Advisory Opinions - Consistent Standing Doctrines

Episode Date: August 24, 2023

Will there be a legal and cultural consensus on transgender affirming healthcare? Why don’t female deputies get a full weekend in Dallas County? And what will Sarah’s baby’s name be? Sarah and David explore these questions and a smorgasbord of legal topics in a end of summer circuit round-up, including: -Merit based and race neutral admissions process in Fairfax County -Law firms discriminating on basis of race -Fifth Circuit apocalypse case on mifepristone -Standing doctrine mess -9th circuit limiting transgender people’s participation in sports -11th circuit case on transgender medical care for minors Show Notes: -Flagship Podcast Merch -Sarah and David's Book Club episode -Snail Darter Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And have we got a show for you. It's a circuit roundup. Two 5th Circuit cases, one 9th Circuit, one 11th Circuit. It's going to be really fun. First, we have some fun housekeeping. There is, finally, drumroll please,

advisory opinions, merchandise on the website. Yes. So if you go to thedispatch.com, scroll down to the bottom, there's like a store button, and you will find many items, but one of which is the all-important

gnaw dog doctrine mug and it's glorious it's glorious the font yeah for all the time that that david and i spent and and all dispatch staff spent making this happen the disproportionate amount that went to the gnaw dog doctrine mug is the funniest part of the whole thing. Yeah, it's so good. It's so good. It's so ornate for the words gnaw dog. So finally, next up, David, you were the guest on the Dispatch Book Club. So if you're a member of the Dispatch, we have a book you're a member of the Dispatch, we have a book club ongoing. We just finished our summer series,

which was nonfiction adrenaline junkies. And David and I recorded an episode about the hunt for John Wilkes Booth. Man Hunt, it's called. The 12-Day Search for Lincoln's Killer. A history beach read. Yeah, a historical beach read. Good times.

So if you're not a member of the dispatch and you want to join the book club, $10 a month and you're there. And also, Sarah, don't forget the advisory opinion, flagship podcast baseball hat. Well, yeah. That's in... Standard.

Definitely says on it, flagship podcast. Oh, yeah. That's, and it varies. Standard issue. Definitely says on it, flagship podcast. Oh, that's true. We did make the flagship podcast. Steve does not know about this. No, he does not. But it says flagship podcast on the hat. Oh my God, I forgot.

Yeah. How long until Steve realizes that we did this and that it's being sold on his website? This is awesome. It's fantastic. All right. Now, maybe for another big announcement, this will be my last Advisory Opinions regular podcast

for like a month. Yep. We're going to miss you. But it's for a great cause. It's for a a month. Yep. We're going to miss you. And it's for a great cause. It's for a good cause. For those who have been here from the beginning, you may remember that when Nate was born, it was in the height of Supreme Court hand-down season.

I delivered on Friday and we did the podcast on Monday. We're not going to do that this time. Right. Instead, there's a real treat for you guys, which is that David Latt will be coming as guest host for the month. So it'll be the David and David show. And I'm a little jealous. Well, I'm looking forward to having David Latt.

Love David Latt to death. He's fantastic. But he's not Sarah. He's not you. So we will definitely miss you. Listeners will definitely... People confuse us all the time, so that's weird. People confuse you and David Latt? No, I'm kidding.

Obviously they don't. Okay, I was gonna say. Like, I've understood getting the Jonah's and Chris Starwalt's voices confused. Not yours and David's. No, I don't think so. But David, of course, also has a newborn. So we're sort of trading off like his newborn's a little bit older. So he'll come on and then when mine gets a little bit older. So I'm excited to hear what y'all are doing. And then, you know, I've

already threatened to come on as like a guest for a few minutes if I'm getting too much FOMO sitting at home. Yes. And just to be clear, I want to reiterate something we repeated many times when you tell your story of giving birth on a Friday and podcasting on a Monday, that no one in the dispatch hierarchy pressured her to do that in the slightest. I did not. Or even encouraged it. Or encouraged it. Or was acceptable of it. No. Nobody thought it was okay. No, it was reluctantly permitted,

I think is the better way to describe it. I agree. And you know what? I've said this before, but in all seriousness, like looking back, I have some, you know, reservations about that

because on the one hand, it was the right decision for me and our situation here. It was also peak COVID, right? We were all working from home and it's not like I needed to go into the office or something. But looking back, I feel like it wasn't the best example to set. That it makes it look like everyone could go back to work three days later when in fact that's not at all the case right for a thousand reasons and let me reiterate like i get to sit here in pajama pants in front of a microphone um you know i had a healthy baby it was an easy to you know all of those things and i was like you know what i don't know that that was like

hashtag feminism so well and to be clear, the dispatch is very friendly to maternity and paternity leave and dispatchers take it all the time. Yes. So. Yes. Just getting it out there. I am the ally. Just getting it out there. Okay. Other housekeeping details. Well, housekeeping detail number two. No, we don't really have a name yet, but believe me, David and David will both know the full announcement. They will make all of the, you know, everyone will find out all the details.

Don't worry. All right, housekeeping number three. Now back to some law. One, there's a few little updates here. There has been a cert petition now filed in that Thomas Jefferson High School admissions policy case. Remember, this is the charter school in Fairfax County, Virginia that went from a merit-based admission system, test scores, etc., to something more like Texas's top 10% rule that basically they were going to draw a certain number from every junior high school. Normally, that would be no problem, right? It's race neutral on its face. Well, this is going

to test whether race neutral on its face, but with the purpose of creating racial diversity. And in this case, quite a few comments specifically about having fewer Asian students in the school and how to create an admissions policy that could be race neutral on its face and having fewer Asian students in the school and how to create an admissions policy that could be race neutral on its face and have fewer Asian students in the school could be created. So they lost, the people challenging the admissions policy

lost at the Fourth Circuit. They're filing to be heard by the Supreme Court. I think there's a decent chance the Supreme Court takes this because it is the obvious follow-on to the Harvard, North Carolina case, which was not race neutral. And so now that is the next question. What if it's race neutral on its face?

And it will have interesting downstream effects on something like Texas's top 10% rule, which also was created for the purpose of racial diversity. It's interesting. This is a very interesting case, Sarah, because I think the Texas 10% rule is going to meet the constitutional test. And I think in a vacuum, the TJ rule would meet the constitutional test. However, it's not in a vacuum. Because what if it's race neutral on its face? In other words, a policy that if this had been the initial policy, it would be completely constitutionally fine. Or if it was a policy, even as a reformed policy designed to increase diversity, would still probably be fine. But what if you create a race-neutral policy that's directly aimed at one racial group to have fewer of those people?

