Advisory Opinions - Cancel Culture and the Anti-Semitism Rot in Universities

Episode Date: October 12, 2023

Sarah and David return to their regularly scheduled Supreme Court programming, specifically to a racial gerrymandering case out of South Carolina (Sarah has copious notes). The two also have a lot to say about the insanity coming out of elite law schools. But first David revisits law of war to explain the international rules of siege warfare. Then: -Supreme Court justices speaking statistics -Non-justiciable gerrymandering -Bonkers law student statements -Some cancel culture clarity -Ideological hot houses at elite institutions -Harmonizing grace and morality Show notes: -Term statistics (2023) -South Carolina gerrymandering case -Rucho v. Common Cause -Allen v. Milligan -John Oliver talks Franklin, TN mayoral race -Chicago BLM chapter comments on Israel-Hamas war -Harvard students comment on Israel-Hamas war -David French: Difference between Kaepernick and Barr -GWU students comment on Israel-Hamas war Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at Fizz.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgert. That's David French. And we have so much to get through. We're going to revisit some law of war thoughts from the last episode somewhat briefly. Then we are going straight to the Supreme Court. We, in fact, delayed our taping today just to

listen to the racial gerrymandering case that was argued here on Wednesday. We're going to walk through that. It is hard. It is fact-based. I have taken copious notes to try to explain it to David. So we'll go with that. And finally, of course, we got lots of questions from you guys about what we think about these law students out there wading in to the wide world of putting out statements on current events and law firm or sending an offer to one of those students. How do we feel? Okay. So David, siege warfare. Tell me about it. Well, first, just like a peek behind the curtain, I'm going to be interviewing Sarah on the South Carolina case because sometimes we kind of have to pick each other up. And this is one of the

circumstances where Sarah's got to pick me up because I've been writing a lot about Israel and Hamas and Gaza, which is why we're talking about siege warfare. One of the things we did not cover in the whole conversation we had about law of war was siege warfare. And that was one of the good questions that people asked in the comments, because Israel has announced a form of a siege. And it has said it's going to cut off everything, food, water, etc., into Gaza. And people say, surely that's a law of war violation. Ooh, but Sarah, it's a lot more complicated than that. So I'm going to read to you from the Law of Land Warfare Manual. This is under the term siege. circle them with a view towards inducing their surrender by cutting them off from reinforcements, supplies, and communications with the outside world. So you can not only conduct and siege and encircle, you can also impose measures to affirmatively prevent anyone, even outside

entities, from delivering supplies to the enemy. So one of the short answer to questions is, can you besiege and cut off supplies? Yes, but here's a responsibility. In the past, the very next section, it was permissible, but an extreme measure to refuse to allow civilians to leave a besieged locality. So in other words, you could not only besiege a locality, you could keep everyone there. And it was permissible to use force to drive anyone who attempted to flee back into the besieged locality, but not anymore. Such prohibitions are now prohibited. Such actions are now prohibited. So there is now an affirmative duty to make reasonable good faith efforts to, quote, conclude local agreements for the removal of wounded,

sick, infirm and aged persons, children in maternity cases, et cetera, et cetera. So can Israel besiege? Yes. Wait, did they just call pregnant women maternity cases? Yes, maternity cases. This is the law of land warfare manual, Sarah. It's not written with an eye towards sensitivity. That's good because they're not achieving it. No, they're not. Maternity cases, right. So there is an obligation to allow people to, you know, noncombatants to leave.

And so right now we have this really fluid situation where Israel is telling civilians to move to specific areas within Gaza. Netanyahu has said you need to leave Gaza. Egypt, however, is not permitting people to leave. There have been reports of airstrikes on one of the border crossings next to Egypt. So there's going to have to be a situation in which Israel, if it's going to comply with the law of war, is going to have to provide an accommodation for civilians. But the declaration that we're going to besiege and cut off Gaza from supplies is consistent with the law of war, And that's where it's going to get really, really sticky. And could be for Israel, one of its first real tests of its commitment to the law of armed conflict as this conflict unfolds. So I wanted to kind of throw that out there as well. And

actually, the law of siege warfare is kind of unsettled right now, honestly, in international law. What I'm articulating is the American formulation, which mirrors much of the Israeli formulation and is rooted in the international law. But the international law of siege warfare is kind of unsettled at the moment. I have lots of non-legal thoughts on this and many other things related to this, but it's one piece of it, one tiny piece of it. It seems like such a complication to the narrative that either side wants, frankly, the like super clean, good guy, bad guy narrative, though, particularly, I think the pro-Palestinian narrative that Americans have on the left, which is distinct, I think, from the pro-Palestinian narrative, for instance, that Palestinians have. So the narrative here, it's complicating because Gaza has a border, two borders. Yeah.

It has an Israeli border, but it has an Egyptian border. That border has been closed. Yeah. The Egyptians do not want this, whatever this is. And I just, I find that to be an odd piece of this siege problem. They don't control all the borders to this place. They're not encircled, if that makes sense. Like Israel has not encircled all of their borders. Exactly. Israel doesn't actually have the ability to lay siege to Gaza fully. And so is that an argument that they're not violating the laws of war because there is still a border that Israel has not closed? It actually is. It actually is.

