Advisory Opinions - David Responds to Trolls

Episode Date: March 7, 2024

David takes the first ten minutes to respond to Twitter trolls over his latest New York Times article before he and Sarah revisit their arguments over the Supreme Court’s per curium ruling on the Trump-Colorado case. The Agenda: —Defending the Supreme Court —Erasing the Constitution —Confusion over the Trump ruling —Consequentialism vs. originalism —Judicial restraint and originalism —Erasing Chevron —SCOTUS hears bump stock case —Explaining the string cheese factors Show Notes: -Kevin Williamson: Slate Publishes Gun-Control Fiction -Advisory Opinions Episode with Professor Amanda Tyler Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And yeah, we're just, let's see where we go. David, right off the bat, you had a headline in the New York Times that frankly, even I took issue with, but so did Twitter. Will you read us the headline? Yes, I will read you the headline.

The headline is very subtle and nuanced. So I can understand why people took issue with it because it just didn't stay to point of view very clearly. The Supreme Court just erased part of the Constitution is the headline. OK, so here's the criticism in the largest, you know, sort of highest level form. We have a podcast dedicated to explaining an institution and why it's not horrible, like both sides like to say when they don't get their way. Right.

And that headline kind of makes it sound like you've abandoned the podcast. Oh, please. Defend yourself, sir. Defend myself. Basically, the column is a condensed version of my discussion in the podcast. So it is an actual, it is, it's everything that I said on the podcast is said in prose form in the column. And so the argument that I made on in the podcast is if a provision of the Constitution has mandatory language to it, and then the Supreme Court comes along and says that language has no force in effect unless Congress gives it

force in effect, then what you've essentially done is you've erased the mandatory language from this section of the Constitution because it cannot possibly be mandatory if it is dependent on congressional action. And so therefore, what ends up happening is the congressional action becomes superior to the constitutional text. And that is not the way this is supposed to work. Now, this is all old news for people who listen to our podcast on Tuesday. It was new news for a lot of people who are reading. But also what ends up happening, Sarah, and this is kind of funny, and someone sent me a note yesterday saying I was trending on Twitter. And actually, I saw it in Slack, Dispatch Slack, that I was trending on Twitter.

saw it in Slack, Dispatch Slack, that I was trending on Twitter. And so I thought, huh, this is really interesting. I assumed it was for the piece. And so I went and I looked and what people were doing was they were sharing all over the place, the screenshot of the headline. They weren't sharing the article. They were just sharing a photograph of the headline. And then everyone was like losing their minds. But my general view is if I see a headline that makes me want to say, hmm, then I read the article. So then I thought, because we track all of this stuff, Sarah, how many people, what percentage of readers of the piece came through Twitter after I trended on Twitter. And this is why I just don't take Twitter seriously anymore at all, like just at all. So I looked at it and I even asked my

editor, I said, what percentage of traffic to the piece came to Twitter, came from Twitter after I trended. And he said 5%. No, 0.5%. Wow. 0.5%. So what was happening was lots and lots and lots and lots of people were angry at a headline. And almost nobody clicked through and read the piece. Now, I know you don't agree with the piece, Sarah, because we had this whole discussion. Yeah. On Tuesday. Which we won't have again. Yeah. I know you don't agree with the piece, Sarah, because we had this whole discussion on Tuesday. We won't have again. I just found it interesting. The headline, you know, it wasn't clickbait. It's like only clickbait for nerds like us. Like for nerds like us, that was some clickbait headline. That was a click. Now, the other thing that I do want to say is I can disagree. And this is so weird to me, Sarah. I can disagree with a court outcome and still believe that the Supreme Court and the federal judiciary are the best functioning branch of government in the United States. I don't think that for the court

to be legitimate, to be worthy of respect, for its judgments to be honored, for me to respect the individuals on the court, that they have to agree with me on everything. Or that they have to agree with me even on some really important things. And as a result, you don't have to agree with them, which is also part of this, right? Like you can still support the institution, defend the institution, and us disagree with their jurisprudence in many, many, many ways. We've also obviously... And it'd be a really weird podcast, by the way, if this podcast were dedicated to defending every decision of the Supreme Court as imminently correct, wise and beautiful. Yeah. And then there's this other weird thing that was going on. And I don't, Will Bode did a podcast in reaction to the verdict, or not verdict,

the Supreme Court ruling. And, you know, he was talking about how every, you know, online people were talking about how everyone who said that this was a strong case is just a partisan hack. So given that this was, you know, the Wilbo, Michael Stokes Paulson Law Review article that really triggered all of this, it's amusing to me that people would say that somebody who thought this was a serious argument is some sort of partisan hack when it boiled up from the least hackish part of the conservative legal world you can imagine. And so it is kind of funny. And also, I think there is a lot of people are confusing the 9-0 with the 5-4.

So a lot of the sort of angst in response to the ruling wasn't over the very narrow 9-0 part of it. It was over the broader ruling that the five justices advanced. And that's kind of got mixed up in all of this. Yeah, can I press you on that just for a second? So I don't think you necessarily agree with the 9-0 ruling, but you're not feeling a lot of angst over the 9-0 ruling because the idea that states can't disqualify federal candidates under Section 3 of the 14th Amendment, fine, because

what you actually wanted all along, your sort of order of preference was always, number one, the federal judiciary was responsible for disqualifying candidates under Section 3 of the 14th Amendment. Interestingly, so I don't know if you were to put yours in order, it would be something like federal judiciary, probably states, then Congress, in order of who needs to enforce it, or who can, not who needs to, who can enforce it. Oh, who can, okay. Although Congress always, we always knew Congress could,

so maybe we shouldn't even include Congress. It's just federal judiciary, then the states. Yeah, so I would say if if you were talking about how preferably you would put Section three into effect, preferably it'd be Congress than the judiciary, than the states, which would make the most sense. But and you'd like all three to be able to. Yes. But but if you're going to start like not lobbing ones off, you'd start from the bottom and lob the states off. Right. Right. Yes. But but if you're going to start like not lobbing ones off, you'd start from the bottom and lob the states off. Right. Right. Yeah. But at no point would I lob off all of it. Fair. And I think my. Yeah. Yeah. Interesting. OK. All right. Well, let's move on to a couple

more things about this before we leave the topic entirely. So one, I think this Colorado case absolutely implicates the sore loser laws that we talked about around Nikki Haley, or anyone who has run in a primary for a major party who then or any party who then runs in the general election in a different party. And we ran through those laws in a previous episode. But based on this, the idea that, you know, the broad ruling here is states cannot disqualify a federal candidate based on sort of state decisions. Right.

