Advisory Opinions - Can Transgender People Serve in the Military?

Episode Date: June 12, 2026

Sarah Isgur and David French discuss the three SCOTUS decisions that dropped Thursday morning,  a D.C. Circuit decision on President Donald Trump's ban on transgender military members, and accommodations running rampant at law schools. Oh, and a federal judge charged with battery and destruction of physical property.  The Agenda: –Sign up for the SCOTUSblog newsletter –We are faced with the duddiest of duds –What is estoppel? –You can only try a defendant in the district where his crime was committed –Why is a Church of the Holy Trinity reference basically a backhand? –Transgender people can serve in the military  –We should get rid of accommodations for aspiring attorneys  –Burden of proof: Federal judge caught in altercation Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French, and we've got three cases from the Supreme Court that you know what? You don't think you're going to care about them, but you're actually probably still not going to care that much about them. But they're fun, guys. No, you will. You will. We started off not caring, and then we ended up caring a lot.

We'll also talk about the D.C. Circuit decision on Trump's ban for transgender military members, accommodations running rampant at law schools, and bad behavior by judges continues once again. But before we jump into it, David, two things to mention. One, you should sign up for the A.O. Newsletter, because we are sending out the video, transcript, a summary of what all we're doing. You can sign up for the newsletter at ScotusBlog.com slash podcast slash advisory opinions, or just go to Scotus blog and get to A.O., you'll find it. Also, David, we've got merch. That's right.

If you ever needed a hat that tells people, I'm a dork, but in different words, we have hats that say advisory opinions and SCOTUS blog and all of the above. So that way you can spot each other like legislative history, your friends across a crowded party. David, tell them where they can find their merch. It is so easy, Sarah. you can go to store. Dot the Dispatch.com and just look for Scotus blog on the top. Yes.

And when you do the advisory opinions collection alone within the Scotis blog store, good stuff. I'm a hatted officinado. As a bald man, I'm naturally drawn to hats. David, David, I got you a replacement for your George Washington Battlestar hat. I'll be giving it to you on July 8th when we do our term review

a live advisory opinion in Washington, D.C. So I'm going to hand you your George Washington Battlestar hat that you left at one of our previous live tapings because I know how much you loved that hat. Well, I'll just say that you replacing that hat that I lost is exhibit infinity of why Nancy calls you Queen Sarah. All right. Let's do some law. Well, David, we had previously said

that it would be very difficult to hand down a bunch of duds on any of the remaining argument days. and the Supreme Court justices must have hurt us and said, hold my beer. Because we got three cases that on their face are the duddiest of duds, you know, venue, bankruptcy, the intricacies of the Investment Company Act, total duds. But when you dig in a little, they all have some charm to them. Don't, you know, judge a book by its cover.

This is why you always say yes to first day. ladies, read the decision before assuming it can't make a podcast. Okay, so, David, I want to get through the first two before turning to our Investment Company Act, estoppel. This is a term that lawyers shudder at because they know they're supposed to know it, but they don't quite remember which estoppel goes with which doctrine. And non-lawyers are like, bless you. So, judicial estoppel is this idea that if you had a previous court case and you argued something incompatible with what you're arguing now, I can sometimes stop you from arguing that thing now in this totally other court case. And you're like, where does that come from? And I'm like,

Justice Thomas has some similar questions. As one listener told me, this was the holding of the case. Assuming judicial estoppel is a thing. Assuming it applies, in bankruptcy cases, and assuming it has an exception for inadvertence, we hold the Fifth Circuit's view of inadvertence was wrong. So what is this case? Basically, you have someone who goes through bankruptcy and you are required in order to get a discharge in bankruptcy to list all your money, right? How much do you have so that your creditors can figure out how much they can get paid? Is it 80 cents on the dollar? Is it 20 cents on the dollar? Whatever. Part of that's going to be any amount of money, you might be able to recover through lawsuits that you have. So these people went through

bankruptcy and we're like, here's all our money. They get a discharge. They have to pay off, you know, whatever it is a month in their bankruptcy. Everything seems fine. They're still doing that. Separately, they file a lawsuit against someone who they believed has wronged them, but they didn't list that lawsuit in their bankruptcy, even though the tort in our case happened before the bankruptcy. So they should have listed it, they didn't list it, can they still file that lawsuit against the tortfeasor? And again, for our non-lawyers, that's a fun thing to say, right? This is someone who harms you in some way. We call them a tortfeasor, someone who torted you.

No, torted you is not a thing. We don't you say it that way. But nevertheless, tortfeasor is a real thing. And basically, the idea of judicial estoppel, I had never really heard it in this bankruptcy context, David. And it seemed insane to me this idea that if you, failed, I get it, that you failed to list a potential lawsuit that you could potentially recover from in your bankruptcy, that you might have committed fraud on the bankruptcy court, and that might affect the continuing validity of your discharge petition, and you might have to be dragged back

into bankruptcy court and owe your creditors more money. I totally get that. What makes no sense is the idea that you can't bring the tort lawsuit and recover the money. Why would we not want the creditors to get more money. But that's what the Fifth Circuit had said, and that's what unanimously the Supreme Court gnawed with a concurrence from Justice Thomas, signed by Justice Gorsuch, as our most chaos Muppet decision that we've seen in a while, opinion that we've seen in a while, where Justice Thomas is like, what is this judicial estoppel? Ain't never seen that in the Constitution. This is some judge-made doctrine, and I'm a gin-it. So no judicial estoppel at all for Justice Thomas and Justice Gorsuch,

David, I never thought about the fact that judicial estoppel was judicially created and therefore maybe not a thing. Never in my wildest dreams. Because estoppel, first of all, sounds like a really old word, but Justice Thomas kind of makes the point that the judicial estoppel of today is but a mere David amount old, which normally I think is a lot of old. But this time doesn't seem as old. I couldn't agree with you more about this because, okay, let's back up a little bit and sort of just really make this obvious why this matters. So let's suppose you are owed a million dollars by somebody and they file for bankruptcy and you're, as one of the creditors, you've got your million dollar claim and you are going to get your pickings from whatever is in this state. So, you know, let's suppose there's $3 million of debts, the liabilities, and then when you sort through it all, you've got $500,000 of assets.