Although, Sarah, as we know, whenever there's a news report about sort of the way in which Gaza is closed off, it always emphasizes Israel closing off its borders. It never emphasizes Egypt. Indeed, that's why I think there's, as I mentioned, my non-legal thoughts that I have as well. But this is a legal thought. Yeah. But so what would end up happening is if Egypt closes the border and Israel closes the border, then what you would have is kind of a joint, they are jointly together as a combined effort violating the humanitarian rights of civilians who want to leave. But it is not Egypt in isolation and it is not Israel in isolation. But a violation, to use the passive voice,

a violation will have occurred. It is just not entirely Israel's violation. It's not entirely Egypt's violation, but there's going to have to be a serious, a serious effort here to provide safe havens for civilians in this fight. But the difficulty is, what if Hamas doesn't want civilians to have safe havens? This is what happened in the ISIS fight in Mosul, is that ISIS had learned lessons from previous urban fights before Mosul

where civilians had fled and it it really allowed the ISF, the Iraqi security forces, kind of really free reign to just gut ISIS in the city. And so in Mosul, there was also on the part of the ISF, there was a lot of confusion as to how to deal with civilians, because there's so many of them in Mosul, it's almost 2 million people. many of them in Mosul. It's almost 2 million people. And so, but ISIS used civilians as a military asset, in fact, even moving them from place to place to make them more vulnerable. Well, as someone pointed out, the Israelis are going to spend, I don't know what the right verb is there, hundreds of lives of IDF soldiers to do these sort of urban warfare to minimize civilian casualties unless they can get the civilians out. But as you said, it is not in the interest of Hamas to get

the civilians out for exactly the reason that it will cost Israeli lives if they can keep the civilians in. Exactly, exactly. In fact, you know, with the civilians in, I was talking to John Spencer. So how, but how does that, how does that factor into the laws of war? What's Israel? I guess it just is what it is. So Israel has to make it available for civilians to provide. Yeah, but Hamas limits them from leaving. And you know that there's civilians packed into Gaza, even if it's because Hamas wants them there. You can't flatten the place then.

You have to go in and do what like what happened in Mosul, which. And that's going to cost lives. Yes. As John Spencer, the head of urban warfare at West Point said, what ends up happening is you have to walk in and they get to punch you in the face first and then you respond. Now, Israel has trained for that. So they actually have a particular tactic and certain kinds of equipment that they use so that the first attack is not against soldiers, but against, say, bulldozers or tanks that draws the fire. So they try to control for it. But you're exactly right, Sarah. If Hamas clusters the civilians in, like ISIS did in Mosul, Israel's just got to go in there.

It cannot flatten the place. It has to go in there. And in going in there, it's going to take losses because for Hamas, quite frankly, civilians are their biggest military asset. Right, right. I mean, again, set aside actually

whose team you're on, quote unquote. If you're just, what's your advantage? If you're Hamas, your advantage is not numbers, it's not technology, it's not anything else. It's that you'll force Israel in. Otherwise, you lose. Right. And Israel can't just sit here outside of it

and try to, and just starve them out like that. It can't, it can't really do that. And so now it can use siege warfare to put them under pressure. But this sort of idea that end of the day that it's going to starve the civilian population to also starve Hamas. No, no, that's just not that's not going to ultimately fly. All right. This will be the last time we talk about this. I'm quite certain. But let's move forward. Nevertheless. So Supreme Court, it's back. It's here.

We have interesting cases that we talked about last week. Our new friends over at Empirical SCOTUS have put together all of the words spoken for the first week of oral argument last week. And boy, one justice stands out among the nine. So Justice Jackson had 5,350 words. Runner up was Kagan with 3,3300, basically. Third runner up, sorry,000, 3,300 basically. Third runner-up, sorry, second runner-up, I guess, Justice Sotomayor with 2,700. Then you get to the others, Alito, 2,100, Gorsuch, 2,100, Barrett, 1,900, Kavanaugh, 2,000 The Chief, 1,400

And Justice Thomas 656 words spoken Okay, but a few things on this One You have to remember a little bit A, this is only words spoken So it's not actually time And while Justice Jackson will still be the one with the most time

She also is the youngest And speaks the most quickly As young people speak faster than old people. So I'm not totally surprised about the word count. But also, so if you think of arguments as being equally divided, and now remember, we have these arguments where you get a set amount of time, it's a free for all, then you go justice by justice. But let's say each side gets roughly an hour. In those cases that are going to be more ideologically split, one hour is going to be split among six justices, for example, and one hour is going to be split among only three justices. Because of course, the justices that are

in opposition to that lawyer are going to be the ones peppering them with the most questions. Right. And that's exactly what we saw last week. Now, again, I think it's not always going to be six, three along those ideological lines. But if, for instance, the chief is going to be on your team and he's just not a big speaker, well, it's still going to be those three justices, even in a 5-4 case, etc., etc., which is all to say there's been like some dunking i've seen on justice jackson for talking too much i don't know why like what

else do we have to do during oral argument other than talking words cannot express how little i care which justice talks the most yeah and in the same way that i don't think it makes justice jackson smarter either to talk the most just like it doesn't make there was this long standing thing about Justice Thomas doesn't ask questions at oral argument because like he's not smart or something or he just does whatever Scalia tells him. I think that has been largely disproven. It's sort of like my beef with the Trump thing that people who think he's both stupid and an evil genius, depending on which one fits the facts. Or Biden dementia or head of a clandestine crime family, you know. Right. Same thing with the Justice Thomas narrative for so long. He was a stooge of Justice Scalia's.