I think that absolutely it applies more so to the sore loser laws than it would even to section three of the 14th amendment, because at least that's constitutional. The sore loser laws are state laws. And there was already the problem that the sore loser laws could be unconstitutional, even under pre-existing precedent, that it was creating an additional qualification for running for president. And the court has already said you can't have additional qualifications.

Yeah, I'm very intrigued by that, Sarah, to be honest, that when I first heard somebody say, but what about what does this do to sort of loser laws? I thought, well, apples and oranges. But then the more I thought about it, when you're talking about disqualifying someone for running for office that they're otherwise constitutionally qualified for. Yeah. Ooh, yeah, I'm with you. I think it's like red, delicious apples and honey crisp apples. Yeah, they taste different, but they're they're apples, man. OK, so here's what we're

going to do. We're going to run on the under the Isger French ticket for the Republican nomination, lose in the next set of primaries, drop out. Yeah. Offer ourselves to no labels as a test case, not to just just just for the lawsuit, just for the law, just for the lawsuit of it. We love litigation. Ren for president, just for the lawsuit of it. All right. We also got a comment on the website, by the way, if you're not a member of the dispatch, you too can hop in the comments section and make me noodle things. comments section and make me noodle things. So this is from British Americanophile. I'm not a lawyer and I'm not even American. So please go easy on me if my question reflects my lack of understanding. Spoiler alert, it doesn't. Having listened to the podcast, Sarah, it feels like you are holding a fundamentally anti-consequentialist position through the first half of the discussion.

The law should be followed and we shouldn't worry about the implications, say Trump pardoning himself. But then you flip to a profoundly consequentialist position, i.e. you can't treat the 14th Amendment like all other provisions in the Constitution because it would mean that states could decide federal elections. Isn't your desire to treat the 14th Amendment as a suggestion to Congress to act, to paraphrase David, just the kind of consequentialism that you generally reject? Oh, man, David, did I love this question. That's an interesting question. Yeah, that's an interesting question. I'm nailing it. But I didn't. It's interesting. I didn't interpret you like that. But well, fair enough, because I want to give two answers to this. I

want to give the like, micro in the weeds answer. But then I want to give the broader answer because I've been, I mean, since this podcast came out, this was the first comment to come in. And I've been noodling it since then. So here's the answer that I gave to him. I think it's simply originalist to look at what the purpose of the 14th Amendment was to determine how to give it effect where there's ambiguity. But obviously, the larger consequences, throwing a candidate off the ballot in a patchwork way, absolutely, but I think separately factored into my thinking, i.e. I was very clear that like, of course, I think that would be a bad consequence. But I'm not sure you need to even have to think about that consequence because the sort of original purpose of the 14th Amendment, the rebalancing of federal and state

power and authority, to me, won the day before that. On the flip side, I also think that considering the consequences of treating Trump differently than other criminal defendants was part of my thinking and what he thought was my anti-consequentialist. I'm making you a male, even though in no way do I know what gender you are. Once we crack that dam of some criminal defendants are just special, and so we change the process for them, then I think the rule of law breaks. And the consequences of that are too extreme for me to contemplate. So in some ways, it's almost reversed. There were far more, I think, to me, in some ways, it's almost reversed. There were far more, I think, to me, consequentialist reasons to not treat Trump differently. But macro level, this is like, I am two-face. This is where I struggle because when people ask me which Supreme Court justice I most affiliate myself with,

or, you know, think that I think like, like, 75% of the time, I'm a Kavanaugh. And 25% of the time, I'm a Gorsuch. And it's like sex in the city. I'm sure, David, that you already know which sex in the city character you are. Okay, you're a Charlotte. That makes me laugh out loud. Okay. You're definitely a Charlotte. Who's that? Which one is Charlotte? She's the goody two-piece. Oh, okay. But I was like a 75-25 Carrie Miranda. And so I feel that way about the consequentialism versus non-consequentialism because Gorsuch I would put on the definitely not consequentialist side of the ledger.

Kavanaugh I would put on the institutional side of the ledger, though not necessarily consequentialist, but definitely institutionalist. And so I struggled because you're right. It's not, I don't have a great through line. Sometimes I think that the institutional concerns are so large or so interesting or so complex that they do feed into my answers to some questions. And sometimes I'm like, nope, you don't get to consider the consequences in something like this, because

maybe it's that the law is so clear, or maybe it's that I don't think the consequences are serious enough, or that they're easy enough for Congress to fix that. I think the political system is one that can should step in if those, you know, with those consequences, but that doesn't make it very consistent. And I acknowledge that. And I appreciate the question because it has made me think about my lack of consistency. You know, it's funny, Sarah,

because I've been thinking a lot about all of this consequentialism versus originalism really ever since Dobbs. And I have to say, if I was a justice, my name would be Neil Coney Bersich. It's a good name. Thank you. So what is I am? I have a disposition towards judicial restraint, but I also have a commitment

to originalism. So I, what I tend to think of is what is the outcome that is consistent? Where is, where do you have sort of judicial restraint and prudence that is consistent with an originalism? And if you can have no outcome that is consequentialist or exhibits restraint that is consistent with originalism, you got to go with originalism. To me, that was Dobbs, for example. It was very difficult to have a situation with Dobbs where you would say, what is an outcome here that is in any way consistent with the way I believe the Constitution is supposed to be read. And so since there was no outcome short of reversing Roe to restoring the Constitution to this, restoring the case law to how the Constitution is supposed to be read, then

Roe had to go. But I have a different feeling, for example, Sarah, about the Fulton case in Philadelphia, where this was the 9-0 decision, remember, where the court explicitly declined to overrule Employment Division v. Smith, even though I despise Employment Division v. Smith, there was an originalist response. You could rule in that case consistent with originalism without overturning Employment Division v. Smith. And I think when you're grabbing nine, if you want to grab nine justices versus a 5-4 sort of going bigger,

I'm fine with that. In fact, I think that's wise. I think that's quite prudent to do that. But restraint has to be consistent with originalism or I'm getting off the restraint bus is kind of how I'd put it. So that's why I say, I feel that that's how I feel

kind of like Neil Coney Barsic. Because I feel like they are both like that, but with different emphases, with perhaps Justice Barrett a little bit more on the consequentialist side and Gorsuch more, obviously on the originalist side and more willing to say,

YOLO, let's go. We're handing Oklahoma back to the five tribes. Let's go. All right, lasting on this case, David, we have railed against the leaks coming out of the Supreme Court and how dangerous it is for the institution, how unhelpful it is.

