Advisory Opinions - Chess World Vibes

Episode Date: October 27, 2022

Yes, David and Sarah will be teasing their initial thoughts on the Harvard case and the likelihood of the Supreme Court changing the game on affirmative action... but only after checking in on the real legal scandal currently gripping the nation: cheating allegations in the chess world. Show Notes: -Grutter v. Bollinger Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And this is going to be a fun podcast. All right. Well, the main purpose of it, we'll see if it actually ends up being the bulk of it. But the main purpose of it is to preview the Harvard oral argument coming on Monday, the Harvard UNC cases coming up and the affirmative action cases for the quick description. And we'll dive into those. We're going to dive in. But first, but first, who would have thought, Sarah, that lots

and lots of advisory opinions listeners play chess and play chess at a pretty high level and know a lot about high level chess. David? Who could have imagined? We have a new record on emails and comments, but this record is unique also, not just your number, volume, length, vigor. Vigor, vigor. Negativity. Radiating negativity this this rivals and even exceeds the notorious bell nap gate it exceeds far exceeds it exceeds and i i called david yesterday and was

like david can you believe that so many ao listeners are chess enthusiasts? Never mind. I just heard what I said. Okay. But I think, David, that we got some stuff wrong, but just not the things that our listeners think we got wrong. Yes. I would say we were incomplete in this. Yeah. And it shaped the way the podcast came out. So let's make it more complete. Let's do better. So let's start with the legal standards. We kept throwing around motion to dismiss, summary judgment, and we were looking at this through the lens of whether the complaint that we were talking about, the Neiman complaint as filed, could survive to trial. But we never really said what those standards were. Instead,

we talked mostly about defamation and all of these sort of squishy feelings, public figure stuff. But let's get to like the tax here. So in federal court where Neiman is filed, a motion to dismiss is really about assuming that everything that Neiman said by and large is true. I love the way that this one person put it for like a non-lawyer crowd. For the purposes of this motion, I'll concede that the plaintiff's allegations are true, but even if they are, the plaintiff still can't state a claim. Right. As in like, yep, I did did everything he said but that's not the standard for defamation and this doesn't meet it now if you survive that if neiman can get past that motion to dismiss then there's a motion for summary judgment now this happens basically right before trial you

have all your discovery so we're no longer assuming that everything he says is true. Now we've got both sides presenting dueling something. If it's dueling facts, that's for a jury to decide. Right. But if there's no issue of fact here, that we're just deciding whether, for instance, he's a public figure, a limited public figure for the purposes of chess. Everyone agrees that if he is, he can't public figure, a limited public figure for the purposes of chess.

Everyone agrees that if he is, he can't meet the actual malice standard. But if he isn't, you know, then we've got maybe some facts for trial. And we're not arguing over sort of whether he was actually 39th. We're arguing someone who is 39th, done all the things that Neiman said and that Magnus agrees to. Is that person a limited public figure for chess? That is something that then is going to get resolved at that summary judgment stage, because that's a question of law for the judge, not a question for the jury. If you survive the motion to dismiss, you stated a real claim in your complaint, if we assume everything you said is true, and then we get to summary judgment and there's actual questions of fact to resolve for a jury, then you get to a trial. And so David, I think we, I think that's really important

because we, most of the emails were about how we don't understand chess. And most of my responses were okay, but you don't understand the law. okay, but you don't understand the law. Right. Because the bottom line is, if you are confronting a complaint, like Neiman's complaint, and you read the complaint,

and you know a lot about chess, and you think, that can't be right. That can't be right. That can't be right. That's not relevant for deciding the complaint. And so when we were hand-wringing over some of that, you assume everything he's saying is true within some reason.

You know, if he pleads that Martians came down and with their ghost friends, they're the ones who cheated at chess and not him. Like, no, you don't really assume that to be true. There are some things you can take judicial notice of. Like you can't allege that the Japanese won World War II, right? That's right. But, you know, that's why you saw us mostly hand-wringing over things like his demeanor, because for Neiman's complaint purposes, we're going to assume that, you know, yep, he cheated when he was 12 and 16.

He says like, yep, I taunted him. And here's some of the things that some of the reasons why Magnus would have done the things he did and all of that. Anyway, so we got a lot of complaints about that of people who would like to chessplain why everyone thinks Magnus is have done the things he did and all of that. Anyway, so we got a lot of complaints about that of people who would like to chestplain why everyone thinks Magnus is right and Neiman is wrong. And David, that takes me to- No, no, just before. Okay, okay. Because we have to wait.

We have to wait just a little bit. Will you just savor this moment? Yes. But so from a practice standpoint, I filed a lot of complaints in my day and also responded to a lot of motions for summary judgment. And sort of here's how it, like you're throwing croutons on a salad. You're wanting to explain the proof that you either have or believe credibly that you will have, that you're going to be able to present to a jury. Of course, not everything. In discovery, hopefully you learn more things and hopefully your case fleshes out. But you want to file a complaint that outlined your factual assertions well enough

that if all discovery does is reaffirm what you have alleged in your complaint, that you're going to survive summary judgment and get to a jury. And so that's where I think if you're looking at Neiman's complaint, so he's saying, I didn't, I did not cheat. The statements that I cheated were false. The motivations of the defendants,

these are my allegations about the motivations of the defendants. Now, this is something where a lot of folks in chess who know chess were saying, that's garbage. Like, that's just garbage. Carlson is not motivated in that way. This is not okay. Okay. You know, Carlson's going to be able to respond with a complaint that says not that's garbage, an answer that doesn't say that's garbage. It just says defendant denies allegations contained in paragraphs. And then they'll fight that out. That will be something that they'll fight about. And if Neiman has his ducks in a row, hopefully for his sake, he's not just spitballing there on motivations.

He might have some evidence of those motivations. If he doesn't, if he doesn't have evidence of those motivations and all of the evidence is that that motivation doesn't exist at all or there were different motivations, then he's going to have some real issues. And that's what discovery is for, right? When he says that Magnus was mad that he lost to Neiman, that it affected his overall career goals, that it put in jeopardy his business opportunities, you then, if you survive that motion to Neiman, that it affected his overall career goals, that it put in jeopardy his business opportunities. You then, if you survive that motion to dismiss stage, because we assume those things to be

true, let's assume in discovery that you find out all three of those things. Would that, would you win your lawsuit? Could you win your lawsuit? Okay. Then you get to move to discovery. And then he's going to get all of Magnus's emails. He's going to get to depose various people around Magnus and ask them, was he mad after that game?

