Advisory Opinions - Dead Man Walking Precedent

Episode Date: May 29, 2025

Sarah Isgur and David French explain the Supreme Court opinion in Trump v. Wilcox on presidential removal limits. Plus: an update on the religious charter schools case. The Agenda:—Future of religious charter schools—Trump v. Wilcox—Can Congress limit executive removals?—“Only two genders” T-shirt—The Court’s First Amendment jurisprudence—“Beat the children with sticks”—A gumbo footnote—Tips for the bar exam: Don’t do what Sarah and David did Show Notes:—Seila Law  Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠⁠⁠⁠⁠click here⁠⁠⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, I hope you had a lovely and important Memorial Day weekend. Had a lovely Memorial Day weekend. Met with a friend of mine that I served with in Iraq. We spent Memorial Day evening together. It was very, very, very nice. So yeah, it was. And also we're in Chicago and it was a high of Memorial Day weekend, I think of 59 or 60.

So there's that. Well, I'm down in Florida with the family enjoying some beach time and we went to this restaurant on Memorial Day that had a remembrance table and it was just a really nice way, I thought, to recognize Memorial Day. The table was in the middle of the restaurant. It had a candle lit and each menu came with an explanation of every piece of symbolism on the table. Just lovely. I like when we remember Memorial Day instead of just sleeping in and having law and order marathons, though I also believe that that is part of Memorial Day, law and order marathons, though I also believe that that is part of Memorial Day, law and order marathons.

No, no question. No question. People honor Memorial Day in many different ways, Sarah. All right. We have a lineup today. So we got that St. Isidore Catholic Charter School decision, such as it was. We also have a short order docket decision in Wilcox that we'll talk about.

A denial that we were expecting on that two genders t-shirt, but we did get a dissent from denial from two justices, more to say on that. And the Fifth Circuit had an en banc on library books that we'd been following. You'll never believe how that one turned out. And finally, we've got some tips on how to take the bar because we know a lot of you listening are graduating law school this year and are looking at the abyss, staring into the abyss of bar review. So you'll get great tips from David and I that you should never ever follow

on how to study for the bar exam. But David, before we start, so there was another decision out from the court, kusisis, at least that's how the chief justice pronounced it in oral argument. We'll get to that decision at the next point, but that was on, well, what the difference between lying and criminal fraud is. It was unanimous, but with lots of concurrences and feelings

involved. So more on that decision for the next AO, and we will get more decisions Thursday morning that we'll also put on the next advisory opinions as well. But David, let's hop on in to our fun little Saint Isidore case. I will now read the entirety of the opinion. Per curiam. And for those who don't speak Latin fluently, that just means for the court. We don't know who wrote it. We don't know what the vote was in

theory on a per curiam, but let me continue. The judgment is affirmed by an equally divided court. Justice Barrett took no part in the consideration or decision of these cases. Okay. So bottom line, David, this is as if the case was never granted cert. It simply affirms the last lower court decision, which in this case was the Oklahoma Supreme Court, which had held that the religious charter schools violated the Oklahoma Constitution and did not violate the US Constitution by rejecting them. So no St. Isidore, no Catholic Charter School happening in Oklahoma. Can we start super big picture David though? Justice Barrett was recused. We don't exactly know why though people have

speculated that it's because one of her close friends was running this case with the Notre Dame Supreme Court Clinic. I've also heard people speculate when they talk about adding seats to the court or term limits or anything else that perhaps odd numbers of justices is not required. So can we just talk about recusals and the number of Supreme Court justices. What are your thoughts on all of this, David? Yeah, it's really unfortunate that you have a situation where somebody rightly recuses. Nobody should really question or Supreme Court recusal. It doesn't happen very often.

There's a presumption of good faith and regularity in these kinds of things. And so, you know, recusals happen. They happen on occasion. And it's very unfortunate that you then result in a court where you have this potential outcome, which is a 4-4. It's a split. So the court has not really reached a decision,

but under the rules, it's essentially affirming the lower court in most of the ways that matter, not every way that matters, but in most of the ways that matter, not every way that matters, but in most of the ways that matter. It's unfortunate, but Sarah, I don't have a great other option. Could it be that, for example, if one has to recuse, then one judge at random has to also step aside so that leads seven. That's a thought that I had. Seems, it keeps the court functional, but asking a judge, a justice to step away on a random basis, not sure. I think it would

be constitutional. The court would be setting its own rules. What do you think about that? I don't know. There's also something interesting about the fact that this, you know, the Notre Dame Supreme Court Clinic didn't have to be involved in this case. And it resulted in a recusal. And I've seen some people sort of throw shade at the Notre Dame Supreme Court Clinic. Like you guys should have withdrawn from the case rather than allow there to be a recusal at the court. I think that's tough too. Yeah. Yeah, that is tough. I mean, if you knew, if you knew on the front end that your involvement was going to result

in a recusal, I'm not so sure that they would know this necessarily on the front end. But yeah, you want people to participate in cases according to their right to participate in cases, I don't see a great solution here. My best idea, Sarah, I threw it out there. If one recuses another one at random, put names in the hat and the short straw or they draw straws, whatever it is. That's my solution.

Well, here we are. So, it's a per curiam four-four. There's no decision. We don't know who the four are on each side, though again, most people would speculate that the chief justice sided with Sotomayor, Jackson, and Kagan versus Thomas Alito, Gorsuch, and Kavanaugh, not just because of their prior ideological leanings, but from what we heard at the oral argument as well. So I think that's a fair speculation based on what we heard. Do you think we get another one of these cases or are we just done with religious charter schools? I think we're going to get another

one of these cases. I mean, if even if it's not a religious charter school, we're going to get the state action case around charter schools. So I think the thing, the really key element here to this case was always, is this charter school a public school in the sense of being a state actor? That was always the key question, because if it wasn't a state actor, then they were almost certainly winning this case. If it't a state actor, then they were almost certainly winning this case. If it was a state actor, they were almost certainly losing this case, as we talked about before. So, that question, under what circumstances, a charter school, a state actor, I think the

court's going to get there. And I think the court's going to lay out the test for when a charter school is a state actor versus not, because the charter regulations vary from state to state. So I don't think you're going to have any one bright line, all charter schools are state schools or not ruling. You'll have a test. So I do think that's coming.