But you know what? I can't defend it when they just forget to scrub their own metadata. True, true. Who needs enemies when you've got friends like these? So it turns out that in the rush to get the opinion out, and there's lots of reasons that I think there was a bit of a rush. We know that they added the opinion day at the last minute on Sunday. Now, maybe that's just because they didn't want us all speculating, but I don't think so.

And that there was always sort of this internal deadline of Super Tuesday that they wanted to get it out before Colorado actually went to vote. So there was a rush and the metadata wasn't scrubbed. And what we learned was that initially, or at least at some point right before they published it,

the concurrence by Sotomayor, Jackson, and Kagan was actually a concurring in part and dissenting in part by just Sotomayor. I'm curious if that changes anything for you. For me, I still find the Barrett concurrence fascinating because I can sort of see where different justices wanted things to go. The chief obviously wanted a 9-0 opinion just because he's the chief and that's where he is. It's very clear to me that Barrett also wanted that 9-0 opinion and that if the

chief weren't chief and if he weren't the fifth vote, that he probably would have joined the Barrett opinion, for instance. And so what Barrett was basically doing out there was the judicial minimalism. But we didn't need to write anything else on this. Yes. We could have just said, I don't join part 2A, the end. I don't want a separate whole thing. Because it's really important that we just do this as cleanly as we can.

So what makes the Sotomayor only concurring in part and dissenting in part is not that it was Sotomayor, because remember, David, we said that it was either going to be 9-0 or 8-1. It turns out it was both. Yes. This is Schrodinger's cat of Supreme Court opinions. What caused, what were Kagan and Jackson waiting for or looking at? that they were holding out to see if Barrett and the chief could get the others,

Kavanaugh, Gorsuch, Alito, Thomas, to agree to cut part 2A. And that then they were like, yep, we won't sign on to this Sotomayor thing. But if you insist on doing that, then there's going to be this concurrence. And there must have been a lot of back and forth to get it to be a concurrence rather than a concurring in part and dissenting in part. And that's, I mean, this is where the Supreme Court looks more like the legislative branch in terms of compromise and persuasion to come to my side than I think people maybe know.

Yeah, it's very interesting, Sarah. And I'm glad you brought this up. And you actually did something very helpful for me, because maybe I'm having brain fog. But I just thought that was, oh, they just didn't hide the metadata. And then you just explained to me why it matters. Thank you so much for that. Well, this is like that New York Times story about the leak where I go like line by line and make Excel sheets. Like whenever you give me insider information, I sit there and obsess over it to see what all can, you know, how much that dry well will produce. Yeah. Yeah. No, you, that was so helpful. That was so helpful.

Because it is now, I feel like things are locking into place here because there would have been a 9-0 on that much narrower grounds, but the 9-0 that I think that Kagan, Jackson, and Sotomayor would have been willing to sign on to might've been one that opened it up for a federal lawsuit. Oh, 100%. And what the four clearly didn't want, and maybe we can include the chief in that. Because again, I think his institutional concerns are large. It's like,

no, because then we just start this whole thing over again. And we do it again and again and again. And like, we've got to just stop this for institutional reasons. Now, I think Gorsuch, Thomas and Alito did not sign on to that for institutional reasons. I think they just did not think that the federal judiciary was the decider. But I think it would be fair

based on the chief's previous, you know, 20 years. Yeah. To think that maybe he signed on to just end this. I would agree with that because if you had had a ruling that said, no, Colorado can't do this, but the prohibition still exists. Well, then you're the federal there would be 18 cases filed in the Northern District of California. There would be 18 cases filed in the Northern District of California. No, you're forgetting all the other states. I mean, because that's what happened this time, right?

It was Minnesota. It was Colorado. It was Maine, Illinois. I mean, there were so many states where people just went in and filed. It was a race to the courthouse. Yeah, you would have had a sprint to the courthouse for if the ruling had been Colorado can't do it, but perhaps we can. Then you're one million percent correct, which is, again, why I said both Tuesday and again today, if you're going to have the preferable way to do this, it does have Congress involved. Like if you're going to actually do this in a way that's going to make the most sense, yeah, Congress should be, there should be a statute on the book specifically dealing with section three. And a lot of people and, you know,

my friend, Amy McCarthy talk about 42 USC section 2383, which is the insurrection statute, you know, criminal insurrection statute and disqualifies anybody convicted of it from office. But that's not a section three statute because it's both it's over inclusive of section three section three and under and under it's over and under. That's right. So there is a room for it. And as you know, again, as I said, yeah, if we're going to do this sensibly and correctly, there should be a statute. But in the absence of a statute, again, this is my position, that doesn't erase those first words that say no person shall be. And I think that's

the core disagreement. Well, after an hour and a half, I feel like we have found violent agreement in some respects. Yes, we have. 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.

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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. All right, David, I also got this note from a listener about the other case, the classified documents case and the immunity argument coming up. So I want to read this. There might be an attenuated but interesting connection between the presidential immunity case and the classified documents case. If the court were to determine that former presidents can be criminally liable for certain classes of official acts taken while in office, that would make all presidential records and really any EOP executive office type documents highly relevant for prosecuting former president.

What presidents in this day and age can expect not to be targeted by hyper-partisan opportunist prosecutors post-presidency, whether they deserve it or not? What does this do to the incentives of presidents and staff with respect to documents as they are leaving office? Turn them all over to the National Archives? Hide some in a basement under the Corvette by the broken lamp? Or in the 17th bathroom with the old chandelier? Destroy some? I wonder if the historical record is going to be impoverished by the incentive created by the confluence of potential outcomes. If so, this may still pale in comparison to the public interest in severe accountability

for serious abuse of office or misconduct. But just saying, history is important. I think that's a really interesting point because we've already seen it with FOIA. Yeah, I'm not sure if I've done a full like, complain about FOIA thing here. Taking on Jonah Goldberg's transparency is a bad thing. It's one of those things that I'm not fully converted on yet. But boy, am I getting there. The transparency is a bad thing. Like I'm radicalized on campaign finance reform being bad in the sake of good ends. Oh, you and I are so in alignment on that point. Like it'd be hard. Violent agreement on that point.

But on the transparency point, it's kind of the same thing. So first of all, having C-SPAN in Congress has gutted actual congressional debates. People talk to empty rooms. They grant standard hearings. It has certainly contributed to the lack of interest in drafting legislation, compromising on legislation, having real conversations behind the scenes where you log roll. How can you log roll in public? Log rolling, by the way, is, you know, trading my thing for your thing, even if the two are totally unrelated, or one looks greedy, or you hold a piece of legislation hostage

because you want that post office named after you. You know, this is where earmarks died, was in an age of transparency. Okay, so that's transparency is bad. I think the strong form and the best version of it. But then you go to like things like FOIA. This is the Freedom of Information Act where you can get a lot of documents from your government.