And then, you know, the creditors are in a certain order based on the primacy of their claims, where they're secured, unsecured, whatever. But let's suppose at the end of that day, you look at the pot and you're going to get $50,000. That's all you can get out of your million. is $50,000. You're angry, but 50,000 is better than nothing. And then imagine, you know, 18 months

later, you see a new story. Bob settles with insurance company for $14 million. You're like, whoa, where did you get this claim for $14 million? $950,000 of that needs to be mine,

but then there's been a discharge in the bankruptcy, everything is supposedly over, tied up in a neat bow. Haven't I been defrauded? Hasn't there? The answer is, well, if they knew about this claim, if this was a valid claim before the bankruptcy discharge, you should have known about it. And so what do you do about that? And the court, the Fifth Circuit seemed to say, you just can't file the suit that get you

the $14 million. You're a stopped from it. Honestly, Sarah, I'm a little stumped by that. Why can't you reopen the bankruptcy and make your creditors whole? So this is Justice Sotomayor's. So basically, the majority, which is unanimous, is like the Fifth Circuit applied the wrong test. If there is a test, if this is even a thing, we don't know if it's a thing. But certainly if you inadvertently left it off, then we are not a stop.

And then Justice Thomas and Gorsuch are like, there's no such thing as judicial estoppel. And then Justice Sotomayor is actually waving the David flag. there is such a thing as judicial estoppel, but not in bankruptcy and not to prevent the bankruptcy estate from getting more money to pay creditors. That would be a really bizarre outcome here. And the Supreme Court, as she notes, has never held that. And so weirdly, there's a lot of agreement that judicial estoppel probably doesn't exist in bankruptcy world, but because that was not actually an issue in this case, they didn't reach it. And the fact that two of the Justices don't even think judicial estoppel exists in anything.

I mean, again, very chaos Muppet stuff here. But I don't know. I was sort of like, interesting point, guys. Each one of these three cases was very, actually, weirdly, very interesting to me. Not necessarily for the reasons why the Supreme Court decided it, if that makes sense. Yeah. So let's go to our venue case. Yes, which was super fascinating for nothing to do with venue.

Right. Okay. So 18 USC, Section 1519, make. it a crime to knowingly falsify a document with the intent to obstruct a federal investigation. So this guy's working at Twitter and he's taking money from the Saudis to give them information about dissidents in their country and they pay him $300,000 and the FBI starts looking into it. He leaves Twitter from San Francisco's office and moves up to Washington State or wherever. I think it's Washington State. And there, the FBI, a knock, knock, knocks on his door and is like, hey, let's have a chat.

They have a very long chat at which point they're like, hey, did you take $300,000 to turn over private Twitter information to this foreign government? And he's like, absolutely not. They're like, do you have any proof of that? And he was like, oh, yeah, definitely. I got the money far more recently for consulting work that I did. And I have the receipt upstairs. And in like five-year-old magic where my son says, watch something disappear and then puts it behind his back and gently tosses it further away and then says, look, it disappeared. This guy goes upstairs, types up an invoice and emails it to the FBI guy but forgets to delete any of the metadata. Okay, so he has definitely falsified a document with the intent to obstruct a federal investigation. and they charge him in San Francisco and, you know, he's up a creek without a paddle. But wait, why did they charge him in San Francisco?

Well, I would like to read you from Justice Kagan's unanimous opinion. Venue and criminal cases mattered more than might be supposed to the nation's founders. Prior to the revolution, Parliament enacted measures to try allegedly treasonous colonists in England rather than in their home colonies. The legislation was so roundly despised as to make it into the Declaration of Independence. Among the injuries and usurpations listed there was the practice of, quote, transporting us beyond seas to be tried for pretended offenses, end quote. By the way, the grievances really are my favorite part, David, and we should study them more. After the revolution, of course, the founders no longer had to fear transportation overseas,

but they retained strong feelings about the unfairness and hardship involved when an accused is prosecuted in a remote place. As a result, the Constitution not once but twice safeguards the defendant's venue rights. Article 3 instructs that trial of all crimes shall be held in the state where the said crimes shall have been committed, and the Sixth Amendment reinforces that command, entitling criminal defendants to a jury of the state and district wherein the crime shall have been committed. So while the investigation and the underlying crimes,

happened in San Francisco, the falsification of the document happened in that bedroom in Washington State, and the unanimous Supreme Court says, yep, so you can't try them in San Francisco because 1519, the crime is the falsification of the document. It doesn't matter, you know, it's with the intent to obstruct a federal investigation. But where that federal investigation, irrelevant for venue. And David, I'm kind of into it. Anything that was in the Declaration of independence that we're still having to argue about today is cool with me. Did you watch the NICS game last night, Sarah? It was historic, incredible. I can't stop thinking about it. I was trying to figure out how am I going to work this into the podcast, and here's how I'm going to do it.

Okay. Last night, we watched a 29-point comeback in Game 4, the NBA Finals, never happened before with, and it wasn't just a 29-point comeback. It was a 29-point-point comeback. It was a 29-point-comback. featuring an incredibly improbable tip-in game-winning shot with a heroic defensive play to preserve the victory. It was extraordinary. I've spent half of the day, Sarah, watching Nick's fan reaction videos on Twitter. Like, that's been a big chunk of my day.