I would be shocked if that's not coming. So what's fascinating about that to me is I think it's unlikely that the next state action charter school case is a First Amendment religious case. I think it's far more likely to be a First Amendment speech case where a charter school has engaged in viewpoint discrimination. I think it is less likely, but also very possible, that you get a Fourth Amendment state action case. A charter school, for instance, has a policy of searching

students or something in a way that a public school could not because of the Fourth Amendment, but that perhaps the charter school can. So yeah, I mean, the sad, the downside, whatever, we had sort of really teed up the Oklahoma rules for their charter schools. Each state's going to be a little different. As we've said before, the facts of which case the Supreme Court accepts matters quite a bit. Now, because they get to choose their facts, I think my bad facts make bad law can be a little misleading. It's not that the facts necessarily are dictating the outcome, although that can be the case sometimes. It's also the Supreme Court can be very careful in which facts they decide to take. At the point

that we're taking fewer than 60 cases a year, it is, I would say now the Supreme Court's docket is more about what they don't take than almost about what they do take. It is all about that decision, at least to me. So I don't think the next one will be religious. I think the next one could have a state with maybe a little bit more of a thumb on the scale of whether it's a state actor or not, that will make it a little more clear so that they can lay out maybe their ideal world of what the charter school laws would have to look like and then what the first forth, et cetera, state action type rules would have to look like. I don't know, David. Well, you know, the interesting thing to me about this per curiam and like you said, we do not know who, there's been a lot of speculation that it was Roberts, mainly because Roberts seemed to be maybe the least enthusiastic of the Republican nominated justices at oral argument about the charter school.

We don't know, but one thing we do know is that one justice who has previously voted to protect, say, to permit public funding to flow to religious institutions, including religious schools, flipped in the other direction on this case. And so that I think is a very important fact. What you mean, David, is that we've had now a line of these cases where they have extended the free exercise clause to pavement,

you know, that like, not mulch, the rubber stuff, the rubber stuff for playgrounds, vouchers, tax exemptions to religious schools. And what you're saying is that of the five Republican appointed justices on the court, they had all voted in favor of those cases. One of them did not in this case. Yes, exactly. And I think that's the really notable thing. Now, there's actually two, and all likely two, justices who have previously voted to expand access to public funding. Kagan, for example, was in the majority in that Trinity Lutheran playground case. But Roberts has been in the majority on pretty much all

of these cases involving public funds to private educational institutions, private religious educational institutions. So one for certain, two almost certainly, who have been in all of these, have been in the majority in many of these cases, if not all of them, flipped around. And I think that's the important factor here.

And the next time that a case like this goes up to the Supreme Court, if you are wanting to make the case that a charter school is not a state actor, that's got to be much more clear just from the regulations, from the declarations, from the state entities that are regulating these things. I mean, when this school was first founded, there was a declaration on Oklahoma's website said, charter schools are public schools. Now, we've already been through what does that mean,

what does public school mean, but there's a very common definition of public school in the vernacular, which is a state school, a state-run school. And so when you say that, you're putting yourself at a disadvantage in this case. I think it also mattered here that we had Oklahoma a bit divided against itself. You had the charter board chartering the school, giving the school a charter, but you also had the attorney general

and the Oklahoma Supreme Court ruling against them. I kind of liked that aspect of this case, and I'll be disappointed when the next one feels like it's more strictly along partisan lines. But like I said, if you're a proponent of charter schools, you're pretty happy today. In fact, for me, this is like the best possible outcome I could have hoped for because I don't care that much about religious charter schools. That's just not a thing that is on my wish list. But I care a lot about charter schools and school choice and parents having the option of where to send their kids based on their kids interest, based on their kids academics, not just based on where their kids

live. And if the Supreme Court had upheld religious charter schools, I think there could have been a, this is why we can't have nice things. And a lot of anti school choice advocates would have had a really big cudgel in their bag of, oh, well, if you start going down this road, you're gonna have to then have all these religious charter schools and that's gonna be politically unpopular or financially untenable.

So this was a good day for school choice, even if it was a bad day for St. Isidore. I think it was a good day for clarity, Sarah, which is a weird thing to say when it's a 4-4 decision when we have no idea who the four were. But what I mean good day for clarity is we wouldn't have had this if there was greater clarity in what the charter school actually is historically and where the state has articulated with clarity the level of involvement and control or not.

I think going forward, what you're going to see in the charter, as states are wrestling with this, is they're going to know this needs to be spelled out very precisely. And there needs to be a declaration given essentially to the courts. This is how we view these things and why. And if you're going to say we view this as a public school, meaning a state school, articulate that and explain that. If you're going to say we're merely regulating private entities, articulate that, state that. But I think the end result of this is going to be that there's going to be an understanding

of a greater need for clarity and defining the relationship between charter schools and the state. But maybe that's just wildly optimistic. It usually is. All right. Well, that's a lot on a one sentence decision. Next up, we will take something from the short order docket, emergency docket, interim relief docket. And by the way, David, we are now fracturing as a country over what TV we watch,

news, media consumption, but we are also fracturing over what to call this. We now have some justices on the court referring to it as the emergency docket. We have other justices referring to it as the interim relief docket. And we have David Latt referring to it as the short order docket. Amy Howe referring to it as the emergency relief docket. David, I don't, it's bad. It's all bad.