The result of FOIA has been, yep, reporters and the public can get a lot of stuff from the government and the government officials, particularly senior ones, put nothing in writing anymore. Yeah. And I will tell you that from experience. The number of times that I was like, hey, can you just email me what you need? And the person said, no, I will not do that. Write it down or call me on the phone. Don't email me. I'm not going to email you. Now, I found that really frustrating because it's so inefficient. And I was like, look, I'll deal with the lawsuits

when we get out of this job. But like, we're working for the American people. Let's get it done now. But they were right. Here are the lawsuits. I mean, I am still dealing with some of them.

And so as a result, FOIA has actually caused a dearth of historical record and made the government less efficient, have people making decisions based on not full information because they're not getting emails, basically. If you didn't have time to pick up the phone, the person just makes the decision without your input. And that's because of FOIA. So now we get to the next part of this transparency.

If presidents believe they will be indicted, not just FOIA. And by the way, the White House is not really covered by FOIA for our purposes in way, the White House is not really covered by FOIA for our purposes in this conversation. Basically, you now have criminal FOIA for the White House. That will change the behavior of presidents and the people serving those presidents even more so than the current levels of transparency have. It's very interesting, Sarah, because I know for me being outside the government, I cannot remember the last time I emailed something substantive to someone inside the government. I'll pick up the phone and call. We'll have the phone call for sure. But to actually email inside the government. And then the other thing that ends up happening is a lot of these folks then choose alternative means of communication.

a lot of these folks then choose alternative means of communication. And so this is where you start to have some of your classified information leakage. This is where you start, people start using personal emails. They'll do signal and telegram. They'll do all kinds of things that are trying to evade FOIA while still continuing the communication. And some of that, yeah, okay. Some of that's really, really bad, but let's channel Jonah and you for a minute. Human beings need confidential spaces to communicate. If you're making hard and difficult decisions, there are times when you absolutely have to have privacy.

Absolutely. And this is one of the reasons why, by the way, for example, transparency as its own independent value is not really a constitutional right for the public. The government can do things confidentially, but still must, the ultimate safeguard is the constitution and the restraints on the power of the government, more so than the government's just a flat out open book, which will never work. That will never work.

So there is a balance here and FOIA can go too far. You know, now it's being weaponized. So, for example, if you're a public university professor and you're engaged in research that activists don't like, they're starting to FOIA you to get all of your research files, to get all of your communication. And you're not a member of Congress, you're just like maybe an English professor

at a university. And so I'm with you and Jonah on, I'm not maybe not as far as Jonah, I'm definitely with you on the campaign finance reform, but just saying the word transparency does not, transparency is not always a good value. It's just not something that is always preferable. Well, I want to give just a quick shout out

to two Supreme Court arguments from the beginning of this argument session, because they're interesting and we're definitely going to spend a lot of time on them when the opinions come out. So this is just a place marker for future opinions. One of them is this EPA case on the, quote, good neighbor provision of the Clean Air Act. the Clean Air Act. It's about ozone pollution and sort of how upwind states and downwind states are going to deal with each other. The details, again, we'll get into when the opinion comes out. But what's so interesting about this one is that very few cases are actually going to be affected by the death of Chevron. Yeah. But this is exactly the type of case that will and so it'll be very interesting to see how the Supreme Court deals with this because they already had the Chevron argument they already know how that's going to turn out and I mentioned it came up at oral argument where Jackson talked

about Chevron in the past tense yes and then Kagan was like no past tense hypothetically hypothetical past tense um but you know and when Chevron, the relentless and loper bright decisions come out, I'll redo my Chevron primer for everyone about Chevron step zero and Chevron step one and Chevron step two. But when you're really getting to the end of Chevron, which is what we're talking about going away, when we get rid of Chevron, there's a real question of whether it's going to make any difference. At the Supreme Court, Chevron hasn't been invoked for 10 years-ish, maybe eight. I think eight years at this point. It was already a zombie at the Supreme Court. But in the lower courts, it was used pretty frequently. And I guess my question on something like this is,

will a lower court judge who was like, yes, the EPA has that authority based on the EPA's own reading of their statutory authority. Okay, so if we get rid of defer to the EPA's reading of their own statutory authority, but A, if it's really persuasive, you can use it and B, even if you can't use it at all, what's the chances that that judge is still going to say that that's their reading of the EPA's regulatory authority? In which case, how much work has Chevron really been doing, even if it's getting cited a ton at the lower courts? I don't know that that wasn't just sort of a shortcut. Oh, I've got Chevron and I'm following Chevron versus I personally also believe that the EPA's reading is the best reading. So we end up in the same place. So this is funny how different podcasts work.

We just had the most disagreed podcast that we've ever had. And I just pointed at you on Zoom that like in agreement with what you just said on the EPA case and Chevron. And this is especially true, Sarah, of late, because what if we noticed of late, even before Chevron was overruled, all of a sudden there's a lot less deference to agencies, a lot less deference. We have seen rational basis review that as we've talked about under the Administrative Procedures Act, just bulked up like it's on HGH, anabolic steroids. It's not even a rational basis review anymore. And so I don't know as a practical matter. Well, let's put a pin on this because I have an idea as a practical matter how

Chevron will, the repeal of Chev as a practical matter how Chevron will, the repeal of Chevron or the reversal of Chevron will work. And it's directly related to the Cargill bump stock case, but we're not there yet. Okay, well, we have one more thing to talk about before we get to Cargill. And that's this case that it falls under another category for this podcast. You know, David, when I talk about the end of term stat pack, the statistics and how few cases were decided along the quote unquote partisan lines or ideological divide. The number one response I get back is, yeah, but the big cases work. And my number one pushback is how do you define big cases? And this podcast defines them one way, sort of legally earthquake-y.

