Advisory Opinions - Dial S for Severability

Episode Date: July 7, 2020

As we near the end of another Supreme Court term, speculation abounds over a Court retirement. Would the resulting nomination battle be more or less contentious than the appointment of Justice Kavanaugh? David and Sarah answer this thought experiment while also touching on the implications this scenario would have on the 2020 election. They also break down rulings on robocalls and faithless electors. When and how can you constitutionally defend yourself? The question comes after a gun-toting St. Louis couple made a show of force against Black Lives Matter protesters. On a more lighthearted note, David concludes the podcast by interviewing Sarah on her career path and what landed her at The Dispatch. Show Notes: -Check out the Supreme Court’s rulings in the robocall case (Barr v. American Association of Political Consultants, Inc.) and the faithless electors case (Chiafalo v. Washington). -Click here for a video of the Brooks Brothers militia v. BLM protesters standoff and be sure to read Andrew Egger’s interview with Stephen Mutowski in The Dispatch for an in-depth legal analysis of the incident. Be sure to check out David’sWashington Post 2018 piece on stand your ground laws. Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David Trench with Sarah Isger. And we've got a loaded lineup for you today, even though the Supreme Court mildly disappointed me. You wanted Guadalupe today? I wanted Guadalupe today. In Texas, we pronounce that Guadalupe. Oh, okay. Sounds like in Kentucky, we have a town that's spelled A-T-H-E-N-S, and guess how it's pronounced? I'm not a good speller.

Athens. Athens. And I lived right not too far. If you're going to say Houston Street, I'm going to be really angry. No, no, no. That's unacceptable. I'm going to go worse than that. I grew up in a small town in Kentucky called Georgetown. It's a much bigger town now that Toyota moved there.

But when I was growing up there, it was small. And we were not far. And one of our rivals was the town of Versailles. We have a street in Houston called Milam, even though it's pretty much spelled like Milan with the M at the end instead of an N, but we pronounce it Milam. Well, that led to one of my more embarrassing moments in college at the beginning of my college career when I was waxing eloquent in a intro political science class about the Treaty of Versailles. Oh, no. Yes. Oh, David. This is the problem with if you read a lot, but don't actually interact with other people. Also, like, you know, just a kid who was an only child who read a lot, but don't actually interact with other people also, like a kid who was an

only child who read a lot, there's all sorts of words that I butchered because I just only read them. And I didn't have a lot of friends. That's the spoiler. Oh, yeah. That's a great way of putting it. When you read a lot, but you haven't talked about the words. Another embarrassing moment my freshman year, a professor used the term chutzpah. Yeah. And I said, you mean chutzpah? Yeah, that one. Yeah, that one. Not good, Sarah. Okay. So we got a good lineup today. We're going to talk about, we're going to begin with a little apropos of nothing. Rank speculation. Rank speculation.

A thought experiment, if you will. We're going to follow with a discussion of two SCOTUS cases that I only had really academic interest in. Then we're going to talk about the law of self-defense, which has come up a lot, especially in the context of the Brooks Brothers militia in St. Louis. And then we're going to end with an interview of Sarah Isker, my esteemed co-host. Yes. All right. So I think it's a little bit unfair to call this just nothing but a completely empty thought experiment.

Sure. But in fairness, we do it the end of every term also, because generally speaking, justices who announce a retirement do so at the end of the term. Yes, so we're nearing the end of a term, and there has been some grossly irresponsible rank speculation that... And we're going to join it. And we're going to join it. And we're going to join it. That there might be a retirement

and that the retirement might be of a conservative or a Republican appointed justice. And the question... A spicy retirement, if you will, for our more avid listeners. Yes, if you're deep into advisory opinion lore, you know exactly what Sarah's talking about. So let's suppose we had a spicy retirement, and we were talking, I should be more precise, a Republican appointed justice, will it be more contentious

or less contentious? Will the resulting nomination battle be more contentious or less contentious than the Kavanaugh fight before the Christine Blasey Ford allegations? And my submission was that it would be dramatically more contentious. Even though in theory, the Kavanaugh,

there was a lot of speculation that the Kavanaugh appointment could have tipped the balance of power on Roe, which was one of the reasons why it was very contentious even from the get-go. So my contentious era is that why it was very contentious even from the get-go so my contentious my contentious era is that it would be more contentious than pre-christine blasey ford uh kavanaugh and i think it might as contentious and might be as contentious as post-christine blasey ford uh kavanaugh i think it'll be in between for a few reasons. One, don't forget Kennedy was also a Republican appointee. So the pre, the initial Kavanaugh nomination was actually not very contentious.

Right. In fact, I think it was tomorrow. I think it was July 7th. And, you know, Kavanaugh was nominated. Things were sort of bouncing along over the summer and people were doing normal summer things like not being in D.C. That will change. Everyone will be here. Everyone will be on Twitter. Everyone will have not much to do.

Everyone will feel all the frustrations they have felt for all of 2020. I think that ramps it up. But of course, the biggest thing to ramp it up is Merrick Garland. This is July of a presidential election year. Now, Mitch McConnell was clear that his rule, so to speak, was that the Senate doesn't confirm a Supreme Court justice vacancy in a presidential election year when the Senate is controlled by a different party than the president. Okay. I'm not sure a lot of people remember that second part. Also, I don't know that that second part should count because that at some point just becomes a rule without meaning.

So there's that. And then the last part is who the nominee is. And I think this is about to be a big test of Mitch McConnell's power because on the one hand, you have the Federalist Society having a really outsized influence perhaps on gorsuch and kavanaugh picks mcconnell has made no particular secret of the fact that he would like judge amuletha parr uh and i think that most federalist society e folks have made no secret of the fact that they would like Amy Coney Barrett. But of course... Like me, like me.

But in the end, David, the person who has to get this through in a presidential election year, despite his rule, is McConnell himself. And McConnell can also say, yeah, I didn't pick Gorsuch and Kavanaugh. So to the extent you're disappointed with them, why don't you take my word for who's an actual conservative with a track record and yada yada? And no question, Thapar has an excellent track record, as does Amy Coney Barrett, though.

But she has less, I think, is probably the better way to say it. I would say neither one of them would be a bad choice. I mean, I think that to par Amy Coney Barrett, a person who's an originalist like me, would be pleased with either one of them. But I think that you would have, it wouldn't be quite the meltdown as if, say, Ruth Bader Ginsburg retired. That would mean a meltdown. It would not be quite the meltdown. It would be close, however,

because of a very simple reason. If the Democrats, who are at this moment, lots of things can change, but at this moment, prohibitively favored to win the presidency, and I would say slightly favored to win the presidency, and I would say slightly favored to win the Senate, were to be able to delay a nomination and confirmation through the election, they could win back with five Democratic appointees control of the Supreme Court of the United States. And almost in a way,

it's almost like taking a giant eraser to the election of 2016. And I would say there would be no procedural trick that would not be used to try to delay the vote. However, they were going up against Cocaine Mitch, who is the master of all procedural tricks. There would be civil disobedience. There would be intense public pressure put on swing state Republicans. There would be an enormous amount of public outcry. I think McConnell just plows through all of it because let's be honest, Sarah, there is no rule

here. No. Like there is no actual rule. I mean, it's been called the Biden rule regarding, you know, confirmation of appointees in an election year. It's been called the McConnell rule. There is no rule. The rule is if the Senate says yes, the nominee is confirmed. That's the. And so I would fully expect in the middle of a presidential election for McConnell to just absolutely M1 Abrams tank plow his way through it almost no matter what. That would be, that's what I would predict would happen with enormous outpouring. And then the question is,

does that, right, does that trigger an enthusiasm for Biden who promises to then pack the court, for instance? That's a great question. This is the very first time this rank speculation, Sarah, is the very first time that I have thought it is actually reasonably possible that you could see a detonation of the legislative filibuster in a court packing. If there was enormous fury combined with a Biden, a very strong, almost landslide-y Biden win, and strong Democratic control of the Senate and the feeling that what McConnell did was essentially while the Hindenburg was on fire of the Trump administration, jam illegitimately one last judicial appointee through to guarantee conservative control for another 5, 10, 15, 20 years.