It's bad out there. You know, and it all started when we just said we're not happy with emergency docket or shadow docket. We're not happy with shadow docket. We want something else. And then that just was like opening Pandora's box. So are we just going to go full circle and go back to shadow? Absolutely not. Absolutely not. But this was a case called Trump v. Wilcox. President Trump unilaterally removed a member of the National Labor Relations Board and a member of the Merit Systems Protection Board. The president is prohibited by statute from removing these officers except for cause.

And of course, this was not for cause. this was testing the Humphreys executors case. Now remember our dear Mr. Humphrey was removed from the Federal Trade Commission. He sued about that. He died in the meantime so his estate continued the lawsuit and the Supreme Court back in 1935 said that in fact it was lawful for Congress to place these limitations on removal for executive branch officials. And so we have been arguing about it ever since, including in a case called Celia Law that was decided in 2020 about the Consumer Financial Protection Bureau where the Supreme Court said that the CFPB really was functioning as an executive power. It was exerting

executive power, making executive decisions, and therefore, in order to be able to hold the president accountable, he needed to be able to pick his inferior officers and the head of the CFPB could not be shielded from removal by Congress because that person wielded executive power. Okay, so here we are. Is the NLRB and the Merit Systems Protection Board more like the FTC and Humphrey's executor or more like the Consumer Financial Protection Bureau head in Celia Law? Well, once again, let's remember this is not the

actual decision. This is the short order docket where they're just deciding what the rule should be in the meantime while they litigate this case. So the lower court, the DC Circuit, had held, had enjoined the president from removing them. The Supreme Court issued a stay on that injunction, meaning, yes, the president can have them removed while this litigation is pending. I will now read from the very short decision from the majority. We have three justices dissenting. So we don't know that it's 6-3, but we can basically presume that it was 6-3 because there's no other noted dissents. Because the Constitution vests the executive power in the president, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions

recognized by our presidents. By our precedents. See Celia Law. You'll note Humphrey's executor is not mentioned. The stay reflects our judgment that the government is likely to show that both the NLRB and the MSPB exercise considerable executive power. But we do not ultimately decide, in this posture, whether the NLRB or MSPB falls within such recognized exception, that question is better left for resolution after full briefing and argument.

The stay also reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation. All right. So you then have Justice Kagan writing for the dissenters with Justice Sotomayor and Justice Jackson, for 90 years Humphrey's executor has stood as precedent of this court.

And not just any precedent, Humphreys undergirds a significant feature of American governance, bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control. And they note, while the emergency docket may be fine for resolving rights, it is something different if you're overturning precedent. So in Justice Kagan's words,

it is one thing to grant relief in that way, the emergency docket way, when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law. All right, so David, here we are. One more note worth making, the majority here notes that this is quite different than the Federal Reserve. Respondents Wilcox and Harris contend that arguments in this case necessarily implicate

the constitutionality of four cause removal protections for members of the Federal Reserve, Board of Governors, or other members of the Federal Open Markets Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States. All right, so did we just overturn Humphrey's executor on the short order docket and is that itself inappropriate, as the dissenter suggests, David? How about this as an analogy, Sarah?

I don't know, did you ever see the movie Green Mile? Or maybe, I can't remember the Sean Penn movie about capital punishment, oh, gut wrenching, by the way, and Sister Helen Prigent. Anyway, I can't remember one of those two movies, one fantastical, one sort of rooted in history, and the prisoner is being led out of his cell to the execution chamber and someone

yells out, dead man walking. That's the green mile. That's the green mile. Okay. Okay. Thank you. So Humphrey's an executor. That was six justices of the Supreme Court yelling out dead man walking to Humphrey's

executor, at least in my view, that Humphrey's executor is not overruled, but the citation to Celia Law indicates that the court might be thinking, well, contrary to what Justice Kagan was arguing, no, we already had full briefing and argument on a case directly relevant here and it was Celia Law, and that we're really more applying Celia Law. and that we're really more applying Celia law. So I would say Humphrey's executor is, what's worse than zombie precedent is dead man walking precedent. So that's kind of my interpretation.

Where are you on it, Sarah? I think you're exactly right just from a legal standpoint. You have the majority saying, no, we're just applying Celia law. What we said in Celia law was that we were cabining Humphrey's executor to the form the FTC took in 1935, which was much more like an advisory board to the president. So sure, Congress maybe can create for cause removal protections for something like that without hurting the political accountability for the president who is responsible for the executive branch. We want voters to be able to hold decision-makers accountable.

Well, if you're just an advisory board, the president can take or not take your decision so he can still be held accountable. Very different than what these so-called independent agencies have turned into as the CFPB head, for instance, was in Celia Law. So the majority is saying, no, we're just applying Celia Law and this is more on the Celia Law side than the 1935 FTC side. But I think the dissenters have a point here. Sure it might be, but you're still further cabining a precedent, Humphrey's executor, because the CFPB had a single head. It looked far more executive-ish than the NLRB, which has requirements for bipartisanship in a multi-member board. This is much closer to the 1935 FTC

in terms of its makeup and how Congress constituted it than the CFPB. But David, relatedly, there is an FTC case about removal of the FTC commissioners who were the Democratic appointees on the FTC, that just had oral argument in front of the district court. I happened to listen into the two plus hours of it. Boy, did it go on and on. That argument itself was pretty interesting because what the Department of Justice is arguing is you don't need to overturn Humphrey's executor. In fact, we don't even want you

to. Even though, remember, Humphrey's executor is about the FTC. What they're arguing is the 1935 FTC is a difference in kind than the 2025 FTC. So the 2025 FTC actually falls under Celia law. So you can keep Humphrey's executor on the books. There are advisory board type Agencies within the executive branch and Humphrey's executor would still apply to them But when it comes to the 2025 FTC, nope, that's more like Celia law or the CFPB and Celia Law or the CFPB and now more like the NLRB and the Merit System Protection Board members.

