Advisory Opinions - Can Trump Deport Hamas-Supporting Students?

Episode Date: March 11, 2025

Between President Donald Trump’s executive order targeting Perkins Coie and interim D.C. U.S. Attorney Ed Martin sending letters to Georgetown Law, it has been quite the week for weaponized government. Sarah Isgur and David French dive into these two headliners, as well as a First Amendment debate involving green card holders. The Agenda: —More Sarah lore: Combative hula-hooping —Perkins Coie and President Trump's executive orders —FIRE's response to the Trump administration's threat to deport anti-Israel protesters —Eugene Volokh's fact sheet on aliens and speech —Another letter —‘We’re a Jesuit, school go to hell’ —Smith & Wesson v. Estados Unidos Mexicanos —Justice Amy Coney Barrett vs. MAGA —EPA and San Francisco's sewage waste —Richard Glossip avoids death row ... again Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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March 30th. Remember, Sunwing, save more, do more. Book with your local travel advisor or at sunwing.ca. Ready? I was born ready. ["I Was Born Ready"] Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we've got a lineup. We have things to get to, David.

But first, did you know that I was a hula hoop, like competitive hula hooper in fifth grade? Uh, this I did not know. Well, this is really relevant because it turns out that a lot of people don't know about hula hooping. They think it's just like something they see in the 1950s. But in fact, in my elementary school, it was like a competitive thing that you would do.

And you have your hula hoop going and you try to knock down someone else's hula hoop, not using your hands, right? You just can use your hoop. That's it, no part of your body. And there's all sorts of different ways that you get your hula hoop going to basically be an attack hula hoop.

And I was with- Only Texas, only Texas would have combat hula hoop. I've never heard of this before, ever, ever. I'd be fascinated if any listener has ever heard of this. I was worried that you didn't know about combative hula hooping. I did not. So my college roommate, I was hanging out with,

this is of Rice Krispie fame college roommate, I was hanging out with her eight year old who had like gotten a hula hoop and it was too small for him. And I knew right off the bat, like you want a light, large hula hoop because in order to really get it going, your body and large hula hoop because in order for to really get it going, your body and the hula hoop have to be able to spin sort of at the same time. And if it's too

small, you can't spin fast enough. But he's like, yeah, but show me how you would do it. And I made the mistake, David, in my 40s, trying with a hula hoop that is clearly too small, trying to show him how you get it going in the most aggressive fashion. Punchline. I have another broken toe. No. Yes. Seriously. My other one just healed. Oh, no. And this one is all the colors of the rainbow.

You know, like it's it's skittles on my toe. Oh, my goodness. The reds, the purples, the blues, all of it. Well, are you soldiering? We're soldiering on anyway. We are. But you know, like my knee injury, I had catastrophic knee injury when I was 17. My patella shattered.

That shattered a piece of my femur, which is the hardest bone in your body to break. It nicked my ACL and MCL. I had arthroscopic and open knee surgery. And you know what that was from. What that was from? Yeah, how I did it. No? Bowling. What?

So I feel like, yeah, maybe sports art't even, how is that even possible, Sarah? I was trying to impress a boy, David, and you all know that boys are impressed with girls who can bowl well and impressed with girls who are impervious to pain. So when I did this, I then also said that I was fine and stayed at the bowling alley an additional two hours, which had all sorts of knock-on effects.

Basically, I could not get an MRI for six weeks until the swelling went down. Then I couldn't, like all the muscle in my leg was gone by the time we got through the surgery. So I went to college. I was in a handicapped room in college for my first year. From a bowling accident. That's right, that's right.

And I've never heard from that boy again, shockingly. I know. We did not get married. Wow. This was not on the opening, like, run of show, just by the way. If my repeated shock is any indication, this was absolutely not on the run of show. I thought we needed a little lightness for what we're going to do today. If serious injuries are your version of lightness, then I shudder to think about what's gonna happen next. Broken toes are not serious injuries. They just hurt a lot with no downside, if that makes sense. Like it's only pain, that's it.

True, true. That's all it is. And that's kind of pretty, all the colors. Okay, David, we have a few, they're sort of in this First Amendment bucket, right? I wanna talk about non-citizens being deported for speech. Also want to talk about law firms being punished for representation slash political speech or activities.

Let's start with the law firm part. So at the very beginning of this administration, they announced that they were stripping security clearances from lawyers at Covington and Burling because of their representation of Jack Smith. And we didn't cover it at the time, at least not in any depth. It felt to me a pretty nefarious,

but narrow thing, if you will. But then we have this Perkins-Cooey order addressing risks from Perkins-Cooey. I'll just read the very top. It says Purpose, Section 1. The dishonest and dangerous activity of the law firm Perkins-Cooey has affected this country for decades. Notably in 2016, while representing failed presidential candidate Hillary Clinton, Perkins-Cooey hired Fusion GPS, which then manufactured a false quote dossier designed to steal

an election. This egregious activity is part of a pattern. Perkins-Cooey has worked with activist donors, including George Soros, to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification. In one such case, a court was forced to sanctions Perkins-Cooey attorneys for an unethical lack of candor before the court. Okay, so it goes on to say, I mean, no security clearances, no government contracts for any legal work. It implies no hiring of anyone who's worked at Perkins Couey into the government. And it says no entry into federal buildings. Yeah. Query whether that includes courthouses, which on the one hand, you could argue are Article 3

buildings, but actually they're run by GSA, which is Article 2, that is the executive branch. But like GSA might own or lease the building, but they don't run the security for the building and like who gets into them. Anyway, unclear on, you know, there's a lot of headlines of like Perkins Cooey ban from federal courthouses. Honestly, I actually don't know how that would shake out given the order is a little bit vague, it just says federal buildings. So there's one other thing worth mentioning, just substantively, what's in here. It also says, Section 4, racial discrimination.

The Chair of the Equal Employment Opportunity Commission shall review the practices of representative, large, influential, or industry-leading law firms for consistency with Title VII of the Civil Rights Act of 1964, including whether large law firms reserve certain positions such as summer associate spots for individuals of preferred races, promote individuals on a discriminatory basis, permit client access on a discriminatory basis, or provide access to events, trainings, or travel on a discriminatory

basis and then directs the attorney general in coordination with the EEOC and the state attorneys general as appropriate to investigate these law firms. Literally the rest of this is only about Perkins-Cooey and then section 4 applies to all law firms and those are very very different things to me. So David, top line, I don't like the Perkins-Cooey part though it is a difference in degree maybe not a difference in kind. We can discuss that of what's been going on. From Covington and Burling.

No, from the Biden administration, from previous efforts of people in power to punish lawyers and law firms. I mean, there's some argument we've been doing in our entire country's history, but certainly having an executive order that's saying what they're doing is different. Yeah, yeah. You used to keep that part quiet. And then the second bucket is, an executive order that's saying what they're doing is different. Yeah.