Oh my gosh, Sarah, the pressure, the pressure to do away with the filibuster and pack the court. It would be intense. In particular, if you've got some... I could easily imagine... Roberts is a pretty savvy guy. The cert grants in the aftermath of an Alito or I mean, a spicy retirement. I'm sorry. Forget I just said anything. That cat like left the bag, wandered outside, yawned in a stretch and then went back to the bag. Okay. What I heard, I heard nothing. I heard nothing. In the aftermath of a spicy retirement, I could imagine the cert grants slowing down or not slowing down, becoming so

freaking boring that the stakes of the next Supreme Court term would start to lower and lower and lower. Yeah, but that, no one actually pays attention to that in an election year.

That's true. Really? Like, when's the last time you heard someone talk about cert petitions from the stump? Well, yeah. That's true. And, but, and, that's true.

And, but, and, you know, don't forget right now there are five Republican appointees. And Thomas is getting up there in years as well. You know, not that anyone's going to care, but we'll see, I guess, is the answer. And I think it will depend to some extent on who the nominee is. You have a Sixth Circuit versus Seventh Circuit battle. Judge Barrett, part of the Circuit of Good Fonts. Wow. But you live in the Sixth Circuit, correct? Yes. Yes, I'm a Sixth Circruiter. I have been for much of my adult life. It used to be known. You don't have a lot of Sixth Circuit pride there if you're rooting for the Seventh. Well, it used to be the Sixth Circuit

was kind of the dysfunctional circuit. Yeah, I remember that. Yeah, 10 or 15 years ago, you would have New York Times stories about how much the judges of the Sixth Circuit really didn't seem to like each other very much. There's still some wafting in the air of I think some of that discontent that lingers.

Yeah, so I mean, our rank speculation is pretty close to near an end. But, you know, in a 2020 that is so far featured an impeachment, a pandemic, a recession, it feels almost like a de-escalation by comparison. And of course, the presidential election

looming. So I'm not saying buckle up, listeners of Advisory Opinions. I'm not saying buckle up. I'm just suggesting you might want to practice reaching for that seatbelt really quickly. That's all I'm saying, Sarah. Read nothing more into it.

Fair. We'll know more next week, I'm sure. So, okay. SCOTUS today. There were two opinions that SCOTUS issued. One of them was one of sort of the, what number was it in, was faithless electors in your list? Ooh. Do you remember?

I can tell you right now. Number six. It was the number six. Yeah. Number six of the Iskartan was decided. How many of the Iskartan are left? Well, we have the Trump finance cases. We have ministerial exception. Uh-huh. And little sisters and little sisters. So three, three of the Iskartan, but we did knock out one of the iskir 10 today faithless electors um where to you know uh cut to the chase it turns out in fact that if the legislature wants to it can block uh an elector from being faithless so there's no more faithlessness

everyone is of faith everyone is a faith exactly And we had an interesting case involving robocalls. Robocalls. Which I didn't think was going to be interesting. And in fact, I probably will dedicate most of my Supreme Court time today talking about that one because there was a whole little side fight going on, once again, on severability,

which we knew would be a big thing in CELIA law, the Consumer Finance Protection Bureau case. But it came back with a fury in this case and I think had many implications for my number 10 case, which of course is actually a case for next term on the individual mandate in Obamacare. And I said that there would be cases this term that had implications for that case, which is why I put it at number 10, because it was sitting there looming over this term. And lo and behold, I feel like today I was fully vindicated on that because the robocall case had a lot to do with the Obamacare fall. Well, without further ado,

Sarah, why don't you give the people what they want and discuss Bar Attorney General et al. versus American Association of Political Consultants, Inc. et al., better known as the robocall case. Okay. So this is about why robocalls are banned. The original law on this goes way, ban. The original law on this goes way, way back to the 30s, and it was updated to include cell phones. That's your do not call list. But there was an exception where debt collection was exempted from the ban. So a debt collector could call you with an automated phone call, but in this case, political consultants could not like with uh you know an ad or something and so they sued saying that uh they should be able to because clearly the law made these other exceptions and that that violated the first amendment uh because they were being treated

unequally that because is relevant because the court so can i take a little cul-de-sac, little side jaunt, David? No, please. I'm pretty good at math. I don't want to brag. I don't do math. But I went to college as a math major and I took BC Calculus in high school with my best friend.

My best friend is just a beautiful genius also, but quiet and pleasant and people like her and people don't like me. This is relevant because my BC calculus teacher constantly gave her better grades than me, even though we did our homework together. And so finally, not finally, let's not kid ourselves pretty quickly. I went to complain because I was getting a D in this class and she was getting an A in this class. getting a D in this class and she was getting an A in this class. And that was ridiculous.

So I said that I should get an A. And the teacher looked at our two tests and said, well, here's the problem. It's not that the things I counted wrong on your test were correct. It's that the things I counted as correct on her test were wrong. So your choice is as follows. She can keep her A and you can keep your D, or we can give you both a D. This being my best friend, I opted to let her keep her A. Side note, by the way, I got a 5.5 on the AP BC Calculus test and still got a D in the course. So, whatever.

Oh, wow. Now, did you finish as a math major? Not to jump forward into... No. Okay. No, I quit that pretty quickly when I realized that there were other people much better at math than me. Because my oldest daughter is a math major intending to go to law school.

Ooh, interesting. That will serve her well. Lots of logic and, yeah, smart stuff there. Okay, so that's actually pretty much what this case was. The political consultant said, this isn't fair that the debt collectors get to do this and we don't. So we'd like to do it too. And the court said, interesting, but actually all we're going to do is now say that the debt collectors can't do it also. So everyone got a D. Kavanaugh wrote the opinion, a line from his,

as a result, plaintiffs still may not make political robo calls to cell phones, but their speech is now treated equally with debt collection speech on the substance of it. negative like dissent on on that part um that doctrine meaning equal protection doctrine promises equality of treatment whatever that treatment may be the first amendment isn't so neutral it pushes always in one direction against governmental restrictions on speech yet somehow in the name of vindicating the first amendment our remedial course today leads to the unlikely result that not a single person will be allowed to speak more freely, and instead, more speech will be banned. I wish I had had Justice Gorsuch in my calculus class. Maybe that would have won out. But okay, that's fine and well and good. I think we as consumers are all kind of relieved at how it turned out. I would prefer fewer robocalls, not more,

even if it would have been a vindication of the first amendment philosophically, my life is a little bit better off, but that was not the interesting part of the case. It was about severability. And we've talked about this before, David, but I'm going to, I'm going to redo a little bit of severability. What is this? So severability is when Congress enacts a law and one little piece of it is found to be unlawful, unconstitutional, whatever it is. What is the court supposed to do? Does it get rid of the whole law because there is a little rotten piece on the apple? Or do we just excise the little rotten piece and eat the rest of the apple?