That's the issue in the TJ case. It isn't really truly, can a race-neutral policy be viable if it has a race-disproportionate effect? I think the answer to that's going to be absolutely yes. The question here is going to be, what if the race-neutral policy was motivated by invidious discrimination against one racial subgroup?

That's going to be the key battleground here in the TJ case. Also, some interesting lawsuits filed that I actually thought would be better for David and David to cover next week. that I actually thought would be better for David and David to cover next week. But Morrison and Forrester, a major law firm, and Perkins Coie, another major law firm, have both been sued.

Constable McCarthy bringing one of those lawsuits, the same law firm that brought the Harvard and North Carolina cases, arguing that these law firms, drumroll please, discriminate on the basis of race. And I mean, David, you and I have hinted at this after the Harvard and North Carolina case that one of the more obvious places where there is affirmative actions-based racial discrimination is hilariously in law firms themselves yeah so uh and while advising their clients about how not to racially discriminate

these law firms some of them have some of the more egregious programs that you can kind of conjure up so for instance having a summer associate program for most people, but then if you're in certain racial groups, you get paid more or you get other perks based solely on your race. Right. Uh-oh. Nope. Sorry. Prep for a loss on that one, guys. I mean, I do think sometimes what happens, believe it or not, believe it or not, Sarah, is I do think there are times when corporations and law firms, and corporations are just as inexcusable at doing this as law firms, because guess what corporations have? In-house counsel. They often follow the suggestions of DEI consultants without real legal review. And you're going to have a problem if you

do that. Sometimes you're going to have a really, really big problem if you do that. Especially if at the end of the day, what you have is an explicitly race-based hiring promotion benefits program. You're going to have a massive problem. I mean, here's just the one paragraph two from the complaint in the Morrison Forrester one. The firm's Keith Wetmore 1L Fellowship for Excellence, Diversity, and Inclusion

excludes certain applicants based on their skin color. These lucrative positions are six-figure jobs that come with five-figure stipends, yet applicants do not qualify unless they are, quote, African American slash Black, Latinx, Native American slash Native Alaskan, and or members of the LGBTQ plus community. So between two heterosexual applicants, one Black and one white, the latter cannot apply based solely on race. That kind of rank discrimination was never lawful, even before the fair admissions versus Harvard. No, I think that's exactly, exactly right. All right, we'll leave that for you guys to dive into the details factually and legally on MOFO.

And yeah, it's actually called MOFO for those who are not lawyers out here. That's not me being cute. That is what everyone calls Morrison and Forrester. MoFo. Which I think helps them in the recruiting process. Let's be honest. You sound pretty cool if you're going to MoFo. Yeah.

Perkins Coie has no such pet name. All right, David. Now it's time to dive into this circuitpocalypse. Oh, wow. Yes. Why don't you set us up on the Mifeprestone case? This is a panel decision. So three judges on this. And, well, it was a bit controversial.

Yeah. So this is dealing with Mifeprestone, the abortion drug. And what was at issue were a number of FDA actions, going back to the initial approval of it in 2000, the amending of the conditions of approval in 2016, the approval of a generic version of 2019, and then in 2021, a non-enforcement decision that it would not enforce agency regulation requiring Mifeprestone to be prescribed and dispensed in person. So the case challenged all the actions, the 2000 approval, the 2016 amendments, the 2019 generic approval, and the 2021 non-enforcement decision. And so at the end of the day,

the court decided that the 2000 approval is barred by the statute of limitations. This came up in an injunction posture. So this is in that preliminary injunction posture involving likelihood of success on the merits. So 2000 approval, challenging it is barred by the statute of limitations. So Mifeprex, what they call, is going to be available to the public under conditions for use that existed in 2016. The generic approval is going to be approved as well. So generic Mifeprestone will be available under the same conditions as mifeprex.

But the 2016 amendments and the 2021 non-enforcement decision are going to be blocked. So the 2016 amendments dealt with expanding the circumstances, for example, changing dosages and things like that from ifaprestone. So that's blocked. And the 2021 non-enforcement that prevented

or that allowed for non-in-person dispensation was blocked as well. And so there's really two elements of this that are of real interest, at least to me, Sarah, and there might be more to you. So one is the standing analysis. So who had standing to challenge these approvals? And in this case, the plaintiffs represented

a coalition of doctors, and the standing analysis for these doctors was really, really interesting to me, and we need to get into this a bit. But at its very essence, the standing analysis was that they were injured because they had to treat patients who had taken mifeprex or mifeprestone. So they had to treat these individuals. And so because they had to treat these individuals, that treatment, the fact that they would have to treat these individuals

gave them standing, both on a conscience grounds, in other words, that they were going to have to complete the abortion process as part of some of their treatments when they had conscientious objection to abortion, and also on just a ground that essentially doing that work, engaging in that part of their legal practice was going to provide them with standing, was going to be in certain circumstances a form of injury. So that was very interesting. And then the statute of limitations analysis is not all that fascinating because, of course, the statute of limitations applied. But what is interesting to me is, Sarah, when it came to the Administrative Procedure Act and the review of the non-enforcement decision, review of the 2016 expansion of approval, this is where we get into this sort of new world of Administrative Procedure Act jurisprudence where rational basis review, especially in the 2016, for example,

the rational basis review has been bulked up. It is on steroids, which is going to be interesting because the rational basis review we're going to review here is going to be very different from the rational basis review we're going to review here is going to be very different from the rational basis review we're going to talk about in a different case

out of the 11th Circuit involving puberty blockers and cross-sex hormones with trans youth. There's going to be different kinds of rational basis review in action here. So that's the basic setup. Do we want to take it in order, standing to merits? I mean, we could spend three hours on standing. And if you've been listening to this podcast, you know that David and I are no fans of the mess that is standing doctrine in the federal courts

right now. And this, I think, is going to show you why. There's the mess at the Supreme Court. But remember, the Supreme Court, like, I'm the mess at the Supreme Court, but remember the Supreme Court, I'm rarely annoyed at the Supreme Court because you're dealing with nine people who have lunch every week and sort of are getting each other's vibes. The problem with a messy standing doctrine that they get

is that all these circuit judges have to get it too. And that's where it's like a game of telephone that gets lost down the way. And so you end up with really different standing doctrines in different cases or in different circuits. And boy, is this a doozy. So let's outline the four explanations that the plaintiffs had for why they had standing this doctor's trade organization. So one, when a doctor treats a woman suffering from a mifeprestone complication, he or she will often be required to perform or complete an abortion. The doctors allege that being made to provide

this treatment conflicts with their sincerely held moral beliefs and violates their rights of conscience. Two, treating Mifeprestone patients imposes mental and emotional strain above what is ordinarily experienced in an emergency room setting. Three, providing emergency treatment forces the doctors to divert time and resources away from their ordinary patients,

hampering their normal practice. Four, Mifeprestone patients involve more risk of complication than the average patient, and so expose the doctors to heightened risk of liability and increased insurance costs. Why are those interesting to me? So because so much of what we're about to talk about in standing doctrine

is going to be in the environmental context, and there has been plenty of standing found. For instance, if you are trying to have a development on land where there's an endangered species, and the person says, I am injured because I will not be able to visit this bird on this piece of land anymore, then you have standing.