So imagine you have a court case that says on, you know, June 10th, 2026, there was a 29-point comeback with featuring some of the most controversial and potentially boneheaded plays in the history of American basketball. And so at issue today is, was the color, the court painted the right color. So this case has fact scenario that is eye-popping to me. While employed by Twitter at its San Francisco office, petitioner Ahmad, I'm going to, Abwamo, provided confidential information to a high-level Saudi official about

Saudi dissidents posting on the company's platform in exchange the official wired abwamo $300,000. Guys, this is a case about a foreign power bribing an, quote-unquote, allied foreign power, bribing an employee of an American company to disclose dissenters, dissidents, using confidential information in the American company. Fair, but I also thought your NIC's metaphor was going to be something different, which is, you know, this guy who is dead to rights on this crime, as best as we can tell, game four where he's going to, you know, go away for a long, long time, you know, has this amazing but very unlikely to win claim about venue.

And then he wins it, but it won't change the inevitability about what's about to happen, which is they're going to charge him in Washington and he's still going to jail for a long time because they got this dead to rights with the falsification. of the document where he went upstairs and made an invoice. I was just fascinated by this by the geopolitical elements here. I mean, the Saudis are one of our most problematic allies on many fronts, and this is one of them. There's a lot of smoke there with Saudi Arabia that they're not exactly as friendly with us

as we would like to think. And I just found this fact scenario just extremely disturbing, extremely disturbing. And the case itself, as interesting to me as the color of the Madison Square Garden court. All right, David, we're going to the Investment Company Act, the ICA, which will not be important to anyone listening to this, except for those who have ever heard of the ICA before. In fact, it's so unimportant to this. We're not even really going to discuss it because it's pretty convoluted. But the question is what this status is. says, and it's about whether it creates a private cause of action, meaning that you,

random person, if you're harmed, can now sue this investment fund, or whether only the Securities and Exchange Commission can enforce the, you know, crime at issue, the law at issue. So private right of action is used to be pretty favored. Now it's pretty disfavored, and it falls along ideological lines most of the time. And guess what it did here? This is an interesting six-threar, if ever there was one, about private right of action. You have the six conservative justices saying, no, this did not create a private right of action. And you have the three liberal justices saying, like, yeah, I definitely did.

That's not actually what's interesting about this case. Because maybe the statute did. Maybe the statute didn't. The text is, I don't know, frankly, I didn't care very much. This is one of those really boring statutory interpretation cases where, a private right of action as a like, where's the thumb on the scale is more interesting. But even that, I have a little bit of difficulty getting out of bed for today. But here's where it got really fun.

In Justice Jackson's dissent, part of showing that she believed that Congress did create a private right of action in the ICA was looking at the committee reports. Dun, done, done, legislative history. And Justice Barrett was like, uh-uh. No way. So let me read you from Justice Barrett's majority opinion. Rather than trying to unearth Congress's actual intent, courts look for objectified intent, the intent that a reasonable person would gather from the text of the law, quoting Justice Scalia. And don't forget, Justice Barrett, of course, clerked for Justice Scalia. And there is, I think, a growing body of evidence that she

will end up sort of being the Justice Scalia on the court. Not what Justice Scalia might have morphed into not what people think of the vibe or caricature of Justice Scalia, but the actual Justice Scalia who had real beliefs and opinions. Back to Justice Barrett. Put differently, the judicial task is to read words, not minds. At most, the dissent citations show that members of the House and Senate committees wanted courts to imply causes of action in some unidentified provisions of the security laws. But even if committee members would have put Section 47B on that list, What should we make of it? The House report notes disapprovingly that, quote, in recent years, the Supreme Court has turned its focus toward a strict construction of statutory

language and expressed intent, then bemoans the court's unwillingness to imply causes of action and criticizes the court for declining to imply a damages remedy in Tama, the previous law that was amended here. One wonders, if the House committee wanted to authorize private remedies and knew that the court would be reluctant to imply them, why did it not make them express? Were members of the House Committee uncertain whether express causes of action would win approval from a majority of the House, a majority of the Senate, and the president?

At bottom, the dissent hopes to revive that old-time devotion to legislative history, C.E.G. Church of the Holy Trinity, which is the equivalent of saying you're a moron in a case citation. I'll explain that in a second. instead of winning converts, however, the dissent illustrates why statutory interpretation must focus on the text, or, to borrow from Justice Robert Jackson, why interpretation must be driven by analysis of the statute, rather than psychoanalysis of Congress. Okay, so why is citing Church of the Holy Trinity the equivalent of backhanding someone, you know, on the playground? Church of the Holy Trinity is from 1892. It was New York City contracted an English minister,

Walpole Warren, to relocate to the United States and serve as its rector. The United States government then sued the church under the Alien Contract Labor Act of 1885, which made it illegal for anyone to pay the migration costs of aliens coming to the United States to perform, quote, labor or service of any kind. The Supreme Court unanimously, by the way, was like, yeah, but they didn't mean like intellectuals and ministers. They meant cheap foreign labor. I mean, they didn't say that. It says labor or service of any kind, but we know what they meant. And in fact, there is this great quote from, I mean, great meaning like well-known and derided and ridiculed. From Holy Trinity. Notorious. It is a

familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit, nor within the intention of its makers. So when you want to cast side-eye at someone doing legislative history, you read that to them in the most sarcastic voice that you can muster. Justice Kagan, by the way, did not, and Justice Sotomayor, didn't join all of Jackson's dissent, but they did not join the part that said, of the legislative history. And here's Justice Kagan writing separately. My views about the proper use of legislative history and statutory interpretation falls someplace in between the majorities and the principal dissents. The one-sentence version is, reliance on legislative history may be appropriate

when statutory text in context remains, after careful review, stubbornly ambiguous. I do not find Section 47B to exhibit such a lack of clarity. Justice Kagan, our high institutional, list, as always. All right, David, legislative history. I know you're champing at the bit. I release you. So I really enjoyed this back and forth, I have to confess. You know, here's Justice Barrett. The classic criticism of using legislative history is that it is the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends, which I think is the best one-sentence demolition of an approach that I've ever read because it has the great virtue of being true. A lot of this is, you know, let's say 300 people voted for something and you're

quoting two people or you're quoting a committee report that is a product of a majority of a committee, which is a small fraction of the majority who voted for the legislative enactment. And you just have a very persistent cherry-picking problem. And what Justice Barrett does is say, and guess what? Justice Jackson does exactly that, that while ignoring these sections, talking about sections that sort of back the majority view,

the dissent takes creative license with others. It confidently assures the reader that there is legislative history and containing an explicit statement from Congress, imploring courts to imply private rights of action under amended Section 47B. There is no such statement.