So this is certainly a very important case that we just got from the Supreme Court. Yeah, it absolutely was. And one thing I want to put a pin on is that we've been reviewing an awful lot of cases that have been springing up out of the actions of the Trump administration in the first 100 days. And many of the actions of the Trump administration have been sort of unconstitutional shotgun blast, EO executive order shotgun blasts. Some of them, however, are actually rooted

in traditional conservative legal argument. This is one of those cases. So this is not the Trump administration being radical. This is the trumpet, one of the vestigial remains of the conservative legal movement in the Trump administration is this notion. This, and this gets to where you would be thinking mainstream unitary executive as opposed to fringe unitary executive mainstream unitary executive as opposed to fringe unitary executive, mainstream unitary executive theory would say that Celia law was correctly decided that Humphrey should

be confined to its fact at best if not overturned. This is something that has been percolating in the conservative legal movement and part of the original legal argument for a while. This is not something like, oh, hey, we had this great idea to invoke the Alien Enemies Act and send people to prison for life in El Salvador. This is not that. This is something that is very closely linked to traditional conservative critique of the expansion of the administrative state. And it's a checks and balances argument, a separation of powers argument. We want on this podcast, Congress,

to be far more aggressive in protecting its turf. But it is actually, in my view at least, the opposite of protecting your turf when you just kind of like lob ropes over the boundary line and try to restrain the executive through removal power rather than restraining the executive through the powers you were actually given like the power of the purse, the power of impeachment, the power of advice and consent, the power of you know passing statutes that actually say something

instead of simply passing statutes that ask the executive to do your job for you and then try to put on these little caveats of like, and you can't remove them except for cause, but we're giving you all of this power that Congress itself could have wielded. So giving away your power and then putting tiny little restraints on that, but within the executive branch,

I think has hurt the separation of powers. So what I am for is having more political accountability within the executive branch. If these agencies make decisions, it is the president who should be held accountable if those decisions are politically popular or unpopular. At the same time, the president cannot wield traditionally legislative power in doing so. And so I hope that this is a Pyrrhic victory for the Trump administration. I hope they can remove anyone they want from any of these boards and that the power of these boards is gutted.

Yeah, well, I'm with you on that, Sarah. And, and look, these boards, Congress can exercise, in theory, Congress can exercise more power than these boards ever could. So if you actually want strong regulatory oversight by pushing things into the executive branch and thereby draining them of the full lawmaking authority that the legislature has, you are watering down the oversight role.

You're watering it down. And look, if you want expertise, you can still get that. You can create a legislative agency, for example, staff it with experts who then advise the legislature. They provide advice and counsel to the legislature based on the expertise and based on whatever level of independence and bipartisanship the legislature wants to provide that legislative agency.

So the sort of idea that it is this particular form of watered down executive agency or the wild, wild west is just wrong. Congress here has more power than the FTC and it's chosen not to use it and it has the ability to avail itself of expertise and to create boards of experts and it's chosen not to do that. So we just need to take a step back here and look at who's really to blame if you're talking about a kind of a collapse of the regulatory regime. More power within the executive branch, less power for the executive branch.

That's what I'm for. I like that. That's a great formulation. Did you just come up that right now? I did. Yeah. You inspired me, David. No, it's tremendous. I love that. Okay. All right. We're moving on from Wilcox. And before we do,

we'll take a quick break and hear from our sponsor today. And we'll take a quick break to hear from our sponsors over at FIRE. Free speech on campus is under attack and professors are too often among the first to draw administrators or their institutions attention. FIRE, the Foundation for Individual Rights and Expression defends faculty when universities try to silence or punish them for their views. FIRE's Faculty Legal Defense Fund connects

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Welcome back to Advisory Opinions. David, we got finally after a gazillion relists, the denial on the case about the kid, the junior high kid who wore his shirt that said there are only two genders to school. He was barred from going back to class. He eventually took off the shirt. Then he came back with a, there are only censored t-shirt. They once again barred him from going to class. He took off the shirt.

The Supreme Court declined to take this case as we predicted that they would. This goes back to my point, David, that the Supreme Court is making more decisions based on which cases they don't take these days than on which cases they do. The most under covered part of the Supreme Court is the cert denials because those are decisions as well.

By the way, this whole deciding their own docket really starts in full in 1925. We've only had a hundred years or so of this experiment of this kind of power over their docket. And then they're given even more control over that docket in 1988, which is when we see the really steep decline in the number of cases that they take as they look for quote unquote perfect vehicles. So there's a whole conversation to be had perhaps about that. But in this case, David, we did get two dissents from denial about this, one from Justice Alito and one from Justice Thomas saying, well, pretty much exactly what you'd think. This is viewpoint discrimination because they do allow students to wear shirts that say, what was one of the shirts that Justice Alito quoted?

He, she, they, it's all okay, is a totally fine shirt to wear at this school, but not, they're only two genders. Now the school's argument was that this was harmful to transgender students at the school. Justice Alito pushing back on that by noting that this is a statement on a political topic. It didn't target any specific student. It is a student taking a position on a political statement and worth noting that the student in Tinker, I did not know this, two of the students were in high school and we always think about it as high school students wearing armbands, but one of them was in junior high. So those armbands in Tinker were during the Vietnam War. They were black armbands,

silent protest. And what the Supreme Court said in that case was that's simply not disruptive, even if other students will be disturbed by it, for instance. I guess I'm, I am still confused that there wasn't a third and fourth vote for this case, David. It did seem like the first circuit test was kind of bonkers town. It did seem like heckler's veto. It did seem like viewpoint discrimination. This seemed like a good vehicle to me. I don't understand. It seemed like a good vehicle to me as well, Sarah. And it's a good vehicle for addressing an issue that has to be addressed, which is how much of the substantial disruption analysis