You see the problem, right? Like if that's an injury, that's a pretty amorphous injury, as are some of these descriptions of an injury. And yet time and again in the environmental context, it was like, well, sure, there's an injury. And now like these chickens or, you know, very rare wrens are coming home to roost.

Yes. So I want to compare those. But actually, I do want to start with number four, which is the heightened risk of liability and increased insurance cost. Because that to me is a tangible, cognizable, very normal type of injury that we see all the time, right? It's monetary. tangible, cognizable, very normal type of injury that we see all the time, right? It's monetary. It's not aesthetic. And so, David, I'm curious if you had thoughts on set aside all the aesthetic injuries, just that the mifeprestone patients involve heightened risk of complication, so liability and increased insurance costs. Would you say that that provided a basis for standing by itself?

I think if you had a situation where, for example, like you, let's say you're an OB and you have, your insurer says, do you treat patients who have received mephiprestone and you check yes to that box,

then you are charged more money for your insurance, I would say, yeah, absolutely. Obvious injury. Obvious injury. Here, it's pretty attenuated. Yeah, if it's, well, in the aggregate, if you're somebody who is treating the category of patients who suffer pregnancy or abortion complications have higher insurance rates than the category of people who do not, I'm not so sure that's giving you standing.

So if it's direct and immediate, yes. If it is just, well, if you're treating patients with pregnancy complications, you have higher insurance rates, that's much more attenuated to me. Yeah, I felt like this was the most promising line for standing, and it didn't deliver in the end. They made this claim, there wasn't a whole lot to back it up that, as you said, was directly connected

only to doctors who treat patients with complications from mifeprestone versus you're an ER doctor. And yes, the more complicated cases are going to open you up to liability. Or as you said, David, even just complications related to pregnancy or to abortions. So that was a bummer because that could have cleared out this whole mess, but it didn't. Well, let me ask you about number one because I'm very curious what you think about number one,

that they'll be completing an abortion over their conscientious objection. I would say I would be all about that if their option was a patient comes in who's had mifeprestone and has complications, and there were two courses of action. One was to preserve the pregnancy, and one was to terminate the pregnancy, and the doctors were being compelled to terminate. And the doctors were being compelled to terminate. But is that actually what's happening in those circumstances? Is the pregnancy already terminated, essentially? In other words, there is no viable opportunity to save the baby, but what you're talking about is dealing with the complications of that decision. Is that actually terminating the pregnancy?

Or is that, what is that exactly? So that's the one I found the most compelling of the four. That's interesting. So they include some descriptions from the doctors. The one that's probably most indicative of what this one refers to is the need to, okay, this is, I'm using the doctor's terms here, clear out tissue

after the use of mifeprestone as a complication. And that tissue could include the embryo itself. But to your point, David, it's not viable at that point. Right. There were other cases

where they mentioned a heartbeat, but that they still had to do things i'm not a doctor but to your point it sounds like that either was then you were performing an abortion which according to these hospitals you have the right not to perform right or again that was no longer a viable pregnancy maybe there was a heartbeat but it was not going to sustain or whatever. Again, it's not clear actually from what they included here in those cases.

Yeah, I guess... Yeah. That one was complicated by the facts. Yeah. Yeah, exactly. But the one that's most interesting from a standing qua standing discussion is definitely number two.

Well, so let me tell you the least interesting one. I think both of us agree. The one we don't find interesting at all is that providing emergency room treatment forces doctors to divert their time and resources away from the other patients. No. That would give doctors standing

to sue anyone, anytime, anywhere, in my view, for anything that causes people to come to the emergency room. Trampoline makers can now be sued by doctors because when you come in

with a trampoline injury, it means there's someone else in the emergency room and now you can't treat the other patient who's there in the emergency room for a gunshot wound. And perhaps more poignantly,

let me reverse those. You could sue a gun manufacturer because the gun victims are distracting you from the patient with a sprained ankle who's not going to get higher enough in the triage list or a heart attack or whatever else. How about Viagra? You could sue a car maker

because it doesn't have the same health and safety, or it doesn't have the same safety measures as another car. Yeah, I mean, I think Viagra is interesting because we know it causes heart problems it doesn't have the same health and safety, or it doesn't have the same safety measures as another car. Yeah. I mean, I think Viagra is interesting because we know it causes heart problems and heart attacks in some men. It's a totally voluntary drug to take, like Mifeprestone in that sense.

Can they sue the FDA for having sort of loosey-goosey rules around Viagra? Because they seem pretty loosey-goosey to me, by the way. We've been watching Hulu and getting the ads for hymns. Do you ever get these ads and you're like, why am I being targeted with this? We are getting the most old people ads ever on Hulu. What are hymns?

Oh, David. It's things for him. Hymns. All sorts of drugs for him. Oh, okay. Never heard of it. As best I can tell, not just those drugs. It's like everything. It's like hair loss to all of it. I don't know. See, we have Hulu premium, so we do not get the ads. Oh, aren't you a fancy high roller? Oh, yes. We were watching Hijack on your recommendation, which we could have a whole separate conversation about how that suspends some reality there. It's like a pre-9-11 show in a post-9-11 world,

but okay. Anyway, so number three, not that interesting. So number two is the treating Mifeprestone patients imposes mental and emotional strain above what is ordinarily experienced in an emergency room setting. So this kind of marries a bunch of these problems.

To your point, David, number one might be helpful on its face if they were being forced to perform abortions, but the facts aren't quite there for that. Instead, what they're really saying is this number two, which is when someone comes in with mifeprestone complications and there is still a residual heartbeat

or the embryo is still there and you're now tasked with removing it, that it's upsetting to them. And I don't want to minimize that. If anyone finds the word upsetting, upsetting. I don't doubt that that is... Terrible. A high emotional strain on someone and an ER doctor.