I think the media, the mainstream, you know, sort of political media defines it a different way, which is politically divisive, which becomes circular, by the way. If it fell along ideological lines, it's politically divisive. And the politically divisive cases are the big cases. Therefore, the only big cases are the ones that fell along ideological lines, even the cases that are both about the Voting Rights Act, for instance. Right. The one that's 7-2 isn't a big case because it wasn't divisive. Okay. That logic to me is the most flawed. But there's another version of the big cases that apply to most of the people listening to this podcast. And it's a definition we don't use and they don't use. And that is the amount of money and sort of, you know, universal universality, maybe of the interest involved. For instance,

what about a case that involves all of those credit card transaction fees? The interchange fees. That's a huge case. Yes, probably the biggest case of the term. And we're going to talk about it so little. I mean, don't get me wrong, we're going to talk about the outcome. Because the actual question in the case is fascinating to me. Basically, the agency put out their rule, and the statute of limitations then went on its way. Then this lovely couple decided to start a business. And then they see this agency rule and they want to challenge that agency rule is violating the Administrative Procedures Act. Well, can they if the statute of limitations starts from when the agency rule actually went into effect

under notice and comment and all that stuff? Or does it start when they were injured? As in, how can you challenge a rule that you have no injury from that you didn't know existed because you didn't start your business? You know, let's assume an agency rule is 40 years old, and someone was born 20 years ago, and they just decided at 20 years old to finally open their first business only to find there's this agency rule that prevents them from doing whatever they want. Can they challenge that agency rule?

I think that's a fascinating question. I am so looking forward to the answer to that question. But the underlying thing is on the federal allowance for debit card processing fees. And that's gonna be a huge, huge deal for literally every business in the country. And I promise you, not promise, I think it's very, very unlikely

this would come out along ideological lines. And therefore, it won't be treated like one of the big cases, even though by this other definition of big case, it is the biggest case of the term by far. We'll cover the outcome. We will. Yeah. Yeah. But we're not going to treat it like the number one case of the term. No, no, we'll probably spend one 100 this much time as we do on Rahimi. That's right. Yeah. So I'm sorry, big case. You deserve better from us, from everyone else. And by the way, we're going to rotate to exactly illustrate your point, because we're going to move from something that impacts

basically everybody to a bump stock case that impacts basically nobody and yet is gotten 10 times the coverage. That's right. So next up is the bump stock case. If you are even a short term listener of this podcast, you've heard me talk about it. If you're a longtime listener, you're very sick of it. Because this is my go to case on how the executive branch has broken all the other branches, Congress and the judiciary. So let me give my short version of how this went down after the Las Vegas shooting, which resulted in over 60 people being killed, 800, I believe, being shot and injured. And I was at the Department of Justice at the time. You know, I got a call at two in the morning waking me up and saying, like, it's, you know,

you got to go. And so like, I made the call waking up the attorney general like it's this very visceral memory for me and a heartbreaking one because it was so the the breadth of it david was just it's the largest mass shooting in american history horrible horrifying and we'll never know why he did it. But we do know that he had a bump stock in the room and on one of the guns that he used. So what happens in the wake of that? There's enormous political pressure to ban bump stocks for good reason, because he was able to spray so many bullets down on that concentrated crowd. concentrated crowd um you know that and and we focused on bump stocks so there's a bill pending in the house and a bill pending in the senate but look anytime republicans have to take a vote banning something having to do with guns it's a little bit of a tough vote they open themselves up to primary challenges where the ad will read something like you know so and so voted to restrict your second amendment rights yep you know and so you get this primary challenge. Well, Donald Trump, the executive branch,

and again, I'm at the Department of Justice during this time. I say that as full disclosure, but it's also why I pick it is to like beat up on myself, right? Like I was here and did this. I mean, I personally didn't, but you know. Right, right. The administration is like, wait a second. Why make our guys take a hard vote? Let's just do it through an agency reinterpretation. So the ATF simply reinterprets the 1968 Machine Gun Act to cover bump stocks, even though previously they had put out many guidances over the years saying that it didn't cover bump stocks.

They had put out many guidances over the years saying that it didn't cover bump stocks. Well, you can guess what happened next. There was a lawsuit in Texas and the district court and Fifth Circuit both nod-dogged that agency idea. And it goes to the Supreme Court. And my whole thing about this has been the Supreme Court will say, no, the ATF cannot simply reinterpret a criminal statute that comes with a 10 year penalty. And yet the headline resulting will be Supreme Court strikes down gun control regulation. Not Congress was able to pass. It's up to Congress. Do Congress do your job? That won't be the headline out of it. It also won't be. That won't be the headline out of it. And then the people who challenge the law,

like they win too. Basically, everyone wins, except Congress once again shrinks its muscles when it comes to legislating and taking hard votes and doing their fricking jobs. The judiciary gets hurt institutionally because the headlines once again

make them sound like political actors when in fact, Congress could have done this. It was Congress's job to do this. They almost did do it. But why would you ever take the hard vote if the executive branch is gonna take it for you? And then you just leave it up to the courts. And David, by the way,

I heard something really depressing this weekend. I went shooting this weekend. Oh, did you? Shooting, yeah. And I would just like to report for all you skeet out there, beware. I'm very good at this. That is, that's not what I expected.

I did not expect that to take the turn for the podcast, but I'm glad to hear it. But as you can imagine, my conversation skeet shooting with a bunch of awesome ladies is a little different than maybe others because we were talking about, you know, congressional prerogatives. And one of them told me about a time they went up to the Hill, talking with legislative staff about this one provision.

And the staff actually said, we can't agree with the other side on how the law should read. So we're going to leave it ambiguous and let the courts decide. That's depressing. That's the most depressing story I've heard in a really long time, David. I mean, there's so many. It goes to the point, right? There's so many like that. You know, the funny thing is, do you remember when Nancy Pelosi said about Obamacare, we have to pass the law to see what's in it?

Yes, that's exactly the same version. Yeah, she was, everyone made fun of her. But the way the law was written, she was actually correct, because the law was written with intentional blanks that were to be filled in by the agencies. And so quite literally, we were not going to know fully what Obamacare was until after it was passed. So for example, the very divisive contraceptive mandate was not in Obamacare. It was in the enabling regulations. And so, yes, this issue,

here's the bottom line, the way I would put it to folks who are very skeptical about our position on administrative law. If I purchase an item and it's lawful and the law, Congress does not pass any law at all. So Congress has passed a law regulating firearms. I purchase a firearm or purchase an item for the firearm in reliance upon this law that Congress has passed. And then a different administration comes in. Congress does nothing at all. And the different administration says, oh, you know that law, it means something different now.

And not only does it mean something different now, we can put you in jail for the different meaning. You go to jail now for the different meaning. And so that's a big problem. How can I be legal one day and illegal the next day, not because Congress has changed the law, but based rather on how an administration chooses to interpret the same law?