But also look at this grand conspiracy. He's leading a master. Yeah, right. So like the you're right. The word thing doesn't matter, but it leading up. Yeah. Right. So like the, you're right. The word thing doesn't matter, but it is interesting. It's interesting. And also these are judges,

these, they're people, different people with different personalities. Oh, you mean other cases presenting different allegations and different records may lead to different conclusions? Yes. Now I would find it absolutely, I would be,

it would have, I would have a different view. For example, every dude was talking 4,000 words and every woman was talking 400 words. Then you would say, huh. who are constantly in a position of trying to sort of plead their case to the conservative six, they, you know, they speak roughly an equivalent amount of time. All of that makes just all the sense in the world. I think it's an interesting little trivia point, but it's to draw sort of some sort of moral conclusion from it is a bit much. By the way, a summer associate gave me a framed quote with that quote on it.

So I now, anytime on my desk, can reference it all I want. You mean your tattoo has worn off? Thank you, summer associate. You know who you are. Trying to manage your expenses? Introducing the new TD Low Rate Visa Card. Because rested breaks happen. And Taco Tuesdays happen.

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I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's a u r a frames.com use code advisory at checkout to save. Terms and conditions apply. Okay, let's move on to this racial gerrymandering case. Oh boy. This case. It's hard, David. So I'm going to do my best. I'm going to do facts, then law. Okay. Facts.

We're going to be talking about Congressional District 1, CD1 is what I'm going to call it, and CD6, all around Charleston County, South Carolina. So as you know, we do the census every 10 years. After the 2020 census, CD1 had about 88,000 too many people, and CD6 had about 85,000 too few people. And remember, we have this like one man, one vote thing where we try to keep all the congressional districts about the same after the census. That's why you have to do redistricting all the time is because you got to keep roughly the same number of people in each of these districts. Okay. So CD1 in the 2010 version had about 17 black population in the 2020 version it has about a 17 black population also notable is that jim cliburn represents uh cd6 that this neighboring county

that we're going to be sorry it's neighboring congressional district that we're going to be talking about and both the uh state legislature dude who headed this up and jim cliburn both wanted jim cliburn to have a piece of charleston county why because jim cliburn's so freaking powerful everyone in charleston wants jim cliburn right to have a piece of their county because he's going to bring the bacon home, right? Or represent their interests. He has the ear of the president. The president owes him big type thing. Big, huge. Huge. But the head of the legislature, who's a Republican, by the way, also wanted, you know, Charleston County and CD1 in this case to be a Republican, he said, in case the administration

changes, which of course is not the reason. The reason is because he's a Republican. Okay. So Charleston County wants Jim Clyburn from CD6 to have a little piece of them and wants CD1, the main congressional district for Charleston County, to have a Republican. All right. And that Republican is, drum roll please. Who is it? Isn't it Nancy Mace? Yeah, I think it is. So now let's move to some of the law here.

If you remember in 2019, a case called Rucho decided this was the partisan gerrymandering case. And David, you'll remember this quite well. That was both Maryland and North Carolina. Both had cases of partisan gerrymandering. And the Supreme Court said, not our problem. Non-justiciable. If you want to race or politically gerrymander, go for it. It can be egregious,ious basically and we're not going to touch it um people were upset about that but that's where the law is right now it was a 5-4 decision this is when ginsburg was on the

court it so it fell along exact ideological lines the conservative appointees on one side and the liberal appointees on the other okay now this case was brought not under the Voting Rights Act, which remember is about majority minority districts. That was the Alabama case. This is not that because 17 percent, you're never getting a majority minority district here. So this isn't a Voting Rights Act case. It's not brought under the same law as Alabama. They brought it under the equal protection clause under the 14th amendment,

which has two pieces that will be relevant here. One is basically racial gerrymandering that race is the predominant reason that you did the thing that you did and vote dilution. This idea that you, it's sort of the opposite of the voting rights act or section two requirement

that you intentionally diluted the vote of, in this case, Black Americans. All right. So the other part of the law that is relevant is that there is a presumption of good faith about the legislature's intent. And that the court has also said that you have to be very careful, for instance, in trying to disentangle politics from race. And of course, with black voting populations, that's going to be even harder to do because race is a pretty good predictor of what political party someone votes in right now. I don't know that it will be forever. It is now. But it is currently. The side that is challenging this has basically what I'm going to call the 17% theory. And their theory is the congressional district started at 17% and it ended at 17%.

And you moved around 150,000 people in the meantime. To keep it 17. Yeah, the only way that that happens is if you were looking at that 17% number and using that as a guiding light and that that violates the race predomination problem, the racial gerrymand nah, it's just going to turn out that we were using politics. And the politics are that ended up being 17% each time because the two are kind of closely related. And you're not disentangling the politics and you're not using a presumption of good faith as you were supposed to use. All right. But there's a few things that are going to make this even more complicated. It is already head hurting complexity. Yes. The district court made factual findings here that the legislature, the Republican legislature's experts, but basically, they just weren't credible to them. When they said they didn't use race, not credible. Now, they didn't

actually say the guy seemed shifty or there was anything about his demeanor. They just said based on all this other circumstantial evidence that the other side presented, they found that more credible than him. So is the Supreme Court reviewing like now supposed to be super deferential to that, you know, fact finder? Yes. you know, fact finder? Yes. But what if that fact finder didn't use the correct legal standard, which was the presumption of good faith by the legislature? They never mentioned that presumption of good faith. The appellate, the three judge panel never mentions that. So is this a legal standard? Or is it a highly deferential fact standard? All right.