And in general, the court has excised the rotten piece. And this is a whole line of cases. So here's what gets interesting in this conversation, though, and what Kavanaugh says. When enacting a law, Congress sometimes expressly addresses severability. For example, Congress may include a severability clause in the law, making clear that the unconstitutionality of one provision does not affect the rest of the law. So far, that's pretty standard stuff. But then there's this next sentence, David. Alternatively, Congress may include a non-severability clause, making clear that the unconstitutionality of one provision means that the invalidity of some or all of the remainder of the law to the extent specified in the text of the non-severability clause. With a citation,

too, there is a non-severability clause in this random law that he cites. That's interesting. We'll get to why. When Congress includes an express severability or non-severability clause in the relevant statute, the judicial inquiry is straightforward. At least absent extraordinary circumstances,

the court should adhere to the text of the severability or non-severability clause. That is because a severability or non-severability clause. That is because a severability or non-severability clause leaves no doubt about what the enacting Congress wanted. It literally, once again, says a severability clause indicates that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionality offensive provision. And a non-severability clause does the opposite. You get what's happening here. There's just a lot of talk of non-severability clauses. Interestingly also, he says,

on occasion a party will nonetheless ask the court to override the text of a severability or non-severability clause on the grounds that the text does not reflect Congress's actual intent as to severability. That kind of argument may have carried some force back when courts paid less attention to statutory text, but today, zero, but courts today zero in on the precise statutory text. And as a result, courts hew closely to the text of severability or non-severability clauses. Okay, why is that interesting, David? Because the plaintiffs in the Obamacare case,

Texas, is arguing that the individual mandate had a non-severability clause in it. Here's the problem, David. It's not really a non-severability clause. A non-severability clause is literally like it will be headlined non-severability clause. In fact,

I have one up here and it's called Section 125, non-severability. If a court of competent jurisdiction enters a final judgment that blah, blah, blah, Sections 116 through 126 of this title are invalid and have no legal effect as of the date of such judgment that's a non-severability clause pretty clear however in the aca

you know when they sort of do that preamble this is a law that will be good for good people and law. It includes this line. The requirement to buy health insurance is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold. It doesn't really talk about severability. But they're arguing there can be no clearer statement of Congress's view

that the mandate is not severable from the rest of the ACA. That is what the district court concluded. So too should this court. That is the situation. There can be no clearer. Yeah, except there can't. There can definitely be a clearer statement. There can be no clearer. Yeah, except there can't. There can definitely be a clearer statement. There definitely can be clearer.

And the other aspect of it is that Congress rewrote part of the ACA. They did, but they left in that sentence. Yes, true. That sentence is still there. It's still there. But they essentially, they took out any really mandatory element of the, they took the mandate out of the mandate or the enforceability of the mandate out of the mandate.

And so, yeah, it's going to be a heavy, heavy lift to hold the individual, to get the court to hold that the individual mandate is non-severable. And so another interesting part about the robocall case is Gorsuch has a whole separate thing about the severability part as well. Remember, he went off on equal protection versus First Amendment that I read a minute ago. He also says, respectfully, if this is what modern severability doctrine has become, it seems to me all the more reason to reconsider our course.

And you're wondering, okay, but what course does he want? Ah, go back to the CFPB case, and he and Thomas have that severability conversation. And Thomas's, and Gorsuch signing on, point was, reading again, if a statute was unconstitutional, the court would just decline to enforce the statute in the case before it. That was the end of the matter. There was no next step in which a court severed a portion of the statute. Our modern severability precedent create tension with this historic practice. Instead of declining to enforce an unconstitutional statute in an individual case, this course has stated that the courts must sever and excise portions of a statute to remedy the constitutional problem.

and excise portions of a statute to remedy the constitutional problem. Thomas, of course, sees this as a problem of courts rewriting legislation and being quasi-legislative role. All very interesting. Kavanaugh has an answer for that. Constitutional litigation is not a game of gotcha against Congress, where litigants can ride discreet constitutional flaw in a statute to take down the whole otherwise constitutional statute. If the rule were otherwise, the entire Judiciary Act of 1789 would be invalid

as a consequence of Marbury versus Madison. Zing! Mic drop. Mic drop. Put in common parlance, the tail, one unconstitutional provision,

does not wag the dog. The rest of the codified statute or act is passed by Congress. Uh, so I think what we're seeing here is a discussion over how we're going to deal with the fact that the ACA clearly is going to come out now that it's not a tax. And we're all pinning in the chief justice who had that whole tax opinion in the first place and fighting for the soul of John Roberts over separability, which is going to make this fall all the more fun, although it would be really sad

not to have some spicy addition, if you will, if the spice has been taken from our gumbo. Can I just go ahead and give a spoiler alert? Justice Roberts' soul is sold to separability already okay yeah no judgment i mean like you know no no eternal judgment here i'm just talking about the the severability slice of the soul um but yeah kavanaugh seems to turn on i mean kavanaugh's full in on severability it's simply a question of whether he's going to agree that there's no clearer statement of non-severability than what the cert petition argues for. Can I briefly vent about something?

Ooh, I like your vents. Okay. So this is my vent. What I think is interesting is the original fact pattern of this case, which is a ban on all robocalling except when the government is attempting to collect a debt. Okay? Yes. extent to which our government which just to kind of you know like refresh people's minds um that if you're talking about sort of the purpose statement of our national government uh is that it says you know i'm reading from the declaration we hold these truths to be self-evident that all men are created equal they're endowed by their creator with certain unalienable rights among these are life liberty and the pursuit of happiness that that to secure these rights, governments are instituted among men.

What's that? That to secure these rights, governments are instituted among men. So in other words, the chief function, according to this sort of declaration of American principle of government, is to preserve these liberties. But if you go through American law, what you will find is that the government has carved out for itself a series of really special privileges time and time again. This is a little one. I mean, it's a minor one, the ability to collect a government debt. Yes. Although, weren't you a little surprised that the members of the House and Senate didn't also carve out for their political consultants to be able to make more effective robocalls. Well, that is a good point. That is a good point.

I was surprised because normally they do. You know, if anything can help an incumbent, they do it. So for some reason, they must have thought that this was actually going to help challengers more than incumbents. But, you know, it's like, okay, well, you can collect But, you know, it's like, OK, well, you can you can collect compensation if you've been injured by, you know, it's a general rule. You can collect compensation if you've been injured by an individual unless it's an agent of the state violating your most sacred civil rights. And that circumstance are going to have qualified immunity. If somebody is going to seek money from you, as a general matter, guess what? They bear the burden of proof of demanding to get... How about all of the non-discrimination laws that don't apply to Congress? Oh, amen to that.

Or, you know, in this, you know, if I want money from you, Sarah, if I'm suing you for money because you've... Well, you've never done this, but you've walked away from a bet that we've made about maybe who would be, just rank speculation, who would be the nominee in the event of a spicy opening. Oh, interesting. We may have to have a little offline betting. If we had something offline and you walked away and I won the bet as I would, that I got a bare burden of proof that we had a binding agreement. But if I'm a taxpayer and I'm asserting that I have a particular, that the government,

I owe the government nothing more than X thousand dollars, guess who bears the burden of proof? That would be me. Even if the government is wanting more money from me, I bear the burden of proof of saying no to the government. All right. This has been a fun little libertarian moment for David. Yes.

