Advisory Opinions - Did a Justice Leak to the New York Times?

Episode Date: September 17, 2024

Sarah and David go to Princeton, where they grapple with the attempt of elite universities to remain politically neutral. (Hahaha.) And is there another Supreme Court leak? Really? Also: Where are we on the supposed TikTok ban? The Agenda: —Institutional opinions —TikTok ban at the D.C. circuit —New York Times: How Roberts Shaped Trump’s Supreme Court Winning Streak —The use of AI in law —What’s next for TikTok? —New Title IX regulations —Supreme Court reforms 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—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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After decades of shaky hands caused by debilitating tremors, Sunnybrook was the only hospital in Canada who could provide Andy with something special. Three neurosurgeons. Two scientists. one movement disorders coordinator, 58 answered questions, two focused ultrasound procedures, one specially developed helmet, thousands of high intensity focused ultrasound waves, zero incisions, and that very same day, two steady hands. From innovation to action, Sunnybrook is special. Learn more at sunnybrook.ca slash special. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, special guest, David French, but we are both special guests today because

we have taken the show on the road. We are in Princeton, New Jersey, and we are speaking to the American Whig Klyosophic Society here not on campus. Yes, not in Princeton, New Jersey was correct, but we're not on Princeton University. And people keep telling me there's a story here, and I've not heard it yet. So can you enlighten me, Sarah?

I'm really excited to tell you. So we were going to be speaking in the WIC room on campus, but the university said that that would be a violation of their tax status because it could be seen as an endorsement of a candidate or campaign. Wait. Yeah. So the Wig Cliosophics Society was kicked off campus for this event because of us.

Okay, hold on. Because why? At the podcast? It would violate their tax status because they would be engaged in political advocacy by having us on campus. That's insane. On several fronts. So many fronts. First of all, even if we were in favor of a specific candidate or were in fact ourselves

candidates, that would not violate Princeton's tax status as schools may have any number of speakers on campus. But perhaps more to the point, we actually work for a journalism outlet and are in fact both journalists, you at the New York Times and me at the Dispatch. Yes, I don't work for the DNC or the RNC or if there was a WiganC, I don't work for that either. or the RNC, or if there was a WIGNC,

I don't work for that either. I mean, look, in fairness, my Twitter handle is WIGNEWTONS. Oh, you're the problem. You're bringing back WIG partisanship. That makes, that is hilariously ridiculous. On our drive up here, you and I took one of our famous college road trips

together to get up here about three and a half hours or so. We stopped for barbecue, it was a fun time. And you said you wanted to talk about the neutrality statements that were going around campuses. And just to ask, Princeton does or has or has not signed the neutrality statement. Okay, so they have not signed the Calvin Report,

but they do have an institutional restraint policy. David, as school has now gotten underway in these campuses versus what we saw at the end of last year, what do we think of the neutrality policies that are springing up left and right? How do we think it's going, legally? Well, the neutrality policies are a very good development. They're a very good development for a number of reasons. One related to free expression on campus. So for example, if you have a campus that has come out strongly on one side or another

of a very contentious issue, many times that has a chilling effect on the dissenters on campus. So you're thinking not just, well, a majority of my classmates are against me or a majority of the faculty disagrees with me, this institution as an institution disagrees with me. And there is actually a chilling effect here,

especially when you're talking about the disparity between the institution itself and say, what an 18 or 19 year old student wants to say about an issue. And so the way that Chicago talks about it and the Calvin Report and sort of the logic behind it all is that the university is providing a platform for the speakers. The university is providing the place. is providing a platform for the speakers. The university is

providing the place. It's the forum for the speakers. And so if we lose neutrality, we're going to not necessarily be trustworthy on being neutral in our application of free speech principles. So from a standpoint, from the standpoint of thinking this through from a free speech standpoint, makes all the sense in the world that a university really doesn't have to have a position on the Ukraine war or the war in Gaza. It doesn't necessarily have to have a position on the TikTok ban that we're going to talk about. The university doesn't have to have a position on these things.