And then you get into, what about all these other standing cases that also had, quote unquote, aesthetic injuries? And by the way, so the majority opinion written by Judge Elrod, this concurring opinion written by Judge Ho, who we have certainly talked about here plenty. Can I read you just a little bit about what he wrote about this?

It's well established that if a plaintiff has a concrete plan to visit an animal's habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal. And he lists a whole lot of cases on that.

So for instance, a DC Circuit case, standing where agency expanded approval for hunting, depleting the supply of animals that plaintiffs seek to view. Seventh Circuit, standing for bird watchers to challenge agency permit that would allow development and thus diminish the wildlife population visible to them. Standing where agency authorization to use pesticide created a demonstrable risk to beetles and butterflies that plaintiff intended to view. Unborn babies are a source of profound joy for those who view them.

Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients and experience an aesthetic injury when they are aborted. Plaintiff's declarations illustrate that they experience aesthetic injury from the destruction of unborn life. Okay, so that's sort of the standing doctrine as it lies of a sort, David. And that one paragraph from Judge Ho,

that one sentence really, doctors delight in working with their unborn patients got a lot of attention from the pro-choice community. There was a lot of guffawing at that. Yeah, well, they shouldn't guffaw at that. I think that the guffawing at that is, I have real objections to that. But the breadth of the standing here is what truly is intriguing to me. I mean, it's the main thing that's intriguing to me. But as you've pointed out, Sarah, this is not new. Putting out, having broad standing rules in certain categories,

such as environmental, in environmental cases, which by the way, there's the Montana trial court case involving climate change. Glad you brought that up because we haven't talked about that case yet. So we need to go on a whole little detour because it's very important to this case. It's a bundle of sticks. You can't like one and hate the other. Exactly, exactly.

So in Montana, you have a coalition of young people who have sued to try to essentially put, for lack of a better term, to put a great deal of the Montana economy under sort of judicial supervision for climate change purposes to decrease carbon emissions, etc cetera, et cetera. And they have a theory of standing that is really broad related to the life that they allege that they're going to experience unless there are controls implemented on carbon emissions, et cetera, et cetera, and fossil fuels. And so it's a very broad theory of standing. And a lot of people who've looked at that case, they've said a couple of things. One, okay, everyone calm down. It's a state trial court. My position is kind of wake me up when you get to the state Supreme Court on this. You know, state trial courts do interesting things all the time. They have very little... Interesting quote. Yes. They have very little applicability until you get to the state court of appeals or the state

supreme court that's when it's going to get really interesting but a lot of people are hooting at this case we're hooting at the theory of standing and because the theory of standing sort of helped people in a case that codes left a lot of people on the right were poo-pooing that standing here you have another case that helps cause coding to the right and a lot of people on the right were poo-pooing that standing. Here you have another case that helps cause coding to the right, and a lot of people on the left are denigrating the standing argument here. But it strikes me that if you're going to have standing in one and it gets that broad, you're going to have kind of standing in the other as a general matter. Look, I know the Montana case is a state case. There's going to be state standing issues.

But just as a conceptual matter, how broad do we want standing? And the answer can't be as broad as I need it for the causes that I like and as narrow as I need it for the cases I don't like. And that just can't be the rule. And that's kind of the problem with standing doctrine overall. If you have this like standing as whatever you want it to be rule, then that's kind of the problem with standing doctrine overall. If you have this like,

standing is whatever you want it to be rule, then that's how it's going to come out, both at the judicial level, I'm afraid, and also at the institutional credibility level for people watching it. If there's not a, this needs to be a bright line rule, but some kind of rule that we can point to,

there's a problem. Now, I've also had people email in, listeners to the show, who've asked, like, why we really need strict standing to begin with? If the government's doing something unlawful, why shouldn't anyone kind of be able to go in and sue about it? So maybe, David, it's worth just a couple minutes on whether we think, whether we would want a strong, tight-standing doctrine or a, you know what, let Montana go and let Mifeprestone go. Because at the end of the day, we actually should want to find out whether the FDA's actions are lawful. And we should want to know whether Montana is, you know, setting their state on fire or whatever the allegations are up there. I'm sympathetic to both sides of this argument.

Generally speaking, conservatives have long wanted tighter, stricter standing doctrine because frankly, most of the close call standing cases were environmental cases. The birds and the beetles versus developers and fishing or hunting, etc. But as these sort of more activist conservative cases have come up, all of a sudden conservatives are like,

fine, maybe we don't need standing either. And so who's left to defend standing doctrine, David? Not many people, to be frank. Does this podcast defend a tighter standing doctrine? Let me put it this way. Tighter, looser, just consistent. Hmm, this podcast is for a consistent standing doctrine.

Consistent standing doctrine. Predictable. I think that's my number one concern. I would like consistency and predictability more than anything else. But I think I still fall on the all things being equal, there should be real, you should have to have a cognizable injury. And I understand that this is the student loan case. This is the

environmental cases. This is the abortion cases. The gun cases are going to start coming under this, gun manufacturer liability cases. I think that what is not great, and again, I actually understand the people who are like, look, if the government's actions are unlawful, you shouldn't have a particularly high bar to be able to find out if they're unlawful. I hear you. But when you end up happening,

is that everything gets sued for everything, including by people whose only injury is like they heard about it on Twitter. There has to be, basically, there has to be a standing doctrine because otherwise, you can easily imagine a total swamping of the courts. There is a tax plan you don't like. There is a foreign policy decision where you think the president should have consulted Congress or a use of armed force decision.

There is, I mean, you can go down the line where you could point to A, B, C, D, or E issue that you think is unlawful, where you can argue that in some way, at the very minimum, at the very minimum, at the very minimum, you're angry about it. You're hurt about it.

And that's going to grant you standing. So I think there, but there has to be standing. It is not the case that essentially what happens is if you open up standing, then one of a universe of 10 sophisticated public interest law firms will file their sophisticated lawsuit and that's going to deal with that.