Yeah. I have to get it out every now and then. Okay. Okay. Faithless electors that are no more. Yes. The all faithful electors. So as a reminder,

this is the case where both in Colorado and Washington, the members of the electoral college who had pledged to vote for Hillary Clinton declined to do so. In Colorado, the sanction was that the guy was removed and a Hillary Clinton voter was put into his place to vote. And in Washington, they were fined a thousand dollars, I believe. So, yeah. So today's opinion was you can can be fined no problem yeah and you can be removed no problem uh kagan writing and i had complimented justice kagan's writing earlier uh this term and she did not disappoint this time we have a Veep reference and a Hamilton the musical reference, all in one

paragraph. I did watch Hamilton the musical on Friday, as I said I would. As did I. So many feels. She goes through back when, as we all remember, mean david definitely remembers because he was there but in that second contested election where jefferson and burr tie and you the second person used to be vice president to the first person even though they hated each other uh every elector who voted for jefferson also voted for burr producing a tie that through the election of the house of representatives which took no fewer than 36 ballots to elect Jefferson. Parenthetical, Alexander Hamilton secured his place on the Broadway stage, but possibly in the cemetery too,

by lobbying Federalists in the House to tip the election of Jefferson, whom he loathed but viewed as a less of an existential threat to the Republic. By then, everyone had had enough of the Electoral College's original voting rules, and that's her way of introducing the 12th Amendment, which, yes, yes. I mean, I think Lin-Manuel Miranda had a little more turn of phrase, but I'm just singing Jefferson

or Burr in my head while reading that. That was just a fantastic part of the opinion. But what I'm doing right now, Sarah, is I am symbolically, I'm taking my bottle of water. You're pouring one out? I'm symbolically pouring one out right now. You can see it on Zoom. I'm pouring one out for the original intent of the founders and the Electoral College. Well, yeah, I mean, the Federalist Papers were actually, Hamilton himself, John Jay, praised the Constitution for entrusting the presidency, quote, to men most capable of analyzing the qualities needed for office.

John Jay, the Electoral College would be composed of the most enlightened and respectable citizens whose choices would reflect discretion and discernment. But, and this is, I mean, this is peak Justice Kagan in 2020. But, she says, even assuming other framers shared that outlook, it would not be enough. Why, David? Whether by choice or accident, the framers did not reduce their thoughts about elector's discretion to the printed page. Textualism, boom, boom, boom. to the printed page textualism boom boom boom i was gonna say that just sounds like a democratic nominee throwing some textualism around and in fact um she quotes i mean this is article two section one uh the states have the authority to appoint electors quote in such manner as the

legislature there thereof may direct. In theory, this could have been a really short opinion and said, may direct means may direct. And they have directed to remove from the elector any discretion, period. So you had a side vent. Let me have a side vent, which is the reason I totally agree with you. This should have been a five page opinion. And at the circuit level, it may well have been because circuit courts have a lot more cases to deal with and dispose of. The Supreme Court should be taking a lot more cases than it's taking right now. They don't all need to be treatises on history and feelings, but because they are and because

they're taking, you know, 75 a year at this point, instead of even, I mean, in my lifetime, they were taking in the hundreds, then we get a much longer opinion that includes a jaunt through history of various elections. There's a great footnote quoting a random voter back in the Jefferson Adams race, which, I mean, I love the footnote. I had a good time reading it. I don't know why this voter has this again, random voter in the 1796 election has any bearing on this any more so than a person on Twitter right now should. But those are the sort of learned Supreme Court opinions that we get these days. There shouldn't be. They should be much shorter and we should have a lot more of them there. So that seems kind of like for the election of 2120, quoting, say, Joe the plumber.

Yeah, I mean, an irate voter. So basically this Federalist elector in Pennsylvania still decided to vote for Jefferson because that's how the state had voted. So sort of the opposite of our situation here. He thought that he should be a faithful elector, whereas he had been voted in to be kind of a faithless elector. And the voter says, quote, when I voted for the Federalist ticket, I voted for John Adams. Voter says, quote, when I voted for the Federalist ticket, I voted for John Adams. What? Do I choose Samuel Miles, the electoral, to determine for me whether John Adams or Thomas Jefferson is the fittest man for President United States? No, I choose him to act, not to think. The Gazette of the United States, December 15th, 1796.

Emphasis in original. That's fantastic. That is fantastic. Well, can i go ahead and endorse and uh amplify your rant please because one of the problems one of the negative effects of taking so few cases is that legal uncertainty percolates for a long time a much longer time than it would either otherwise yeah you you and i have talked about how often the Supreme Court lets lower court jurisprudence mature. Which is great for maybe the majesty of the law, but for individual, you know, the law is supposed to be about cases or controversies and individuals vindicating their rights. And the result of that is that a lot of individuals end up with unjust results as the law percolates.

Yes, exactly. Exactly. And there's a lot of legal uncertainty as the law percolates. And sometimes, let's be honest, they don't just let the law mature. The law's voice changes. The law starts shaving. The law then goes to college and has children. And then the law has a midlife crisis, and then they'll figure it out. They wait so long often. Well, maybe this is even a good

example. So we're talking about how Kagan is a textualist now. That's not totally new, but it's certainly an interesting development. And yet Thomas and Gorsuch have this little battle. Kagan was looking at the text of Article 2 and the 12th Amendment, and Thomas and Gorsuch joining write a separate opinion that like, well, I agree with the outcome. They can't be faithless. The states definitely have the power to do this, but you're just wrong on article two. It should have been the 10th amendment. Thomas, when the constitution is silent, authority resides with the states or the people. This allocation of power is both embodied in the structure of our constitution and expressly required by the 10th amendment. The application of this fundamental principle should guide our decisions here. This follows many, many pages where he dismantles Kagan's argument for why the state should have

that power, like all of her history. He just says that's like, takes it all apart pretty persuasively actually. And then just says, so therefore it's the constitution's totally silent and we should give the states the power just under the 10th Amendment when there's nothing else to look at. So why did we spend all these pages? What? Yeah, exactly. Exactly. No, I endorse your rant. More cases. And also, I mean, we do have a conflict of interest we have to disclose because that means more content for us. So true. So true. If there's more cases, more content. Okay. Well, let's move on from SCOTUS. Do we have another orders day announced yet? I was driving, but I don't think so. Okay. Well, there are more coming.

So let's move on from SCOTUS a little bit. There was, as folks may remember, and I'm certain they do, despite we have 17 outrage cycles since, there was this really vivid and interesting moment in the city of St. Louis recently where Black Lives Matter protesters walked through or broke into a gate or broke into a gate, or broke into a gate, the facts are somewhat disputed,

onto a private street, and came outside of a house. They were not aiming to protest this house, but they came outside a house that was owned by two attorneys. And it's unclear what happened in all the moments leading up to the controversial moment. But the controversial moment was captured on recording and it showed the husband and wife team come out. The husband is kind of like in khakis and like a pink Oxford shirt holding an AR-15. The wife comes out and she's got a pistol.

I couldn't tell what kind of pistol it was. And she points it at the, she points the pistol at the protesters. So this caused, of course, a little culture war flare up. And, you know, was this an example of America defending itself from the mob? Or was this the example of white privilege showing as two white people, heavily armed white people, brandish weapons at white, black, and brown protesters and get away with it what was this what was this moment uh well aside from the the obviously abysmal handling of the weapons which here's my side um here's my side rant sarah i'm a very strong supporter of the second amendment i am not so strong a supporter of people who don't bother to know how to use their weapons and to exercise basic discipline with their weapon from owning weapons.

It was a little funny. I mean, most Hollywood actors are better at this than they were. Now, of course they're under a lot of stress, yada, yada, yada.

But for crying out loud listeners, if you're going to purchase a weapon, learn how to use it, train yourself on it. Maybe don't point it at people. And don't point it. Until you intend to use it. Yeah. on it. And maybe don't point it at people. And don't point it. Until you intend to use it. Yeah.

Like this is one-on-one stuff. Okay. So we got a lot of questions, not so much about, um, the politics of that moment or the morality of that moment, but the legality of that moment. Um,

when can you defend yourself? Uh,. When can you defend yourself? And how can you defend yourself? And we had a really good piece on the homepage at thedispatch.com. Just Google thedispatch.com. And Stephen Gutowski, one of the best reporters and analysts of the Second Amendment out there, he wrote for us a really instructive piece about Missouri law. So we're not going to dive into Missouri law. We're going to talk about generalities because I think only a small fraction of our listeners live in Missouri, Sarah. It would stand to reason. Yeah.