And that is a real problem. And that moves us to the oral argument, because the vast majority of the oral argument was whether the bump stock itself is included under the text of the 1968 Machine Gun Act, which talks about the function of the trigger. And so we spent a lot of time on the word function and whether a person can function something. A lot of grammar in this oral argument. But there were conversations about, so wait a second, if a person still has a bump stock after this rule went into effect, like, but before we decide this case, do you believe you could prosecute them? And they're like, yeah, we do. And questions about the reinterpretation side of this. And the congressional side of this didn't come up as much as I wanted it to, honestly, but it's there in my heart. And David, one of the lot of agreement over how to think of bumpfiring,

because on the one hand, and just so I'll very briefly explain bumpfiring, bumpfiring is when you use a normal one trigger pull one bullet release gun, but use the recoil itself of the gun to sort of do the pushing against your trigger finger for you. Right. So it's still your finger pulling the trigger, but you don't, your finger isn't the one that moves as a muscle. The gun pushes against that finger. And that's bump firing pretty hard to master, actually. Yeah. And you got to be really strong.

What the bump stock does is it basically holds the gun in place for you to assist with that movement. But it's still your finger hitting the trigger each time and, you know, pulling the trigger. So it doesn't change, quote, the function of the trigger. And so the real conversation between the different groups of justices seem to focus on is that what we're talking about is what moves the trigger, because that's pretty easy. It's still your finger. Versus, for instance, other changes to a gun that could make it into a machine gun,

like there was a case a while ago about sort of using a remote control machine gun. Like, well, yeah, you're not the one pushing the trigger. It's a remote control, but it's still definitely acting like a machine gun, therefore banned under the 1968 Machine Gun Act. So that was one part of the conversation. But then the other one was on the purpose of the 1968 Machine Gun Act, which was surely to prevent quick firing weapons.

Yeah. And in that case, that's exactly what the bump stock does. It allows you to spray out more bullets per minute than you would have been able to without bump firing. And that also was an interesting middle way here that the bump stock simply allows you to bump fire and the bump fire you can't legislate against because it's a technique. It's not a change to the gun.

And so there's the, nope, it's just one finger touching trigger like it always was then there's the uh we can't are you you're trying to ban bump firing but this is a bump stock but it does make it easier and then there's the this is about being able to spray 600 bullets into a crowd at las vegas and surely that's why they wanted to ban machine guns in the first place. The fact that they didn't know about bump firing or bump stocks should hardly be the point.

This is like any other technological change or invention. And it should be treated like such, the same way that infrared technology is still accepted under the Fourth Amendment, even though obviously the Fourth Amendment didn't anticipate infrared technology. Right. You know, in an interesting way. So let me back up a bit. Let's go to the actual language of the statute itself. It says the term machine gun, and this is the key language is whether a bump stock essentially makes the rifle turns the rifle

into a machine gun of functional. And so here's the actual, turns the rifle into a machine gun, a functional. And so here's the actual language of the statute. The term machine gun means any weapon which shoots is designed to shoot or can be readily restored to shoot automatically more than one shot without manual reloading by a single function of the trigger, by a single function of the trigger. And so- Can I just say, by the way, we complain about how statutes are poorly written all the time.

This is not actually a poorly written statute in my mind. No, I don't think it is either, because I don't know that the idea of a bump firing... Right. You have to imagine like bump firing doesn't exist at the point. How else are you going to write this? I think this is actually a pretty well-written statute. So I just want to be clear. I'm not complaining like I sometimes do that they wrote a crappy statute and now we're left with these crumbs. This is just technological change or advancement

in the meantime and how we deal with statutes that didn't have that in mind. Right. And here's how I would approach this case. And in a world where Chevron exists, all the court is supposed to ask is, is the interpretation a reasonable interpretation here? And in that circumstance, with Chevron existing, you could have a world where when you're dealing with this technique of bump firing and this piece of technology, the bump stock, that you could have a world where you might say, you know, it's reasonable to say

this encompasses a bump stock. It's also reasonable to say that it doesn't encompass a bump stock. And so therefore under Chevron, you can go both ways. And it just depends on the rulemaking process and who's- You can go your own way when it comes to agency regulations.

Those are exactly the lyrics. Yeah, they are. And so, but what Post Chevron says, okay, we recognize that some things are tough to interpret, but there's going to be one interpretation. It's not, we're not going to grant room for a range. And so my own view of the outcome of this case is I don't necessarily know, honestly, Sarah.

And by the way, we should put in show notes, Kevin Williamson has an extended piece about bump stocks that is... He has thoughts on the best reading for sure. He has thoughts on the best reading. We shouldn't put that in the show notes. But he also has a very helpful full explanation of what a bump stock is and the difference between bump firing and a bump and bump firing with and without a bump stock. So if you really want to dive into all of the the actual mechanics. The most helpful part to me was was him explaining that.

I mean, I know the difference between a rate of fire and how many bullets actually come out. But I never thought about it in this context, because all you see is that the rate of fire would be up to 600 bullets per minute. And he basically says, I will bet my entire net worth that you can't get 600 bullets out of a gun with a bump stock. It may be the rate, but it's not actually how you can't get 600 out in a minute. And I was like, oh, I didn't really know that. The reason is super simple. You have a 30-round magazine. You don't have a 600-round belt fed.

You don't have 600 rounds being fed in. So you have a 30-round magazine. And let's say you fire that at the rate of 600 a minute. And I'm not going to do the math on how long that takes. It comes out faster. Comes out faster. But it's still only 30. Yes. You have to drop the magazine, reload with the new magazine. You're not doing 600. It's not Rambo where you have the bullet sort of stringing out. The bandolier. Yes. That's illegal, right? The 30 round magazine in most states, I believe,

Legal, right? The 30 round magazine in most states, I believe is the max. I think what some states might have a 50. I'm not sure what the, I believe 30 is. Anyway, there's magazine limits in states. So yes, it would, anyway, that was a fun part of Kevin's piece that really helped me.

Yes. We will put it in the show notes. Please continue. Yes, but at the end of the day with this case, if it is coming out, if this is analyzed under a post Chevron rubric, then you're going to know what this statute means, period. You're not going to know what it means during the Biden administration and then it means something else during the Trump administration. You're going to know what the statute means. And that's the value of getting rid of Chevron, in my view, is you're going to know what the law means. It's not that Chevron... Because remember, also under our deference, the agency can change its mind about what the statute means in different administrations,

and we defer to that change as well. And that was always a disaster. Yeah. Yeah. And so think about what this does for presidential elections. And I wrote about this in The Times was it just raises the stakes. So now you don't you have the guy who's appointing the judiciary, the guy who's executing the laws and the guy who's making the laws and the laws can change substantially. He can change the law. He or she can change the law from one Congress to another with, I mean, one administration to another without Congress acting. And that's not, especially by the way, Sarah, especially when you're talking about a criminal statute, when you can lose your liberty, be thrown in jail. Ah, that is, that is really troubling to me. This idea that it's one change presidents and you can change criminal code without Congress. Woo, no. All right, so we're definitely looking forward

to how this comes out. I, you know, I went into it thinking for sure this might be one of those ideological six, three, ATF doesn't get to ban bump stocks under the 1968 Machine Gun Act. I still think that's my best guess, but the oral argument pulled me back a little on some of this,

just on actually all of it, the three and the six. So we may have quite a few concurrences here. It may be 6-3 in the end with concurrences. I may be off by one or two justices on either side, which could make a pretty big difference if you're doing the math at home. So we'll see. David, as we move on, for next episode, we're going to talk about some 11th

Circuit fun, the 11th Circuit and the Stop Woke Act, as well as a speech from Judge Newsom on text history and tradition. Because we need to talk about another case real quickly. That's a bit of an emergency, frankly. Kyle Cheney, the senior legal editor from Politico, tweeted out about a discovery dispute in a Colorado case in which the court cited the string cheese factors. And we have a listener who needs to know what the hell is going on with these string cheese factors.