Did it affect his business opportunities? And you're going to have these very long depositions about that. So again, David, that's why I think it's important for listeners to understand. That's why we were mostly assuming that was true, unless it is obviously false which i get all of your emails and comments and dms and the skywriter that you sent to my house you feel that magnus would not care that he lost to neiman but neiman says that he did so we assume for the purposes of this lawsuit right now that he did now and i think i shorthanded and was like, Magnus is pissed that he lost to a 19 year old. And everyone's like, he wouldn't care that he lost to a teenager.

You lose to teenagers all the time. Yeah. Yeah. Sorry. I guess what I meant was this is a young brains game. And at some point your old brain is going to be over the hill and you don't know when that's going to be. I sort of compare it to Tom Brady. Yep. Turns out you can be 44 and be a quarterback for the NFL. But most 30-year-old quarterbacks are looking over their shoulder at the 24-year-old who's warming up. And so that's Neiman's allegation. Again, I understand many of you think that's silly.

But that's not what's going to be decided at a motion to dismiss. And then here's the thing that happens if the complaint survives a motion to dismiss, and then discovery goes out. And discovery can be, I think the word would be intrusive. Yeah, a proctology exam got nothing on discovery in a case like this, where it's not limited, for instance, to Magnus's business dealings. This is going to be everything about Magnus. Yeah. So let's get all your text messages, Magnus. Did you text, you know, Nakamura? Did you, who did you, you know, is there, and so that's the point where you'd say, how would you prove motivation? Well, a text message that says, you know, that punk

Neiman is going to cost me blah, blah, blah, would be how, now that would be smoking gun, that never, you know, things like that rarely, rarely happen. Imagine you texted for a booty call after the game and said, I really need one after today. Right? Yeah. That 2am text is going to be discoverable and you're going to have at least one hour of your deposition, maybe two on just that text. What did you mean by that? Who'd you send that to? How often do you see that person? Is that someone you think relieves stress for you in your life? All of that. Yeah. Were you particularly stressed? Are you, are you stressed after every loss that you have? Um, do we have, oh, you are equally stressed. Do you have texts from those previous matches? Did you have booty calls after all of your losses

in chess? Right. Yep. Uh, and the other thing that I want to say, this goes to the defamation concept. Now, a whole lot of people were saying things like, no, wait, you don't understand chess. If you understood chess, you would see that somebody who is as experienced as Carlson would be able to know when something was off. Okay. They would be able to understand the subtleties and the nuances of, of, of this. And I, I, I hear you on it. I absolutely hear you on it. The problem that you have is that Carlson didn't state those things, right? When so far that we know what's publicly available, available, Carlson stated a highly subjective judgment of demeanor. And here's the way, since I'm not as up on chess as I am in,

say, in other, you know, as I am, say, in basketball or other sports, let's imagine that you are a professional basketball player and one of the world's best. And so you're going to be very familiar with the normal range of human athleticism and the normal range, say, for example, of how people recover from injury. You're going to be very familiar with the way in which people can improve from year to year as they work on their game.

And there's sort of a normal human range, a normal range even within elite athletics. And you see somebody busting through the normal range. Maybe they're recovering from an ACL surgery extraordinarily quickly. Maybe they have gained muscle mass between the first round of the NBA playoffs and opening night of the next season in a really extraordinary way. And all of that is pricking your antenna that says PEDs, performance enhancing drugs, are in play here. And you have a lot of experience to say that and to know that. And you have a lot of experience to say that and to know that. And you say definitively, or your public declarations are very definitive,

that Sarah Isger is on PEDs because I've never seen someone go from, no, you say Sarah Isger is on PEDs. How do you know? Well, she has a swagger about her. Okay. Wait a minute. Now, somebody on PEDs might have a swagger because they're extremely, you know, bulked up. But if that's a big difference from saying, I think she's on PEDs because my experience tells me that performance gains of A, B, C, and D are historically associated with PED usage. That is a different kind of assertion, one that, you know, somebody might still try to file suit over, but it's a different kind of assertion than one that is related to,

well, the demeanor was off. And so that's one thing I tried to explain a bit was, okay, I get it that there are a lot of reasons why an expert would look at this situation and say, huh, it would be one of those things, things that make you go, hmm. But that wasn't what we're dealing with right at this moment. So overall, David, here's the point.

Lots of you were mad that we talked about a subject that we weren't experts in, namely chess for some reason. But eighth grade title. When in fact, if I'm Magnus's legal team, the first thing I want is people on that legal team who know nothing about chess. They don't know a rook from a queen because at a motion to dismiss stage, actually, you really just want to look at Neiman's complaint and you don't want to know anything else about what's going on. You don't want to know the vibes in chess world. And so I hear you that y'all are annoyed. We do. We're sorry that you're annoyed. Not that sorry. And I want to read two emails, David, but the first one, I think it was a very good summary of a lot of the less charitable emails. They have four points to make.

One, in roughly two years, Hans went from a promising grandmaster to a super GM, which is an unofficial title for players over 2700 rating. There's about 50 of them in the world. This goes to your point, David. The rise was too quick after, you know, from 12 to 17 years old, he was progressing at a normal pace. And then all of a sudden he like hit a super booster in the last couple of years. Two, I think you overemphasized Magnus having an incentive to use the, I didn't lose, you cheated strategy a la Trump.

Yes. He's the best player in the world and in the goat conversation, but given the sheer number of games, these guys play, everyone loses even Magnus. He just lost to a 16 year old the other day. The loss to Hans and classical chess is worse and it's embarrassing. Sure.

But it doesn't come close to the career tarnishing event. You guys make it out to be this goes to again. Yeah. But in Neiman's embarrassing, sure, but it doesn't come close to the career tarnishing event you guys make it out to be. This goes to again, yeah, but in Neiman's complaint, he says that it was. Now, maybe he can't prove that discovery and maybe he then loses at the summary judgment phase if he can't back up those factual assertions in his complaint in summary judgment. But in the motion to dismiss stage, that doesn't matter three technology technology is a known unknown I agree the old cell phone in the bathroom trick's not gonna work but humans innovate it took two years for the astro scandal to break despite numerous people involved and banging a trash can

I hear you on the astros thing it's a very sore point for me as a lifelong astros fan I personally I think I'm like the only person in Houston who felt aggrieved and cheated by their cheating. Everyone else was just sort of like, they didn't cheat. Don't worry about it. Like, nope, I acknowledge that they cheated and it hurts me because I cared so much about that World Series. That was obviously the first World Series win of my lifetime since it's the first World Series win in their franchise history. Heartbreaking. It's the first World Series win in their franchise history. Heartbreaking.