No, no, no, no, no, no. It'll be everything from your ACLU lawsuit or your ADF lawsuit to Jim Bob or Jolene or Gretchen or Megan here and there and everywhere can file lawsuits, including lawsuits where they just represent themselves. Were you just picking random names there? What did Gretchen or Megan here and there and everywhere can file lawsuits, including lawsuits where they just represent themselves. Were you just picking random names there? What did Gretchen, like, where'd that come from? Do you have some Gretchen you're beefing with? Well, I said Jim Bob and Jolene and somebody thought, well, that's going to be like, oh, David's, you know, calling out some like stereotypical right-wingers. And then I tried to think immediately of stereotypical

left-wing names and I couldn't. So I went with Gretchen, which I don't think is stereotypical at all. No, anything. It's just not common. Is there even a stereotypical left-wing name? I don't know. Yeah, I know. I know. I know. Sorry. Okay. So what I'm hearing from you is probably we would loosen up some of the financial harm standing questions.

So for instance, that medical insurance liability standing claim that they have. If you can have any good argument on that one, like come on in. But probably we'd also chuck all of the aesthetic injury arguments. Yeah, I'm not into...

Simply saying I feel emotionally hurt by something is not a cognizable, traceable injury. Because remember, Congress can decide to grant standing. True. If Congress says, hey, we're going to protect the snail darter or the whatever,

they can say that anyone who lives within 100 miles of a snail darter habitat has standing. Would you like to tell us of a snail darter habitat has standing. Would you like to tell us what a snail darter is? What's a snail darter? Tell everyone. I have no idea, but isn't that a famous like cause in environmentalism, the snail darters?

Pulling all sorts of things out of your hat today. I know. Okay, I'm going to look that up right now. Snail darter. It's a type of fish. I think you're thinking of that little minnow guy that's like in one of the streams in California or something. Yes.

Yeah, and it's famous because there's even an NPR story from October 4th, 2022. A tiny fish that once caused an epic conservation fight is no longer under threat. So breathe easy, listeners. The snail darter, snail darter. The snail darter is safe. That and honeybees.

We're just getting all sorts of good environmental news lately. Yeah. Okay. So I like where we settled. Are we getting all kinds of good environmental news lately? Well, those two pieces. Okay. It's enough for me.

Just hold on to what you have, David. All right. Okay. It's enough for me. Just hold on to what you have, David. All right. Okay. So let me read one other part from Judge Ho's concurrence that I thought was worth a couple minutes of our time. Sure. So the FDA side argues that the doctor side standing argument is limitless and worries that its logic would allow doctors to challenge firearm laws based on the stress involved with treating gunshot victims. But we see several limits. Foremost is the rigorous and worries that its logic would allow doctors to challenge firearm laws based on the stress involved with treating gunshot victims. But we see several limits. Foremost is the rigorous evidence needed

to prove traceability and redressability. The plaintiffs in the FDA's hypothetical would lack standing unless they could prove that a particular law caused there to be more gunshot victims, and that enjoining enforcement of the law would cause there to be fewer. That is a tall order, to say the least.

Equally significant is the requirement that a plaintiff be threatened with injury akin to being forced to violate his or her sincerely held conscience beliefs. That sort of injury will be absent except in the most exceptional cases. We do not think that our holding will open the floodgates to this litigation.

Okay, so first of all, those were two different standing arguments in this case. So the being forced to violate his or her sincerely held conscience beliefs is that number one argument, David, that we talked about. Well, chuck that out. I agree that's not really going to apply in a gunshot victim hypothetical. But it's the aesthetic one the causes me emotional pain and distress causes me and then the third one causes me to be distracted from my other patients

and here he's saying they would lack standing unless they could prove that a particular law caused there to be more gunshot victims and that enjoining enforcement of that law would cause there to be fewer what about the bump stock ban?

yeah that seems right on point. What about laws allowing large capacity magazines? Yep. Yeah? Yeah. This opens the door

for doctors to sue whenever they see a product, a policy that they will argue leads to increased ER visits, for example. Yep. All right. Done with standing. Merits.

Merits. Eh. Yeah. So remember, the 2,000 initial approval statute of limitations applies, 2000 approval stands. 2019 generic approval, no standing for that, it stands. 2016 from the opinion for a minute. The medical organizations and doctors ground their claims in the Administrative Procedure Act. That law requires federal courts to hold unlawful and set aside agency action findings and conclusions found to be arbitrary, capricious, and abusive discretion or otherwise not in accordance with the law.

The Supreme Court has explained that the arbitrary and capricious standard requires that agency action be reasonable and reasonably explained. That standard of review is deferential, but not toothless. because you will remember during the Trump era, there were a number of APA cases involving things like changing the census form, repeal of DACA, that involved arbitrary and capricious rational basis review and came out against the Trump administration to sort of great fanfare that the Trump administration had not considered everything that it needed to consider. For example, the original DACA revocation

was blocked because the DOJ or the attorney general had not provided sufficient reasoning, et cetera, et cetera. And so what essentially happened was that this standard became one where the judges were able to say, well, you didn't consider what I would have considered or you didn't consider the things that others would have considered. And so therefore, it just isn't going to meet the standard here.

And there was a lot of fanfare about how the Trump administration had, you know, violated the APA. And we were looking at it and saying, hmm, did they violate the APA? Or did the judges kind of bulk up how they analyzed regs under the APA? And our submission, our suggestion was that judges had kind of bulked it up. They bulked up this review. And I think this is one of those cases where you have the consequence of a bulked up judicial review of administrative actions that where the judge comes in and sort of second guesses the whole process.

And that's, I think this case is in line with some of these previous cases that have been bulking up the judicial review of what was once pretty darn deferential. Now the emphasis is on, rather than the emphasis being on deferential, the emphasis is on not toothless. And not toothless means toothy. It's a toothy review. Al dente.

Oh, is that what, what does al dente even mean? Seriously, David? Like for pasta? Uh-huh. Okay, so you know you want your pasta cooked al dente? Do you want to like think about the Latin roots there for dente? It means toothy. That's literally.

Yeah. Oh, like you need to chew your pasta. You want it to be... Yeah, like it provides a tension against the tooth. You don't want it to be mushy pasta. Oh, gotcha. Okay. Al dente is like the way pasta was when I was in Italy. That's how it should be. Yes. It should be here and in your house as well.