depends on the reaction of the listener versus the mode of communication of the speaker. So we talked about this before. I can totally see that it's a substantial disruption if I walk into math class with a bullhorn. In that circumstance the mode of speech is creating the disruption. But if I walk in and I have the black armband and the person sitting next to me, maybe their father is deployed to Vietnam or maybe was wounded in Vietnam, and they see this and they get very,

very angry and hurt and upset, that reaction, which you could say is maybe emotionally understandable given the stakes and the age and everything, but that reaction is not the reason for suppressing speech. Now, if it ticks over into harassment, as we discussed, which has a test, there's a legal test for harassment. If it ticks over into harassment, that's a different issue. But what the first circuit did was create this kind of weird test that almost felt like a little bit like a harassment test, but so watered down that it is essentially, well, I think somebody could be offended by this and I think somebody could be offended by this,

and I think somebody could be harmed by this, and therefore I'm gonna shut it down, which is absolutely not the standard. And Alito is right to highlight that this was not directed at any one person. And Eugene Volek has put forward this formulation of the difference between free speech and harassment that I think is very cleverly stated.

And that is, think of free speech as one to many speech. In other words, it's me chanting about a cause, it's me advocating for a cause. Think of harassment as more one to one speech. It's me walking up to you and saying, there are two genders, Sarah, there are two genders, Sarah, there are two genders, you're not a they, you're a she, you know, whatever, whatever you're going to do that is very direct,

that is very one-to-one, and that has an actual, the actual effect of interfering with the person's ability to receive an education. That formulation, I think, is clear enough for members, you know, for school boards to wrap their minds around. This one, it feels like a soft, it feels just contradictory, flat out contradictory to tinker to me. And David, I assume you would agree that you could still find that a t-shirt that said there are only two genders was harassment. If you had the facts to go along with that, For instance, there's only one trans kid at the school

and these two kids have a history with each other of escalating arguments in the hallway and the t-shirt was directed, if you know the context, at this kid and that that would be up to the school to decide that this crosses the harassment line, for instance. Right, yeah. And I don't think they can, Lee,

I don't think they'll be able to run from this kind of case forever. Because as we've talked about, this is not the first one of these. There's been others that have come out of, say, the Ninth Circuit, for example, involving LGBT issues or involving immigration issues. And so these keep percolating. And I don't know,

Sarah, maybe the fact that they keep pushing them away tells me, are members of the court moving more in the Thomas direction on this? Because remember, Thomas doesn't think that this Tinker stuff is like, he does not buy this idea that kids have free speech rights in school. He just is not buying that. And so part of me wonders, I mean, which would be very contradictory to the overall tenor of this court, but this is a, this is, this is a kind of a strange decision to me. Well, this gets to like the, if we did a deep dive on each justice's first amendment jurisprudence, it's fascinating. And let's just take Thomas and Alito here.

As you say, Thomas doesn't really believe that children should have first amendment rights in school. This came back to the angry cheerleader case. As I said, we kind of summarized his separate opinion as beat the children with sticks. You know, like you're in school, shut up. Alito has a very interesting First Amendment history that I've talked about before.

For instance, he was the sole dissenter in that crush video case about videos. Well, it was a congressional statute criminalizing videos that, for instance, a woman in a high heel crushes a baby animal slowly and excruciatingly. He was also the dissenter in the Westboro Baptist military funeral case. My point being that Alito has a more narrow view of what speech is protected by the First Amendment based on whether that speech has public value,

I think would be a way of summarizing his position. And here though, well, in the Angry Cheerleader case and here, he's saying student speech does have value. So while he is more restrictive on sort of that fringe speech, whether pornography or the military funeral speech, which he said crossed over into personal harassment, for instance, and had no public value, flag burning would be another case of fringe speech,

probably, for Justice Alito. Though I'm curious what he'd say about flag burning, by the way. He's on the other side of Thomas here in a lot of ways, which is why they have separate dissents. But worth noting, Justice Thomas did join Justice Alito's dissent. Well, let's leave this for now, except I'll leave you with what the first circuit's two-pronged test is, because it is now only in the first circuit. It's not that we have circuit splits exactly, more like circuit phrase, if you will, F-R-A-Y-S, like they're just different threads that each circuit has for their tests for student speech. But here's the first circuits,

which will now be the law of the first circuit at least, those states in the first circuit. School officials may bar passive and silently expressed messages by students at school that target no specific student, if one, the expression is reasonably interpreted to demean one of those characteristics of personal identity, given the common understanding that such characteristics are

unalterable or otherwise deeply rooted and that demeaning them strikes a person at the core of his being and two the demeaning message is reasonably forecasted to poison the educational atmosphere due to its serious negative psychological impact on students with the demean characteristic and thereby lead to symptoms of a sick school, symptoms therefore of substantial disruption." How you square that with Tinker, I don't know. I think you're exactly right, David. This is coming down the pike, but I think what we're seeing more and more is the Supreme Court not only look for perfect vehicles, but also looked for perfectly timed pitches of vehicles. This was a good vehicle. I just don't see any problems with it. There's no

procedural issues. The circuit court test is pretty silly, but clearly there were some timing questions here and they just didn't want this perhaps when their emergency docket, short order docket is so full? I don't know. Yeah. I don't know. I don't know. I wish they'd taken it. I wish they'd taken it. But, you know, had they taken it and then had they had they affirmed the free speech rights of the student, interestingly, one of the effects would have been further spread of school uniforms. Right. It's a little like the school choice thing, right? Once the Supreme Court says you have to allow this speech or this type of school, the choice from the state then

is to simply restrict everyone's speech or all of the schools. This is the shirt left problem. If you have to allow all flags, you don't allow any flags. Although David, fun footnote on that Boston city council decision, it is true that they no longer allow the flag free for all at city council, but I was impressed with this. They did allow the flag at issue to fly a couple months after the Supreme Court's decision. It was a June decision. They did fly the flag in August as a bit of a mea culpa, if you will, which I appreciate it. Yeah. Yeah. No, I appreciate that as well. But yeah, it is ironic that in many ways, the most speech protective standard turns into, as a practical matter, results in speech suppression

because of the inability of people to handle free expression. So it's not just the short-lift problem that says we talked, it's the door broom door problem. It's the professor's door problem. It's all of that, inability of people to see something they don't like and just move on as opposed to see something that they don't like and lean into trying to censor it. And so, yeah, it's a, I don't think the court can, I don't think the court can run from this issue for all that much longer. There's only so many different standards that school kids can live under.