And if it does have a position on these things, it can have a chilling effect, especially when the issue is very contentious. But there's also a really practical issue here, which is who cares what you think Princeton about Gaza, right? Who cares what you think Princeton about Ukraine? Who cares what you think about a tax proposal? This idea that what we really need to hear is the will of an institution on a complex matter of geopolitics, military strategy, et cetera. I think it's weird a little bit. And what really actually tends to happen is that you then get in this huge fight on campus

over what is the institution going to say about an issue over which has no influence at all. I remember recently I was talking to a group of college presidents and they were talking, the topic of the conference was when should we speak as the institution and weighing in. And there was a hundred percent consensus that I agreed with that if there was a political issue, say in the state legislature that directly impacted the campus, in other words, we're going to revoke tenure or we're going to start taxing your endowment. Well, then the institution obviously has standing there,

has a direct interest in it. But they were then talking about, well, when do we talk about other things? And I was the last speaker and I got up and I just said, have you considered not? Like, have you considered not talking about this? And I said, the biggest issue my senior year in college was Operation Desert Storm, the first Gulf War, massive U.S. force deployment to

the Middle East to eject Saddam Hussein from campus. And I don't know what Lipscomb University thought of that. That's where I went to school. I don't know what Harold Hazlip, who is my president, thought about that. But I definitely know, I definitely know that Lips... my college did not have unique institutional insight into the geopolitics of that war. There were people at the college who did have that kind of insight, but the institution did not. And so, from a free speech standpoint, I think this is clearly the better course. And from just the practical standpoint of stay in your lane, this is not your lane. So why are we fighting over this? Okay.

I have a few questions about that, but let me start with my first question, which is what is the best argument for Princeton forcing the American Whig and Kliosophic Society to have this event off campus? They spoke to a lawyer at the school. Princeton University Council told them that they were not allowed to have us on campus. That's wild to me. That's wild to me. Unless what you have is a situation where somebody says, I want them off, what is a reason why they can be off campus?

Then you'll have that kind of situation sometimes where, well, okay, I mean, you could argue that. But this idea that it would risk Princeton to have on campus a podcast that talks about Supreme Court and Circuit Court opinions. With a New York Times reporter and an ABC News employee. It makes no sense to me at all. Okay, so my next question is the line between things that do affect the university and that becomes sort of a slippery slope to me. I mean, I think it's hard to draw that line.

So the Supreme Court issues its opinion on affirmative action. Does the institution put out statements about that? It involves higher education admissions policies. Yes. I think that that you're directly talking about the policies the administration puts in place for admitting students. In that circumstance, there's a direct contact with the university. It's about as direct as you can get.

Okay. Fifty percent of the university is female. Let's stipulate. It's probably actually a little more. What about after the Dobbs decision that affects 50% of their students' ability to get, you know, abortions in the state? No. No. I mean, okay, you would, at that point, it's like every institution that has women in it

is every, basically every institution. But it affects their ability to continue with their college degrees. It's a bit of a stretch, a big stretch. And also, it's not universal that all women are in the same position on the Dobbs decision. That's why the institution might have an opinion. Okay, next. No doubt that individuals in the institution have an opinion. It's just that Princeton itself as the institution, that Princeton's opinion is worth hearing

about reproductive rights. I'm unconvinced. The Supreme Court overturns Chevron in the Loper Wright decision which says that courts will no longer defer to agencies about their interpretation and one of those agencies is the Department of Education. Can they have an institutional opinion about the way in which future court cases dealing with Department of Education regulations will be interpreted by courts that will affect them? No.

Gosh, no. Okay. I don't know. You're making that sound easy. No, that's easy. That's easy. So your position is because the Department of Education has less judicial deference paid to its pronouncements, that the institution has an interest in the Department of Education

having deference paid to it. What is that interest? Yes. That they like what the Department of Education does and the grants that it gives in any given future case. Perhaps they have pending litigation where they are siding with the Department of Education as amicus or something. So if the Department of Education

has a grant that is giving Princeton that is being denied by a court, yes. But the idea that now Princeton has an institutional position on the level of deference to give to the Food and Drug Administration when it is approving, for example, a new version of, what's the wonder drug now? Ozempic. Ozempic.

No. Okay, those are the rules according to David French. But I guess- Which are the rules? My bigger question is, we're applauding these schools for signing these neutrality policies. What will that actually mean in practice? Because if they put out a statement about DOBS

and say like, oh no, no, no, we're neutral on all sorts of things, but this affects the majority of our students and their ability to continue their education, and you, David, say, but wait, that's not what I thought the neutrality policy meant. Where did we really end up? Well, we actually have about 50 years of experience

with neutrality policy. So this is- Not at these schools. No, but at many schools that have shown exactly how to do this. And so this is not blue ocean stuff. This is well trodden ground mixed metaphor. But like no student has the ability to sue their school for not sticking to the neutrality policy

as they would, as David French would interpret it. Sure. But University of Chicago, which is the architect of the Calvin statement and many others that have adopted it, this has not been a subject to where the line between does this impact the university and major national political issues with the exception of affirmative action, which directly impacts the legal environment that the university has to operate under.