The paragraph that the dissent cites in the Senate report speaks of implying causes of action in the federal security law generally, not the ICA specifically. So you're, again, you're going and you're looking, what supports me, what doesn't support me, ignoring what doesn't, amplifying what does, that's what it means to look at the crowded cocktail party and find some friends. But Sarah, Justice Jackson makes an argument. And I would love, I want to ask you and you put

on the Justice Barrett hat to answer the Justice Jackson argument. Because I think I've got an answer, but it's a pretty good question. So it is, in fact, a majority's castigation of legislative history is something verging on the extra-legal that is the historical outlier, and that consternation is especially odd coming from a court that eagerly delves into the transcripts of the ratification debates, the framers' private correspondence, and the Federalist papers to ascertain what the framers would have understood, recognize, and expected. Are the Federalist pay? Are the founding documents different? And if they are different, why are they different? This is really eerie because I was just having this conversation with an AO listener earlier this week.

So what perfect timing? Hold on. I want to pull this up. I have been listening to your great podcast so much that I actually ran out of episodes. I played a rerun as to Justice Scalia, originalism, and the 14th Amendment birthright citizenship argument. Just a thought. Federalist can't stop quoting the Federalist page. as indicating original intent, but somehow those who wrote, supported, and enacted the 14th Amendment don't get the same due. You mentioned Senator Howard as just another voice. Here is where he stood and played, includes the history of Senator Howard being a BFD, as the kids would say. And John Bingham called the Madison and Hamilton of the amendment by Justice's Black and Douglas. Sure, we can all cherry pick, as people do with the Federalist Papers, but we can also identify the key

proponents of an amendment and know that they led adoption. What they said, wrote, and meant, matters in interpretation, just as much as the original framers. So, David, basically, I think this is a totally, totally valid critique if you are using the federalist papers as a form of legislative history or the ratification debates, as then if you are trying to, I'm trying to think of a good example here, but here's the point. I would say that pure originalists would tell you that the federalist papers shouldn't count because intent doesn't matter, right? As then they would be really consistent across this. It's not original intent, but original understanding of what everyone was agreeing to. Maybe the federalist papers do, in fact, shed light on the understanding of those who ratified it,

but it wouldn't be in the super obvious ways. You know, again, this is why I tend to be a textualist, and not an originalist, because I think this can get pretty screwed up pretty easily. And I'm not sure it actually matters what people thought they agreed to. I think it only matters what they did agree to in the actual text, whether they understood what that text would encompass later on, you know, with new technology or changes in culture or whatever, text first. So like, they said Congress can't abridge speech. They may have thought that was only preventing the publication of a newspaper, but it

clearly abridges someone's speech if you don't allow them to spend money to make a yard sign to put on their own property, for example. And so I don't really care a lot about, you know, whether there wasn't campaign finance debates at the founding. So I think the Federalist Papers, Justice Barrett would say, can be illuminating about what the word speech would have meant to them, for instance, like the text itself and where it's ambiguous. That is different. I think than what legislative intent would be. Like, I meant for speech to include this. It should include all of this versus the colloquial way in which speech was used

might have been different than today. But again, I think this is kind of a fine hair to splice, which is why, generally speaking, I would not use the Federalist Papers or the ratification debates to decide the scope of a right, for instance, in the Constitution. What we're talking about is the difference between intent and meaning. Original intent is sort of a shorthand that was often used, especially years ago, to describe originalism. The better description of originalism is original public meaning.

What did the words mean when these words were promulgated, when these words were enacted, when these words were enacted, what did they mean? And how do we know what they meant? Well, one of the ways we know what they meant is how people interpreted the words. And so let's take a modern example. There's this really fun, there's this really fun Twitter thread put out by, I think it's like a Scottish football website or a Scottish soccer website. And it was words that have different meanings in Scotland and America. And one of the funniest, I won't tell you the funniest because the funniest is not appropriate for a family podcast. But the second funniest was the word peace.

And the word peace, P-I-E-C-E. He said in Scotland is a sandwich. In America, it's a gun. And so it can be a gun. And so if you say, in the way it said is something, if you say in America, my grandma gave me a piece for the flight, not only will you not be able to fly, you may be never get back to Scotland again

because the whole airport is going to be swarming with agents, right? Think of it like this. If a statute said, coming out of Scotland, said peace, How would we know if we're just reading it in American 2026, it would mean, you know, maybe gun or something else? But we would know from Scotland that it means sandwich. This is the sandwich statute. That's what original public meaning is. Whereas versus, let's imagine that peace had, you know, two separate meanings.