All right, let's move to the circuit courts. And before we do, a quick message from a sponsor. Welcome back to Advisory Opinions. All right, David, time to dig in to some of, check in on what's going on in the lower courts. And first, a little sidebar. So we've talked about these law firm EOs in the past. This latest one is about Wilmer Hale. It looks very similar to the other ones. It's broken out into sections. The first one is about all the ways in which Wilmer Hale has personally wronged the president. And then it continues to

talk about DEI practices and other more specific law firm-esque things. Wilmer Hale, instead of settling with the president, sued the administration for violating their rights, First Amendment and otherwise due process, et cetera. And so we have an opinion from Judge Leon. Now punchline, no, he's gonna hold the Wilmer Hale executive order as a as a gnaw dog from Judge Leon. But David, it's really footnote four that I want to

talk about here. It's, well, it's a shot over the bow at the Fifth Circuit. I mean, Judge Leon, one of the most respected trial judges ever to sit on the bench, he's now senior status. He was born in Massachusetts, which is gonna be really relevant here. And let me just, let me read you this footnote, footnote four. The order is akin to a gumbo. Sections two through five are the meaty ingredients, e.g. the andouille, the okra, the tomatoes,

the crab, the oysters. But it is andouille, the okra, the tomatoes, the crab, the oysters. But it is the roux, here section 1, which holds everything together. A gumbo is served and eaten with all the ingredients together, and so too must the sections of the order be addressed together. As explained in this memorandum opinion, this gumbo gives the court heartburn. Look, he's not wrong. It's a correct ingredient list. It's a correct understanding of gumbo.

He spells roux correctly. He understands what the roux is clearly. That's the flour and butter that you're doing at the, you know, first part while you're making the gumbo. That's your first step is to make that great roux. But Judge Leon, gumbo is the special providence of the Fifth Circuit, sir. What is this doing in a DC decision

from a Massachusetts born judge? I don't even know what to say. And by when he says that gumbo is sour, he is meaning the executive order is sour. This was a ruling for Wilmer Hill, yes. I don't care about the outcome. I care about this gumbo footnote. It's a tremendous footnote, no question.

All right, but over to the Fifth Circuit, David, do you remember the case about the library books? There are these library books, the elected local officials want the librarian to remove the books. The librarian initially says no, then the librarian is threatened with removal, then the librarian removes the books. And it's this question over what exactly is state action? As you've said, David. What is government speech here? What is the curation of library books in a public library? They're hard questions. We have an en banc decision from the Fifth Circuit and it's a barn burner. So let me

give you a little summary here. You have the majority opinion by Judge Duncan. He's got 10 judges on his side and basically it boils down to this. You have the right to receive information from private parties. You do not have the right to receive information from the government. They're overruling circuit precedent in deciding this. They say that the library's book curation is government speech and is the government expressing its views on which books are worth reading. And it would be the same as museums selecting which art to show, newspapers choosing which editorials to run. This is the speech of the speaker but very interesting we then have a

concurrence by Judge Ho. He's got two judges joining him. His is really more about negative and positive rights. So the Constitution protects your right to speak. That's a negative liberty, as in the government can't infringe on that, but it doesn't create a right to force others to provide you information. That would be a positive right. The whole positive versus negative rights thing has gotten, well, I think it has largely died at the Supreme Court, but we're still, we're out there doing that from time to time. And then we've got Judge Higginson with seven judges basically saying like, okay, that's all well and nice from a philosophical

standpoint, but we've got actual facts here. And this, these facts were about censorship. This was county officials directing removals based on complaints from community activists saying that certain books contained pornographic filth, CRT and LGBTQ books. The librarian was removing books that she hadn't even read. Um, and then being fired for refusing to remove other books. This is a negative right, even under judge Ho's, uh, formulation against censorship, not a positive right to demand books. But of course you get back to this idea of like, what's the difference between censorship and curation? Where's the line going to be drawn? What's the judge's role in helping county officials draw this line? Aren't we just

going to have a thousand cases until we get to the point where there needs to be some bright line rule? So David, did you agree? Did you disagree? What did you make of it? It's a close call for me, but I think I, in general, I think I agree. Look, here's the bottom line. The problem you have is that every library, except for the Library of Congress, has to make curation decisions. It has to decide what books it's going to add to its collection decide what books it's going to add to its collection, what books it's going to reject from its collection.

That curation is not a random process. You do not want a librarian to say, okay, there were 250,000 new books published in the year 2025. I have room for 19. You know, chat GPT, randomly select 19 books. So you're not gonna ever have that. You're gonna have a curation process.

Librarians choose, and librarians who are public employees, if it's a public library, they choose the books on the basis sometimes of qualitative criteria. They sometimes choose it on the basis of viewpoint. Maybe in Black History Month, you're gonna highlight sometimes of qualitative criteria, they sometimes choose it on the basis of viewpoint, maybe in Black History Month you're going to highlight and maybe buy more books by black authors. So you're making these choices on a continual basis and when you're dealing with a limited number of books that are available to go in the library, you're going to be making all

of these hard choices. Now, that does not mean at the same time, however, that whatever they want goes, whatever they say goes, there's gonna be a firewall. And I look to the Pico case. This is a case we've talked about before. This goes back to the 1970s, early 1980s, where you had a, ripped from the headlines of 2025, but it'd say 1975. Parents go to a conference.