This has not been something that has been hard to execute. It's not been hard. What will make it hard? What will make it hard is when a super favored university constituency demands at the risk of campus disruption a university statement. And the university, like we know many of them, they're essentially staffed and many of them are staffed by invertebrates and that they will capitulate and then backfill how and why they capitulated. Now-

And we end up in the same problem we have now where the universities, they think, university administrators believe they're being attacked for the substance of their positions. Like for instance, the three university presidents at the congressional hearing who were trying to give the definition of genocide and hate speech, etc. And they gave the correct First Amendment definition and they were like, why are we being attacked for this? And they totally misunderstood. They were being attacked because they'd never

parsed that language when it came to speech that they didn't favor. Yeah, the issue with the three presidents was not the answers that they gave, except for some people. There are some people who, for example, want universities to ban any speech that can be considered supporting violence, which is not the First Amendment standard.

The First Amendment standard is you've got to be, you need to be inciting imminent lawless action for that to be true incitement. So the problem was not their answer. Their answers were solid. The problem was the previous 30 years of history at these universities. That was the previous 30 years of history at these universities. That was the problem. So for 30 years previously, what these universities had done is they had bent over backwards for favored constituencies and they had dramatically restricted speech of disfavored people. So much so that Harvard, for example, was the last place school for free speech in America when the president of Harvard went to the House and

decided all of a sudden that she understood and respected free speech. Similar with other schools here, not one of them. I think the best one of the three might have been MIT, and it was like 100 and 150. Penn might have been the second worst. And so they were coming there talking about free speech against, like we had lost all memory of the last 30 years. Like nobody had experience with how Harvard treats dissent or how citizens in the Harvard community treat dissent. This is something that was known and obvious

for a long time. And we'll hear from our sponsor today, Ethos. Having that one good thing we do helps us ensure that our families feel like they're being taken care of. That's why Ethos makes securing life insurance easy. So there's one more thing you can do to give your family a long-term safety net. Save time with customizable coverage to fit your needs and budget. Plus, you can start your policy instantly. No medical exam required.

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No doubt we will be talking about this lawsuit on the podcast, but this is an advertisement that is paid for and written by the state of Utah. Did you know that in Utah, nearly 70% of the state's land is controlled by the federal government? In fact, 34% of Utah's total territory is unappropriated land that the U.S. government is simply holding without reserving it for any designated purpose. The federal government's expansive land holdings deprive Utah of a significant amount of sovereignty compared to other states, where Utah is unable to actively manage more than two-thirds of its land. Utah has filed a landmark public lands lawsuit asking the Supreme Court to address whether the federal government can hold unappropriated lands within a state indefinitely. This retention of land harms Utah's ability to manage and protect its natural resources. Utah's preference is that public lands remain in public

hands, but locally managed for sustainable use and recreation. To learn more about this lawsuit and Utah's public lands, visit StandForOurLand.Utah.gov. Hi, this is Kevin Williamson. I'm the national correspondent for The Dispatch and author of the Wanderland newsletter. We cover a little bit of politics in Wanderland, but mainly we try to get beyond the candidate and horse race stuff into the issues that we think we'll still be talking about after the selection and after the next one. I believe that politics is supposed to serve the well-lived life, not the other way around. We do a little bit of language, a little bit of current affairs, a little bit of culture.

It's a chance also for me to interact with readers whose questions, suggestions, and shared insights make up a big part of our package every week. So check it out, I think you'll enjoy it. For a limited time, you can get an extra 10% off if you use the promo code Furthermore10. That is Furthermore10 for an extra 10% off. If you're already a Dispatch member,

make sure you go to a Dispatch member, make sure you go to thedispatch.com, click on newsletters, and see to it that you're signed up for Wonderland. So you get it in your email box every week. Okay, well anyway, note to Princeton, I am concerned that your council thinks that we can't speak on campus.

That would basically bar any university invited speaker I can imagine who speaks on any current events since we usually actually don't speak on politics so much as the Supreme Court. So hard to say. Yeah, so does this now mean that Princeton is gonna say, has anyone that you're inviting to speak, have they publicly endorsed a candidate for president?

And if they have, they can't speak on campus? I will note that that's your fault for publicly endorsing a candidate for president and not mine. Yeah, that's true. Okay, so at the risk of seeming like we're just pandering to undergraduate students, now we're gonna talk about TikTok.

Oh, great. So today at the DC Circuit, so that one step before the Supreme Court, a panel heard the appeal about the congressional law that requires TikTok to divest from its parent company, ByteDance, in order to continue operating in the United States. And David, what, this law is set to take effect January? It's very soon. Time's running out for TikTok.