You used to keep that part quiet. And then the second bucket is, oh, we're actually going to investigate racial discrimination at law firms, which is 100% going on. 100%. Cannot tell you how many law firms are themselves violating the law, advising clients to violate the law, or perhaps more accurately, allowing clients to violate the law in what the clients demand of the law, advising clients to violate the law, or perhaps more accurately, allowing clients to violate the law in what the clients demand of the law firm. Like, we will only give you this matter

if you put these races on this team for this client matter. Like, just really gross stuff that clients have been doing, law firms have been okay with, or law firms have been advising. Anyway, it's all a mess. Okay, so David, what's your reaction? Very similar. I mean, the Perkins-Cooey element is inexcusable. I mean, it's, you know, when you stayed upfront, here is the constitutionally protected activity in which they've been engaged. And then you follow it up with, as a consequence, here are the punitive actions we are going to take against you.

Yeah, that's a problem. That's a problem. I hear what you're saying about that there are, have been informal or double secret probations in the past. I have little doubt of any of that. Does it render this current actual overt executive order any more acceptable and makes it, and it is, as you were saying, it is worse. It is worse to just go ahead and lay it all out

there and say this is what we're doing. At the same time, I'm also, I agree with you that there's a lot of evidence of illegal race-based preferences in law firm hiring and law firm practices. But what are we doing here having a broadside against Perkins-Cooey and then like a paragraph about some undefined initiative? Do they even follow through with this? Is this something that's really truly actionable? I mean, it's just bizarre. I don't know, because that part's actually important.

So I'm annoyed. This should have been a separate order. This is a problem. There is discrimination going on in these law firms. So that, yeah, you're right. Is anything gonna come of that? Did anyone even read that part? Okay, on the Perkins-Cooey thing,

here's the pushback, David, that I want to offer to see how we maybe both react to it, which is, one, this has been going on in several different formations previously. Let me give some examples. One, in the 2020 campaign, you had lawyers and law firms publicly canceled whatever word you want to use, privately canceled, sanctions brought against them of various kinds for representing

Donald Trump Republican interests in the run-up to the 2020 election, and to some extent after, although I kind of want to separate those out because some of those were different, let's just say. But remember, in the run up to the 2020 election, states were doing all sorts of stuff related to COVID, changing their voter rules, and whether that was sanctioned by the state legislature or done by a local mayor or whatever

else, those were very fair game lawsuits to bring, as far as I'm concerned. Now, almost none of them won, but that doesn't mean that we punish the law firms or the lawyers for bringing non-frivolous actions in election law world just because your team doesn't win, then we punish the lawyers on the losing side. That's a really dangerous thing. And that's exactly what happened in 2020. Now, again, the stop the steal efforts got all the attention, but it absolutely happened to lawyers who brought real non-frivolous lawsuits, which has been, I mean, that happens every cycle, right? In 2016, the Clinton campaign brought all sorts of pre-election lawsuits trying to prevent Republicans from wearing red MAGA hats to vote.

I mean, that's ridiculous, and they lost those lawsuits, but no one quote unquote sanctioned those law firms. The second bucket that I would mention is, and I want to be a little careful how I describe this, lawyers that the Biden administration didn't like, there would be senior officials calling potential in-house clients or law firms and saying, if you hire this person, we will consider you persona non grata. And you will, you know, who knows? Nothing they said will target you

for regulatory enforcement actions. But I would think someone on the other end of that phone call might think that was a possibility if you hired someone they didn't like, a lawyer who had done, who had represented a client in a way that they didn't like. So then the question to you, David, is, is it worse to do it upfront, or is it worse to make these secret phone calls so

that no one can talk about those? And I'm mentioning them sort of opaquely on a podcast. Well, they're both bad. But I'm going to say, in the scope of this thing, I mean, you're talking about all Perkins Coie employees, current, former, what, regardless, do they disagree with the firm and they're leaving? I mean, like, this is an absolute broadside explicitly on the basis of first protected First Amendment activity.

And the only thing that makes it in any way, sort of in a practical matter, arguably preferable, is you get to go ahead and challenge it. You do, it's right there. It's right there in writing. It's in black and white. And you can go ahead and challenge it. This double secret probation of which you speak

is both narrower in scope, but also slipperier to catch. And so yeah, I just think they're they're quite different. Bottom line, I think you and I very much agree on the idea that we want lawyers to take on politically controversial clients. And we certainly want law firms and lawyers to help litigate ahead of and after elections, as long as it's non frivolous, frankly. I don't care if you hate it.

I don't care if you think you're gonna lose. That's how everyone's gonna feel more confidence in our elections and in our systems, is if we have advocacy on both sides, and the problem will be law firms are businesses, right? They are, despite what I think people think because of these very, very small parts of any practice where you're doing political law,

they think that's what law firms do and that they're these, you know, principle-based, like we fight the good fight every day. No, no, no, they have a ton of other clients. That's how they make money. And so if you tell them, if you do X, you could lose your access to federal buildings and your security clearances, they're just going to stop doing X for the fear that they'll be on the losing side because there's not a whole huge benefit to being on the winning side because again, the vast

majority of your clients have nothing to do with any of this. Your clients are, you know, the fortune 500 doing normal Fortune 500 stuff. And so I'm deeply concerned that this kind of lawfare coming from both sides, such as it has, is going to end up leaving us with only these boutique law firms doing any sort of political law. I just don't love that, David. David Hickman Well, I mean, it's flat out unconstitutional. I mean, this idea that I'm going to, you know, as I just said about the order, here's the constitutionally protected activity in which they engaged. Here's the punishment we are imposing for that constitutionally protected activity.

There's a reason why we have a First Amendment. This is, look, and it's not just that they're aiming at speech. They're aiming at if, you know, you're going to have any argument or any conversation with any originalist about the scope of the First Amendment, the absolute beating heart of the thing is political speech. It's speech engaging in the political process. I mean, this is, this goes back to English Bill of Rights stuff from 1689. I mean, this is the absolute core of it all. And so inexcusable, inexcusable to do this and inexcusable to do double secret probation. Absolutely corrosive to participation

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Terms and conditions apply. Okay, speaking of protected speech, let's talk about Mahmoud Kahlil, a graduate student at Columbia until this past December. He was in his university-owned apartment Saturday night when several immigration and customs enforcement agents entered and took him into custody. They said they were acting on State Department orders to revoke his student visa. When informed that he was in fact a permanent resident with a green card, they said they would invoke that instead. Okay, so he was well known for being the spokesperson and organizer of a lot of the pro-Palestinian protests, and I want to use that word somewhat in quotes, right? I'm not sure if

we've mentioned this enough on this podcast. Protest is not a legal term of art in any way. Right. Protest is just like what you call things, you know, if you like them, basically. So I'm putting protests in quotes because whether some of that speech was unlawful, either under federal law, state law or university policies, we've talked about in other podcasts. And maybe the answer is a little bit of all three, David. You know, the Title VI violations that Columbia has been sued for look pretty promising to me, but we'll see. So the question though is, what is the relationship

between the First Amendment and a non-US citizen in the United States? Obviously, the First Amendment does not apply to people outside the United States who are not US citizens. And inside the United States, I think we can agree that you can't arrest and punish a non-citizen for their speech. So we need to kind of get that off the table right off the bat, right? He's not being arrested and put in jail because he said

something unpopular. What we're talking about is a change in your immigration status because of unpopular speech and whether that is First Amendment protected, which is a change in your immigration status because of unpopular speech and whether that is First Amendment protected, which is a totally different kettle of fish, David, and one that I don't see a whole lot of people talking about, except of course our friends over at Reason and Eugene Volek, who I thought did an excellent fact sheet that we can put in the show notes, kind of issue spotting, if you will.