At the conference, they learn that there are these quote anti-American books. They come back home. They find that some of these books are in the local library. They get the books yanked out. Other people sue, say, I've got a right to receive this information. And what the court basically does is it, in a very splintered decision with no clear majority, it establishes what I would see as a kind of a baseline rule and then kicks it all back.

And the baseline rule seems to be something like this. Well, you're going to have broad discretion, you're going to be able to make hard choices. However, if you're going to come in and say, no books by black authors, that's going to be too far. No books by Democrats, that's going to be too far. And that's how I would kind of place this. Are you making categorical viewpoint-based exclusions, categorical versus individualized merit-based exclusions, categorical versus individualized merit-based exclusions. And that would be where

I would start to, where I would think about drawing the line and route it again in that Pico precedent. But I agree with the majority that if you're micromanaging the, or if you're, if you have a right of action when a book is taken out of a library, um, wow. I mean, because all of these libraries have such limited resources, all of them are curated collections. What are the standards here? And this was a problem with the panel opinion. When a book comes in, generally speaking, a book's going to need to go out. Are we always looking at the intent of the librarian? It's always actionable.

You can always sue, and then you always get to depose the librarian. What were you thinking about choosing? Which book you were going to get rid of? Well, I wanted to remove this book because I found some of the language that maybe used past words for a person of color offensive. Ah, but was it Huck Finn and it was literary? That's viewpoint discrimination. If you're only removing books that use this word, but not this word. As you say, David, it would have spawned, it was the face that launched a thousand lawsuits.

Looking into someone's heart as to why they removed books and having all these depositions as to intent would be silly. There is political accountability here, which I know only goes so far when you're talking about really local officials, but that's the system we've set up. We do elect these county officials. They have the power to hire and fire the librarian. Don't complain that like, well, that, you know, those elections never are going to matter. Well, maybe they should, maybe you should care about them. Maybe you should go vote in them because at the end of the day, this is a who decides case and this is government speech, therefore your local elected officials are

the ones who are getting to speak in that sense. So go vote if you don't like the books that are in the library. Yeah, yeah. That's the bottom line. I do think that that plurality opinion in PICO where if a racist school board said no books by black authors in our library, that might not be a First Amendment issue as much as it might be a civil rights law issue, might be more of a title, maybe it's a Title VI issue, but, or no books by Democrats, no books by

Republicans, that would be much more of a constitution, that would be a more clean First Amendment kind of issue. So that categorical ban versus individualized determination, I think that's where the jurisprudence should land. All right, last up, David, we've got lots of law students graduating this year. They will have a few weeks to study for their bar exam in their respective states. And then it's two or three days of absolute hell.

Depending on your state, I don't know if Virginia still requires you to wear a suit. Everyone in Virginia used to show up in Richmond wearing a suit and tennis shoes because they didn't patrol footwear. Texas is a three-day exam that will almost certainly include an essay question on oil and gas. California, New York, notoriously hard. So David, let's break this into two different pieces here. What did you do to study for the bar exam? And totally separately from that, I feel. What tips might you have for those wanting to pass the bar? So I knew you were going to ask me that.

What did you do to study for the bar exam? Do not follow my example, please, please. I passed the bar exam, but I sweated passing the bar exam because of what I chose to do that summer. So I learned, you know, I knew the bar exam was pass fail. There's no A, B, C, D. So my general philosophy was that, oh, Sarah, this is so dumb.

One point over, anything more than one point over passing is wasted effort. That, so minimal necessary effort to pass the test was my mantra for the summer before the bar exam. So what did I do? I took some of the, you know, you get a stipend to study during the summer. I took some of that stipend. I bought water skis. I bought snow skis. I went water skiing, went camping and hiking a lot. And then about two weeks before the test, I was like, oh, oh, right. I've got to study for this thing.

And I dove into it for the last several days, dawn to dusk, whatever, just studied, got on the grind, took the multi-state portion, which is the multiple choice test, felt totally fine about it, totally fine. Got to the essay portion and in Tennessee at that time you had 11 essays and you had to just pass seven of the 11 essays. And so the very first question was about the Uniform Tennessee Bulk Sales Act. Not only was I not familiar with the Uniform Tennessee Bulk Sales Act, I'd never heard of it before. I did not know anything about it.

I think I learned later as Article 6 of the Uniform Commercial Code. That might be wrong, but I think that that's what it was. And so my entire answer was, what is the Uniform Tennessee Bulk Sales Act question mark? And then I just went to the next essay because I knew, well, I can pass seven in the next 10, you know. And I guess that would be one. But the woman next to me, this was her third time taking the exam, we were talking beforehand, and she got to that first question and she burst into tears and didn't stop sort of quietly sobbing for the rest of the time, which does lead me to an actual piece of real advice. So that's what I did.

Do not do what I did because then the consequence was I spent the next three months until it was graded in a ball of anxiety that I wouldn't have been in had I done the right thing. So that's the cautionary tale. However, the one piece of actual embedded advice in there is it is possible to be resilient within a test. Don't let one or a series of bad questions sort of knock you off your game. It is a pass fail test. You've got more room for error. It is not like the LSAT where you're sitting there thinking, okay, if I miss this one,

does this drop me two more points or whatever? This is a pass fail test. And there will be elements in the test that will be unfamiliar to you in all likelihood. And you just have to move past them and through them with the knowledge that a lot of other people are encountering that as well. So my piece of advice is try to cultivate

in-test resilience to realize and understand that you will confront a question that you don't know the answer to, that it's not the end of the world. This is a pass fail test. And actually stressing too much about an individual question will be more destructive than just moving on. So just learn to move on. Fair points all around.