So we get into the oral argument. David, I'm just going to tell you, this was a very pretty 6-3 oral argument. Oh, was it really? Okay. The chief was just having none of this. He seemed from the get to find this all pretty unconvincing. Why? Because the ones challenging the map

never produced an alternative map that would do what the Republicans want, which is to make this a Republican district, move in these two counties that they want to, like the Jim Clyburn thing, like carve out and all of that, like all of their

political objectives. There were two counties they wanted to move. They want to make it Republican and they want Jim Clyburn to represent a piece of the county. They never produced

an alternative map that could do that. In fact, the alternative map that they produced had a 20% black population. Mm-hmm. And it was a Democratic district.

Right. Because, and this gets to the heart of the whole reason this case is broad, and there's some deep irony here. This is broad as a racial gerrymandering case by the Democrats against the Republicans. Why? Because the Democrats want to control the district. Mm-hmm. Do you see why that's weird? Right.

Like you're arguing it's a racial gerrymander, not a political gerrymander, even though what you want is also a political gerrymander. Right. Or a political outcome is what I should say. And your racial and the increase, the district increase from 17 to 20 percent of black voters isn't enough to tip they also have to move around per democratic white voters so yes in the

republican map they moved more white democratic voters than black democratic voters but as a percentage of the black voters of charleston, they moved like 50% of them. So it also, we had arguments over percentages today. Was it? Okay, this is I swear, one of the back and forth. 93% of the people in the district stayed the same in CD1. And then one of the justices is like, is that correct? And he's like, yeah, according to this way to look at the numbers. And she's like, but according to this other way, it's 88.5%. I'm like, oh, my God. Oh, man.

We can't even agree on how to count the statistics. And for instance, this turned into another problem with statistics. If you're doing a political gerrymander and you have one precinct that has, you know, 900 Biden voters in it, but it has 950 Trump voters in it. Right. And you have another district that has 200 Biden voters in it, but 500 Trump voters in it. Anyway, it's like, which district do you politically want in? And one expert was saying the one, and one expert was saying the other, and that very much matters to whether it's, you know,

whether there's circumstantial evidence that they weren't correctly using politics. So if I'm going to say, okay, I've listened to all of this, and I'm really, I want to figure this case out compared to Allen v. Milligan, the Alabama redistricting case. Yeah. The difference is in Allen v. Milligan, you're talking about creating two majority minority districts. Yeah. Two majority black districts.

And this one, you're not talking about that at all. Correct. Either way, you're going to have a majority majority district. Correct. The only question is whether it's Republican or Democrat. Right. And it's not neither one are going to be very strong. This district has always been a bit of a toss up. It was held by Republicans for a long time, went to Democrats in an upset in 2018. And then Republicans want it back in 2020. So Republicans are looking to make it I believe I could get this a little bit wrong, 2% more Republican. So I have, I'm torn here, Sarah. I am absolutely against outcome-based jurisprudence. And I want Nancy Mace

redistricted into private citizenship. So how can I accomplish both of these objectives? Unfortunately, if your only goal is to have Nancy Mace get districted out, that's not going to happen for this case. I think it was pretty clear. You had the chief coming up pretty strongly. One of the stronger oral arguments, sort of hand tipping that I've seen where he just, he thought the alternative map thing

was just such a deal breaker. If you can't produce an alternative map that has the political ends, how can you say that when they produced a map that did have the political ends they wanted, that it was a racial gerrymander? When clearly, you can't get to the politics without having a 17% Black population, so it seems. Kavanaugh's questions were more like, hey, John Gore, the person representing the Republican legislature. Hey, John Gore, tell me what your case is. Just super, super, you know, you didn't really get the chance to explain this part of

your case. Right. Barrett's questions were more, more pointed, but not much. You know, they were more like, hey, I'm looking at this, you know, can you explain this, to which there was an explanation. So this is the first case I've seen that is almost certainly going to be 6-3 along those ideological lines. Remember the last case I mentioned might be 6-3, but it might not be the 6 you think. Right. This is the 6 you think. And, you know, obviously the three strongly disagree with the court's jurisprudence regarding the partisan gerrymandering. That's right. So they were on the other, well, except for Jackson, who wasn't on the court yet. Presumably, right.

Yes, presumably. And their points were, for instance, there's no alternative map requirement. It's like a piece of evidence that you can use. And I'm like, yeah, but it's a pretty big piece of evidence here where you don't have anything to the legislature's intent, for instance, on racial gerrymandering. They're saying that it was political. Your way to rebut that, I think, would be to say,

aha, but see, look, we have this map that they could have done, but they don't have that. And again, I just find this, I don't know if the word's ironic here, but like, if you're arguing that it's a racial gerrymander, and the only way you can fix the racial gerrymander is by flipping the partisan lead of the CD to the way you want it, are we really talking about racial gerrymander? Yeah. I mean, if, let let's put aside for a moment, the whole question of should the Supreme court have said that partisan

gerrymandering is beyond our review. Let it's just, it is what it is for now. There's no indication that the majority is going to reverse that. So you're going to have to show something like, even though it's not a voting rights act case, you're going to have to show that this, even though it's not a Voting Rights Act case, you're going to have to show that this is racially gerrymandered. And it's really hard to do that when your solution to the racial gerrymander is just bringing in more white progressives. That strikes me as a difficult argument to make. It seems almost a tacit admission that what we're dealing with here is a partisan gerrymander.