And the short version is, under law, boy, the federal government has near plenary authority over the immigration status of a non-US citizen. Once you're a naturalized citizen, you are in nearly the same position as any natural born citizen with some treason exceptions or that you got your naturalization fraudulently basically. You can unwind the naturalization potentially, but otherwise exactly the same. Okay, not our point though. Here, near plenary authority

to change someone's immigration status until they become a citizen, but does that include pure speech? And again, I think for the purposes of our conversation, David, it becomes more interesting if we take off anything he might have done that violated university policy or was unlawful in any other context. Just assume for our conversation here, what he did was just totally First Amendment protected speech. Can you deport him for that? Well, interestingly, the actual statute would say yes in a limited context.

So the statute, 8 USC section 1182A3, says that any alien who endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization is inadmissible. And then somebody who's inadmissible also by separate statute is deportable. And so that is really broad.

And to be clear, I can espouse terrorist activity all I want, and there's nothing you can do about it. That is First Amendment protected speech as long as I'm not inciting terrorist activity, and that is a term of art. So espousing it, no problem. But it might be if you're here with a green card. And so then the question is,

because that is so broadly drafted, I mean, so broadly written, one is, okay, is there a narrowing construction here? Is there a way to construe that in a way that would be more consistent with the idea of providing aiding and abetting or aid and comfort to a designated terrorist organization, something that narrows that? Or is that constitutional as written or just flat out unconstitutional? And what's fascinating about Volick's post as he walks you through it is the answer really isn't super clear.

Now there is a case from the 1950s, I'm sorry, 1940s, 1945, involving a deportation of an Australian immigrant. This is Bridges v Wix, over alleged Communist Party connections, and the Supreme Court says freedom of speech and of the press is accorded to aliens residing in this country. And so there is some precedent out there, but as FIRE notes in its own statement about this, condemning this, that later decisions from the court complicate the question. So it is far more open than you might think.

Now, I tend to think that this court, which has been extremely protective of free speech, would, especially for a green card holder, there's a difference between perhaps a student visa holder and there's some reporting that there might've been some confusion that they thought he was only a student visa holder, later learned he is a green visa holder, and there's some reporting that there might have been some confusion that they thought he was only a student visa holder, later learned he is a green card holder, but a green card holder is a legal permanent resident of the United

States. I think it's, I would find it, I would be surprised if this court said that a green card holder does not enjoy the protection of the First Amendment when it comes to their immigration status in the country. It's two things hitting each other though, right David? Because on the one hand, they also have held the government to their burden on immigration, right? You've got to do all four corners. This is Gorsuch in in particular who has been hard on the government. But if you do, they've also said the government has enormous authority over immigration.

But I agree with you on speech. They've also had a very expansive view of free speech. In terms of the should, I'm a little torn. You're right. I would feel totally differently if it were a student visa where you're only here for a limited amount of time and all we're really doing is speeding up your leaving. Very different from a permanent resident in terms of the should, not the law. I'm not sure legally there is any distinction

for me between a student visa and a permanent resident. Perhaps there is, but I thought that Eugene Volek did make a good point at the end here on why, even if you hate this speech, think that the immigration laws probably allow him to be removed, that you still shouldn't like this as a policy matter. Eugene Volek, I should say that I don't support the deportation of aliens for supporting foreign violence, at least unless there's a reason to think they will act violently here. As some of the examples I gave above suggest, there are lots of legitimate arguments for violence when it comes to foreign wars and other international matters.

Which arguments are morally sound and which aren't should be a matter for debate, not for government fiat. And I think that chilling the speech of lawful visitors to the US does interfere with the marketplace of ideas for Americans. Indeed, even pro-Hamas speech on American university campuses has, I think, taught many Americans a valuable

lesson about various speakers, groups, and ideologies. That would be true of speech by foreign students or by lawful permanent residents as well as by American citizens. That was a nice way of saying that these people have shown themselves for who they are and no group has done a better job turning the American people against their cause than these idiots. So by all means, we should let them speak because the marketplace of ideas when it comes to this has really been working. You know, and we've talked about this before,

it is an interesting question to me. Has any protest movement in your memory done more harm to its cause than the post October 7th protest movement, specifically the encampments. Like, it's hard for me to think of a movement that has not just done more harm to its cause and the cause being the, you know, the Gaza and Palestinian state, but more harm maybe to the left, their whole movement.

Yeah. But more harm maybe to the left, their whole movement. The entire movement. Like right now, the university far left, I would say, is more discredited and more powerless than it has been in my entire adult lifetime. And that was something that changed after the encampments. I've never seen anything like it. Never have seen anything like it.

All right, we will put Eugene Valiack's post in the show notes, but punchline? It is an open question, and one that I think probably is likely to get to the Supreme Court in the near future as the Trump administration pursues these policies. All right, but what's also interesting, David, again, sort of like on the Perkins-Cooey part, I see a lot of hair on fire.

This is so obviously unconstitutional or this is so obviously this or that. Like not all of these questions are as easy as you might like them to be on either side. So chill. I'm with, I would say I'm with Volek. I don't like this. And I also don't know exactly how this would turn out

at Supreme Court. I can hold both of those thoughts. I don't like this. I think this is a bad precedent. I would want a green card holder in particular to feel free to speak in the United States of America. 14th Amendment applies to persons in its due process clause, not just citizens.

But at the same time, I don't know that the Supreme Court's gonna see it that way. Yeah, I'm still pretty mixed because I think, obviously the 14th Amendment applies, but due process doesn't necessarily guarantee, I think, not being removable for viewpoint discrimination. Again, you still have those First Amendment rights when you're here in the country.

You can't be thrown in jail for what you said about Hamas. But can you be, can your immigration status be changed? Hard question. Okay, before we leave this topic, David, there was also a back and forth between the acting U.S. Attorney for the District of Columbia and Georgetown University. Will you get us up to date? Yeah, so this was unusual, would be a good way of putting it.