So I, it's really funny because we haven't talked about this before, but I had a very, very similar attitude to the bar exam, but I feel like I did have one thing going for me that you didn't remember. I was clerking right after law school. So not only was it a pass fail test, but if I failed, I could just take it again, still within my clerkship. It wasn't like there was gonna be some penalty

because you don't need to be a bar licensed lawyer to be a law clerk. So my attitude was you take it the first time, not studying at all, see if you can pass. If you do, great, you've saved yourself all this work. If you don't, then you sign up for it again and study before you would actually have to start your law practice anyway. Like awesome. Clerkship like buys you this like free bar exam option. So I went on eBay and bought some old bar exam books. They were several years old. So when I showed up to the bar exam and I did, I'm not saying I read them all, but

I definitely skimmed them by the pool. I had a great tan that summer. Um, I used it as a way to like pick up guys. I mean passively, right? Like I would just like be at the pool in my bikini at the side reading my bar exam books. And like, if you walked up and had a good pickup line for bar exam books, like great, good for you. It was like a lure, if you will, David, a little fly fishing lure. So I turned, same thing, right?

Took the multi-state, I was like, yeah, yeah, multiple choice tests. I could crush this not having read anything. I just, I'm really good at multiple choice tests even if I don't know anything about the topic. But then I got to the essays and the first question I also had no idea. It turned out that the, that Texas had passed

a new commercial law act in between when my books had been published and when I was taking the bar exam. So literally everything I learned about commercial law was overcome by events. So we had this pool with all the clerks that, you know, again, it's pass fail. The person who gets the highest score in the state of Texas famously gives a speech in the Capitol. And we decided to have a pool that the person who got the lowest score among the clerks was the real winner, right?

Cause that person put in the least amount of effort. I will proudly tell you that when I got my score back out of a thousand points, David, I won. I won the money. I won the money. I believe I passed by fewer than 10 points, I won. I won the money. I won the money. I believe I passed by fewer than 10 points, I believe. I think it was seven points out of a thousand. So, I mean, I nailed it in that sense. But to your point, David, when I told my judge, you know, you take the bar before you show up for your clerkship. So, I believe I showed up for my clerkship like

the next day after the bar exam. And I told my judge my very, you know, logical well-thought out plan. And she said, I've never had a clerk fail the bar. I don't know what I would do in that situation. And I was like, oh no, but now it's already done. There's nothing I can do. And now I have to wait three months in anxiety to figure out whether I'm going to be fired

or not for failing the bar. I should have just not taken the bar in this case. So that probably wasn't worth it in the end. My advice to bar takers is to know what kind of learner you are. Like if you're a procrastinator who, you know, doesn't really have great executive function, take the bar class. That's what it's there for is to like force you to sit down

and do this for some number of hours a day. If you're someone who turns in all of their papers in college early, you probably don't need the bar class. You'll sit there and do the work and like have a real schedule that you'll stick by. Like know thyself when it comes to bar class, you'll sit there and do the work and have a real schedule that you'll stick by. Know thyself when it comes to bar studying. It's actually not that hard. As I said, David and I are proof positive that you can pass with minimal effort, though barely. I'm going to go out on a limb and say that David, while not answering an entire question, probably

didn't score very well either. I think it depends on what the consequences are. I think it depends on what kind of learner you are, but studying for the bar is a truly miserable experience no matter how you do it, whether you have the anxiety on the front end or the back end. You know, Kim Kardashian taking the bar this year after she did the like alternative law school thing. So we'll see how she does, David. I'm sure the world will be watching.

I would say study for your own mental health. Not because the test is necessarily just mind-blowingly difficult. It's comprehensive, it's long, it's grueling, but study for your own mental health. Study so you'll be confident, both going into it and leaving it. That, I joke about it now because it worked out,

but in the moment, it was not a joking thing for me for like a couple of months. And a lot of you law students who are listening are thinking, I cannot believe you are that irresponsible. Believe it. Especially when I was a younger person, my procrastination habit was out of control. So yeah, I was exactly that irresponsible. So study for your own mental health. exactly that irresponsible. So study for your own mental health. On the oil and gas question, I definitely had a,

I drink your milkshake reference to how oil and gas mineral rights work in Texas. But I actually got really into oil and gas. Like that was the one part of studying for the bar I really enjoyed. So I clearly didn't like do anything else because I like learning the things that I like learning. That's like the whole history of Sarah in school. If you're trying to teach me something that I find interesting,

I'm all in like chemistry loved it. Oil and gas loved it. Um, certain parts of history love it. But if you're trying to teach me something I am not interested in, I am a terrible, horrible student. I like you. I loved the coal and mineral rights questions. And I had a lot of, during my commercial litigation practice, I did a lot of coal litigation and mineral rights litigation. And it was fascinating because it was, imagine that you combine high dollars, sophisticated contract work with a cast of characters reminiscent of the TV show Land Man, except the Eastern Kentucky-like version of that.

Most of the time when you're dealing with giant sums of money and very complex commercial transactions, the person who walks in isn't like straight out of central casting from the hollers of Eastern Kentucky. You know, like that is, that's the thing that's so interesting and fascinating about it. It's high-end litigation with a super fascinating cast of characters. Plus I love property rights.

I think it's really fun to do property. It's like one of the few areas where it's so based on common law still. And what can I say? I've, I always had a soft spot in my heart for common law, even though I'm a constitutional geek and I like a written constitution, I like statutory interpretation, but I don't know. Common law scratches a real itch for me, David. It does. Same for me. Same for me. All right. Well, with that, we've got the Cuscesis case about the difference between

lying and criminal fraud coming up on the next episode, as well as whatever the Supreme Court gives us Thursday morning at 10 a.m. If you want to follow along live, go over to SCOTUS blog. They'll have the live blog up. I've heard a rumor that David Latt is joining the live blog this week, so we'll see what decisions come down from one first street. Thanks for joining.