And talk more generally about the law of self-defense. And specifically, a couple of concepts that are often misunderstood. Here's one castle doctrine. Um, here's another one. Stand your ground. Um, and essentially first, uh, let me just say wherever you live, this is not a primer on the law of your state. Correct. Do not use this as legal advice.

It is not. Exactly. This is a general survey. Your state is going to have its own quirks, so learn about them. Do not act in reliance upon what I'm about to say. But here's some general concepts. What does castle doctrine mean? Essentially, what castle doctrine means is whatever is designated by law as a castle usually it's your dwelling usually like your home you do not have a duty of retreat from your castle if somebody is in your castle breaking in whether or not they're armed as a general rule you're going to have a right right to use deadly force without having a corresponding obligation of a duty to retreat. The duty to retreat is an old concept essentially that said is if you can

get away, if you can run away safely, you have to run away. That's the duty of retreat. But in a castle, you have no duty of retreat. And that castle applies usually to your home, but in some states, basically anywhere where you might lay your head, like a hotel room, a tent if you're camping out. In some states, it includes your car. And so that's what a castle doctrine is. And so the question is, when does that apply? And I think that that was one question that would be obviously applicable to St. Louis. The other issue is what is stand your ground, okay?

That's an often misunderstood law. And it basically, it doesn't really mean that you can shoot anybody who tries to move you. It means that if you are in public, not in your castle, if you are in public and you are subject to acts of aggression that would put your life and you believe put yourself in danger of death or bodily harm, you don't have a duty of retreat. You don't have to try to run away safely first. You have a right to stand and fight up to the use of deadly force. If you're being threatened with the use of deadly force or serious bodily injury, usually. Exactly, exactly.

And you often see misunderstanding of that. Like there's a case in Florida, one that I wrote about the Washington Post some time ago, where a guy was hassling a man's girlfriend in a parking lot. The man comes out and sees this man, a white guy hassling his girlfriend. Black guy charges him, pushes him violently to the ground. And then the white guy pulls out his pistol and just shoots the black guy dead right there. Just shoots him dead. And the argument was stand your ground because wasn't the guy pushed?

Wasn't he pushed away from the girlfriend? And grotesque abuse of that concept of that law. In fact, if you watch the video of it, it's awful, awful, awful video. The guy who's shot is actually backing away when the trigger is pulled in the fateful moment. Just terrible. That's sort of the nightmare scenario about Stand Your Ground.

But essentially, its intent is if you're facing aggressive, dangerous violence, death, or seriously bodily harm, you don't have to run away as your first resort. Those are the two areas where you can kind of, when you can presume you have a right of self-defense with deadly force. I'll tell you when you do not and should not presume you have a right. Defense of property. Defense of property. That is where you should not presume.

It's going to be very interesting. Which makes sense, right? Like we've decided to value life over, you know, that window. that is where you should not presume um it's going to be very sense right like you we've decided to value life over you know that window yeah or stop stealing my bike bang bang right right yeah but okay but the question i think that comes up is uh you're driving your car you end up in one of these protests people People are banging on your car. Maybe they shatter one of your back windows. You're now freaking out. But the people who shattered your back window, maybe there's an argument that they have created a fear of serious bodily injury or

even deadly force. Let's say they have a weapon. They've broken the car window. They're screaming that they're going to kill you. The people at your back window. Right. Can you hit the accelerator on your car and kill the person in front of your car that was not posing any threat to you? Probably yes. And here's why. If assuming the violence that is initiated from the side or the back is aggressive enough. Yeah, assume that it's the most aggressive. It meets the standard. You could, for instance, back up into that person, but that wouldn't actually get you away.

Right, exactly. You're going to have, my best guess, could be wrong, my best guess is what's going to be seen is that it's not the actual, the totality of the violence is is the is the threat is encompassed in the totality of the violence the car is trapped in part by the person in front it is being physically attacked by the person on the side or the rear that the motorist is going to have an a right to get is going to have a right to save their own life. And asking them in that moment to say,

what we need you to do is go ahead, if you don't mind, let's look in your side window or your rear view window and figure out who's banging on your car and kind of like back around and to the side to bump them and nobody else? No. What the law is going to say

is if you have a reasonable fear of death or imminent bodily harm, you're entitled to protect yourself from that threat. And the most immediate way to do that will be to press the accelerator. But I mean, okay, so that's the protest scenario

that actually I think has existed many times in the last couple months. But let me give you a more extreme example. A guy comes up to my car and puts a gun to the window at my head. So no question now that I am scared for my life. In front of me is a very nice looking woman with a baby stroller. Oh my. She has nothing to do with this situation,

but she happens to be crossing the street. I'm at a, you know, light. Can I run the light and kill the woman and the baby in the stroller to get away from the guy who has a gun to my head?

My goodness, Sarah. Why are you doing... Is this law school? Are you trying... That's your law school, is this law school? Are you trying? That's your, that's your law school exam on self-defense. Are you trying to torture me with hypos? Okay. So. It's a true trolley problem then. Yeah. So I think, I think as a matter of law, you're going to be able to press the accelerator and then the person who put the gun to your window could be prosecuted for felony murder.

Yep. I think as a matter of of law as a matter of morality you know there's going to be that split second decision like what's the correct call in that position is not the the law is not mandating that you make that correct, that you weigh the relative cost of the two lives in front of you versus your own life. With the chance that the guy doesn't pull the trigger. I mean, that's where, like, there's the probability of my life versus the known 100% if I accelerate, I kill them. Right. I think, you tell me if you think I'm wrong as a matter of legal analysis. I think that you would be able to, and you would be able to accelerate, and then the person who put the gun to the window would have the felony murder charge. That those would be deaths incurred in the context of committing a felony.

I think the facts would matter an enormous amount of what exactly happened in those split seconds. Because honestly, this would come down to a jury. So that's why it's a good law school exam question, because really, as long as you defend your answer, you're probably right. To be clear, I know of no real-world case quite like that. No, me neither. But there's probably been one. There's almost been about every conceivable real-world kind of case

that you can imagine. Yeah. But yeah, so the bottom line is, in my view, look, what do you do if you're that couple? I don't...

I was completely... I'll confess, I was appalled by all of the people who are coming out there on Twitter and saying about them, good for you. I was appalled by that. Not good for you. You do not point a gun at somebody you're not intending to shoot

or trying to deter from committing an act, an imminent act of deadly or danger of serious bodily harm violence. You don't do that, period. Even if you're really scared that they're going to get closer to you and come to your house, you may stand on the front porch and say, I'm armed. you may say you may stand on the front porch and say i'm armed uh you may uh you may demonstrate that you have a weapon without brandishing it at them um in other words that it's holstered you have a weapon that's holstered but in that circumstance i did not see hashtag

murica what i saw was a extraordinarily irresponsibly dangerous situation that we should all be grateful that no one said with the exercise of that liberty comes a high degree of responsibility. A la Spider-Man. A la Spider-Man. Exactly. Even though that's not DCEU, I will allow the reference. Thank you, Your Honor. Anything else on self-defense? No.

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So, Sarah, it's your turn in the spotlight. Eee! So the genesis of this, listeners, is we had several people who've emailed us over the last several weeks to sort of ask us to say

how we got here. Both Sarah and I are lawyers. We are both graduates of law school. We, and the same law school, we, and yet we are, neither one of us is pursuing a classic law track in our careers right now. And it came up in the context of the conversations that we had for a while about is law school a

good choice is it the kind of thing that you you know should want to do even if you're not sure if you want to be a lawyer sarah and i had starkly different answers to that question um but the question was how did we get here and it and so last week we intended for the original intent was that we'd both talk about it. But then Sarah just started interviewing me and it took on a life of its own. And so that became too me-centered. But we want to answer the question for Sarah. And so let's not go all the way back to infancy.