But again, we had a letter and the letter was unusual, would be a good way of putting it. But again, we had a letter and the letter was sent dated in February, but I don't believe that it was sent until early in March, actually sent early until March. And I'll just begin with reading a bit of this. As United States Attorney for the District of Columbia, I receive requests for information and clarification. I take these requests seriously and act on them with letters like this when you are receiving. It has come to my attention reliably.

What? It has come to my attention reliably, anyway. It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions.

First, have you eliminated all DEI from your school and its curriculum? Second, if DEI is found in your courses or teaching in any way, will you move swiftly to remove it?" And that goes on to say that no applicant to the Fellows Program, summer internship or employment who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered. So he's not gonna hire people who come from a law school that teaches or utilizes DEI.

So Sarah, here we put it in writing again. And I think, but what's important here, I think for people to understand is, because I wrote about this on Sunday, and I got some pushback from people saying, well, isn't DEI illegal? Well, no, race-based preferences and admissions, explicit race-based preferences and employment,

absolutely illegal. That is not DEI. That is not the synonym for DEI. And even if, even if race-based preferences are illegal, teaching them or advocating for them, in other words, advocating for the laws that existed prior to the Harvard case, is constitutionally protected activity.

So this is a very bizarre letter, Sarah, even if, even if it was only and narrowly focused on what's actually illegal, which is, you know, race explicit, race-based preferences, teach and promote, Georgetown could still do that. I don't, this is a, this is a remarkable document. So David, again, this kind of brings out the, is it better to have written it in a letter or is it better to do it secretly? Because I'll bet you dollars to donuts that the Biden administration was not hiring any students

from Liberty University Law School or Regent University Law School, just to name a couple in Virginia, for their fellows program because of what was taught at that school that is also First Amendment protected, right? University Law School, just to name a couple in Virginia, for their fellows program because of what was taught at that school that is also First Amendment protected, right? Traditional marriage, things that the last administration would have said were transphobic, homophobic, whatever, whatever. They just didn't do it, but they didn't do it quietly. So is it worse

to do it out loud? Yeah, I mean, this is really bad. This is really bad. I'm just going to keep. It allows people to then challenge it to embarrass them. I thought Georgetown's response embarrassed the acting US attorney, basically saying, we're a Jesuit school, go to hell. Is that a good summary of the letter? I think that's an excellent summary of the letter. Private Christian college here, you can't tell us what to teach, how to teach it. Yeah, absolutely.

No, I would say, you know, look, I'm very familiar with the sort of, again, the double secret probation concept, although I will disagree with this. I think if you had a Liberty student who said, in their entry application, you would not believe, I cannot wait to be liberated from that stifling environment of Liberty University

as a left-leaning law student. I was consistently harassed, ridiculed, et cetera, et cetera, and I'm looking for, you know. So I do think that this sort of categorical idea that you're going to take an institution and no person from that institution, regardless of their agreement or disagreement with the institution, is going to be hired because of their affiliation with that institution. I think that's a different, that's going further than some of this double secret informal probation stuff that I've ever seen. But either way, they're both terrible. They're both terrible, unacceptable and absolutely violations of the First Amendment.

This idea that a Jesuit school cannot teach or promote its vision of what DEI should be, so long as it's otherwise complying with applicable federal law, That is none of his business. Okay. Let's move on to the Supreme Court because we have had some arguments, we've had some opinions and we need to get through them. So let's start on the argument side. Smith and Wesson, we've talked about this case briefly before, David. The country of Mexico

has sued various gun manufacturers for gun violence in the country. I'll read from Noel Francisco's opening statement to the justices in the oral argument here. Mexico asserts that American firearms companies are responsible for cartel violence ravaging Mexico. Its theory is that federally licensed manufacturers sell firearms to licensed distributors who sell to licensed retailers, a small percentage of whom sell to straw purchasers, some of whom transfer to smugglers who then smuggle them into Mexico, hand them over to cartels who in turn use them to commit murder and mayhem, all of which requires the government of Mexico to spend money. So we've got a few problems here.

One, statutorily, are the gun manufacturers immune from this kind of lawsuit? Because Congress basically made it very, very hard to sue gun manufacturers because the idea was any of these lawsuits could bankrupt any gun manufacturer and you don't have a Second Amendment right if no one can make guns because there's no way to get insurance. The second one is causality, basically. What is proximate cause? And is that string that Noel Francisco laid out there just not enough to get you close,

even if the statute allowed it? I think it's fair to say the justices were... quite skeptical of the idea of this lawsuit and maybe in a 9-0 way. What did you think, David? I thought so as well. I think the only really interesting question is the one identified in this really great roundup

about the opinion, again, in the Volokh conspiracy and reason by Stephen Hallbrook, where he talks about that, you know, Noel, there's this good, this interesting exchange because there's a narrow way that Smith and Wesson wins and a broader way that Smith and Wesson wins. And the, and Francisco, sensing victory wants the broader way. And so the narrow way is just saying this aiding and abetting liability, this idea that by selling down that chain that you were talking about was an aiding and abetting

of criminal violations. That that is, as a matter of law, it's insufficient under these facts. That's the narrow. The larger ruling would be one that would get to this proximate cause. And so there was this exchange between Justice Barrett and Noel Francisco, Justice Barrett,

is there any reason for us to reach the proximate cause question? If we conclude for aiding and abetting, that you win, Mr. Francisco, if you rule for us on aiding and abetting, that will completely dispose of the case. But he doesn't want to end it there. The reason to also address proximate cause is because it's an extraordinarily important issue

that I think applies in many different contexts, which is why there's such a broad range of amici in this case that go well beyond the firearms industry. That is what you do when you say, I'm winning, but I want to really win. But I want more. I want more. I want to keep eating from this trough. Exactly.

So to be clear, Congress passes this law called the Protecting Lawful Commerce and Arms Act, and it prohibits lawsuits like this unless the gun manufacturer has broken a state or federal law. That's where the aiding and abetting comes in. So if they didn't aid and abet, they didn't break the law, therefore they're immune under the statute, bucket one. Bucket two, though, is no matter what, you have to prove proximate cause.

And that's sort of just a stating a cause issue, separate and apart from the statute in a lot of ways. So if you can't prove proximate cause, then that's the big win, like you're saying, David, beyond the statute. And it would apply to all sorts of disfavored industry liability issues where people are coming up with these climate change lawsuits, gun lawsuits. I'm sure there's some abortion thing I could come up with on the other side. Birth control may be a better example.