But I think their best argument goes to that, like, is this a deferential standard to the fact finder? Or did the fact finder use the wrong law standard of this presumption of good faith? And that's why they really led with that the whole time. And you saw the three justices that are going to be in the dissent arguing really strongly on that. Like why we don't even get to look at all of these other arguments you're making because the fact finder said

your guy was incredible. He did use race, according to the fact finder. And look, here's the evidence for that. One, he only had the 2020 precinct level data. And they're like, you know, Justice Kagan being like,

you would never presume that the 2020 presidential results would inform, you know, with Donald Trump on the ballot, no less, would somehow be a good way to decide partisanship moving forward. The argument back to that is it was also a congressional race. And yes, it is. And that, in fact, racial data wouldn't be particularly helpful because it doesn't tell you anything about turnout. Their other, I thought, argument on that

was that the racial data was always sort of up on the computer screen as the mapmaker was doing his job, if that makes sense. And when he transmitted it to like members of the legislature and everything else, that racial data was also there. So they were able, their 17% theory, right? This idea that everything was done in order to keep the black population at

17%. And that that is a racial gerrymander is really based on that, that the racial data was always available. And so anyone just sort of walking by and glancing could have said like, well, it's creeping up to 18%. You better get it back down. Right. John Gore's pushback on that was that's a really interesting theory.

You just have no evidence for it. Right, right. And in fact, we're saying it was always political. You can't produce an alternative map. If you had someone on the record or some conversation or something else to which they're, you know, alternative responses. This is 2023. No one's going to sit there in an email and say, let's do a racial gerrymander. Make sure those black people aren't in my district.

And so you're going to always, not always, you're going to have to rely more and more on circumstantial evidence if you're ever going to be able to bring a racial gerrymander claim. And I think the response from the majority would be, so you better end up with a Milligan case then. You better bring these under the VRA. It's just maybe the racial gerrymanders on the 14th Amendment, maybe we're kind of done with that. Well, I was just going to say, I mean, this is 2023, but where I live, you might have somebody write something like that. I mean, we're in the middle of just this unbelievable mayoral race that John Oliver of HBO covered because it was so over the top absurd with actual neo-Nazis showing up to support one of our candidates. I mean, I could go into the whole thing, but you're right. It seems to me that absolutely the strongest argument

is rooted in these fact finding. How much do the findings of fact in the lower court dictate the analysis that SCOTUS has going forward? That strikes me as absolutely 100% the best argument for the challengers. So that's where that day ended up. Also worth noting that the Solicitor General's office was part of this argument. They said that the court should uphold the fact finding, right, the racial gerrymandering, but that if they don't and they get to that vote dilution claim, because they're two separate claims, racial gerrymandering and vote dilution, that in fact, the courts had used

the wrong legal test for vote dilution. Rather, they basically just said, like, once we found a racial gerrymander, it's all it's obviously also vote dilution. And the Solicitor General's office saying, well, actually, no. So here was the legal standard for vote dilution. A vote dilution plaintiff must prove that the legislature sought to, quote, minimize or cancel out the voting potential of a racial or ethnic minority, and that this intent was a, quote, motivating factor, though not necessarily the predominant factor in the decision. So that's much closer to that VRA standard, right? Right.

Because they use the same standard really as that racial gerrymandering standard. The Solicitor General's office isn't saying it's not a vote dilution. They're just saying they didn't apply the right legal standard. What I sort of found interesting about that and why I mentioned it is that it kind of goes to that previous question, David. If you didn't use the right standard for vote dilution, why are we trusting that you use the right standard, meaning that presumption of good faith for the racial gerrymandering when that was never mentioned either? It seems to me that the panel just maybe didn't do a great job here. Yeah.

And I think it's really important. I'm so glad you emphasize sort of the different factual situation, the profoundly different facts between the Alabama and the South Carolina case, because 100% guaranteed, I'm not a prophet. So this is not like a defined word of prophecy, but I still 100% guarantee that people will conflate the Alabama and the South Carolina case. And if this case does, in fact, come out differently from the Alabama case, in other words, the challengers lose, people will say that the Supreme Court is backsliding immediately following Allen v. Milligan when, wait, what's the word from Justice Jackson there on your desk?

Other cases presenting different allegations and different records may lead to different conclusions. In this case, I would also add different laws and constitutional standards. Exactly. Yes. Yes, exactly. All right. Let's move on to, you know, student groups putting out statements that are bonkers and whether employers should be able or should take those statements into account for employment decisions. So we're going to use one student in particular because it's a law student at NYU, the president of the Student Bar Association, which is student body president at a law school. So here's the statement. Hi, y'all.

This week, I want to express first and foremost, my unwavering and absolute solidarity with Palestinians and their resistance against oppression towards liberation and self-determination. Israel bears full responsibility for this tremendous loss of life. This regime of state-sanctioned violence created the conditions that made resistance necessary.

I will not condemn the Palestinian resistance. Instead, I condemn the violence of apartheid. I condemn the violence of settler colonialism. I condemn the violence of military occupation. I condemn the, and it goes on from there. Palestine will be free, your SBA president. Okay, so this person had been a summer associate at Winston and Strawn. This is a very well-known, large, sophisticated law firm with clients

ranging across the spectrum and across the world. So they put out a statement. Yep. Today, Winston and Strawn learned that a former summer associate published certain inflammatory comments regarding Hamas's recent terrorist attack on Israel and distributed it to the NYU Student Bar Association. These comments profoundly conflict with Winston and Strawn's values as a firm. Accordingly, the firm has rescinded the law student's offer of employment. As communicated yesterday to all Winston personnel, we remain outraged and deeply saddened by the violent attack on Israel over the weekend. Our hearts go out to our Jewish colleagues, their families, and those affected. Winston stands in solidarity with Israel's right to exist in peace and condemns Hamas and the violence and destruction it has ignited in the strongest possible terms. We look forward to