Hmm. I don't know about that. Okay. Mushy pasta in Tennessee, I suppose. So what did you think, Sarah, about the APA analysis? So reading this opinion, I was fairly convinced on parts of it that the FDA cut some corners here. Yeah, I was too. Yep. And that similar almost to the vaccine mandate question, that was, remember, an OSHA question of whether the government had the authority under the OSHA statute for workplace, and I'm going to forget the terminology, but it was like toxins, chemicals, and other things that cause workplace dangers or hazards or something and uh the government you know osha was trying to like squeeze in this vaccine for covid into that because they're

like well it would make you sick at the workplace and it's like yes but it will also make you sick everywhere else it is not because of it is not a workplace specific problem and so sorry that was a bit of a tangent but similar here um if if the FDA is supposed to be regulating life-threatening, like they were using their emergency powers, for instance, or speed, what's the speedy one? Their quick approval powers. Yeah. It's supposed to be for life-threatening conditions, then either mifeprestone would have to have been limited to life-threatening pregnancy conditions, or you kind of have to acknowledge

that pregnancy is not a life-threatening condition any traditional way that we think about it. I think that I found the merits analysis completely in line with existing bulked-up precedent, is the way I would put it. And so it's the standing analysis to me that was the most intriguing about this is the actual APA analysis

that is, seemed to me to be rather conventional and in line with what the Supreme Court did starting, not so much starting, but really that really came to the fore during the Trump administration. And this is why I am sympathetic to, though not in agreement with, the people who, for instance,

on the student loan case, are like, why are we getting tied up on the standing question when we all kind of agree that the underlying governmental action was unlawful? I hear you.

That is frustrating. But nevertheless, I don't agree. Okay, David, another Fifth Circuit case that I thought was worth a quick mention here. It is a en banc decision coming out of the Fifth Circuit. Judge Willett writing and an interesting dissent from Judges Jones, Smith, and Oldham. We don't need to spend too long on this, but I just thought people would be interested. So Title VII makes it unlawful for an employer to, quote,

fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin. Despite this broad language, the Fifth Circuit has long limited the universe of actionable adverse employment actions to so-called ultimate employment decisions. We end that interpretive incongruity today. Fun for a few reasons, David. First of all, Title VII, people will remember, is the Bostock question of whether sex included discrimination based on sexual orientation, gender identity.

But here in the Fifth Circuit, this is a bad facts make law. We'll get to whether we think it's a good law or bad law in a second. But let me tell you the facts coming out of the Dallas County Sheriff's Department. They give detention service officers two days off each week. The department used to use a merit-based, or sorry, a seniority-based system to decide which two days you got off, but they changed it. Now, they use a sex-based policy to determine which two days an officer can pick. Only men can select full weekends off.

Women cannot. Instead, female officers can pick either two weekdays off or one weekend day plus one weekday. Bottom line, female officers never get a full weekend off. And under Fifth Circuit precedent, if it has to be a, quote, ultimate employment decision, meaning promotion, firing,

compensation would be under this, et cetera, it's not any of those things, right? So, you just lose. You don't even get to sue about it. It's not a Title VII claim under Fifth Circuit law. So, you have Willett and obviously a majority of the judges on the Fifth Circuit saying, yeah, ultimate employment decision is nowhere in the text of Title VII. Because remember, it was compensation, terms, conditions, or privileges of employment.

Well, what days off you get is almost certainly conditions. I would also argue it's privileges of employment as well. Regardless, the facts are just so insane. It was hard to imagine that the Fifth Circuit wasn't going to come up with some way to fix this now. Yeah. It was an interesting decision, in part because, you know,

again, I think this was sort of obvious how it was going to come out just on the facts, but you actually have this fight between the conservatives on what textualism is, and in that sense, it looked quite a bit like Bostock. The one side arguing that Title VII simply does not include the terms ultimate employment decision.

Therefore, why are we reading an ultimate employment decision? And in the dissent, they're arguing that, no, you're the ones being not textualist. That the Supreme Court's going to do this anyway, you're causing all this chaos, why are we doing this now? This is, you're being unconservative in other respects.

I think the argument that this is, that Title VII is limited to ultimate employment decisions is extremely atextual. That's just not what the statute says. And I literally was not aware that the Fifth Circuit had this position on Title VII until I saw this come across Twitter. And I was like, wait. Do you know what's really funny, David? So obviously, I clicked on the Fifth Circuit. I didn't realize this wasn't the national rule until this decision. I was like, I thought it was always only final employment decisions. What?

Oh, that's funny. That is funny. Yeah. Wow. Fascinating. And I should clarify, it wasn't a dissent exactly. I mean, it was in practice, but it was actually concurring in the judgment only because everyone agreed to remand the case for further factual developments. But I'm calling it a dissent because they were dissenting on the reasoning and on that Everyone agreed to remand the case for further factual developments, but I'm calling it a dissent because they were dissenting on the reasoning and on getting rid of the adverse employment decisions. It's maybe worth just one more second on why the dissent, again, quote dissent, is arguing this is textualism actually cuts the other way. And they're looking at this idea

that there is an inherent limit to liability under Title VII, and I would argue is maybe more originalist than textualist, but pointing to a Judge Katz's dissent from the D.C. Circuit, that the use of the phrase discriminate against

means that the plaintiff must have suffered an injury of some kind, that the law's general background presumption against recovery for de minimis injuries is not abrogated here, that the canon of, and this is a new one, David, E-J-U-S-D-E-M, ejusdem generis,

which I'm now going to get a thousand emails about. This is the, you know, types of things are similar type argument. The types of discrimination specifically enumerated to fail or refuse to hire or to discharge any individual make clear that the actions covered by this section as more than general clause or otherwise to discriminate

must constitute objectively material harm. So again, it's maybe a little more originalist with some textualism. It's a little bit like our otherwise argument, David, a little bit. But regardless, if you want to see that internecine warfare among conservatives about how textualism works,

how originalism works, this is another good opinion to do it in. Again, the case name for those, and we'll put it in the show notes, for those who are curious was Hamilton versus Dallas County. All right, David, Ninth Circuit. Yes. So this is Ninth Circuit where the Ninth Circuit panel affirmed the district court's order preliminary enjoying Idaho's enjoining, not enjoying, preliminary enjoying. I guess that would be the opposite of preliminarily enjoining. But preliminary enjoining Idaho's Fairness in Women's Sports Act, a categorical ban on the

participation of transgender women and girls in women's student athletics. And here's how the opinion starts, the summary of the opinion. The Act bars all transgender women and girls from participating in or trying out for public school female sports teams at every age, from primary school through college, and at every level of competition from intramural to elite teams. It also provides a sex dispute verification process whereby any individual can dispute the sex of any female student athlete in the state of Idaho and require her to undergo intrusive medical procedures to verify her sex, including gynecological exams. Male student athletes in Idaho are not subject to a similar dispute process. And so, and this is the syllabus the panel held, the district court did not abuse its discretion when it found on the record before it