Okay. And David, I have an answer. Yeah, I was going to say, what is going on with these string cheese factors. Okay. And David, I have an answer. Yeah, I was going to say, what is going on with the string cheese factors? So first of all, it's Colorado precedent coming from a district court. Okay. And it's about when you can stay discovery.

But the underlying case is amazing because the name of the band is called the String Cheese Incident. They are a real band. They are still in Colorado and they play at music festivals. In fact, they're playing at Red Rocks in July for those who want to go see String Cheese Incident.

And they had a dispute with a music festival. And anyway, this is just very funny. Defendant Shaver, an Oregon attorney, misrepresented defendant Shakedown's financial status. Someone named their company Shakedown? Come on, y'all. That's like naming your kid Does Crime. Chris Does Crime is here under indictment for doing a crime. So the string cheese factors are the factors to consider and whether to stay discovery. And look, the factors themselves

aren't that interesting, but I'm going to tell you because if you find yourself in Colorado Federal District Court, you're going to need to know this. And who knows how many of you listening could end up in that position. One, the plaintiff's interest

in proceeding expeditiously with the civil action and the potential prejudice to plaintiff of delay. Two, the burden on the defendant. Three, the convenience to the court. Love number three, by the way. I don't wanna, says the judge. Four, the interest of the persons not parties to the civil litigation. And five, the public interest. And boy, there's something about the string cheese factors that strike me as too honest. What does the judge want to do? The public interest

is the last thing we think about. So those are the string cheese factors. And you're so welcome. Last thing to note before we go, David, this weekend is this Federalist Society Student Symposium that is being hosted by Harvard Law School. And there are lots of friends of the pod speaking there. But I want to give a special shout out to friend of the pod, Amanda Tyler. You may remember her from our conversation about Erie Railroad and standing. And she is, I mean, I don't want to ruin anything for the

students who are going. And Amanda, I'm sorry. I'm sorry, Professor Tyler, I'm sorry that I'm locking you in to what you're going to talk about. But I would like Professor Tyler to give everyone a bit of her flavor on how TransUnion, that was a case about standing from last term, really undermines, frankly, my thesis, our thesis, about the courts using major questions doctrine and other doctrines to force Congress to do its job. Because in TransUnion, and she has some other examples as well, you have Congress speaking very clearly and then the saying, no. So yes, there's lots of examples that you and I keep talking about, David, where Congress doesn't do its job. And the court says, well, no executive branch, you can't do that. Only Congress can do that. But the pushback to that from someone like

Professor Tyler, who is unfortunately brilliantly smart, is, yeah, but what about the cases where Congress does act and the Supreme Court nod dogs that? How does that fit into your thesis? So she's gonna be talking about that at the Federal Society Student Symposium. And remember, Professor Tyler, Berkeley Law Professor,

clerked for Ruth Bader Ginsburg, also co-wrote a book with Justice Ginsburg as well. And that was a great podcast with her, by the way. That was a lot of fun. So wonderful. Go back and listen to it. But this is also me goading Professor Tyler, perhaps, to come back on. And I don't know, take some of that on because she's got a point, David, and we haven't talked about it a lot. And I'm jealous of those students who are going to get to hear her discuss it on that panel. So congrats, Harvard Law School. We hope you have a very successful student symposium. May

the weather hold out, though early March in Cambridge, not known for its hospitality. No, no. March in Cambridge is not like Boston in the fall. It's the opposite, actually. The leaves aren't pretty because they're not there. And it's not this like lovely, crisp breeze as you walk along the river. It's wet mist spitting for days, weeks on end in your face. I think March is easily the most demoralizing month if you grew up in the South and you live there. Because if you grew up in the South, March is the new beginning. I mean, you're gonna still have cool days and everything,

but you can pretty much count on a March day to be above freezing. You're gonna have a lot of really nice days. And I remember suffering so much, my Southern bones creaking in November, December, January, February, and then March. Oh, crap. And if you wear glasses like I do, it's so much worse because that spitting rain, you basically just don't get to wear glasses when you walk outside from place to place,

which means you can't see either. It's insulting. It's personally, I take a personal offense to it. I will push back on your March, though, because in Texas, for us, it's the blue take a personal offense to it i will push back on your march though because in texas for us it's the blue bonnets and the indian paintbrushes and those don't come till april so all those baby in the blue bonnet photos that you see by the way i tried to take one of those with nate the photo i have is a really pissed off toddler in the blue bonnet he's in a cute outfit though yeah there you go we're gonna try again this year The photo I have is a really pissed off toddler in the blue bodice.

He's in a cute outfit though. Yeah, there you go. We're going to try again this year. We're going down. Also big news for those in the Houston area, David. The Garland Walker Inn of Court Presents Taylor's Exes Tell All got moved. The date is now April 4th. So barring some extraordinary events, I will definitely

be there. One night only, you get 1.25 credits for CLE. It's in the ballroom at the Junior League. Doors open at 530. So there might be some RSVPs potentially, but find it. Garland Walker, Inn of Court, Taylor's Exes Tell All. You'll see judges Eskridge and Elrod singing. The date has finally been solidified as April 4th. Exciting. That's outstanding. I'm so glad that I get to go. I will report. I will be your reporter on the ground, David. Oh, I can't wait to hear about this. I loved having them on. And by the way, their singing was actually impressive considering that there was actually a lag between them, you know, and online. So yeah, that was, and I couldn't believe they went ahead and did it.

They actually went ahead and sang because I thought the way it was going to go is you're going to say sing, sing, and they were going to go, no. And you don't know them like I do. You don't have to ask much. Their no was like, no, really? No. Are you sure? No.

Anybody got my tuning fork? No. I'm not. They know how talented they are. All right, David, what do you think? Good pod? Great pod. Outstanding pod.