Or mitroprestone, abortion-inducing drugs. Drug manufacturers in general would love to see this as well. Yeah. So, big or small? What do you think, David? It's a great question. I think it's going to be small. Me too. I think it'll be small just because you're going to have the three liberal justices probably lobbying pretty hard for small. You've got the disposition of several of the conservative justices when given the option

between big and sweeping and incremental, they choose incremental. So I think I can count to five or six on small. Yeah, I think so too. You know, we've often referred to this as judicial minimalism, although that can get confused with sort of the Frankfurter version of judicial minimalism, which really meant deference.

The judicial minimalism we're talking about is narrowness, not deference. But this was what John Roberts mentioned at his confirmation hearing way back when, that he wanted, you know, aim small, miss small was John Roberts' motto, if you will. And I think Amy Coney Barrett has a very similar take on a lot of this stuff of just why decide the big thing?

Let's decide the narrow thing. And if the big thing needs to be decided in a couple of years, a couple of terms, then we'll decide the big thing? Let's decide the narrow thing, and if the big thing needs to be decided in a couple years, a couple terms, then we'll decide the big thing then. If ever. But don't decide big things when you don't need to. Speaking of which, can we go down a little Amy Coney Barrett road, David?

Let's do that, please, because a whole thing blew up, a whole thing blew up while we were doing our awesome, interesting historical podcasts, but over Amy Coney Barrett and MAGA. And yeah, I'm glad you're putting a pin in that. So basically, you have Justice Barrett being attacked from the right after she votes with Chief Justice Roberts and then Justices Kagan, Jackson, and Sotomayor in that USAID emergency docket thing about what should be done with the district court that

said $2 billion need to go out the door. We talked about whether we agree with it or disagree with it. I thought Alito's dissent had some persuasive parts, namely that it shouldn't be $2 billion. It should be just the the 250 million or so that is owed to the plaintiffs in this case. Everyone else doesn't get a windfall, they didn't sue, and I don't know why they would get a temporary restraining order to force them to do a thing anyway. So it's odd to me because this is an emergency docket order, the consequences of which are

actually pretty unknown. All they did was send it back to the district court and say, try again. We don't know what the district court is going to do and we don't know whether it will just end up back at the Supreme Court if the district court continues to do, I don't want to call it bonkers town, but bonkers town adjacent, big, weird, overly broad orders. For some reason, this just set off the far right on Amy Coney Barrett.

They've been attacking her as not smart, DEI higher. She's one step away from suitor already. You feel a lot of the Justice Souter, Justice Stevens PTSD from the right where this was two previous Republican appointed justices who then became two of the most liberal justices on the Supreme Court, in relatively short order upon getting on the bench. You've got a couple years with Souter where you're like not quite sure.

Stevens, same thing, but within a few years, they are to the far left of even the democratically appointed justices. I mean, Souter and Stevens were voting in ways that Breyer and Ginsburg blushed at at times in the 90s. I have a few reactions to this, David. First, Justice Barrett is not Justice Souter or Justice Stevens. Your worst case scenario, worst case, if you're on the right, is that she's Justice Kennedy. I don't even think there's a world where she's O'Connor,

to be clear. No. Kennedy is your worst case scenario, where basically, like, she takes each case as they come and calls them, but she's sort of temperamentally conservative, but maybe doesn't have an overriding judicial philosophy. That is the worst. I want to be clear. I actually don't think that's where she is.

But I think that is the backstop of where she would even evolve to, potentially. A sort of more pragmatic conservative justice. But let's be clear on where she has voted so far. Dobbs, affirmative action, eviction moratorium, student loans, bump stocks. And I mentioned those because in each one, she votes to restrain presidential power and says Congress has the power to do this, except for Dobs, where that's just a conservative outcome. In that case, it's states over the federal government or constitutional government. So this emergency order can be read very much

in line with those decisions. What she's saying is that a president cannot suddenly stop payments on a whim. It is restraining presidential authority. And I think Judge Strauss pointed this out or someone recently pointed this out on one of our special podcasts, David, that Justice Barrett is one of only two justices not to have served in the executive branch. All of the rest either served in the Department of Justice or in the White House, or they were federal prosecutors. Even so, Justice Jackson was a federal public defender, and Justice, which is sort of in a quasi-judicial,

quasi-executive branch role, if you will, and Justice Sotomayor held appointments to the US Sentencing Commission. So even those justices had more to do with the executive branch than Justice Barrett. Yeah, I just don't think she's into executive branch power, y'all, which again, I like. Yeah. And until three seconds ago was orthodox conservatism, by the way. So let's just get that out of the way for, I mean, I have a memory longer than a goldfish's, and I know that for a generation or more, the conventional conservative legal scholarship was that presidents do not have the power

that they have taken and assumed in the modern era, that they were not intended to have the power, that the Congress is much more the supreme branch of government. This is Orthodox conservatism, but MAGA Twitter will turn on a dime on any issue, any issue, so long as it serves its needs in the moment. So if in the needs of the moment are maximum executive authority for Trump. So that's the orthodoxy. If there is a change in that and it could happen anytime, anywhere, they will flip immediately. I mean, one of the really interesting moments of the, you know, interesting elements of the last few weeks has been watching people posting all of these

tweets by people who are now ripping Ukraine that were in 2022 and 2023 absolutely committed to stopping Russian aggression. That's what MAGA does. It flips issues. It doesn't have a fixed ideology. And so MAGA is always going to be upset at a principled judge. It's just gonna switch which one it gets upset at,

depending on the issue. And that's what's happening here. Okay, two more things on this. One, right, the Federalist Society starts in 1982 as a reaction to the Warren Court excesses, the nine platonic guardians making up the law that they think is the most fair and just for the country, tethered to nothing.

And so the idea was process is important, not just outcome. But now that you have six justices, all of a sudden outcome feels way more important than who needs process. Yeah, sorry, I guess I believed what we were saying the whole time, and I find that all pretty upsetting. So if you remember the Federal Society who's now upset about process, turn in your card.

Second, and this one's a little bit more controversial, David. Remember Justice Gorsuch votes or writes even, the boss doc opinion opinion this held that employers can be held liable under Title VII for discrimination against an employee based on their sexual orientation or gender identity. And in fairness, the right lost their minds at that point. Josh Hawley was on the Senate floor saying if this is what conservatives have been fighting for, if this is what originalism or textualism stands for, then we haven't been fighting

for very much. But after Dobbs, you don't really hear anything more about Justice Gorsuch. It seemed like the Ba'astok concern was more about, oh no, what about abortion than anything else. In the meantime, Justice Gorsuch has had many controversial opinions, dissents, or in the majority votes about immigration, voting against immigration enforcement, which I of course don't actually mean. He voted

that the government has to meet its burden and cut square corners, right? But as far as the outcome-based, he was making it easier for illegal aliens to stay in the country or deportable aliens to stay in the country. Criminals, he was making it easier for illegal aliens to stay in the country or deportable aliens to stay in the country. Criminals. He was making it easier for criminals to get out. And like everyone was kind of fine with that. Justice Kavanaugh is actually the swing vote on the court. He's the one who is most likely to be in the majority, meaning he's the one who is, and again, not really using this term, flip-flopping to the liberals the most often. So why the vitriol against Justice Barrett on an emergency order? And I'll tell you, David, there's one little giveaway.