that the plaintiffs were likely to succeed on the merits of their claim that the act violates the equal protection clause of the 14th Amendment. So essentially what happened here in this case is that the court applying both Supreme Court and Ninth Circuit Authority said that there is a heightened level of scrutiny that is going to apply to this law because it discriminates on the basis of transgender status and sex. And essentially, to make a long story short, says that the act does not satisfy this heightened level of scrutiny. So very interesting, Sarah, because there's a couple of aspects of this that I think were convincing and not so convincing. Okay, so if you already have separate men's and women's sports teams, so you already have separate sports teams heading into this decision,

so you already have separate sports teams heading into this decision, then the separate sports teams involve discrimination on the basis of sex already. So there's a pre-existing sex discrimination regime in athletics, which would have been subjected to pre-existing intermediate scrutiny analysis. And for separate men and women's sports leagues to exist, men and women's sports leagues have to meet intermediate scrutiny. And I don't think anyone really seriously argues that the existence of separate men and women's sports teams

meets intermediate scrutiny. Of course it does. Of course it meets intermediate scrutiny to have separate men's and women's teams. So the interesting question here is wait a minute, if you make it a biological sex, men's and women's teams,

does that mean that the intermediate scrutiny level no longer is different? That's what's very puzzling to me about this. And now the part of the opinion I think that is most persuasive is the part of the opinion related to the challenge process,

where you're going to be able to challenge an athlete who's presenting as female and participating in female athletics. You're going to be able to challenge them. And that challenge process is going to require a kind of physical exam to a certain level of intrusion. Does that meet intermediate scrutiny? I'm less convinced of the challenge process, Sarah, than I am convinced of, hey, look, we've had sports leagues limited by biological sex for a very long time. And then passing a law that says we will continue to limit sports leagues by biological sex doesn't strike me as an additional step beyond existing analyses of sports, if that makes sense. Yeah, I find all of these cases to be wild because the result of the logic is that you

get rid of women's sports teams. The end. Right. The result of the logic is that there is that the distinction between men's and women's sports was pre-existing, was based on what? Right. What was it based on? Right. Yeah. So they're like twisting themselves in pretzels

to come up with how you keep a women's sports team, but also now anyone can join it. So for instance, as the partial dissent in this case notes, there's no distinction now because of the injunction between, for instance, people who are identifying as women who have undergone hormone therapy since they were 10 years old or whatever else versus someone who just today decided to identify as a woman to join the women's sports team. I'm not saying there's a lot of those cases out there, but like this injunction says that that would be fine too.

Well, what? So we just don't have a women's sports team anymore. Right, and the interesting thing to me, as I said earlier, the distinction between men's and women's teams was always based on sex and not gender. Correct. Okay. So always the performance gap between men and women is based on sex and not gender.

Okay. So if you have a law... Just like the performance gap between me and Michael Jordan. It's based on sex and not gender. But the... so if you have a law that continues to maintain distinction on the distinction on the basis of sex and not gender aren't you just continuing the existing regime um that's now how intrusive you're going to allow the state to be if you have a challenge process and all of that stuff. Correct. I'm with you that that got a little weird here. Yeah. And perhaps Idaho was a little too quick on the trigger, so to speak, to pass this law and didn't really think through how they

were going to do any of this. And they're not the only ones who've had this problem. The Olympics has had this problem for 80 years now of figuring out how to come up with fair competition in the women's sports teams. So it's not that easy either. And I would, again, for anyone who's sort of curious about that history to like dive on in, because if you think it's like, well, we just use chromosomes

or we just use testosterone levels, like there's no perfect answer here. There's not a perfect answer um and that tells you something about maybe the you know why we're where we are but the bigger question to me with cases like this starting to percolate you have the uh second circuit case that went on bonk um suesponte on bonk meaning they en banced it themselves. Yep. You have this Ninth Circuit case.

You've got this just going, you know, the, what the, there's Kentucky. There's many of these cases now. How long until the Supreme Court has to take one? Yeah, this is going to be. Like, I think it's going to be one of the fastest trips to the Supreme Court from the beginning of a controversial legal issue to getting to the Supreme Court because there's so many of them.

They're in every court in the country at this point. Yeah, yeah. This is going to be at the Supreme Court. And so is the next case that we're going to talk about, which is very briefly the 11th Circuit case that is a challenge to the Alabama ban on puberty blockers and cross-sex hormones for minors. And in this circumstance, the 11th Circuit upheld Alabama's ban on puberty blockers and cross-sex hormones. And this case was interesting because

it really was dealing with the intersection of parents' rights and the ability of the state to regulate medical care for minors. And so the question was, do the parents, and we've highlighted this in previous podcasts, that the best argument for granting parents the ability to get cross-sex hormones and puberty blockers for their kids. The best argument for that is the parents' rights argument. But on the other hand, it has long been the case that states have regulated childhood access to medical care.

So even if a parent wants a kid at a very young age to, for example, get a tattoo or to have piercings or to, you name it, there's still going to be age limits that apply in a lot of these states and localities. And the age limits have not really been a matter of controversy, that there is actually a state interest in regulating, for example, permanent life-altering medical care for minors. And so, if you're going to say that parents have sort of an absolute right to obtain medical care that they want to obtain for their kids, this is not something that's articulated in the Constitution. So, so therefore you have to go to that substantive due process analysis. And this notion that is it deeply rooted in American legal tradition? Is it implicit in the concept of ordered liberty? And here the court's on pretty solid ground to say at the level of specificity, this kind of medical

treatment, no, this is not deeply rooted. This is not implicit in the concept of ordered liberty. This is not deeply rooted. If you're going to go broader and say sort of medical care in general, well, that gets more complicated. But again, there have always been regulations of childhood access to permanent life-altering medical care. And so... The pushback I hear most often is on nose jobs and breast enhancements that minors get. And I'm curious if you agree with this, David, that in my view, a state absolutely could ban those as well. Yes. A hundred percent. A hundred percent. I'm curious if you agree with this, David, that in my view, a state absolutely could ban those as well. Yes, 100%.