You can think there's a solid chance Hans has figured out a way to cheat over the board chess without resorting. Well, David, I don't know. Have you read the theory of how, the very online theory of how Hans did it? I have read a very online theory, and I'm not sure if it is the very online theory. Well, the very online theory of how Hans did it is not podcast appropriate, but it involves vibrating beads and the places you might put them. Yeah. Now, again, that's the sort of thing that is pure speculation of like, that's how you could do it. By the way, I do think it helps with the, like, every lawsuit is filed in the environment in which this exists. It's, it's sort of like the Amber Heard, uh, Johnny Depp thing.

We're like Johnny Depp made sure he had a lot of publicists and others filling those boards that cared about that lawsuit with all sorts of stuff that was not going to be admissible in court. And frankly, the vibrating beads are very much along those lines for me. And number four, from a legal perspective, I get how it's really important whether Hans cheated in that specific game against Magnus. However, I don't think that's how the rest of chess world sees it. And this gets to the vast majority of the complaints, by the way. As Magnus said, and many have echoed, the stink of cheating is an existential threat to the game. And for these high level players, it is psychologically difficult to play against.

Tyler Cohen put it like this. If a player has cheated repeatedly in online chess, should we let that same player participate top tier over the board tournaments? To me, the answer is obvious no, and presumably Carlson agrees. Even if over the board chess cheating is very difficult or impossible to pull off, major distractions are created by the player's history, or that same player might prove untrustworthy in other regards. Yep, I hear you, chess enthusiasts. That sucks.

Yep. But it's not legally relevant. Right. And David, this brings us... But you know, we did say, we did break out the difference between the Neiman complaint against Carlson and the Neiman complaint against chess.com.

Oh, absolutely. I think that the chess.com one does not survive the motion to dismiss because if everything Neiman alleges is true, chess.com had an alternative and viable reason to ban him from their platform based solely on what he alleges in his complaint. Right, right. Exactly. He had admitted to two different instances of cheating online. And then to argue that chess.com had really no basis to take the action that it took, it I love the subtitle of our podcast that Adam gave us, limited public figure for the purposes of Donkey Kong, is this limited public purpose figure aspect to this, which, look, if he is a limited purpose public figure, and then the actual malice standard attaches, in other words, that I said something that I either know is false or was so reckless with making the statement that it was almost like the equivalent of knowing it was false.

Carlson, that's where the sort of Carlson, I know a lot about chess. of Carlson. I know a lot about chess. I am able to make subjective judgments that are far superior to the subjective judgments of the average person on cheating. That is where that may be quite helpful for him. Maybe not at the motion to dismiss stage, however, because at the motion to dismiss stage, you know, introducing sort of all of that evidence of expertise and things like this, that's not going to be part of that. It's not going to be part of the equation. deposition and be able to say, yeah, my statement was brief about why I believed he cheated. Let me amplify based on expertise. And then could that be a situation where a judge says, I'm not sure you're going to have actual malice here. If you're talking about a good faith judgment based on decades of expertise, that's where that public figure kind of analysis could be really important in this case. And a public figure for the purposes of chess could be, the fact that Neiman's likely a public figure for

the purposes of chess could be fatal to his case. And just worth again emphasizing, he had three different claims, one against Magnus Carlsen, one against chess.com, and one against that other chess player. All three of those will be treated separately. So you can win two, lose three. It's a mix and match game. They probably will all have separate counsel and file their own motions. But David, I was heading to bed. It was 1045 at night. I'd read all of these incredibly

negative comments. As I said, the skywriter coming to my house felt a little over the top, frankly. And I was just a little sad, David, not because the comments were negative. We actually love your criticisms and we love hearing from all of you and like your thoughts on all these podcasts. I was a little sad, David, though, because we hadn't gotten the email that I was waiting for.

I knew it was out there. Yeah. And at 11.04 PM, there it was. And I almost didn't read it. I almost went to bed because I didn't want to read one more email that wasn't the one I was waiting for. It took 12 hours, but it came. And it's glorious. His name's Michael. And some of you up at Penn are going to know Michael when I start reading this. Prior to law school, I actually was a semi-professional chess player. See my profile here.

I say semi because I never made it my full-time career, but I always enjoyed playing from when I first learned the game at six until I retired after college. While in college, I was able to achieve the Grandmaster title, the highest rank that can be awarded in the game of chess, for contacts that are only about 2,000 living chess Grandmasters,

so anyone making it to Grandmaster has to show an exemplary amount of skill with serious consistency in order to reach Grandmaster rankings. That's right, you guys! We got a Grandmaster 2L! Yep. Who walks us through his thoughts.

Forget the motion to dismiss stuff. Let's do the fun part of what a legal chess expert actually thinks. Evolution of chess. I mean, this email is well organized. I actually yelled at him for taking 12 hours. Like how dare you, sir, take 12 hours to send me this email. Of course, you know, he has some other stuff going on, but whatever. How dare you, sir. Didn't you know this was important? He says he's been listening by the way for the last two years and he just wrote the nicest things. And we, we so appreciate that. I'm not going to read those because who cares? Uh, evolution of online chess. I won not going to read those because who cares?

Evolution of online chess. I won't spend too much time on this topic based on the podcast episode. I don't want to get into the nitty gritty of what's happened to chess in the last few years. In brief, chess has seen an explosion in the online space. A lot of this can be attributed to COVID, but big platforms like chess.com were already pushing for a greater concentration of online events prior to COVID. This only grew in size after in-person games became impossible. Hence, chess became a favorite pastime of many people to find a new hobby during COVID, which has done a lot for the game's popularity. That and the Queen's Gambit, which, by the way, is an excellent show. We agree, Michael.