Yeah, I think it's relevant. Did you summer both summers at a law firm? I did. I did. So did I. I think that is a formative experience if you are not aware of law firm life. Yes. However, before I start the Q&A, can I tell you an old joke? Yes. Okay, old lawyer's joke. So Satan comes to you, Sarah, and says, I would like for you, I would like to purchase your soul. And you say to Satan quite sensibly, Of course not.

I do not want to spend an eternity in torment, no matter what good things you can give me in the very short, brief time in which I live. And Satan said, I understand that argument. However, have you ever seen hell? And you say, of course I haven't. Why would I want to go there? And he says, well, before you make your decision, you need to make an informed choice. So he takes you down to hell. And what do you see when you're there? Fine dining, trips to sporting events, courtside tickets for the Knicks. And you're like, I have been deceived. Hell looks pretty incredible. And so you sign the piece of paper and you sign away your life and you live the life, your soul,

you live your life of debauchery, heedless of the eternal consequences. And then the time comes and you die. And the first thing that happens when you descended to hell is you're impaled on a pitchfork and tossed in a pile of burning coals. And you're like, wait a minute, Mr. Satan, this is nothing like the preview. And he goes, oh, I must have brought you down during our summer associate program. That's good stuff right there. Oh, man.

If you are a law student right now and you are not dying laughing. Oh, God. Okay. So let's pick up. you go to law school and you go to the summer associate program. And what influence did that have on your future career choices? I'm still laughing at the joke. Okay, so here's the problem. I am very into competitive advantage, and I think I have certain competitive advantages. I touched on them a little with my math rant.

My competitive advantage was not in math. But I think I'm pretty clever. I am a fast reader. I'm a very efficient worker, for instance. I also, though think I'm pretty clever. I am a fast reader. I'm a very efficient worker, for instance. I also, though, have a pretty serious ethical compass, I would say, as well. And what I learned in summer associate time was, A, the law firms that I was at were great, and I really enjoyed my courtside Knicks tickets. No, that wasn't real because I wasn't in New York. But no, it was a wonderful summer associate program

both times. I actually did enjoy the work. I enjoyed the briefs I was working on, the writing. But I had, for instance, one fellow summer associate who would bill his time while in the shower or taking a jog because he was thinking about the case. And nobody in law school had really prepared me for like that kind of ethical question. And I declined to bill time like that, but that would put me at a very serious disadvantage because you are judged on how much time you bill. Other problems included that I got so sort of obsessed with the billing part. And again, this is on me, not on the law firm, really. I would put off bathroom breaks because that was billable time. And the bathroom was far away from my office, things like that, that I was like, this is not healthy.

But maybe more fundamental to all of that was, oddly, once you're in the law firm, if you are a slow reader and a, you know, pontificator, you're weirdly at a are less likely to get promoted to partner or, you know, et cetera, than someone who like really it's called pounding the file, right, David? Like, right. Who really sits there and reads everything five times and is like, oh, but I want to read this other, you know, interrogatory one more time. It won't matter if I have it memorized. If they've read it five times and build more time doing that, that's an advantage for the law firm. And I just decided that that made no sense for me. And I would be miserable seeing others

move further along faster than me for things that I did not think warranted that. It's, you know, it's its own meritocracy, but it's like not the merit I liked. So you do your summer associate work. And so you say to yourself, no, I am not going to be a law firm lawyer in that time period. Yeah. Yeah. I mean, I went to law school pretty sure that I wouldn't end up at a law firm for other reasons. But I obviously summered both

summers at a law firm, at different law firms, thinking like, well, but if it's great and they're willing to pay me this much money, then by God, why would I not do that? And certainly I could do it for a couple of years and maybe that would be good. And no, that was pretty quickly not going to happen. But speaking of competitive advantage, your next stop is clerkship. Yep. I clerked for Edith Jones, who was chief judge of the Fifth Circuit at that point

for a year, which is for like in short, you'll hear so many people talk about the wonderful experience of a clerkship and I don't want to take away from that. But like your day-to-day is sitting alone in an office writing for 10 to 12 hours a day or more. You have really fun lunch breaks if you're in a clerkship that allows that with your co-clerks and your judge. And there's a lot of camaraderie, but like you are sitting alone writing for many, many hours of the day, which makes you a much

better writer. And you get, I mean, my God, you get a circuit judge's feedback on your writing almost every day, which is super cool. But it's a monastery. Yeah, but it is a absolutely classic option expanding choice. Yes. I've talked about it before.

I didn't feel like I'd afford a clerkship financially, and I regret not seeing if that was possible to this day. Yeah, and there's a lot of reasons that people don't pursue clerkships. I have made it my little windmill to tilt at women who don't apply because they don't think they'll get it. There's like something very specific about that that bothers me. And it puts off your life for an additional year or more. Some clerkships are two years or you go clerk at the Supreme Court afterwards. And for women in particular,

where you're dealing with a partnership track that can also, it basically is pushing that biological clock out pretty late and adding a year or two for a clerkship pushes it a year or two later, which can be really daunting for women who know they want to start a family, but also don't want to give up their careers either. So that's part of my little cheerleading rah-rah side project is to explain to judges why they shouldn't require now two clerkships before applying for the Supreme Court. That's becoming quite the trend. I think that distinctively disadvantages women because, again, you're now adding a third year to then the partnership track and all this stuff. So, yeah, so I clerked and I highly encourage other people to apply to clerk. The most they can say is no. Exactly. So then you're

finishing and the normal thing to do after clerkship is... Get a clerkship bonus. Yeah, go to Big Law, get the clerkship bonus or depending depending on your academic record, going and seeking an academic path. But Sarah, drumroll, you. I decided to make less in a year than my clerkship bonus would have been on day one. That is outstanding. By doing what? I went to go work ted cruz's campaign for attorney general wow now for the listeners who don't know state attorney general races are not typically the path for the lucrative political consultancy? No, you know what else made it really non-lucrative?

The fact that he never actually ended up running for attorney general because none of the dominoes in Texas actually fell. Perry stayed, so therefore, Perry stayed as governor, so Abbott stayed as attorney general. So there was no opening for attorney general. So that campaign ended very much with a whimper, not with a bang.

Yeah. So is that when Cruz then went on to be SG? Texas SG? No, he had been SG. He had been SG. Okay. Yeah. So it was post-SG that he was running. That was supposed to be 2010, the 2010 race. So he then doesn't run for senate until 2012 for those keeping track of ted cruz's career and so you so uh leaving the brief but glorious cruz uh 20 ag run you go to uh i then i stayed in austin for a year and uh worked sort of half electing. So I spent half the year doing oppo on state legislative races

and about half doing some like help drafting legislation. Texas has weird rules where you can basically collaterally attack other people's legislation if they didn't dot their I's. There's a germanness rule. And so you can, through non-substantive means, force other legislation to die. And so my job for about six months was being really good at that. So it strikes me, now this is interesting,

because it strikes me that while you're doing that, I doubt you're surrounded by swarms of Harvard Law grads. No, that was actually part of... I learned more in that job per hour, minute, or whatever than most others. And my boss taught me an incredibly valuable lesson. Actually, two very valuable lessons. One was always be available. Like when I say that I need you to be available, I don't care if you're in the office, but you have to be available. Um, he, he taught me what

that meant. And that meant like soap in my hair and the shower, like you turn off the water and you answer the phone. Um, you know, how to, how to like always, so you'll, you'll know me now because I will always have my cell phone in my hand, not my bag, not with the ringer on, not in the other side of the room. It's in my hand because that's how you're going to feel it ringing. The other one was never say something unless you know it's right. So don't say, you know, I think the answer is this. Well, do you think it or do you know it? If you know it, say you know it. And if you don't know it, say, I don't know and I'm about to go find out. Never say I think. And that's something that's easy to say. But again, you need a boss to really crush that into you. And he did that for me. And I'm incredibly grateful because I was absolutely the person who thought like, well, I'm 80% sure, so I'll just say it.