continuing to work together to eradicate anti-Semitism in all forms and to the day when hatred, bigotry, and violence against all people have been eliminated. Our strength lies in our unity, empathy, and shared humanity. This has sparked a bit of a conversation, David. It has sparked a conversation. So I want to start by backing up here because while Winston and Strawn doesn't say this, I think it is fair to assume that probably some clients might have called their relationship partners at Winston and Strawn and, you know, WTF and put some pressure on the law firm to do something. Let's just assume that's true for a second. How is that different than when clients put pressure on, for instance, Kirkland and Ellis

after the Bruin case to not take on more gun cases, for instance. But yet the right at that point was like, cancel culture. OMG. Yeah, cancel culture. Isn't this cancel culture? Okay. Oh, this conversation. I'm so looking forward to it. Okay. Because we have to talk about what cancel culture is before we can even sort of have this. What is it about the whole concept of cancel culture that struck people as profoundly wrong? And it wasn't, I would submit, that people were imposing consequences for extremist speech. So if somebody walks in and they're a magna cum laude Harvard, and they've got a swastika on their face, right? You would say, well, congratulations on doing well in blind grading in law school, but we're not putting you in front of a single client, you're goodbye. So everyone would say, well, of course, of course, there's sort of this, your goodbye. So everyone would say, well, of course, of course, there's sort of this,

yeah, we're tolerant about free speech as private individuals, but not for Nazis, right? So there's always been this sort of sense that there are limits that a private organization and institution doesn't have to associate with every single person, regardless of how reprehensible their conduct or speech is. What made cancel culture a thing was when that principle began to extend into, for lack of a better term, mainstream expression. That you, in other words, could be a normal conservative or a normal progressive, say, and lose your job or be publicly canceled. And I love the way Nicholas Christakis defined cancel culture. And he says, example, cancel culture is one, forming a mob, two, to seek to get someone fired or disproportionately punished, punished for three statements within the Overton window. But David, so A,

getting someone fired, it presumed disproportionate that that was always disproportionate in number two there. So I might disagree with that a little bit. But three, I think that some people would have defined it as things that are still very much up for debate, which is another way of saving the Overton window, perhaps. Right. And let me give two different versions of this. One, maybe the question of Israel versus Palestine very much is up for debate. much is up for debate. Two, if you don't accept number one, fair enough. And I don't mean Israel versus Palestine, but for instance, beheading babies, maybe not up for debate. Yeah, because what we're talking about here is not just who do you think should prevail in a struggle, whose vision in the Middle East should prevail, that you're talking about something much more specific.

So again, I'll put that as A a but be on the Overton window. Isn't this really more about the anti semitic rot at a lot of universities, frankly, where this law student could have very much felt that this statement was within the Overton window for everyone they've talked to, including their professors, in the places that they've been. I don't know where this person went to undergrad. Yeah. And I don't know a lot about NYU. But to feel so emboldened to send this out,

I would argue this person thought they were in the Overton window. And that that's a failure by the institutions, not by the law student. Cannot agree more with you, Sarah, that what we have seen is in some universities and institutions is the creation of little bitty ideological hothouses. Where these people actually think and we're beginning to see some fallout from the just unbelievable statement put out by a coalition of Harvard student groups. coalition of Harvard student groups. We have little ideological hothouses created in some of these elite institutions where these people marinate in extremism and then are stunned, shocked when they, turns out that what they're saying comes across to almost every decent human being as just reprehensible.

And think about BLM Chicago puts out this thing, which is Black Lives Matter Chicago puts out a thing showing some Palestinians coming in on paragliders, which is how some of the terrorists who massacred, massacred kids at a rave or at a dance. That's how they arrived, was on these paragliders. And so this is celebrating people who massacred young adults and teenagers, and they're in their little ideological hothouse, Sarah. And I agree with you. That is, to me, that's the principal scandal here.

And the other thing is, and I put this in dispatch. Someone made the joke on Twitter. You know, joke, haha, joke, not haha. However you want to think about it. There was Hamas has more support in the Ivy League than they do in Gaza. Oh, yeah. I mean, I don't even know how inaccurate that would be. And look, I'm going to, and I put this in dispatch slack.

These are not randomly created communities of high achieving students. Right, you've got, you've got the two problems here. The problem that everyone who is talking about this focuses on, once these students are in their university, that they're getting this stuff from the administration from their classes that that aren't balanced and that are creating this hyper, as you say, like hothouse bubble of extreme beliefs. But you're about to get to the second problem that people don't talk about. The second problem that people don't talk about?

That they came this way. This is the admissions problem. Oh, yes, yes, yes. Yes, exactly. Okay, so these are not, when you're looking at the Harvard student body, the Yale student body, Stanford student body, you name it, where we've had these controversies. This is not a random sample of 99 percentile LSAT test takers. This is not a random sample of 3.9 or 4.0 GPA undergrad folks. This is a curated community. It is an intentionally created, curated community. And the admissions offices in these schools are putting this community, they're putting this community together. And so I think it is incredibly important for people to realize, look, this is just not a cross section of the American elite.

Sorry, it is not. And I'll also note, if you think that they're only picking extremists on the left, I don't think that's true. Oh, I agree with you. I think they're picking extreme beliefs across any ideological, like if you're just like,

I don't really know what I think about any particular political issue, like you're not getting in. But if you say I 100% cannot be, you know, ever waver from this position, whatever it is across the ideological spectrum, I think you're more likely to get it.