We thought it was a great show. Yeah. Chess cheating. Sadly, the boom in online chess has not all been good news. People have different opinions about this, but one of my primary concerns with the online boom is that it would incentivize more people to cheat in their games to gain reputation or prizes. Prior to COVID and chess.com's emergence as the primary site for online chess, I had already found that online chess sites often had users who

were cheating quite regularly. I even had a couple online prize tournaments spoiled for me because I played a cheater during the tournament only for the cheater to be banned later in the tournament. That would really bother me. Hence, to me, the boom in online chess has exasperated the temptation to cheat, especially in the online setting. It's very easy to have an open window or a second monitor where a computer tells you exactly what move you should make in any given position. And the worst part is there have been an alarming number of professional chess players who have engaged in this practice, often in prize money situations, but it's spread to casual games as well. but it's spread to casual games as well. In short, the cheating scheme that we're seeing today is simply the chickens coming home to roost.

Giving online chess a wide berth without severe restrictions on cheating has made cheating far more valuable. And personally, I think chess.com is much to blame for the resulting catastrophe. Neiman Carlson game. But all this is simply a backdrop to the question at stake here.

Did Neiman cheat in his in-person game against Magnus Carlsen? To me, just want to remind you, the grandmaster, semi-professional, the grandmaster, recently retired. To me,

the answer is an obvious no. When I reviewed the game, I didn't see any amazing moves by Neiman. His moves were for the most part straightforward and strong, though despite this, he still made some serious errors that almost allowed Magnus to hold a draw.

I think the best way to characterize the game is not one that Hans won, but one that Magnus lost. Something I've seen others say, including the, well, the Michael Jordan to Magnus' LeBron. Right. Gary Kasparov, by the way, for those playing at home.

Magnus played one of the worst games I've seen him play in a long time. His moves were uninspired and often easily refuted. In fact, I can personally sympathize with this type of play. I once played someone who I believed had cheated on previous occasions. I had even beaten this person in a previous match. But when I arrived to the game, I wasn't 100% sure that this person wasn't cheating against me. And that nagging fear caused me to play one of my worst chess games.

And that person ended up beating me, which was a huge, quote, upset in sports terms. Okay, we're nerds, but we don't need a definition of upset. But he provides one in sports terms. That means him beating me was unexpected from a statistical standpoint. I love it. I love it. I think Magnus faced similar doubts and thoughts during the game, which caused him to play an uncharacteristically awful game. Hence, I joined the chorus of experts and other chess players that see no evidence of cheating.

Aftermath. The way that Carlsen acted after this match made it quite obvious he thought Hans had cheated, leaving the tournament, the vague statement, the new precautions that the organizers of the tournament put on remaining players, easily based on fear of a cheating device. Carlson's statement. Here's Carlson's statement where he accuses Hans. Specifically, he says, quote, I believe that Neiman has cheated more and more recently than he has publicly admitted.

I think that statement can apply to both Neiman's in-person chess and online chess, but not necessarily both. And he goes on to talk about how that may be the wiggle room that Carlson needs to survive the motion to dismiss stage, by the way. Maybe so. However, Magnus goes on to then suggest,

quote, that throughout our game in the Sinkfield Cup, I had the impression that he wasn't tense or even fully concentrating on the game in critical positions while outplaying me as a black in a way I think only a handful of players can do. This, like David mentioned, is an incredibly thin case for cheating. One thing I've learned in my 15 years of competitive chess is that chess attracts a wide range of personalities to the game. Yes, as I can attest from our AO listener comments. I have met people ranging from the wholly socially inept to party animals, from emotional messes to stoic personalities, from straight arrows to trolls. I have met hans personally and even know some of his family well and someone not appearing tense or focused is not enough of evidence of cheating not by a long shot that part of the statement is legally incredibly problematic

and i think it's where hans has the best chance of winning. Miscellaneous thoughts. Nakamura as a defendant. I don't think Nakamura is a proper party to this litigation. Basically, he's just repeating what Carlson says. He thinks he wins at the motion to dismiss. Fair enough. Can you teach a jury to play chess? No, he says.

No. What do I think of Neiman? I have met Neiman before and even played a game with him in his younger years. Personally, I have found Neiman quite irritating. He was arrogant, self-centered, quick to insult others who tried to push back on his behavior. I'm not sure how others thought of him,

but at least in my age cohort, we were ill-disposed towards him. Now, that was back in 2018, 2019. Ah, yes, so long ago. So it's possible that Hans has matured since then, but given that he seems to relish in trolling people and even said in an interview that he was trolling Carlson while winning the game. It seems that this has yet to happen, but trolling is a part of online gaming culture. And as long as jugheads at chess.com believe the online forum is the best

way to grow the game, I imagine more trolls will emerge. Final thoughts. I found your analysis particularly insightful and was glad to hear your take. I personally wish chess was not in the limelight because of a cheating scandal, but alas, that is where we are. But this has been the perfect mix of both my chess background and legal training. So it's been fun to think about issues as it relates to this podcast and this lawsuit. Wow. Wow, David. New standard for emails of experts. I mean, I keep saying this about our AO listeners. My goodness. I mean, we had, you know, we had, we had the, the Delaware, was it the MoneyGram case involving, you know, abandoned property. And then here comes the achievement expert of all the sheetman experts listening. And he's like, this is my time. That was pretty good, actually, because that was so unexpected.

Maybe the grandmaster 2L isn't as unexpected. I don't know. That's pretty strong. I mean, can you imagine sitting there and then all of a sudden this chess talk starts flowing in and you're like, this is my time is now. Like that was so fantastic. I would think a lot of grandmasters go into law school at some point. I have family members who were competitive World of Warcraft players who then went to law school.