And one of the legislators said, we mean this piece. And maybe there were other legislatures who said we mean that piece. Well, then you have to just go at the statute and look at the statute and the context of the statute, et cetera. So I think it's a very fair question. And I'll honestly say, Sarah, that I don't think that we originalists slash textualists have always been consistent about this, because I do think that we often look at the ratification debates and maybe go an intent direction as opposed to a meaning direction. I think we do sometimes look at the Federalist Papers and the Anti-Feing. Federalist papers sometimes. But if I had to explain the difference, I would explain it exactly the way

you did. This is illuminating what these words meant when they were promulgated. I would also say that I find the ratification debates and legislative history can be helpful if you're trying to understand what problem they were worried about, for instance. That's a way of understanding the text, perhaps, but it is not a change in how to read the text, if that makes sense. Like, oh, the founders were really, really worried about this problem. So isn't it interesting that they didn't include any language about this? The Federalist papers talk about the very limited role of judges in our system. Wow. So they probably, you know, would have been pretty surprised by the big role that the judiciary plays today, for instance, as Congress doesn't do anything. Like, that to me is more

what the Federalist papers can do for you. I don't think I've seen a lot of citations to the Federalist papers as like, and therefore the Second Amendment mean, like, no, no, no, that's not what I think you can use the Federalist papers for. Well, you know, and also if you look at the Federalist Papers, they also include the anti-Federalist papers, if you include, you know, the ratification debates, if you've got both sides of the argument, essentially agreeing on the meaning and disagreeing on whether it's good or bad. Sure.

Take Justice Kagan's citation to the Declaration of Independence in one of the grievances. Again, she's pointing out that these venue provisions weren't random. they weren't, they were meant to be quite strict. Why would we interpret those strictly? Oh, because they thought this was a big problem. They mentioned it in the Declaration of Independence. They put it in the Constitution twice. That legislative history, so to speak, is a way to decide how strictly to construe the text, I guess, how to understand that like, no, no, no, this means what it says. This wasn't like a fun thing that someone put in at the end. But I also completely understand that if you're a non-lawyer or a lawyer who's not

constitutional lawyer doesn't do this kind of work, that it could actually sound like you and I are debating how many angels could dance on the head of a pen. There are meaningful differences that exist, but you still have to watch how you use these resources. Just because it's the Federalist Papers and everybody loves the Federalist Papers and we've all seen Hamilton doesn't mean it gets a special dispensation in American life and legislative history doesn't. It's what are you using it for, is the question. Yeah, and I think there can be uses for current legislative history, but not to determine whether there's an implied right of action, for instance, because they said they liked implied rights of action in the legislative history and the committee reports. And it strikes me that implied

versus express is a particularly difficult argument to make because if they wanted the right of action, they could have written it in. I mean, they literally say in the committee report, boy, the Supreme Court isn't finding any of these implied rights of action anymore, and that's bad, and we don't like it. But then they didn't put in an express rate of action. So, like, that's on you guys. You knew the problem. Well, it's not that puzzling. They didn't have the votes. Of course we know why it didn't happen. All right, David, when we get back, three more topics of interest, the one I want to spend the least amount of time on, the Trump executive order banning transgender participation in the military. Then, David, I want to talk about accommodations in law school.

and the disaster that is befalling these law schools, and they are whistling past the graveyard, as best I can tell. We'll be right back. All right, David, so we have this D.C. Circuit opinion. It's like 107 pages long. It has three different opinions from three different judges. Will you tell us about it very briefly? Yeah, so basically this is a legal decision surrounding the Hegsith.

This is second term Trump policy excluding transgender individuals from military service. And a three-judge majority, a majority of a three-judge panel has upheld an injunction blocking the policy from going into effect. And it's of 100 plus pages, and there's a lot of twists and turns. But here, to me, is what is very interesting. and this is something that we have talked about at some length. Okay, so number one, you have a broad degree of discretion that as a general background matter exists when it comes to the application of service standards. So as you as a U.S. citizen walking around in this world, it's not like you have a constitutional

right to join and serve the military. The military is able to put some pretty draconian preconditions on service, like a layer of preconditions around medical conditions that many of them are completely out of your control, whether you have them. So, you know, if you're born with various kinds of physical maladies, that's going to exclude you. No fault of your own. You've had serious illnesses. No fault of your own.

That's going to exclude you. You can be excluded for a lot of things that are your fault, like drug use. things of that nature criminal backgrounds. But asthma, high blood pressure, like really basic stuff. Lots of stuff, including stuff that, you know, especially on the front end, when you're entering the military, a lot of stuff that you would argue, I can control that with medication or whatever, I'm okay. Now, once you're in, it's a different deal.

Once you're in, you can continue to serve even with what would have been disqualifying medical conditions on the front end. it's more complicated, but the biggest threshold is getting in. So you do not have a right to be in, like this freestanding right as an American citizen to serve. Also, there is broad discretion given to the military when it is making these decisions. They're the subject matter experts on what makes a good infantry soldier, judges or not. So there's a lot of discretion. Then the second issue, though, however, is right now there's just no.

no category for trans soldiers under the 14th Amendment. It's sort of a separate class of citizens who are entitled to a heightened level of review. So, for example, if you had a race exclusion, that would be subject to strict scrutiny. If you had gender regulations, you know, in normal life, that's subject to intermediate scrutiny. Well, there isn't a similar 14th Amendment category for transgender Americans. So you're not walking into court with sort of a categorical equal protection, you know, a categorical equal protection sense of entitlement or legal entitlement. Now, number three is, and we'll get down to, so this is kind of trying to peel the onion here, but number three is, wait a minute, there is Supreme Court authority that basically says,

if I'm taking a class or category of people, and I am targeting them with legislation or regulation out of sheer animus, out of sheer hatred for them, well, then there's going to be some legal protections that will lock in. So that really is kind of what this case is about, which is, on the one hand, you have a awful lot of discretion granted to the military. You have no preexisting sort of freestanding right to join the military. And if the military says readiness means, and our readiness requirements mean that this category of individuals is not

appropriate as a group, as a total group for service, then we hands off. But at the same time, does that discretion extend to circumstances where the exclusion doesn't seem to be based or may not be entirely based on efficiency reasons, but is instead based on pure anger unanimous? Do I not like them? And that's what the case really begins to turn around. And the bottom line is this sort of anger, animus, malice analysis that was based in an analysis of the Hegseth policy is what the court used to strike down or block application of the policy. And, you know, it's interesting, Sarah, I have trouble believing just because of the very broad discretion given to the military here, the lack of the underlying constitutional right, the lack of a