It's calling her a DEI hire. These attacks are at least in part because she is a woman. And that's why they are so vitriolic from what I consider this MAGA core that is just so offended about women right now and worked up about like women just don't belong to their movement. I mean, these are the people saying

that giving women the right to vote was a mistake, that women really shouldn't have these careers, that they shouldn't be in the military, that yada, yada, yada. Gross, I don't know what to say. Well, and Sarah, if anyone doubts what you're saying, because we live in the era in which we live, like it used to be, let's rewind the clock, say 10 years,

and you would say, I think a lot of these people have a problem with a woman being on the Supreme Court. And they would all go, no, how dare you, how dare you? And you would say, well, that's the implication of what you're saying. No, no. Now they just tweeted out. They just tweeted out.

There were tweets, including by very popular accounts and sort of the white nationalist Christian side of the house, of the Twitter house, that literally said this is why women should not rule over men. Like literally just saying stuff like that. So, you know, that's the thing about this era. Consistent with the theme of what you just,

we were talking about earlier, is it better that it's in the shadows or just right in our face? Because brother, it is all in our face now. I mean, this was a little bit of that Yale event that we did now several years ago, where like the guy's arguing with you and I'm like, okay, we're gonna move on to the next question.

He basically says, this is a law student speaking to me. Says, you don't have the ability to speak here because you were seen talking to our enemy out in the hallway, another woman, by the way. This idea that it's really offensive to not be able to control women's activities and opinions and as you said, a woman ruling over men. And David, this all gets me to a really depressing spot because I think if I can just take a little political jaunt for a moment, the failures of Hillary Clinton and Kamala Harris as candidates,

which I think had very little to do with their gender. It had a lot to do with them being terrible candidates and put in that position because of their gender, if that makes sense. They were set up to fail because of their gender, but their failures are because they were bad candidates, not because they were female bad candidates. I think it's very unlikely that Democrats

will nominate another woman again or Republicans because it looks like women fail as presidential candidates. And I think it's pretty unlikely that Republicans will nominate another woman to the bench because of this relatively small movement within the right, frankly, as a percentage. And yeah, I'm feeling women's progress in society, just sort of like we were so close to what I consider just full equality on the merits as women. I mean, I love the fact that Justice Jackson and Justice Barrett, for instance, had children and stepped back from their careers. They were still working incredibly hard, but both left big law when they had children to find more flexible jobs that they could be mothers and lawyers.

And then they both end up on the Supreme Court despite that. That would have been unheard of decades ago. It just feels like that's slipping away a little. You know, I'm glad you brought that up. My mind was heading in that direction as well. And just on the political front, I have heard some of the most woke people I know say, I will be extremely angry if the Democrats nominate anybody other than a straight white man in 2028. And these are some of the most woke people I know who've just said, don't even think about it. Don't even try it. Don't even

talk to me about Harrison and Clinton's weaknesses as a candidate. We have too much to lose. No. And then on the other side, I think you're, I'm not just worried about, I'm not just worried about what you're saying regarding women. I'm worried about what you're saying also regarding the quality of the judicial nominees going forward. So. That it's all outcome based, but it's out for today. You don't know what the judicial nominees going forward. So, if you're- That it's all outcome-based. But it's outcome-based for today. You don't know what the issues are going to be in 10 years.

You're going to put someone on the court who votes correctly, and I put that in quotes also, today on today's issues, you have no idea what's coming down the pike and you have no idea how that person's going to rule. That I think is more of the lesson of Justice Stevens than anything else. He's put on the court and then he lasts for a really long time. And by the time he's leaving, the issues are totally different than they were in the seventies. Totally different, totally different.

But yeah, this really makes me worried. And I'm with you. I'm with you. I do wonder if there is a Supreme court nominee going forward as to whether he would even consider a woman if there is this faction whispering in his ear, no, Justice Barrett was the DEI hire, et cetera, et cetera. I do wonder about that. But I'm absolutely, absolutely concerned that they're going to look at the array of potential judges and say who is the most reliable

political ally in that group. That is what concerns me as well. And we should mention, by the way, this is not coming from Trump. Trump, in fact, defended Justice Barrett. He referred to her when asked, she's a very good woman. She's very smart. And I don't know about people attacking her. I really don't know. I think she's a very good woman. She's very smart. Just want to mention that lest anyone think I'm conflating the two here. I'm talking about some folks on the far, far right who we've talked about them before, the common good constitutionalists, right? This splinter group heading off of the Federalist Society. And like all of a sudden, you see a lot of Democrats loving the George W. Bush presidency

and agreeing that Mitt Romney would have made an amazing president. I foresee a time when the left is loving the Federalist Society and everything they stood for. Can't wait. Yeah. And it will come. If this Trump era continues the way it is, it will come. All right, a couple other arguments worth mentioning. David, we talked about the discrimination against white people and is there going to be a heightened standard under Title VII? If you're a member of a majority group, it was one of the shortest arguments of the term. Under an hour, as it turned out, nobody was willing to defend the idea of having a different standard for white people than black people or straight people than gay people.

I think that one's a done deal. I think it'll also be narrow, although that was the question presented. You had Elliot Geyser, the Solicitor General from Ohio, trying to argue that in fact they should clarify the McDonnell Douglas framework under which these types of discrimination, individual discrimination cases are brought. And the justices were like, why, what? We didn't agree to talk about this. Why are you here? Huh? Accounting for some of why the argument was so short. Yeah. And I think one additional thing that is going to be significant about this, a lot

of folks who tried to minimize the reach of the Harvard case have been saying, for example, well, that was an admissions case. We have not had race-based preferences or gender-based preference cases come up in other contexts as much. I think the way this oral argument went showed the extent to which that sort of colorblind slash sex blind approach just is the law. It just is the law. And so this was, you know, does somebody have to show a heightened, overcome a heightened

burden because they're in a majority group? And the answer just seems to be from the oral argument, of course not. Of course not. Just how broad are we going to make our ruling? And so I just think this is going to re-semit, reaffirm that if you're an employer out there, if you're a school out there, and there's any sort of race conscious preference, you're just not going to find, there's no legal purchase there. I'll mention one other oral argument because this was a criminal case.