We don't have time. I was going to pull Grifter Sarah onto the podcast, but we've run out of time to talk about the 2024 race. But, and for those new listeners, grifter Sarah is a fake name for availing ourselves of, of Sarah's considerable political expertise. And I don't know how that became grifters. Oh, I think it was, if you were advising, if you were just for, you know, for sale for the highest bidder, how would how would you advise in each one of these that that's how it came? Yeah, versus like picking my candidates versus picking your candidate? Yes. Which, by the way, isn't actually some high moral ground, necessarily, I usually pick the candidate

that I think I will have the most fun working for. Because it's long nights and and really early mornings and I'm not a morning person. And so I just asked myself when my alarm goes off at 4am, which job do I like pop out of bed for? Yeah. And then I take that job, which would also screen out crappy people. And it does because I don't have fun working for crappy people, but it's a little bit second order, if you will. Right, right, right. So wait, what was your, I mean, we have a couple minutes. So the question that I have is, because this is something I'm thinking about. So Joe Biden is losing working class voters.

Looks like he's losing working class voters across the racial spectrum right now. Correct. I mean, he's still getting particularly men. Yes. He's still getting a majority, say, of black male support, but not enough. And it doesn't look like as of right now, the migration of sort of college educated suburban Republicans to him is compensating enough for that. So here's my question. If you're Joe Biden, he's in. He's not stepping down because of age, whatever. He's in. Where do you go?

Where do you advise him to go to make up the difference? Do you say we need to claw back our working class non-white voters? Or do you say we need to double down on pulling more of that suburban vote in our direction? Or do you just say, hey, the polls are all wrong. The non-white vote is still with us, which seems to be the option that most of the left side of the spectrum is taking on social media,

which is none of these polls are right. And we'll just hope for the best. And hope for the best. So this is where actually Grifter Sarah and Sarah Sarah, I think are in pretty strong agreement. And to back up for a minute, one of the problems that you have on campaigns is that the people who work on campaigns in both parties are not representative of voters in those parties as a whole. On the right, it actually means that the campaign staff tend to be more liberal than the party as a whole because they generally went to elite institutions for college. They're college educated, first of all.

They tend to live on the coast, you know, DC in particular, by the way. And so that's going to put them to the left of their median voter. But on the Democratic side, it puts their campaign staffers usually to the far left of their median voter. So what I would say is,

stop listening to your campaign staff. This is pretty easy, actually. The voters of color, and again, particularly the male voters that you're losing and the working class white voters that you're losing, you're moving too far to the left for them. So when it comes to, you know, for instance, in Michigan, the uncommitted vote that people think is largely about Gaza and Palestinians.

Now, asterisk that a little, because we definitely saw some of that in Super Tuesday states where there's no way that's the explanation. CEG, Oklahoma. Right. But nevertheless, you know, those are voters in a primary. They're already incredibly high turnout people, very motivated, super politically tuned in,

which is why they even knew to vote uncommitted in the first place. Exactly. They're not staying home on election day and letting Donald Trump get elected. They're the number one voters who think this is a binary choice and are most affected by negative polarization,

meaning their hatred of Donald Trump will drive them more than their disappointment, disaffection for the Democratic Party or Joe Biden. So if you're willing to believe that, screw all those guys, come in hard on immigration, come in hard on crime. The Department of Justice under Joe Biden

just filed a very interesting brief that hopefully we'll talk about next episode. For instance, on the Grants Pass case, that was the homelessness case that the Supreme Court took. They're to the left of Gavin Newsom in the city of San Francisco on this question. Stop it. Yeah, yeah.

Because as you said, David, there are far more non-college educated white voters, for instance, and there are college educated white voters. So you can't trade them. It doesn't work that way. So I think it's a huge problem. Roy Teixeira, who wrote the original Demographics is Destiny sort of for the Obama, not they didn't write it for the Obama campaign, but it was widely used on the Obama campaign. He has come out and said, wait, guys, that was assuming that you could hold on to the working class white vote that is the base of the whole party. I wasn't saying chuck out those and then focus only on the far left, high educated white voters, and then the remaining people of color, who are mostly now not mostly sorry, but

becoming increasingly a gender divide where it's women of color, that is not going to be a winning coalition. So anyway, that's Grifter Sarah and Sarah Sarah, I think pretty much agree on that. Yeah, I think the it's it is really interesting how the Democrats right now have an issue with their young. College educated staffs in on the Hill in the administration. Yes. In journalism. Literally in the White House where they write, they sign anonymous letters to their boss. Yeah. Come on.

Yeah. And and it's in journalism as well. You know, a lot of the unrest in newsrooms has been driven by very young, very, very, very liberal staffers. And I can, you know, there's that old saying that I've used it many times when I write, where you stand is based on where you sit. You know, your own life experience is so important

to your positions and to your outlook on politics, on religion, et cetera. And look, a lot of these younger people have come from nothing but left spaces their whole life. And so it is very hard to tell them, no, your point of view is actually a very small minority point of view in the country. It's doubly hard to them to say your point of view is actually a minority point of view in the Democratic Party. Because if- Yep, which is definitely correct.

But if you've come out of Andover, or sort of a- Way to pick on Andover. I'm sorry, but it's a stand-in for an elite private school. So you come from an elite private school, say- Sam Hirsch, Brown, Tops, we see you. Yeah, yeah.

But I'm talking about from high school up, like you were in high school in Manhattan. Oh, you're right. Andover's a high school. Yes, yes, yes. So like, you come from high school, where it's a very, very liberal environment into a super liberal college, and then you go and work for what you think is a liberal organization. Everything in your life experience is pushing you to that left edge. But you're actually cut off from two thirds of your own party. That was the finding Nate Silver, Nate Cohn at the Times had in 2019 when he said the online Democratic Party is one third.

The offline Democratic Party is two thirds. The one third is super educated and super white and super left. And the two thirds is working class and more moderate and much more diverse. And Biden won by running for the two thirds vote, not the one third. And so he has to pivot back to that two thirds. And in many ways he has like the border bill and things like that. But there it's also quite true that especially early in his administration, it seemed like the one third was running the place. And and that put him and it has put him in a tougher spot than he needs to be. All right. Now it's been a good pod. Now we can sign off. All right. We have lots of

11th Circuit fund that stop woke act and the Newsom speech. And the Newsom speech got featured in the New York Times. So yeah, Newsom speech is worth real time. It's a good, it's a great speech. And no doubt we'll have some other things along the way. Thank you, listeners. I took your breath away. I did, I did. Take my breath away with your transparency argument.