equal protection category for transgender individuals. I have a hard time believing that this policy ultimately won't go, won't, you know, be judicially ratified in some form. But I got to say that the way the administration went about it is about as close as you're going to come to putting this whole thing, this whole level of discretion to the test because it essentially takes a person who's transgender and just calls them a liar. Like essentially like if you're transgender, you just don't have, it's not just that, say, physical transition, which could be very brutal or medical transition that can be very brutal and debilitating and things like that that could take you out of your infantry platoon for extended periods of time while you're going through a lot of

very complicated medical treatment. That's one thing. Another thing entirely is sort of saying the mere fact that you are claiming sort of this gender identity means you don't have that you're just not the kind of person that we want serving. That's the real thing. That's the real thing. That's the the core of this case. Once again, the Trump administration, I think, could have very easily written an order that would have passed any legal muster with flying colors, and it wouldn't have even been close. So, for instance, speaking of judicial estoppel, David, you can't really argue on the one hand that transgender gender dysphoria is a medical condition that absolutely requires medical treatment.

it is in the DSM, like blah, blah, you know, all this stuff in all these other cases, but then argue that when it comes to the military, oh, no, no, no, this cannot possibly be a medical thing, like it can't be disqualifying for military participation. But as you say, David, that's not exactly what the order is about. It really is that someone who believes in gender dysphoria is not fit for service. And that one was a little bit confusing to me because, like, do you have to both believe in it and believe that you have it? Or can you just believe in it? So here's the opening.

This is the second half of the opening paragraph. The president and later Secretary of Defense Pete Hexeth now redesignated to Secretary of War also declared that persons afflicted with gender dysphoria are unfit for military service because, among other things, the character of such persons and the presidents and the secretary, Secretary's words is inconsistent with the high standards of honesty, humility, and integrity. And so in this sense, and then it goes on to say in this litigation, the government has not attempted to defend or provide any factual basis for these disparaging disparaging characterizations of American citizens. Indeed, the government has not contested that the plaintiff Appalese who are currently serving and who have collected more than 80 commendations have served honorably and pose no threat to national security. So once again,

the Trump administration walks in, and for me, the question about transgender service in the military has always been a readiness question. It's always been a readiness question. If you're in medical or surgical transition, are you actually able to perform your functions with the degree of readiness that it requires? Or do you have to spend extended periods of time away from your unit or not able to serve your functions because of the care that you're receiving? That's been the question for And for instance, in the first administration, the Mattis policy, for instance, said that you can be diagnosed with gender dysphoria as long as you perform in the unit of the sex you were assigned at birth. And nobody is contesting that the military does not have the right to do that here in this case, for instance, which is pretty fascinating to me. So, David, look, I think at the end of the day, the real question is who gets to decide whether, you know, there's special animus and things like that.

Because I think it's such a fine line to say, we don't think these people who have been diagnosed with this can be service ready because of the underlying, you know, mental health problems associated with this diagnosis. And like, are judges really going to pick this apart? As I said, we had three different opinions here from a three judge panel. This was a hot mess of 107 pages that I felt like did not at any point particularly narrowed down these legal issues. You have one opinion saying the animus argument. You have Judge Walker and dissent talking about like, this is up to the executive branch. Judges can't even do this. And then you've got our like Goldilocks in between.

So not the end that we're seeing of this. How about that? And I think one way to think about the difference between joining the military and being removed from the military is when you're joining, they often, the military often had has these categorical exclusions for which you can ask for and sometimes receive a waiver. So, for example, when I joined the military, I had a health event at younger stage in my life that was medically disqualifying. If they had not granted me a waiver for that health event, then I could, have served. So it's a group disqualification from which you could receive a waiver. Once you join, as a general a matter, everything then becomes individual. So that if you have a

medical diagnosis that might have been disqualifying on the way in, if you have the diagnosis and you, Sarah, as Captain Sarah, are still performing your job at a high level, even with what would have been a sort of default, you know, a default disqualifying condition, then you're going to be able to continue in the military and advance in the military. Think of it like this. If you're a soldier who's lost a limb in combat, I could not walk in to a recruiting station with a missing limb and say, I want to be in the military. But the military will keep people in the military who have lost limbs and suffered serious wounds. But David, here's the problem with what you're saying. I don't think it's legally relevant. As in, I think the military can decide to change that policy

tomorrow and say, we don't have a different policy for entering the military versus staying in the military. And I don't think a judge could then say, like, no, no, you must have a different policy that has higher, you know, retention abilities because someone has a right to stay in the military once they've gotten in. So I don't think any of that matters. No, it doesn't. I'm explaining that that's the way that the system currently works, is that it's more group determination on the way end, an individualized determination deciding on the way out. And they can change that. They could say there are no conditions and no status that is disqualifying on the way

end. We're going to do a hyper-individualized analysis of each soldier. They could do that if they wanted to, but they don't have to. They don't have to. But what I feel like the majority has said in this case is there is now judicial review based on how it has worked in the past. Whereas, again, I think the probably better argument is like, no, no, there is extreme discretion. You don't have all your constitutional rights when you serve in the military,

and you don't have all your constitutional rights trying to get into the military, and you don't have all your constitutional rights to stay in the military. And so the idea of judicial review here, I think, is pretty fraught. Yeah, it's fraught. But again, it's, there's still a valid basis for it to some degree. So, for example, you could not pass a law now or have a Secretary of War promulgate a regulation that said no black soldiers, the courts would properly step in at that point, because you would have the very strong equal protection analysis, you would have no underlying factual basis, et cetera. So there are limits and there should be limits. But this isn't a protected class. The courts at this point have not found that anyone who identifies

as transgender is part of one of those protected classes. So again, like we're in a totally different zone at that point. And this is where like maybe the transgender participation in sports will have something to say about that. I think more likely it will, you will have a majority of the court said that it is not a protected class, which makes this an even harder case to win, but I think it's harder to win right now. All right, when we get back, let's talk about accommodations. My dad and I may not agree on whether he's unconstitutional as an Article I bankruptcy judge, but something we definitely agree on is how much he loves my two boys and how much he loves seeing pictures of them, which is why, for Father's Day, you have got to get your dad an aura