Oh, I agree. They're bringing in people who are just unquestioning their own beliefs at 17 years old. So like by definition, that's not someone I'm particularly interested in talking to.

Yeah. And then it's with whatever the topic is. Now it's going to tend to be more left wing because that's going to be the makeup of 17 year olds. So you're going to get especially coastal 17 year olds. Yeah. So you're going to get extremist 17 year olds that are predominantly left wing. And then you're going to put them in an environment together. And then you're saying, yeah, but you should know the Overton window in the rest of America.

And this gets to my question, David, given all of this. What are you supposed to do with this student if you're Winston Strong? Did they do the right thing? I think they did the right thing. So let me go back a little bit to this. The other thing is a lot of these admissions committees and some of these folks really love activists. They want they they like to see a record of activism. I've been an activist in my life, Sarah, nothing against activists, but by golly,

if you're an activist at age 17 on a complex issue of domestic? Yeah. You're unquestioning, unwavering, and incurious at 17 on one issue maybe. Yeah. Yeah, I'm not like, you're 17, dude. Unless the issue is what it's like to be 16, you're not an expert. Exactly. You need to be coming to school curious.

Yeah. That's what... But they're selecting against curiosity. Exactly. I agree. And it's a massive problem. And then when they what... But they're selecting against curiosity. Exactly. I agree. And it's a massive problem. And then when they get there, they're being fed

that they're right. If you're on the left. Right. And the law of group polarization takes over, which means when you like-minded gather, they become more extreme.

So they walk in, they're surrounded by a bunch of people who have the same point of view. They have professors with much the same point of view. And then they, they ramp surrounded by a bunch of people who have the same point of view. They have professors with much the same point of view. And then they ramp up their extremism. I wrote a piece, Sarah, because I've been wrestling with this issue forever. And I'll put it in, we'll put it in the show notes. And this is going to be like a blast from the past. But I basically make a pretty simple, I make a pretty, I make an argument about a distinction

between two individuals, Colin Kaepernick and Roseanne Barr. Okay, so I don't know if you remember, everyone remembers Colin Kaepernick and taking the knee. And then next thing you know, he's kind of out of the NFL, not kind of out of the NFL, he's out of the NFL. And there's been a huge fight ever since about, was of out of the NFL, not kind of out of the NFL. He's out of the NFL. And there's been a huge fight ever since about was he out of the NFL on the merits of his poor play, which is kind of hard to believe considering some of the quarterbacks that have, for example, helmed the Tennessee Titans in the interim.

But or is he out of the NFL because he took a knee and he led the movement to take a knee? He took a knee and he led the movement to take a knee. And then there's Roseanne Barr, who sent out an utterly grotesque racist tweet against Valerie Jarrett. Just gross, gross, raw racism. And then if you remember, Sarah blamed Ambien for it. With the best corporate statement ever. Racism is not a side effect of ambient. And so the question is, OK, can I can I how do you look at do you just say if you're against

quote, if you're against cancel culture, does that mean that ABC has to stick with Roseanne Barr, even if she's grossly racist? Or can we actually make distinctions? And I proposed a distinction in the Washington Post, which is essentially something along the lines of, let's not check our moral, we cannot check grace at the door, but we also cannot check our morality at the door.

So how do you harmonize grace and morality? And the way you harmonize it is, if somebody is making a good faith argument, even if it's offensive to you, then, you know, let's have some grace, let's have some grace. But then there are arguments and there are assertions that are just quite frankly, so far beyond the pale. You can't, you couldn't see the good faith with an electron microscope. you can't you couldn't see the good faith with an electron microscope and that's where we were with Roseanne Barr now I don't quite put this person's statement as Roseanne Barr's statements a little bit more sophisticated for example than Roseanne Barr's but when you penetrate through

what she was very emphatically defending it's gross, gross, gross. And so in my view, if you just even in an atmosphere of grace, there are still lines. And if one of the lines isn't, I'm defending beheading babies, for example, or burning families alive, where are we? So I think that Winston Strong made the right decision, but I think their statement was a little off. I think the statement should have been, this shows such poor judgment that we can't have you as a lawyer at our law firm,

rather than what I again thought was sort of Kirkland's problem of like, our clients say they don't want us to do gun stuff. By the way, I think at the time I said like, Kirkland's making a financial decision. I don't know what you want them to do. They're a business. I think where people get a little

discomfited about the whole thing is that these same corporations keep putting out statements on events that they have no particular business putting out statements on. Like after the Dobbs case, for instance, or after George Floyd or after, you know, Russia invaded Ukraine, like in all of these cases, lots and lots of statements. And then this happens in their silence. And it's like, well, then, yeah, people are going to read into your silence differently. Can I read a section of GW students for justice

in Palestine? Oh, gosh, yeah. We refuse to be subjected to this dehumanization any longer. We reject the distinction between civilian and militant. We reject the distinction between settler and soldier. Every Palestinian is a civilian, even if they hold arms. A settler is an aggressor, a soldier and an occupier, even if they hold arms. A settler is an aggressor, a soldier, and an occupier, even if they are lounging on our occupied beaches. As the IOF calls up thousands of reserves, it is clear that all settlers are soldiers. There exists a colonizer and a colonized,

an oppressor and an oppressed. These people cannot be dissociated from resistance because we are in a constant state of resistance. This struggle has been imposed on the Palestinian people to resist to survive and to resist as a right. So a few things with this. One, imagine being a Jewish student on GW's campus right now,