Why do I not know these folks? Oh, David, one drove you to the airport, my friend. Oh, you're kidding. And we didn't even talk about it. Oh, I'm so sad. Yeah, he was on the US team that beat Russia. It was a huge deal. I was with a celebrity and didn't even know it. Yeah, sorry. Yeah. And funny enough, by the way, he played chess in his younger years. All of my cousins did. I did not, as everyone now knows. younger years. All of my cousins did. I did not, as everyone now knows. By the way, since I chastised Michael for taking so long to send his email, I just loved his response back. As to what took me so long, I did mention I'm currently in law school, though if anything, that's not much of an excuse

because I should have probably sent this email prior to you discussing the case on the podcast, given my knowledge. So I love that he went further blaming himself. You will do well as an associate, Michael. You will do very well. That is fantastic. Oh, gosh. Oh, gosh. $13? Okay, let's get you this navy one and for me, the soft beige one. Deals so good, everyone approves. Only at HomeSense. So David, when we move to the Harvard and North Carolina affirmative action cases,

I don't want to make the same mistake. I want to start with some of the legal standards that we're talking about. As you said, this is going for oral argument on Monday, and we're going to do this all over again after oral argument. And so I think it makes a lot of sense to spend more time on the legal standards ahead of oral argument. So first of all, this case went to trial. So this is not coming up as a motion to dismiss or summary judgment where they just accepted one side's facts as true. They actually had a trial with experts and depositions and all of those things. And a trial judge therefore ruled on it. The First Circuit, great opinion, by the way, and worth a read if you're really into this

case before heading into the oral argument. Great opinion, by the way, and worth a read if you're really into this case before heading into the oral argument. The appellate courts at that point will only set aside the trial court's factual findings if, after careful evaluation of the evidence, we are left with an abiding conviction that those determinations and findings are simply wrong. I.e., if it's that someone on the stand doesn't sound credible, that's really for the trial judge to decide. And so Harvard put up a lot of expert witnesses, a lot of their admissions officers testified. That was for the trial judge to determine

whether they were telling the truth. That's not really gonna be a question now at the appellate stage. You're gonna now assume they were telling the truth because the district judge believed that they were. So title six applies to any school that accepts federal funding. If they do accept federal funding, like Harvard, remember University of North Carolina is a public school, a university is prohibited from considering race in its admissions process unless the admissions process can withstand strict scrutiny, right? We've said this before

in any other context, racial discrimination, free speech stuff with political motive, you know, viewpoint discrimination, all of that just goes to the strict scrutiny standard. Harvard admits that it considers race in its admissions process and at times provides tips to applicants based on their race. Strict scrutiny applies regardless of racial animus, i.e. it doesn't have to be because you dislike the race. If you're using race, it's strict scrutiny. However, strict scrutiny, as we know, can be survived if you have a compelling interest. Now, normally, again, this is a state actor, but because they accept federal funds, Title VI, we're basically treating them as a state actor. And the Supreme Court has said in a case called Grutter that wanting racial diversity

can be a compelling interest that defeats strict scrutiny. Part of what these cases are about is whether to overturn Grutter, whether that is in fact a compelling interest. So Harvard says that including race promotes cross-racial understanding, breaking down racial stereotypes, fostering a robust exchange of ideas, cultivating a set of leaders with legitimacy in the eyes of the citizenry, exposing them to different cultures and preparing them for the challenges of an increasingly diverse workforce. So that's why they say that this survives strict scrutiny. Okay, so you have strict scrutiny and then you have to have a compelling interest. So they say they have a compelling interest. In order to have a compelling interest, it has to be narrowly tailored. And here

are the three factors for that. A program cannot be narrowly tailored if it involves racial balancing or quotas, uses race as a mechanical plus factor, or three, is used despite workable race-neutral alternatives. And so David, the two things this case are really going to turn on is one, do you overturn Grutter entirely? And that first thing that you can't overcome strict scrutiny, compelling interest requirement, simply by saying you want a diverse student body. Nope, that's not what the constitution requires when it comes to race in those post-reconstruction amendments. Two, even if you uphold Grutter and say that that can be a compelling interest, did Harvard and North Carolina actually meet that narrow tailoring? Or were they using race balancing, mechanical plus factor, there were race neutral alternatives? That's what the majority of this oral argument is going to be about.

And so we'll walk through those three factors that I talked about in a little bit, but I want to get your overall sense impression. Yeah, you know, this is an interesting case because we've talked a lot about strict scrutiny as being strict in theory, fatal in fact. Except in affirmative action. Exactly, Exactly. So this is what makes the affirmative action cases a little bit different from other cases is that the Supreme Court has said, you know what? Racial diversity is a compelling governmental interest. There is a compelling governmental interest in achieving racial diversity, but there's a specific way you can do it in a specific way that you cannot do it. And what, what is happening here is that the plaintiffs in the cases in these students for fair admission are saying, wait a minute, let's go back and let's just say, let, let's go back

and talk about race distinctions at all. And what we need to do is reverse Grutter and get rid of race distinctions at all and the use of race in any way, shape or form as a differentiator in admissions. So this is not saying, in essence, that there is a subtle distinction here that basically is sort of saying, wait a minute, okay, even if you say there's a compelling governmental interest in say diversity, use of race should not be acceptable, period.

And that's what this is gonna be fought over as well as did they, even if you accept that there are ways in which you can use race, did they follow the Grutter factors? But that's where the factual findings of the lower court could really tip the balance in favor of Harvard. The legal issue where the lower court's rulings are not entitled to deference is going to be over, is it time to get rid of Grutter in essence? Is it time to say no more race distinctions at all in admissions? This is where that 3-3-3 court thing is going to get interesting because you basically have two avenues here. I think that everyone believes that there are

quite a few votes, more than five, to find that these schools' admissions policies are not legal. But do you overturn Grutter, which is the Roe v. Wade of affirmative action, if you will, or do you simply say that these admissions practices did not meet Grutter? And I think you've got, you know, a good guess that some of those institutionalists, I'm thinking here, the chief potentially, that's who I'm going to be watching most closely in this argument, because he's the one who said the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race. So on the one hand, I think he wants to overturn Grutter in his heart. But on the other hand,

if you don't need to overturn Grutter because these admissions policies fail regardless, I don't think he'll want to reach it because he is a true judicial minimalist in that sense. Let me walk through some of these factors, David. Yeah, yeah, let's do it. Well, one quick overarching thing. I think if you're going to summarize, I think, students for fair admissions position, it might be something like this that echoes with Brown, which is there is no way, there's just no way to do race as a factor without it getting gross like it's just not

possible and so sort of the i mean that's a hyper simplistic version of brown like so you have separate but equal right and brown is coming along and saying there's no such thing as separate and equal they're just it's just gross and And so I think there's, it echoes with that. And there's some, some really, you know, in the UNC case, they've pulled out these quotes that are just awful, that are taken from internal documents. But anyway, yes, let's go through some of these factors. Yeah. And I want to, you know, they also walk through the history of using race and ethnicity at Harvard. You know, Harvard used to only accept the SAT. And if you, you know, the highest whatever, 50 people on the SAT got into Harvard and that was letting too many Jews in.

letting too many Jews in. And so they started using race and ethnicity and those sort of squishy factors and holistic admissions process for the purpose of excluding Jews, which they've now publicly admitted. But now they say their holistic process is not for the purpose of excluding any race, for instance, Asian Americans. Okay. So I mentioned the factors. One, can't involve racial balancing or quotas. So let's start with that one. A university is not permitted to define diversity as some specified percentage of a particular group merely because of its race or ethnic origin. Racial balancing is not transformed from patently unconstitutional to a compelling state interest simply by relabeling it racial diversity.