And that's a terrible habit. Well, I know a lot of lawyers who are there. I remember having a meeting early in my legal career with a senior partner, and he gave this incredibly impressive presentation to the client about how the law applied specifically to the client's facts, the problem that client had. And I was really stunned. I mean, this was it was like a legal soliloquy from a law professor. And after it's over, I turned to the partner and he looks at me and he said, can you do a little bit of research

to make sure I'm right about that? Oh, God. I guess that's an example of what, fake it till you make it. Yeah, yeah. So how did you move from Texas to national politics? So I had worked on Romney's 2008 campaign when I was still in law school because I was in Cambridge. The office was in Boston, which is very close, as you might know. And so in 2012, when he decided

to run again, I got a call to see if I wanted to sort of oversee the legal recount preparation efforts by going to each of the states, making sure things were moving, set up sort of like I was the bobs and my job was to go like dive into each of these states and check in on the staff. Because there were sort of in most of these states, baby lawyers who were supposed to be running this recount prep. And I was a toddler lawyer. So the toddler lawyer went to go check on the baby lawyers. And so then after 20, so that's 2012. Yeah. After 2012. We lost that race. Yes, I'm aware. I remember, I think I've told you how Nancy and my kids became the face of defeat. Yes. Yeah.

We're in Boston and Nancy sees Ohio go and the tears well up in her eyes, which then causes the tears from my son to well, and he's not quite 12 at this point, to well up in his eyes. my son, and he's not quite 12 at this point, to well up in his eyes. And an AP photographer just click, click, click, click, click. And within 30 minutes on our phones, we see Nancy's picture as the face of defeat. But that was an amazing job because my...

I had to descend into a group of people who already had been working together and had really bonded. And I had to come in and I had no power, no authority really, except to ask them to let me help them and show me what they had. And, you know, some people lost their jobs when it turned out that they weren't doing a good job. And that was such a great learning experience. And I had such a wonderful time getting to know everyone and to have them place their trust in me. And it taught me an enormous amount. And in the end, I ended up in Virginia running that war room with about 200 lawyers who had all come in from DC. And the person helping me, by the way, was Will Levy, who is now the chief of staff to Bill Barr. So small world. Actually, a lot of people were in that room. I'm sure some of them are listening to this podcast.

And that was, even though we lost, just one of the most fun days where a lot of people in that room really bonded and got to know each other well. I highly recommend, no matter what side of the political aisle you're on, just go volunteer for a day on election day, wherever, at your precinct, your polling place, headquarters, anything. It's just a great experience to be part of what we get here in the United States. So Romney ends, and between Romney, there's a couple of years between the end of Romney and the beginning of Fiorina. Yeah. So also important note, if you do campaigns, you're unemployed for a lot of your life. So you might work 20-hour days for 18 months and then be unemployed for six months. And that's where you're supposed to sleep.

And I call it the reinflation period. I end up losing weight on campaigns. So for me, that literally means reinflating and fitting back into my clothes again the other way. So yeah, that's one thing I've always wondered because it seems like you don't go from gig to gig to gig. It's like gig, pause, gig, pause. Hustle. Yeah. Yeah. And do you do independent contracting during that time? Sure. Sometimes. Yeah. So after Romney, I ended up going down to Virginia Beach for Virginia Advance that year. I

went to a recount out in Santa Fe for a state legislative race for, I don't know, five days. state legislative race for, I don't know, five days. Um, uh, Australia's election is after the United States. So some people go out to do that. I did not. Uh, yeah. So there's, but like, this is when people think about campaign staff, there's the people who Allah, the West wing, like, um, uh, Sam Seaborn, for instance, who basically work in government and occasionally go work on campaigns. And then there's the Josh Limons who are campaign people who sometimes accidentally find themselves in government. And I'm definitely that. And it's a very certain personality type. You have to be basically okay with high levels of anxiety. Because not only is there anxiety on the campaign, but afterwards when you're unemployed,

if you're constantly like, I'm never going to have another job, you then can't do this work because you are going to be unemployed. Even if you win, you're unemployed. Win or lose, you are unemployed the day after an election. So this gets back to something that came up in our conversation last week about being risk-averse.

You're not risk averse. You can't do this if you are. Right. And it also goes back to it's a certain type of risk tolerance also. Well, it also goes back to the thing that we said about golden handcuffs. Yeah. If you build, if you come out of law school and you say, I'm going to do two to three years in a law firm and you build up a certain kind of lifestyle, you can't then move into what you were doing unless you, you know, you're going to have to give up a lot. A lot. Well, like your stuff. Like I lived on the road for months at a time. So if you're really attached to literally any of your things, you're not going to see them. Right.

Yeah. That, you know, so that means pets, no pets. So for the Romney campaign, my cats lived in Houston when I was gone. I, on Fiorina, my cats did stay with me, but basically we were gone for like five to seven days and I would have someone come stay with them usually. So someone lived in my apartment for those like seven days. And then I'd have a week off, um, not a week off of work, but a week working in from my home uh and then so that was sort of how that

went and the cats you'd think they would be better socialized for that but they're really not so uh one other question sort of about the campaign lifestyle when you were working with fiorina um how many days a week were you on the road? Yeah, so she stayed on the road almost full time and I would do a week on and a week off. Okay. Not always. Sometimes it'd be a week on the road, two days at home to repack and then back on,

especially towards the end or around a debate. I wasn't going to not be at a debate. But it wasn't that I didn't going to not be at a debate. So, but it wasn't that I wasn't, didn't want to be on the road, but you're also running staff who are working at headquarters. So you also need to be back with them sometimes as well.

And finding that balance is incredibly hard because the candidate needs you and the staff needs you. So you go from Fiorina presidential campaign and Fiorina vice presidential campaign. Just one vignette on that. It's just me on the Ted Cruz bus with my headphones listening to the Hamilton soundtrack just over and over.

It's inspiring. It is. And they were very kind to us. We were, but no matter what, you do feel a little like the conquered territory. Well, I will tell you this, my own Hamilton vignette from 2016.

I saw the original Broadway cast, um, about three days after I said no to the Bill Crystal thing. Mm. Uh, and so I'm sitting there and you, when it gets to the Washington farewell address, and it's quoting from the farewell address and, and I'm contrasting that rhetoric in the, the noble sentiment behind it with what we were experiencing in middle of 2016.

And I think it might've been like literally my lowest political point of my life. Yeah. So, so you have said at least for now, no to that life. You, you became,

you went, you did what, what's his name from West wing Lyman, Lyman, Josh Lyman, lemon Lyman. Josh Lyman. Lemon Lyman. You Lymaned? I Lymaned. You went into the DOJ spokesperson?

Although funny enough, I was on the road probably three days out of the week in that job. Yeah. I mean, that's a demanding, that's not a nine to five kind of job. No, no. On both ends of that timeframe. Our first meeting was at 820 in the mornings and I normally was home around 10 unless we were on the road or something else was going on. And we were on the road a lot. Now, upside, the attorney general does have a private plane. So it wasn't quite as taxing as a presidential

campaign where you're mostly traveling commercial, although you charter some planes on that too. So then the question comes, so you were camp, you were lying, you limened on the campaign trail, then you limened into government, but then you stopped limening. Yeah. Um, you've moved into media uh is that something that you knew you wanted to do for a while is this was this part of the the grand sarah plan or is it something that you know just kind of emerged as a goal later on i found myself becoming, how do I phrase this accurately? Less enamored with winning. Partisan politics, especially on the campaign side, is about winning. There's ideals involved. There's why you picked which team you're on. But at the end of the day, it's a team sport. And

your job as a campaign staffer is to win, not to inform the electorate or high-minded ideals. You're hired to win. And I love that part of my job. And I just started to love it less. And I always had told myself that at the point that you're not waking up excited to go to work, that's an incredible privilege that I've had in all of my jobs. Whenever I'm faced with a decision between two jobs, not all the time, by the way, but when I am, I just ask myself, which one will I be more excited to wake up and do versus, for instance, your point on golden handcuffs, which one will let me afford the lifestyle to which I've grown accustomed? My lifestyle is pretty simple. Um, or it was now I

have a baby, so it's a little more complicated. Um, and I, I just couldn't wake up with that hunger to win anymore. And there's all sorts of partisan reasons for that and the Republican party and the democratic party maybe, but I think there's also just a time in life that came where that meant less to me. And I have loved being part of the dispatch team and CNN for that matter, and teaching my students at GW because I don't wake up every day asking myself how I'm going to win this argument.