It was about DNA testing that it wouldn't prove someone was innocent, but it would prove their DNA wasn't there, if that makes sense. You know, proving a negative is hard. Okay, that's not why I'm mentioning it. I'm mentioning it for this part, which is one of the arguments of why the court shouldn't order this DNA testing,

was because the prosecutor would ignore the order. And here's what Justice Kavanaugh had to say. I mean, but that leads to some awkward questions about what the prosecutor will do. And I just don't think this is more something to react to. I don't see how we can say something's not redressable just because the prosecutor is going to say, I'm not going to comply with a court order. You know, if President Nixon said, I'm not going to turn over the tapes no matter what, you wouldn't say, oh, I guess we don't have standing to hear the executive privilege case. I mean, it just doesn't, doesn't work. I don't think to say recalcitrant defendant can defeat redressability in that way. I assume you agree with that reaction. My reaction

is I could not agree with you more justice cabinet. So David, we've talked about this rumored possibility that the Trump administration would refuse to comply with a court order. And here you have the aforementioned swing justice saying, I don't care. We will make the court order. That's not our job to decide ahead of time whether someone will comply. And this went to redressability, like Article III standing redressability.

They were arguing that you shouldn't, you should just kick out the case entirely because the prosecutor will just not test the DNA. Anyway, meaningful to have Justice Kavanaugh say, that's not how we run this railroad. Yeah, I thought that was really interesting and encouraging. He's like, we're just going to do our job that we're doing our job. Case comes before us.

We can hear it. We're going to hear the case. No, I thought I think that's exactly the kind of posture that you would hope to hear a Supreme Court justice take. All right. Now we have opinions. We're going to go in sort of reverse order here. There was sort of a vaguely interesting one about Hungarian Jews from the Holocaust, David, who had had, of course, all of their belongings seized.

And Hungary basically sells them, liquidates them in some fashion, puts that money into their banks. Now, fast forward 80 years, they're selling bonds in the United States. And the question was, can they go get these bonds to pay them back? And the court in this opinion said, no, if they actually still had your paintings, or your stuff, or you can say like, it was sold here, and here's's the money and it went to buy this thing, this other thing, like they can't just switch out the Picasso for the Monet and say, aha, now the Monet is ours. But basically this was a almost approximate cause type argument. It's just too tangential.

You couldn't really prove that this money was what was going to the bonds, even if it all got commmingled in the bank account. A sad outcome in a lot of ways, but a very rule of law outcome as well. Yeah, absolutely. This one I thought you would be interested in, David. This is the 1988 prevailing parties case. So we've certainly talked about 1983, the statute before, which allows you to sue if a state officer violates your constitutional

rights. If you win that lawsuit, and the term of art here is going to be if you are the prevailing party, then under section 1988, you get your attorney's fees paid for. Well, guess what? A lot of people want their attorney's fees paid for, and so they always claim that they're the prevailing party. And the question in this case was a bunch of folks who had outstanding fines etc that they hadn't paid under Virginia law got their licenses revoked and so they sued saying that basically due process violation you can't take our license because of unpaid fines. In the meantime, Virginia took that law off the books.

They had gotten a preliminary injunction beforehand. And so the question is, is a preliminary injunction make you the prevailing party when then the case becomes moot? And the majority of the court said no. And you have Chief Justice Roberts saying, we're going to have a bright line rule here. No preliminary anything will make you a prevailing party. And yep, that's gonna mean there's some sad cases where the preliminary injunction was super meaningful,

but basically we're tired of having second knockdown, drag out litigation fights, not over the constitutional right, but now over prevailing party status for attorney's fees, we're going to get rid of all that and make this just really clear of whether you get attorney's fees or not. Dissent, by the way, from, wasn't it Justice Jackson and Justice Sotomayor saying, we don't need a bright line rule here, let's do a standard.

Yes, yes, both of them. That is always the understanding, this ruling reflects the understanding operated under my entire career, was that a preliminary injunction is preliminary. To get a prevailing party determination, you have to have a final order. In my litigation, a lot of constantly, we would secure an injunction or you would have voluntary cessation and then you would see the college, usually college as litigating against, move to change the policy and then file a motion to dismiss the entire case's moot. And you're sitting on my end saying, well, by every standard, we're prevailing party, sort of in the real world.

We have stopped the policy, we have achieved a policy change, our client is not being censored, give us our attorney's fees. And at every stage, as I was litigating that, I would think, but where is my final order? Where is that final order? Where is that final order? And that's why, you know, often, it's one reason why we would be looking to, you know, we'd be contesting mootness, because if they could change it, then they could also change it back.

And that final order gives you that kind of final, that degree of protection that other orders don't. But this is exactly how I thought this would come out. Okay, there was a big administrative law case that a bunch of folks have been watching called City and County of San Francisco versus Environmental Protection Agency. This was challenging what we're going to call end result permitting provisions. So it's this idea that San Francisco Bay can only have 2% pollution in it. How you get there, we don't care.

City of San Francisco, if we test the water, like you can comply with every other regulation about your output, but if we test the water and it's over 2%, then we're gonna fine you for that, even if you're in compliance with output, right? So that's the end result part, that you're fine on the end result. And they sued saying like, no, no, no, you can tell us what we can output and what we can't output, right? So that's the end result part that you're fine on the end result. And they sued saying like, no, no, no,

you can tell us what we can output and what we can't output, but we're not responsible for a whole day. What if some like whale takes a really big poop that day? Like that's not our fault. And the government's argument is like, yeah, so then maybe you should only put 1% pollution in there just in case, like don't run up to the line more or less, but like, yeah, we can set limits, end result limits. So it was 5-4, Justice Alito writing for the court, Roberts Thomas Kavanaugh and Gorsuch joining in

some of it. And they basically said, yeah, no, you can't do that. End results isn't going to work. Interestingly, Justice Barrett was joining with Sotomayor, Kagan, and Jackson for part of it. Her argument was, we set end limitations all the time in life. So I'll read you a little piece from her section here. It is commonplace for limitations to state that a particular end result must be achieved and that

it is up to the recipient to figure out what it should be. For example, a company could impose spending limitations by requiring each branch to spend no more than its allotted budget while still leaving branch managers flexibility to determine how to allocate those funds. A doctor could impose limitation on a patient's diet by telling the patient that she must lose 20 pounds over the next six months even if the doctor does not prescribe a specific diet and exercise regimen. And an airline could impose a limitation on the weight of checked bags,

even though it does not tell passengers what items to pack. Limitations can be general as well as specific and general limitations call for more specific ones. David, and this is gonna be true for Glossop, the case we're going to do next. These are actually just really interesting, relatively small distinctions in one's judicial philosophy that I don't think fall against any partisan spectrum in particular. Here, again, Congress set this end result limitations in the statute and Justice Barrett

is allowing Congress that flexibility. So this is not an executive power case so much as it is a legislative power case. And then of course you have what I think are the more traditional conservative justices that were in the majority saying, yeah, but this is an EPA case at the end of the day and we hate the administrative state. Also a conservative position as far as I'm concerned. Yeah, and what's interesting on the ideological valence, Sarah, is you said, how does this fall on ideological lines?