From 2009 to 2018, the percentage of Asian American accepted students was stayed between 17 and 20 percent. The Students for Fair Admission is using that as proof of this racial balance quota system. The district court judge said, let's look at a wider lens from 1980 to 2019. It went from 4% to 20%. And the applicants, by the way, went from 4% to 22%. And so the district judge's point was, percent to 22 percent. And so the district judge's point was, if the number of applicants are staying the same, then yeah, you'd expect the racial makeup to stay about the same as well. And so when it was four percent, they were letting in four percent. Now it's 22 percent. They're letting

in 20 percent. I don't see any sort of smoking gun there. Interestingly, SFA kind of responds to that and says after they filed this lawsuit in 2017 or 2018, the number of admitted Asian American students jumped in sort of the highest jump that they had seen in a while. OK, but it also looks like the percentage of applicants went up as well. OK, number two factor, using race as a mechanical plus factor. This has already been struck down. The Supreme Court has found race-conscious admissions policies unconstitutional as mechanical when they give a predefined boost to applicants solely because of race, when they preclude individualized consideration of applicants, and when race becomes the decisive factor in admissions. This one's sort of fascinating, David, because that's where you

get into these very interesting factual disputes over the personal score. And let's come back to that in a little bit, because that gets very fact-specific. But interestingly, without considering race, the share of African American and Hispanic students would decrease by 45%. The district judge found that actually, that is much lower than some of the other admissions policies that consider race. admissions policies that consider race. In the Grutter case, in fact, if they had not used race, it would have decreased by 70%. That was upheld. And so the argument here is this would only decrease African American and Hispanic students by 45%. Therefore, it's not that sort of mechanical plus factor. I thought this was interesting, David. According to Students for Fair Admissions own expert analysis, Harvard rejects more than two-thirds of Hispanic applicants and slightly less than half of all African-American applicants who are among the top 10% on academics of applicants to Harvard if you use their just test scores and GPA.

So using only SAT and GPA, if you're in the top 10% of the people who apply to Harvard, you have just over a 50% chance of getting in if you're African American and about a 33% chance of getting in if you're Hispanic. I just think that's interesting. Not really on one side or the other. Just like, huh, I've done it. Yeah, that is interesting. Okay, number three, narrow tailoring.

Whether there's a race neutral alternative. Narrow tailoring involves a careful judicial inquiry into whether a university could achieve a sufficient diversity without using racial classifications. Here, SFA used their quote, simulation D, one of its proposed race neutral alternatives. under this scenario harvard would eliminate its consideration of race eliminate the legacy dean's list and professors kids tips something that by the way is overwhelmingly white um and you're overwhelmingly likely to get in so So this is legacy students. You're a donor's kid, alumni donor's kid,

dean's list, basically you're a famous person's kid and children of professors that kind of speaks for itself. And increase the tip for low income applicants. It was sort of fascinating what would happen under that scenario. The number of white students would drop substantially. The number of African-American students would drop somewhat. Hispanic students would increase substantially, and Asian-American students would increase

substantially. The average GPA would stay the same at the school. The average SAT score, however, would decrease from 2244 to 2180. And I don't speak modern SAT, and I'm very grateful they've gone back to the 1600 metric. But, you know, it would drop roughly 60 points. And the district judge found that the Equal Protection Clause does not force universities to choose between a diverse student body and a reputation for academic excellence. Therefore, if you cannot come up with a race-neutral way that keeps both the GPA and the SAT scores the same as Harvard wants them, then it is not a race-neutral

alternative to their current admission system. You know, wow. Their last claim, by the way, is for intentional discrimination. This is where that professional, sorry, personal score became really important because they tried to show evidence that the school was using the personal score, which is totally subjective, as a way to bring down the score of Asian American students without having to sort of explicitly use their race. If you use the personal score, Asian Americans are not discriminated against in the Harvard admissions process. If you take out the personal score, they absolutely are. Now, the district judge found that that was correlative and not causal. As in, yes, the personal score is correlated with being Asian American, including one expert who said, for instance, the Asian Americans were the most likely to receive

lower teacher and guidance counselor recommendations than white applicants. And the reason for that, he said, could be, for instance, that Asian American students are more likely to be in low-income schools, overcrowded schools, and that the white students are more likely to be in wealthier schools, get more of that personal attention, where the school focuses a lot on teacher recs and guidance counselor recs, and the Asian American students are suffering because of that, but not because of their race, and therefore Harvard is not using the race as a proxy in those uh personal scores that's where the intentional discrimination claim is gonna turn um and that's where the factual finding is going to hurt students for fair admission yeah it's going to really hurt

them on that i don't think we're gonna we may spend time on that in the oral argument because it is bleak. Yes. And some of the evidence is just really sad, sad, bad. Yeah. Yeah. Using the personal ratings assigned by Harvard reveal a clear racial hierarchy, according to students for fair admission, African-Americans consistently getting the best personal ratings and Asian-Americans consistently getting the worst. Again, if you're using that low income schools and overcrowding as part of the reason why the Asian American students aren't doing well on those guidance counselor recs,

it's a little hard to understand why. It'd be one thing if the white students are getting the best personal scores, but they're not. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and

seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My 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. You know, as we're walking through all of these different factors, which I think that's super helpful. And it's helpful to know that for people to see how complicated school admissions are with

lots of different tips and lots of different advantages. And let's circle back to a discussion that we had that created almost as much interest as chess. And that was when we talked about nepotism in the NFL and how, if you have a structure that was created through racial exclusion and you provide advantages to legacies of that structure, even if sort of nepotism is not based on racism, in other words, it's based on we like each other's kids and we give each other favors, you're perpetuating something that was created artificially through racial exclusion. And that's one of the interesting things about legacies is that, you know, if you're talking about a long lasting legacy program,