I wake up every day asking what the argument should be and who should win the argument. And that is a wonderful feeling. Well, I think one of the real lessons of that journey is that, and this is something that a lesson that I think a lot of us learn too late is that the pursuit of prosperity is sometimes opposed to the pursuit of purpose and joy. And sometimes, not always, not always. I mean, it's very wonderful to be able to provide nicely for a family and to have stability and everything. to be able to provide nicely for a family and to have stability and everything. But I think we sometimes slide very quickly,

very quickly into the pursuit of prosperity and end up missing out on purpose and joy. You may not know this, Sarah, but I'm approaching middle age. I had heard a rumor about that. You may not be aware. I'm convinced, I could be wrong about this,

and psychiatrists slash psychologist listeners, please feel free to abuse me via email. I am convinced that a lot of a midlife crisis is the point in which a guy reaches where he realizes I can no longer reinvent myself. That the die is cast. I kind of am what I am. And then they look at it and they say, that's not what I wanted. And it's a crushing existential blow, I think. And a lot of that, a lot of the reasons why you reach the point where you experience that blow is because of that early choice about prosperity. I had a, my uncle gave me one of the best pieces of advice, career advice I've ever heard, which is don't become too good at something you don't like or you'll end up doing it the rest of your life.

No, I think that's true. I think it helped. My dad went to law school, I think I mentioned this a few pods ago, when I was 10. And so he sort of did start over. And I think that was helpful as an example for me. And I think it's also, I should say, this is not to say that I don't wake up with existential dread, just like everyone else, I definitely do. There's definitely days on every campaign I've been on and every job I've ever had where I'm like, oh man, what am I doing here? Is this good? Is this my purpose? All of those things. When we talk about our careers, both of us, I think, it makes it sound like everything followed from the thing before it

and that it was inevitable and obvious. And of course, we were just on this track. And I do want to emphasize so much so that like, yeah, when I was unemployed after the Romney campaign, that was really fun to bounce around and do a couple odd jobs. And then it was February and I did not have a job or any job prospects. And then it was March and I did not have money to pay a credit card bill. And you really start asking yourself, maybe I'm not good at this. You know, that's why no one wants to hire me or, and you know, thankfully I got hired by the RNC, like truly right before my next credit card bill was due.

I already gotten the bill. It was, I stayed until it was due. in the bill. I stayed until it was due. And so it's never linear. The people whose careers that you want to emulate, that you see out there and think like, oh man, that looks exciting and awesome. And look, they just put one foot in front of the other. Nope. I don't know anyone's career when you really talk to them that it was like that. And it certainly wasn't for me. It's sounding like from our talk last week that it wasn't like that for you. I think the more likely you are to want to emulate someone else's career, the more likely it was that it wasn't a linear path for them either. They just took the best opportunities that came when they

came. And perhaps what you actually want to emulate about them is seeing the opportunities and seizing the opportunities because often those people are just good at seizing, you know, like a grizzly when the salmon comes by, they're just grabbing salmon out of the river. When the rest of us are like, wait, is that the right salmon? Was that a good looking salmon? Should I wait for a bigger salmon? Um, the, the people whose careers I think I have looked at with admiration are just good grizzly bears. I think that's a great insight. I mean, there were times when I was in the middle of my own career path where I had done a bunch of different stuff in a row and I literally asked myself, what is wrong with me? Why can I not do one thing and just stick with it? There's something wrong with me. I have friends who are so reliable and I've got always one eye on what's the next thing that I could do. And that's a problem. Why can't I be content?

I be content. And then as I got older, I was, I became so thankful for all of those different experiences that I had. Um, but it was kind of stumbled into them much more. Yeah. Yeah. Well, oftentimes when the opportunity comes by, the other thing that I don't think we tell young people enough is, uh, yeah, one thing doesn't fall in front of the other, uh, most of the time, but also the opportunities usually aren't just laid before you and obvious. You might have to take a pay cut or you're deciding, the job sounds awesome, but my title is a little embarrassing. It's sort of beneath where I am right now, but I really like the boss who I'm going to be working for. So do I take the great title at the other job, but the work, I don't know. And I kind of have a feeling about that boss, but they're going to pay me more and

the title's great. And people do, that will help me get my next job because I'm going to have this great title. Or do I take the great boss, but it's lower pay. They're going to call me servant of the left, whatever. And how do you balance that? And the answer is there's times where you should be a big fish in a small pond and vice versa. And again, the people you want to emulate, the questions you want to ask them are how they chose between those moments, not how they just got that next job. Right. Yeah, that's great. Yeah. Very, very well said. So Sarah, anything else I've left out in the Q&A? My cat has not enjoyed this conversation. So to the extent Caleb does not edit out all the meows,

Zoo apologizes for his restlessness. I think it must have been all that talk about campaigns. He's worried I'm going to hit the road again. Well, I have only heard, for what it's worth, I've only heard one meow. Oh, good. And the other thing is, it's a podcast. We keep it real. There's an occasional meow. You're going to have the distant sound of a lawnmower. You're going to have a honk every now and then. We're also

dog sitting, so there's an elderly golden retriever at my feet right now. It's a very happy day here. Well, Sarah, thank you for sharing all of that with the listeners. It really is interesting to see so many emails asking these very questions about how did you get from A to B. And a lot of it's an artifact, I think, of the law school choice itself, which does open up a lot of options at the very same time that a lot of the actual pressures of the law school education,

try to narrow them, um, try to throw you into the particular track. And, uh, so yeah, I, I,

I find the whole campaign side of that, of, of your career, just absolutely fascinating. Um, the, especially the, the, the, of your career just absolutely fascinating. Especially the way in which it's almost like you're a relief pitcher

after a campaign is over. Like you're a relief pitcher. You're kind of sitting in the bullpen. You've got the 95 mile an hour fastball that you can throw, but it's going to only be for a couple of innings. And, you know, the manager's just got to call you in. I think that's actually a really good example. Metaphor. Well, I, you know, you just have to think of the music that you're going to be playing

across on the loudspeakers as you're, as you're walking to the mound. Yeah. Uh, I mean, right now, it's something from Hamilton, but not wait for it, even though that's probably my favorite song, actually. Oh, wait for it. Yeah.

It's beautiful. We'll save the Hamilton reappraisal for another podcast. Okay. But until then, thanks so much for listening, and we'll be back on Thursday. I don't know if there'll be Supreme Court opinions on Thursday. We'll see. And we'll be back on Thursday. I don't know if there'll

be Supreme Court opinions on Thursday. We'll see. But we'll be here regardless. And we will maybe perhaps talk a little bit of Hamilton and why it got dissed on Twitter for no good reason. I have lots of four years later Hamilton thoughts. Okay, excellent. Well, thank you as always for listening. And please go rate us on Apple Podcasts. This has been Advisory Opinions with David French and Sarah Iskra.