Because I've read a lot of left leaning outrage at this decision, and they're like, how dare you take on the administrative state, San Francisco? Good point. Yeah. So this is San Francisco versus EPA. So this is not something that is just easily resolved on the right-left axis, which is

all of these separation of powers, structure of government type cases, where we are on the right-left axis on that is completely scrambled, completely scrambled at this point. All right. Last up is Glossop. This was a case that we talked about after the oral argument, David. As a reminder, Richard Glossop was on death row in Oklahoma for his role in the 1997 murder of motel owner, Barry Van Trees.

The theory of the case is that Glossop, who was the manager, got an employee, Justin Snead, he was the handyman, to actually do the murder of Van Trees, the owner. But Glossop was basically murder for hire in this point. Glossop argued that in fact, his rights were violated under this case called Nappu, where prosecutors

cannot knowingly introduce false evidence to the jury. In this case, Snead, the guy who actually did the killing on the stand, was asked whether he was on lithium. Yes. Why? He's like, I don't know. I've never seen a psychiatrist. That was maybe false. Um, and so the question was, was this like harmless error? Did the prosecutor actually support perjury? The jury found out that he was on lithium. So like, what does it matter why he was on lithium? He was on lithium, which can make you, you know,

violent, delusional, or whatever. And in the oral argument, it became very clear that like, yes, but if he lied, that's the question. Not what he lied about or how relevant it was to the murder. Yeah, it's not that relevant why he was on lithium, but it might be relevant that the guy who this entire case hangs on comfortably lies in front of the jury.

So that's what the majority found. But there are these problems with that. The idea that he did see a psychiatrist and lied about it all comes largely from these notes on the prosecutor's pad, which says, Dr. Trumpet, lithium. And like, maybe there's a question mark in there. So they're saying, see, look, she knew he had seen Dr. Trumpka, who's the psychiatrist at the hospital, who had prescribed him lithium.

But who knows? Maybe she was thinking she needs to ask him whether he ever saw Dr. Trumka, but she didn't ask. And she was making the note and then they ran out of time. We just have no idea why those notes are there. Justice Barrett, once again in concurrence in this case, saying, basically, concurs that there's a Nupu violation, but instead of sending it back for a new trial, which is what the majority held, she would have sent it back to the Oklahoma Supreme Court. Now that you know there was a federal violation, how would you handle this? Once again, I thought that was a very interesting, separate writing by Justice Barrett of her own ideas about how the law is going to apply.

And I do think her career trajectory is quote unquote showing in some sense. She is a law professor who has been thinking about these issues in her own world very differently than the people who have been having different career paths. I actually think of anything, this is a very interesting statement on having different career paths at the Supreme Court. We used to have lots of elected officials at the Supreme Court, lots of people who had just been in private law practice at the Supreme Court. We've basically professionalized the Supreme Court and said like there's really only one path to go. You need to at some point work in administration. Wouldn't it be nice if we had someone who'd worked in Congress at some point at the Supreme Court? None of these guys ever worked in Congress. I don't necessarily mean like as a congressman. How about as a staff

director? How about as a legislative director? That would be really helpful, I think, right now. Yeah, you know, it's interesting that you say that. And also because if you are an academic, now there's an extent to which there was elements of academia in certain disciplines where the way to get ahead is to kind of just join the hive mind and to your scholarship to just sort of be part of that big borg of sort of far left identity politics, but that's not universal in the academy. There's also another approach of success in the academy, which involves being an interesting and independent,

with an emphasis on the word independent thinker. And so I do think that in the best sense of academia, in the best sense of what an academic could bring to the bench is exactly that. It is rigor and it's independence. And so if that's one word that I would use to describe Justice Barrett so far is, she's independent. She has her own mind, doesn't necessarily think of herself as a member of a faction. And I think that's a very important distinction. I think the words you picked are really helpful to me. Rigor, she's clearly rigorous, right? She's thinking about all these issues and

she's thinking about them independently of any partisanship, and I don't mean political partisanship. I mean, partisan to any group or cause or thumb on the scale, like up, administrative state, you should be leaning against an agency or anything like that. Like, nope, rigorous and independent. By the way, that case, since I didn't actually say the lineup, it was a little bit messy,

which is why maybe I didn't go through it. But Sotomayor wrote the Glossop opinion. Chief Justice Roberts, Kagan, Kavanaugh, Jackson joined. Barrett joined part of it. And as I said, she dissented him part of it. Thomas filed the dissenting opinion with Alito. Barrett also joined part of that. And Gorsuch didn't have any part in this decision, presumably because he had served on the 10th Circuit,

and this case has been going up and down for decades. Remember, this murder took place in 1997. So Gorsuch undoubtedly got one of these many appeals related to Mr. Glossop. So he will now get a new trial. And, you know, David, just one more thing on the criminal law side of this. I think it's very easy sitting in sort of our podcast ivory tower, if you will, to say, oh, look, that's that toe is over the line. That's a foul. Send it back for a new trial.

What's the harm, right? We want these things to be totally laced up and perfect, especially for a death penalty case. And I do believe that. But I also think it's worth noting that when you're talking about a murder that happened in 1997, a new trial often is nearly impossible. If there's been a flood in the evidence room, if witnesses have died, if I mean, you're now going to be able to attack their memories in a way that you absolutely could not at the time. Now it's been 30 years. So ordering a new trial is no small thing and often means not only, I mean, we're in this case talking about the death penalty, we're often talking about conviction entirely. Now in some of these cases, it will just mean a new sentencing trial if we're talking about a death penalty case,

but in this case, it actually was evidence of guilt itself. So it will result in a new trial on all of it. So, you know, take these things seriously in what exactly a new trial means as well. Yeah, and I think the only reason they ordered the new trial here, because this is the kind of evidence that if I had an array of witnesses and one of them did this, I don't think you're getting

a new trial. The reason why you have the new trial is because the centrality of this witness, this witness was the source of the conviction. And so you shouldn't look at this, I don't think anyone would look at this and sort of say, a lying witness equals a new trial. Nah, that's not exactly the formula. All right, David, our next episode is gonna be another exciting special guest episode. I have count them five law professors joining to talk about Humphrey's executor

and where the state of those independent agency officers really lies in the law right now. And we've got law professors ranging all over the place on their opinions. I just sent out the question, was Humphrey's executor correctly decided? Yes or no? I got so many answers. Sarah, Sarah, like I, you know, I don't like to intervene and admonish in any way, but we're avoiding clickbait in our teases and our titles and law professors and Humphrey's executor. I know it's pretty sexy. It's, it's, that's too far.

I mean, that's too far. Yeah. I mean, you said you don't want pornography on this show, but like, I mean, that's too far. Yeah, I mean, you said you don't want pornography on this show, but like, I mean, that's full frontal Humphreys executor coming your way on the next episode of Advisory Opinion.