you're kind of taking a power structure, an admission structure that existed well before we had any thought of diversity and well before there was any thought of racial. Again, you're trying to exclude Jews from your school. There's too many Jews running around. Right. And so you have a structure that was overwhelmingly white, overwhelmingly, you know, by and large, Protestant or Catholic. And then everyone gets an advantage on the tail of that. So that's, you know, and then the other interesting thing that hasn't been raised yet is sports. So that's, you know, and then the other interesting thing that hasn't been raised yet is sports. So there's all kinds of, as we know from when we talked about the college admissions scandal, that the college admissions bribery scandal that we had a fun talking about on this podcast, there's all kinds of people who are engaging in these niche sports that are mainly for college admissions,

from a college admissions perspective. And it's become its own scandal. How many people have the resources to get good at fencing, for example? And lacrosse is not a sport that you're going to find in inner city schools very much. Or, you know, crew is not a sport that you're going to find in rural Kentucky. And then there's another interesting thing that is also in play here. And there's a lot of emphasis on racial diversity. What about the class issue, Sarah? And this is really interesting here. So in 2017, the upshot, New York Times, when this is an issue that's been percolating for a long time, found that a number of elite schools have more students from the top

1% than the bottom 60% of America. The worst on that score was Washington University in St. Louis. I've been there. I've spoken there. Lovely campus. In 2017, top 1% people who make more than, come from households that make more than $630,000 a year. Sorry, 600? Yes. Okay. Yes.

Yes. 21.7% of the student body. What? Yes. There's enough children of a specific age cohort to fill 21% of the student body just from households that make that much? Yes. Yes. So, and guess what? The percentage is from the bottom 60%. Now, this is people with less than $65,000 income.

6%. 6%. And that's not the poverty line, David. No. 65 to 70,000 is roughly the median income in the United States for a family of four. Right. Median.

Right. 6%? Yeah. So now that's just one four. Median. Right. Six percent? Yeah. So now that's just one school. That's one school. That's bad. But I mean, Colorado College, it's 24% and 10%. Washington and Lee, 19% and 8%.

Colby, 20% and 11%. Trinity College, Connecticut, 26% and 14%. Bucknell, 20% and 12%. I mean, you get the idea. I looked up Harvard and it was 15% are in the top 1% and 20% are in the top, I mean, in the bottom 60%. Yeah. Yeah. Still wildly disproportionate. So that is an interesting reality here. So Yale, for example, this is again, 18.7% in the top 1%, 16.3% in the bottom 60%. And what this raises is this interesting thought that you're from Texas, which has the top 10% rule. Texas, which has the top 10% rule, which is if you're in the top 10% of a public high school in Texas, you can go to UT Austin, correct? You can go to a state school. Go to a state school. You're guaranteed admission to a state school.

Guaranteed admission. You'll be happy to know I was not in the top 10% of my high school class. So you just had to suffer through Northwestern. Yeah, I actually didn't get into UT Law. Is that right? I think I was waitlisted. So you had to suffer through Harvard. But anyway, I just found that really interesting because as you're walking through all of the various scenarios, what struck me about a lot of the scenarios is that how much of the explicit racial classification depended on creating a particular kind of diversity while holding on to all of the other things that the school wants to hold on to. And that's where-

And that's where it becomes impossible. The school can't, I'm sorry, the plaintiffs can't find a race neutral alternative when you're not allowed to change literally anything else. Right. You can't change the legacy kids who are all white because they want them because that's where the donor money comes from. And you can't change the income level because that's not the diversity that they want. And you can't change the SAT or the GPA. And it's like, okay, so you have to hold everything totally the same and not include race, which is like, well, but how, how could you come up with that race neutral alternative and keep. So can I, can I preview my Sunday newsletter right now?

Because I want to write about this from a, from a sort of bigger racial justice perspective. Okay. So the way I have formulated the argument about racial justice in the United States is that American institutions have a multi-generational responsibility to alleviate the effects of several hundred years of racial discrimination. The institutions. So institutions of American life, from governmental institution to long-lasting private institutions to long-lasting church denominations that participated in the creation and maintenance of de jure racial discrimination in the United States have a multi-generational responsibility

to alleviate that. Individuals who are alive now did not participate in that. The institutions did, the individuals, we individuals, I'm not responsible for what the institutions did. The individuals, we individuals, I'm not responsible for what my ancestors did. So the fact that my ancestors were Confederates does not make me morally culpable for their acts. And so the way I've tried to formulate this and describe this to folks is we should support institutional efforts

to create racial justice, but we should not impose individual culpability for racial injustice that individuals were not responsible for. And one of my issues with the regime here is that you have an institution that had racial problems in the past, and it is saying, in essence, well, we're not going to adjust all of the things about our institution that we want to preserve for our own prestige and wealth. So what we'll do to increase diversity is now impose a cost on individuals who had nothing to do with the creation of this institutional imbalance. And I think that's one reason why if you look across the whole spectrum of the United States of America, from black to Hispanic to Asian to white, this affirmative action regime is very unpopular. Asian to white, this affirmative action regime is very unpopular. And because I think it really, what it really exposes is that these institutions are putting on individuals the burden of their,

the institution's past injustice, if that makes sense. Well, let's be clear. I mean, as I said, they don't want to use the race neutral alternative because you have to keep every single thing that they already have the same, take out race and have the same racial diversity on campus and the same grades and GPA. Basically, what students for fair admission was able to show in Schedule D was, you know, you have to get rid of legacies and your SAT is going to fall by 60. But otherwise, we are going to keep everything you want. And your number of white students will drop because of that LDC tips. When Harvard is saying no, they're saying it's because of the SAT. But let's be clear. There's plenty of evidence in the record that it's actually about keeping the number of white students that high, not because they're white, mind you, but because that white student comes from a donor who went to the school at a time where they were discriminating against all the non-white students. And that's a big problem. Yeah, there are a lot of institutional reasons to keep legacies.