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David, it's the talk of the town for Summer Associates in Washington, D.C. right now. They all just got their grades back from this past semester. And a lot of these schools have 40% of the students with an accommodation for test taking, meaning that they have a diagnosis, which has allowed them to have at least time and a half, sometimes two times as much time to finish exams. And there's no real way for judges, for instance, to know the difference between a student who got an A, who got six hours on a three-hour exam, and a student who got an A-minus, but they took the exam in three hours. And it probably also matters why they had the accommodation. Is it because their very wealthy parents found, you know,

three different psychiatrists until one would diagnose little Johnny with ADHD? Or is this someone who has struggled with dyslexia since five years old or is blind and can't read it all and needs additional time to have someone read the proctored exam to them. So David, A, this is an interesting problem, and B, how do you solve for it? I have two potential suggestions for you and I want your reaction. Suggestion number one is really easy and I don't know why people aren't doing this. There is nothing preventing you law student who does not have. an accommodation from putting on your resume for clerkship applications, I do not have an accommodation. I took all of these exams in only the time that was allotted by the professor. The school cannot

prevent you from doing that. Before you get to number two, I hear you, but aren't you putting a giant liability bullseye on the employers? Because if they get a bunch of resumes, and let's just say, I'm looking at a Wall Street Journal article, 38% of Stanford University undergrads, undergrads identify as a disabled. So you're looking at it, you've got 100 resumes, and 68, and 62 of them say, no accommodations, and 38 are silent on that. And you end up hiring five people, and all five come from the no accommodations pool. None come from the accommodations pool. Have I just put the employer in an American's disabilities with that predicament? Interesting. Okay, let me give you number two. A professor has given the same exam for the past 10 years. It is a three-hour exam. They've changed the names of the people and the exact, you know, car accident or whatever they were in for this tort exam. But it's always the same length. It's always looking for the same general issue spotting. And it's always three hours long. So this year, the professor says, I am giving my three-hour exam, same as I always have. But every student,

can have six hours to complete the three-hour exam. Because the accommodation system is meant to ensure that you have enough time to take the exam, it is not intended to give you a competitive advantage against your fellow students. So therefore, I get that we actually have a high number of people who need additional time on this three-hour exam. So we're going to give everyone six hours. Now, will the school get sued for this? Yes, I think they will. But, again, the ADA absolutely does not say anything about getting a competitive advantage against fellow students, which is, of course, what this has turned into. And it is the point for a lot of the students who are getting accommodations. It is to get a competitive advantage. If the schools take

away the competitive advantage, then I think you'll get a lot fewer accommodation requests. Number three, David, don't have any three-hour exams. Every exam is, you know, a week-long take home. And if you want a week and a half to do your week-long take home, it will not help you, actually. Like, at some point, there is such diminishing returns on additional time. If anything, it might be the reverse of helping you. Like, you overthink it. You're spending too much time on it. So fine. Every exam is now a week. We're not going to do these timed exams anymore because they're turning into this competitive advantage fight where once again, you know, like when we got rid of the SAT for that brief and failed experiment. You are benefiting the wealthy and well-connected

students and hurting the students who do not have access to that kind of help. That's what's happening at the law school, David. The wealthiest students are gaming the system to get accommodations to have a competitive advantage and the students who, you know, came from Lipscomb, not so much. So we like fix this. I don't think this is even that hard. Any of these three options. And I like option three, the best probably in some respects because it's easy and the schools could do it tomorrow. David, like this is getting absurd. Let me have a brief rant followed by a more extreme solution than you've proposed. So brief rant, guys, we're dealing with a lot of Mott and Bailey here in the argument about accommodations because here's the world that students are living in

around accommodations where the following sentence is not unusual to be heard. Dude, you, should get an accommodation. Someone who complains and says, wait a minute, I'm taking a test and half of the people in here, and this is some classes, half of the people in here have an extra time accommodation giving them maybe 40%, 50%, 100% more time than I do, that's unfair. Someone turns around and says, well, you need to get an accommodation. This is what's happening, guys. If you think for half a second, that 38% of Stanford University undergrads are disabled. 38 at Stanford University, you know, normally when you're talking about somebody who is enrolled at an elite university and they're disabled, that is an extraordinary act of

like personal grit and heroism that really deserves all of our accolades and applause. But what we're dealing with here is an awful lot, and it's just be completely honest about it. It's this is what's happening. And mom or dad, who's going to write me and say, well, my kid, X, X, X, X, X, or dot, dot, whatever, my kid, dot, dot, dot, dot. And you're going to tell me a story that's super legitimate. I'm not talking about you. But there are a bunch of people, and you know who you are who have done exactly what

Sarah said. Here's this doctor that I know will give an accommodation or this doctor or this doctor. And then it puts the schools in this nearly impossible position because they're looking at highly credentialed doctors saying this person needs an accommodation. and it's a rich person's game. They are gaming the system for their kids. The kids are taking the torch

because once we get to law school, the kids are carrying this torch themselves because they're fully grown adults. They're gaming the system. Everybody knows they're gaming the system. It is the least secret thing in the world. So here's my accommodation, no accommodations in test taking, period.

If you were in a professional school, medicine, law, accounting, whatever, no accommodations on test taking. If you're going to get an accommodation, maybe like as I'm reading a very good Wall Street Journal piece, it's, you know, a single room in the dorm, permission to bring like a service dog to college, et cetera. But if you think I'm being too extreme, you will enter a law world, the legal world. The deadlines do not say 30 days, 45 days if you have ADHD, 60 days if you have dyslexia. No. If you're a surgeon, don't even get me started on that. If you're a surgeon, dot, dot, dot. So no accommodations on the test.