100%. And frankly, I'm surprised that more don't, at least on the breast enhancement. And because, for those who don't know, for instance, we've come a long way in terms of boob jobs. But in part of coming a long way, we've also realized that they're not permanent. You basically have to get them redone every 10 years or so, depending on

the material that you're using for the job. So by allowing your 16-year-old, for instance, to have that surgery performed, you are signing them up for a lifetime, really, of surgeries, invasive surgeries where you have to go under general anesthesia that can be quite dangerous. So yeah, I think a state could ban those. The difference, I think, with the hormone therapy is that the argument from the parents is that it is medically necessary. I don't think anyone can argue that the boob jobs or the nose jobs are medically necessary. But here, they're saying that it is medically necessary. I don't think anyone can argue that the boob jobs or the nose jobs are medically necessary. But here they're saying that it is because their child has mental health issues

and that this is the treatment for those mental health issues. So perhaps the better example, I think, could a state ban certain types of, you know, medications for depression or anxiety or ADHD, for instance, for minors. I don't know about that. It would be interesting because the evidence,

as the 11th Circuit outlined it, was that one side was saying medically necessary, another side was introducing a lot of evidence to say that no. Yep, that's the fight, right? If there is a live fight over whether something is medically necessary, can the state step in and resolve that dispute? I think it's the way to describe it. And I would say if you had evidence of permanent life-altering consequences of a depression or anxiety medication administered to children, I would say yes, the state could come in and regulate that would be my guess. treatments, whether it's cross-sex hormones or puberty blockers, are not in fact just reversible

in the way that they've often been claimed. It's not like just putting a pause on puberty and then you can just go right back into it and everything be fine and normal. No, there are permanent life altering effects. And so therefore, there's just a long history of the state regulating permanent life-altering effects of kids. And so that is, you know, I think the state's on pretty solid ground at that point. puberty blockers has sort of peaked because it actually turns out that the United States in many ways is now an outlier. Whereas it used to be that the United States was right in line with other nations' approach to treating transgender youth. It now appears that in many ways,

the other nations, particularly these advanced European nations that had eagerly adopted, you know, the cross-sex hormones and puberty blockers for minor children are now backing away from that quickly. Yeah, there's a little bit of a domino theory happening in Europe over this, as best I can tell. Yeah, absolutely. And so it becomes very difficult when, you know, even the people who developed, for example, the quote-unquote Dutch protocols and you name it, the, you know, even the people who developed, for example, the quote-unquote Dutch protocols and you name it, the British National Health Service,

when they're all starting to back away from this, to then come in and try to argue to a court that this is absolutely settled science and any other contrary view is going to be harmful to children, when the proponents of the law can say, wait a minute, looks like you're out of the mainstream now. I think it will be very interesting to have this conversation in 10 years as we talk about what the high watermark was or whether it was on the sports issue,

on the minor care issue, all of it. It feels like people have such high emotions around this right now. I think this will resolve itself legally and culturally as quickly as it came about in some ways. I think you're right. I think the temperature around it is already lowering a little bit. There is already sort of an emerging majoritarian consensus that distinguishes between adults and children,

that distinguishes between athletics and intimate spaces and employment, for example, that there is a, I think there's an emerging consensus here that the most polarized wings of American life have yet to sort of recognize what's happening in front of them on this. And so I do think we're going to reach a consensus on it from a legal perspective

and even to an extent on a culture war perspective inside of five years, I'd say, Sarah, is my best guess. And with that, we thus conclude another Advisory Opinions episode. Well, I guess this is it for me for a month or so. And that's weird and hard and I don't like it. But also, I'm very done being pregnant. I cannot tell you how done I am. So, oh, and David and David, y'all behave yourselves. Just remember, I will be listening.

So don't- You will be listening. Yeah. I'll be sending in comments. I can't wait to read your comments. Long-time listener, first time commenter. But you're not a long time listener you don't actually go back and listen

you're exactly right so David says he listens to about half the episodes like quality assurance type stuff I have never listened to an advisory opinions episode but I listen to it when we're doing it like I'm listening to you right now it's true it's true but I learned things from listening to the podcast so yeah

now we'll miss you sarah we'll miss you sarah and you're irreplaceable uh-huh but i will be replaced by david latt for about a month you're irreplaceable but there will be a substitution that's different from a replacement because when lebron comes out of the lineup, we don't say he was replaced by like Austin Reeves, right? There was a substitution. Okay. Okay. Yeah. Sounds good.

And David, to be clear, I'm not saying that... Yeah, exactly. Now you've got to go from the other side. I know. Now I've got problems. Because I've just said you're LeBron and he's Austin Reeves

as much as like people who know, know Austin Reeves as much as people who know, know Austin Reeves as a really good basketball player. I mean, they call him Hillbilly Kobe for a reason. Have you been watching Winning Time? The Lakers? Not the new season yet. Yeah, the new season at Winning Time. We're now doing the Larry Bird,

Hick from French Lick backstory. Oh, I can't wait. I can't wait. Yeah. No, we're watching, I'm watching Band of Brothers again with my son. He's never seen it. What?

How did you raise a child without seeing Band of Brothers, David? This boy is in college. I know, I know. I have suggested it. Outrageous. I have not mandated it. I've suggested it.

And about a week ago, he said, hey, let's finally watch Band of Brothers. I don't think i have a longer running crush than captain winners he's the best talk about you know we've talked about our masculinity conversation and you said that perhaps one of the best examples of masculinity was the bishop in les mis and i always thought that stuck with me as a really interesting example of masculinity but captain winners is right up there as well. Well, and I served alongside him.

He's a real person too, by the way. Yes, yes, yes. And I served alongside a lot of guys who fit that Captain Winters mold. That the way in which he conducted himself, his professionalism, his courage. his professionalism, his courage. And at no point does the Captain Winter style person say, look at what a man I am. So that's one aspect of their masculinity.

Got off on a bit of a tangent. Although, so I mentioned watching Hijack on your suggestion that I have some major beefs with all the plot points, frankly. But Idris Elba is... I think it is one of the biggest mistakes that the James Bond franchise ever made to miss out on having Idris Elba as 007 because now he's kind of too old, I guess. If you want a 007 for 10 to 15 years,

you kind of got to pick someone who can do that. But he is 007. He's so perfect. He would have been ideal. He would have been absolutely ideal. He's so good. He's so good. He carries that show.

How many episodes are you into? Oh, no. We binge the whole thing in two nights. We're really in pre-baby mode around here. We're eating frozen pizza. It's pretty bad. Yeah. I hear you.

Not a lot of movement by me. Stairs are hard. Yeah. No, I hear you. All right. Well, this is me signing off we did not solve one problem you You know my absolute favorite shirt, my Nashville SC jersey. Yeah. That I've worn like two-thirds of the advisory opinions.

Yes. I thought there was like a little ball of fabric on it that I pulled at. It was not. It was a string. And like I unraveled my jersey. So I'm now reduced to this Nashville as NSC t-shirt.

Oh, no. I know. I know. David, the problems that befall you. I know. It's terrible. Oh, the humanity. Don't have my cool shirt.