

First of all, one listener pointed out, I do not think Jonah's quip about flagships was at all coincidental. Another podcast he listens to, I've heard him reference it, the rest is history, just did an entire series on Admiral Horatio Nelson. I can't recommend that podcast enough, by the way. Tom Holland, not that one. And Dominic Sandbrook are great. However, the series was just published that last week.

There has to be a link. So first of all, David, he was plagiarizing and didn't even tell us. He gave no credit to another podcast for his sudden and unrelenting attacks on me. Sudden and unrelenting. They're still going on. Still going on. Next up, someone sent me a meme that says, look at me, I'm the Admiral now.

I agree. Very well done. Flagship. Do not go gently. As a lifetime member of the dispatch, I feel I have an obligation and a right to weigh in on this flagship podcast debate. Jonah's attempt to mic drop landed on a mattress for me. Well, that may have been the first time I have ever heard you ask to phone a friend in a textual debate with Jonah. Don't let it happen again. By now, you have regrouped and realized his grave error. That is, in making textual argument about what flagship means,

one does not need to look to the past. The words themselves will do the trick. First of all, there is the word flag and the word ship. We are talking about the metaphorical podcast ship that carries the metaphorical flag of the dispatch. But which that carries the metaphorical flag of the dispatch. But which podcast carries the metaphorical flag of the dispatch? Jonah's ridiculous, tortured interpretation says that whatever podcast has him or Steve on it is in the flagship. And that can change like Air Force One because that's consistent with some old British naval

concept. But Jonah's mere presence, as grateful as we are for that, doesn't confer any flagship status on anything as that word is understood today, nor is that consistent with the plain meaning of the conjoined words flag and ship as a textual matter. Rather, since the dispatch doesn't actually have a flag that Mrs. Alito can fly or a ship, while there is the skiff, I would argue that the podcast that carries the metaphorical flag is the one that best exemplifies and articulates the ideals of the organization, not some brilliant pundit stream of conscious ramblings that I listen to religiously, he notes. Moreover, isn't it ironic that Jonah would rely on a royal political system's militaristic concept of flagship to justify his autocratic impulse to festoon upon himself,

the flagship moniker? Moreover, his attempt to silence debate further on his ruminant today was so contrary to the dispatch's core free speech principles that he should forfeit any claim to being the metaphorical flag carrier and no doubt was a clear challenge to you that you must accept. At its core, the dispatch is premised on being staunch constitutionalists reporting truthfully on the news with self-awareness of bias. Setting aside the troubling metaphor of the skiff, which needs a better identity,

as the premier judicial reporting podcast discussing the key constitutional issues of the day with clear admissions of its own bias, there is no question that AO carries the flag for the dispatch more than any other. Thus, AO is and remains the flagship podcast, David. Should we just officially rename the podcast the USS Advisory Opinions? Like just just stake the ground right there.

But yeah, I understand Jonah's literalist legal interpretation. But we're talking about flagship in the metaphorical sense of most impressive vessel in the fleet. That is typically the place where the admiral chooses to plant their flag. Now, the fact that Jonah and Steve are only occasionally welcome on the flagship as guests should not mean that the metaphorical flag is not planted on the most impressive ship in the fleet. I will also note we did get an email as well from a lawyer teaching a law class to the cadets at the U.S. Coast Guard Academy. And I just want to send out a very helpful suck at Jonah with this one because the law professor for the Coast Guard

agrees as well that this is the flagship podcast. So yeah, I think we're done with that. Finally, David, we had some discussion, as you know, about podcast and whether it's friend of the pod or should be friend of the cast based on my thoughts on attorney general and solicitor general. And we also had someone important weigh in on that. As he said, I may not be a lawyer,

but I have played one on TV. It's Patrick Oliver Jones from Law and Order Criminal Intent weighing in on this question, David. Love it. Let's start Oliver Jones from law and order criminal intent weighing in on this question, David. Love it. Let's start with this. He said, podcast is not a compound word, as a previous listener called it. It's a portmanteau.

Compound words combine two whole words that retain their individual integrity and spelling, and compound words fall into three categories, closed, like overrule, hyphenated, like editor in chief, or open, like attorney general. Portmanteaus, on the other hand, are blended words that borrow fragments from two words to create something entirely new, both in form and meaning. Smog, sitcom, and of course, podcast are perfect examples. What makes podcast especially unique

is that even when shortened to just pod, it still retains its original portmanteau meaning. Similarly, cosplay can be shortened to cause and remain perfectly understood by those in the know. Context in common, you should have cemented these abbreviations as shorthand for their full portmanteaus. But here's the catch. Shortening to the second syllable like has from podcast or play from cosplay doesn't work. Those words already exist independently with broader unrelated

meanings. If someone described a fan of the play, you'd think Shakespeare, not Comic-Con Cosplayer. This is why comparisons to titles like Attorney General or Notary Public are flawed. Those aren't portmanteaus at all. They're two distinct words, with second modifying the first. While they may be related, except in the case of Matt Gaetz, Attorney is not the same as attorney general. The latter is a specific title that can't be communicated by either word alone, unlike podcast, which works perfectly as pod.

So in the end, Sarah, you've seemingly been swayed by a faulty argument. Friend of the pod isn't just grammatically sound, it's the only phrase that makes sense, no correction or apology needed. And unless you and your husband join me on Law and Order, he'll remain husband of the pod, not husband of the cast. That is a brilliant email.

That is so fantastic. And it hits it because if you say husband of the cast, which cast? That's, but if you say husband of the pod and you're on the pod, yeah, no, that's fantastic. Couldn't, I mean, I couldn't have written it better myself. Case closed, ends the debate. Also, I feel like if we could just reread that ending, he said,

unless you and your husband join me on Law and Order, is that an invitation? Oh, it's clearly, I mean, I don't think there's any way to read that other than, yeah. Yeah, I mean, I feel like they could have a whole story arc about, you know, a podcast host being killed for coming up with a legal theory that would have gotten the Supreme Court to grant cert. I mean, guys, it writes itself, like. I just don't want it to be any line in that story

that is Sarah was gnawed dogged in real life. That would be bad. That would be bad. All right, David, we have so much to cover in part two of this episode. Lots of circuit core decisions in the fourth circuit coming out ahead so far, though I suppose we could add one in the meantime. And with that, thus ended part one of this Advisory Opinions flagship pod.