where they're saying not only do they, it's a we, right? We don't distinguish between civilians and militants. And also says that, you know, any Israeli in the United States, for instance, is also part of this. If you're a Jewish student on that campus, I'd be deeply concerned. Not only are they saying that all of the atrocities that were committed were fully justified. Yeah. But in fact, can continue, should continue,

whatever else. Can continue, absolutely. And then they held a rally on campus last night for the martyrs of Palestine, meaning any of the Hamas terrorists who were killed during their terrorism. They covered their faces. They said that they were covering them

so that people couldn't pinpoint, you know, who they were later. So masked people are meeting outside your dorm about this. So, right. Not great. And I think that the institutions have done a huge disservice to their students. I think the admissions office has done a huge disservice to their students. And these universities are sort of left, I think, scratching their heads as to how this happened. And they themselves have been slow putting out statements and then are like, but you can't read into that. It's like, well, you were very quick putting out statements. Harvard was flying the Ukrainian flag at one point.

There is an anti-Semitism problem at universities universities we've seen it in the lawsuits right where for dei purposes the jewish faculty members or employees were forced into a white affinity group and it's like well this might be why they're not so comfortable in the white affinity group white people aren't being targeted jews are being targeted. Right. And also these students, I will just say, don't seem to have any grasp of the actual history of what they're talking about. None. Like, it's weird.

Like, where do they think the Jews came from? I would love to ask that question because it seems to me that they think the Jews came from Europe in 1948. Well, and this is where this admitting activists, again, like a bias towards activism is really a huge problem because these folks are coming into an environment,

they're 16, 17, 18 years old, their knowledge is a millimeter deep, but they're extraordinary. Like their degree of confidence and their knowledge is actually inversely proportionate to their actual knowledge. And so you talk to somebody for five seconds and you just think, what planet are you living on here? You know, they don't, And you see a lot of this and it's remarkable, Sarah. So I just keep going back to this.

I just- You think the Jews are European. How do you think they got into Europe? Why do you think they ended up in Europe? Do you like, do you have any, like the Bible, which you don't need to be hugely familiar with, kind of tells you a lot of the story.

And I mean, the New Testament here kind of tells you a lot of the story and i mean the new testament here kind of tells you a lot of the story of the jews um like slaves they were they were turned into slaves by the romans and marched out of where they were from oh and then they were sent into europe and then they were killed in europe that's like the order of operations here i feel like it just their history starts with the holocaust it's like no no no no but even if it did but no no no no no yeah like and i was reading this amazing thing so um ashkenazi jews according to uh this this study that was published in last year 2022 um are likely descended from about 350 people. There becomes this basically genetic bottleneck.

Why do you think there were only 350 left? And they did this a lot based on some research in this place in Germany, a cemetery that they found dating from the late 1300s and early 1400s. And they have both now the remains to go with and sort of what they know from events at the time. And this is just like the most telling.

So there's a Jewish population in this town. They're in prayers on Saturday. So they lock the doors and burn everyone in it. Sounds about right. Now there's no Jews in the town. And then they come up on financial difficulties, right? Because that's what happens

when you don't have Jews, I guess. So then they put an APB out to all the Jews around saying, we need Jews in our town. So then Jews come to their town and you know how this ends. Then there's another pogrom and they kill and kick out

all the Jews again. I mean, it's only funny in like its total inevitability and predictability, if you know anything then, about the history of Jews. Well, and the other thing is this sort of idea. I'm not going to defend everything that Israel has done, every military tactic that it has used, any more than I defend everything the United States has done or every military tactic that we've used. But it remains the fact that from the beginning, even if you're going back to 1948 and the initial declaration of independence, that was a very small, almost rump state that declared independence. And the larger Arab world said, no, you cannot have that at all. And then spent decades trying to use extreme military force to extinguish Israel, period. Okay. And if you look at Hamas, Hamas does not say we need to live in peace side by side with Israel. They want to extinguish Israel, period.

Like it just doesn't. And then you have, again, people don't realize this, the amount of ethnic cleansing of Jews from surrounding Arab states, the before and after populations. This isn't just about Israel. This whole, like, trying to couch this as simply against Israel, I hope this proves it's not about Israel. Because you know what? If you simply don't like the government of Israel or think that you should have your own government, you're not raping women next to their dead friends. You're not killing a grandmother

with a live, you know, with a videotaping on her private phone and uploading it to her facebook feed and you're not beheading babies why would you need to behead babies and this idea that like babies are soldiers i'd love for you to like actually have to work out the logic of the statement that you wrote. But then you just kill them. Fine. But you don't torture and you don't live broadcast that. And I would like to hear how is your statement different from a statement a Nazi would make? Oh, it's not. But anyway, we're going to leave that be. We've veered off a couple of notes. One, we're going to have a circuit palooza here coming up in our next episode.

We've got a circuit roundup that we need to do as well as an interesting question on why circuits tend to maintain their partisan lean or ideological lean through different administrations, the Ninth Circuit, the Fifth Circuit, etc. So we'll answer that in the next episode. And also, thank you for those who waited on the doornail situation. Dead as a doornail, meaning that those nails have to be bent after they're put in around the door frame, whatever. And so they're no longer usable. They're dead nails. Fine, except they still weren't alive, which was my animating principle to begin with. See, animating. But we did get some just tremendous responses from listeners, both in the email inbox and

to the comments. I knew we would as soon as we raised the origin of dead as a doornail. And that's why I love our listeners. They know things. They know things. They do. And with that, thank you. We'll talk to you next time.