I get it. You know, you're talking about multi-generational loyalty. You're talking about- And wealth. Multi-generational wealth. Yes, multi-generational wealth. Hundreds, a hundred years of esprit de corps, you know, like there are a lot of institutional reasons to keep legacy, but here's the deal.

legacy, but here's the deal. Your institution profited from explicit invidious racial discrimination and what you're saying is we want to fix that, but without the institutional cost. Yeah, and similar, by the way, to the professor's kids. They're saying they won't be able to attract talent, professorial talent, to the school if they don't automatically, more or less automatically, accept professors' children. And again, because they're unwilling to reduce the number of white students in the class because of those factors, therefore, they're unwilling to not use race. And as you said, David, you just got to pick. And they've picked using race in a

way. I did like this from the cert petition from the students of fair admissions. Harvard awards racial preferences to African-American and Hispanics, quote, regardless of whether they write about that aspect of their background and their application or otherwise indicate that their race is an important component of who they are. Hard to say how that's holistic. Though it defies the law of mathematics, Harvard insists that being white or Asian American, however, is never a negative in the process. And if you're accepting the same number of students every year, and some students get a plus for only their race, not because they overcame discrimination or because of what growing up with that racial or ethnic background has meant to them, then by definition, as they say, the mathematical impossibility that, of course, it's a negative for the ones you don't give that to here the white and asian american students fascinatingly david harvard then changes that through the course of this litigation and puts out a new policy that says that in fact um nope checking the box is not what's going to give that plus you have to have written about it or highlighted it through your clubs or whatever else. And then they take that back and undo it.

Also worth noting that when they were looking at the race neutral alternatives, scenario D in particular, they had a group of basically admissions experts come in to review that with the litigation team to write up why it wouldn't work. Whoa. That's not how you review whether something's a race neutral alternative. Why would your litigation team need to be there? There's a lot in the record of this case, which is, yeah, it's very sad, frankly. And it's sad, especially, you know, I have friends who have soon to be college age, Asian American boys. And this is the stuff that's just really hard. How do you explain this to your kid? Because other people who look like you are good at tests. even though you've experienced all the discrimination, it's going to be different because they say it's different. Do you know,

it is inherently divisive and disheartening to say to a, an 18 year old, well, you know, you would have after all of your work, if you were any other race, I would have a really, I'd have a high degree of optimism you can get into your dream school. But because you're Asian, I don't think so. And these kids are being told that their entire childhoods, and that's why they have to work harder.

Their whole childhood. Like it is just part of the culture to tell these kids that how hard it's going to be for them because of their race. It's so insidious. I've been saving an email, by the way, since we talked about the TJ case, this was the magnet school that's still going through litigation in the fourth circuit, where they changed the admissions policy from one that was race neutral, was using only scores, to one that is now a, quote, holistic policy. And there was stuff in the record suggesting that they did it for the purpose of not having as many Asian American students. The school was then upwards of 70% Asian American. And so they wanted to change it and basically create sort of caps on the Asian American students by capping the number who could come from any individual junior high school. After that conversation, I got a fantastic email from a principal at an elite magnet school, not TJ, I want to be clear. And he explained something just in a really important way, I thought, and something that maybe we've missed in talking about this, that, you know, really a principal who oversees this admissions process is just going to understand better. I want to thank you and David for your thoughtful analysis

of the TJ and the Harvard situation. My only moments of pause came when y'all slipped into the language of, quote, better and, quote, more qualified candidates for admissions. A selective school like TJ can decide on the most qualified candidates in at least three ways or, quote, buckets, if you will. Yes. Number one, the top scores on objective criteria. I think that's obvious. Number two, the students who have done the best given their current and historical educational opportunities, like the Texas top 10% rule. Three, the students who demonstrate the most potential to get the most out of a selective high school education as measured by grades, but also teacher recs demonstrated difficult life circumstances that they've overcome and shined

throughout. If you accept that the playing field has not been level for children up until eighth grade and that part of that tilting is correlated with race in part because of the confluence in many places, certainly Virginia of race and poverty and lesser quality schools, in part because some children face daily societal racism that others don't.

David spoke very movingly about that. In ways which are proven to depress academic achievement, then going with the first option, by far the easiest, feels like perpetuating an unfair system that has a racist effect, if not intent. As you both pointed out, the goal is to make criteria which work to address past inequalities without making race an explicit criterion, an approach I completely agree with, not just for legal reasons, but also because race is often self-identified in interesting ways. But when there's pushback on TJ because their methods excludes, quote, more qualified students, those words betray a default back to measurement of students, which assumes a prior level playing field. I think a school which comes up with a legally race neutral means of addressing some of the past unequal opportunities for kids, even if one of their stated reasons is to create a more diverse student body, deserves the benefit of the doubt. I find it very hard to disagree with a single word in that explanation for how he's trying to build

an admissions process for his elite magnet school. Yeah, that that's a fantastic man. We have good emails. We have good emails. So, uh, yeah, uh, you know, look, this is going to be before before the Alabama redistricting oral argument. I was of the position that Harvard's in a world of hurt going into this case. I am not so sure right now at this moment that it is after the Alabama redistricting oral argument, because as you brought up, Sarah, it isn't a 6-3 court for all purposes. There are times in which it is more like 3-3-3 or 4-2-3 with Kavanaugh as the median justice. So I'm going to be extremely focused on this oral argument. It is going to be fascinating. And we're delaying our taping

so that we can break down film, to use an NFL analogy. We're going to spend our afternoon doing this. So all day, it'll be an AO day on Monday, really. And David, you'll be pleased to know that the advocate for Students for Fair Admission is Patrick Strawbridge from Consovoy McCarthy. And oh, thanks for asking. Yes, I do know Patrick. Of course you do. Yeah,

yeah. He's great. And congrats to all the people at Consovoy McCarthy who have really just worked their tails off on this case for years. And those depositions, these are guys who swooped in at the appellate level. They were sitting in these depositions with the admissions counselors and sitting with the parents of these students along the way. It's been interesting to follow. This case started when I was at the Department of Justice. So I've been there since day one. We'll follow every twist and turn. Man, between chess and affirmative action, you can fill a podcast. What's so funny is I know what we'll get more comments on from this podcast. That is so true. One of the most divisive issues facing the country for the last 50 years or online chess. Wait, aren't those now the same thing, apparently? All right. Thank you so much for listening.

We'll be back next week with some interesting discussion of an interesting, fascinating, incredibly important oral argument. But until then, please go rate us, please subscribe, and please check out thedispatch.com. When you're working out at Planet Fitness, it's a judgment-free zone, so you can really step up your workout. That's why we've got treadmills. And our team members are here to help, so you can be carefree with the free weights.

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