I'd be great, but none of the schools want to do that because they don't want to get sued and have the bad publicity for this. And yet the judges have this problem where the A students, they don't really know if they're A students, because they don't know how much time they actually got compared to their, like if grades are meant to be a competitive test. You know, some kids got A's and some kids got B's. Those grades become really meaningless if the point was a timed exam. So you have some judges out there actually giving clerk applicants a timed writing test. And of course, you don't get an accommodation for that. So, yeah, we've given things for the schools to do. We've given things maybe for the students to do themselves. But David also, maybe all the judges need to start doing a timed written test for clerkship applicants, the same way you turn in, you know, a resume and everything else.

You can make it an honor system. You know, hopefully law students still have the honor to not take time and a half on something. But yeah, I think the grades, I mean, there's grade inflation, and now there's just the meaninglessness of the grades. Law schools have not fallen prey to grade inflation in the same way. So even if they have, quote, unquote, inflated grades, like at Cornell law school when I taught we had a mandatory B plus curve, not everybody who got a B plus did B plus work. But at least if you had an A minus or an A, you knew this person was a cut above. And if you had an A plus, an A plus, just from a grading perspective, starts to wreck the curve because you have to find other students, you know, you have to balance the A plus with other grades. And so if you see an A plus

in a curved, mandatory curved grading system, that person really, really, really, really did well. David, last thing to discuss, did you watch the video of Judge Ryan Nelson on the Ninth Circuit, which led to charges of battery and destruction of physical property? I did. I did see that. So, look, he was basically battery and physical destruction of property. Why, he knocked the glasses off of a guy's head in an altercation in a parking lot. through the glasses across the parking lot, and then both men move over to the glasses, and again, allegedly, Judge Nelson stomps on the glasses, destroying the glasses. This is not the world's worst infraction by a federal judge. It's not even the worst one we've discussed this month, David.

Going back to the judge in Alaska, for instance, who was found to have repeatedly sent, you know, law clerks and other court personnel inappropriate sexual text messages to have engaged in a sexual relationship with a former clerk. Of course, the most recent judge, engaging in an extramarital affair in chambers with the law enforcement officer and not supervising her clerks and then lying about all of this when complaints were issued. This ranks relatively low on the actual conduct involved. That being said, David, I think we should hold our judges to a very high standard. And I'm watching the video. I don't really see that the other guy did anything wrong.

It's a pretty empty parking lot, and he parked next to the judge, but the judge's car could still leave quite easily. The judge was also sort of quasi-double-parked in that super-annoying way that some people double-park where they're... So I think that's the origin of this, yeah. Yeah, and the guy probably said something getting out, like, nice parking job loser, or something to that effect. Don't care.

Don't care one bit. really inappropriate. And once again, we come back to this issue of judges disciplining other judges and we don't really have a great mechanism for that, except, you know, you have these reprimands. There can be smaller things that the judiciary does to its own judges or really large things, like in the federal circuit where they just took one of their judges off because they don't like the way she was deciding cases and then said that it was about her being super duper old. And we'll never get to the bottom of that because that case is still pending and she's 99 now turning 100, I think. Anyway, but we have impeachment, David. And I guess I just once again am left thinking

the law is the place where we are supposed to come to resolve our differences without lying, like the judge in Florida, and without physicality of any kind, like this example. And judges should hold themselves to higher standards, we should hold them to higher standards. Article 3 should hold them to higher standards as well. It would be much more preferable if you could say, for example, there's a judicial code of ethics that says a felony conviction means automatic referral for impeachment to Congress. A misdemeanor conviction means X or Y or Z. It might say six-month suspension from the bench or a year suspension from the bench without pay. Which they can't do, by the way, life tenure, guaranteed pay.

Mm-hmm, exactly. So we're in this world where it becomes a lot of ad hocery, a lot of just sort of dependence on the honor of the individual judge who has just acted in a dishonorable way, sometimes in a way that's extremely dishonorable. This is inexcusable. I would put it exactly the way you put it, Sarah, inexcusable, but not as severe as on-the-job misconduct or severe on the kinds of on-the-job misconduct that you talked about. It's juvenile. It's so, you watch the video and you're like, guys, you look nine years old. I mean, really. It's absurd. And it makes you question the judgment of a person who would behave like that. I mean, I've been living in this world for a very short 57 years, Sarah. That kind of confrontation, never had it. And I've had a lot, there have been weird parking in circumstances.

People say things to all the time when you live in this world is, unsatisfactory to have a system that depends more on the honor of the malfeaser than it does on the integrity of the system. Very open to there being extenuating circumstances in this case. For instance, Josh Blackman wrote that it looks from the geo tagging of the parking lot, et cetera, that this was in front of hospice care and that Judge Nelson has had several family members who have been very ill recently, all of that would be extenuating, but nevertheless this conduct would still be unacceptable because you're a federal judge.

It'd be unacceptable even if I have enormous sympathy for people who are in a moment of grief or stress or pain and somebody's an asshole to them. That that is just, you know, if somebody initiated the assholeery, bad on them. But I still, even when I have, when I'm under stress, and grief and pain, have responsibility not to respond with violence, even minor violence. Because minor violence, I mean, look, just on its own merits, minor violence is still violence, but also, as we've seen from, oh, to, I don't know, infinity times, minor violence,

once violence is introduced into the equation, the situation is almost by definition not really in a, you're not in control of the situation at that point. The situation can spiral so quickly, so easily. This is why we draw such hard lines on physical contact, on physical violence, and to breach that and to break that, like, just inexcusable. And with that, David, I'll see you on the next advisory opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us.

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