Time is running out for TikTok. TikTok. How many? out for TikTok. TikTok. How many, oh. That was good. How many of you guys have TikTok on your phones? Oh wow, only like a third? About a third of the room. And how many of those, or I guess those of you somehow

don't have it on your phone, are you checking TikTok every day? Yeah, so that same third. No, not the same thing. Yeah, the same third. If you've got it on your phone, you're into TikTok. Look, TikTok is an addictive drug. I know that. Anyway, I was scheduled to take a shower this morning. You know my favorite thing to do when I take a shower is listen to oral arguments. The Supreme Court does not come back into session until that first Monday in October. So DC Circuit it is. And

what an interesting panel draw for the TikTok argument. It was Judge Doug Ginsburg, who is famous for being nominated to the Supreme Court after Robert Bork was Borked and then having to withdraw his nomination when it came out that he had smoked pot before. How quaint were the ages? That would not disqualify somebody now. He's also famous for, you know, he's on the DC circuit, but dresses like a cowboy. So this is sort of Doug Ginsburg's vibe, if you will,

sort of known for being a libertarian, iconoclastic, conservative, but really more libertarian than anything. Next up on the panel was Judge Naomi Rao, friend of the pod, Supreme Court on and off short lister. Is it fair to say she's thought of as a Justice Thomas acolyte, jurisprudentially? I think that's pretty fair, yeah.

Especially on administrative state, regulatory stuff, things like that. And definitely somebody who, if Trump wins again, would be absolutely in the mix for a next Scottish justice. And maybe a non-Trump Republican would be absolute. So this is somebody who's a rising star in the conservative legal movement. And then next up was Judge Sri Srinivasan,

who has been at the top of Democratic shortlists for, since the second he went on the court, I would say he was probably number one on the shortlist for the next Democratic president, and Justice Jackson, in that sense, was the surprise to jump over him. The assumption for a long time was probably that it would be him.

So that's the panel for this. It's like an all-star DC circuit lineup. Yeah, this is like the Avengers. Which made it really fun to listen to. And you had three different arguments, one from TikTok, one from users of TikTok, which was an interesting angle to bring to bear on this. And then one of course from the government.

David, it's really, you never want to be the one predicting out of oral argument, because that's dangerous. They're asking provocative questions to, like, velociraptors testing the fence sometimes. But nevertheless, I felt like the argument was more about how TikTok is going to lose and less about whether they're gonna lose. So we could see some interesting concurrences,

we could maybe even see a partial descent depending on if two judges come out one way on their reasoning as to why TikTok loses, but I think TikTok's gonna lose. Yeah, I think TikTok's gonna lose. I think there's a scenario under which you could imagine TikTok winning, but it's not the current scenario. And just to be clear, right, Congress passes a law

not banning TikTok from the United States, as I feel has been not reported necessarily, but misinterpreted by a lot of people. What it says is that bite dance, which there has been evidence is controlled by the Chinese state government. The CCP cannot own TikTok to operate in the United States. So TikTok America can still operate

as long as they don't report to bite dance by January. And the question is whether that violates the First Amendment. Americans have a right to hear even foreigners' positions on stuff. There's case law on that. Americans have the right to have opinions that, of course, the government doesn't like. They have the right to promote propaganda by foreign governments if they want to. So why can Congress ban TikTok, so to speak? Yeah, and the answer to that, and the argument for why Congress can do that,

when they could not do this to Instagram, they could not, there's just no way, they could not do this to Twitter, they could not do this to Instagram, the argument is not actually related to the expression itself. The argument is related to the information that the PRC is perhaps,

and almost certainly has capability of pulling from TikTok, about Americans. And so TikTok's algorithm depends on vacuuming up about as much information about you that it possibly can vacuum up. Location habits, who your friends are. Who your friends are. Social circles, interests, you know, and the TikTok. Political vulnerabilities. Political vulnerabilities. Are you likely to believe conspiracy theories

about this one topic? Yep. Are you a public figure who your TikTok browsing history might be a little grim. Embarrassing. Yes. So, so that's the issue. The issue is the vacuuming up of American information into the PRC.

The issue, the intelligent part of the law, the intelligent thing they did when drafting the law was to say, look, you can still have TikTok completely the same so long as it is owned by not a Chinese company. American company could purchase it and TikTok could be the same with the same algorithm, the same vacuuming of information. But so long, but the fact that that's going to the People's Republic of China. And by the way, the level of information available

to TikTok through use of the app is pretty remarkable. It's pretty remarkable. And I've said my nightmare scenario, right, is that the People's Republic of China could use TikTok to find the 10,000 Americans who are most susceptible to calls for political violence and really target them with how important political violence is, how justified political violence is, how justified political violence is

in sort of a stochastic terrorism method of trying to incite some amount of violence and they don't really care what, they just want chaos before the election. So it's less, I think about what some people have talked about swaying the election for one candidate or another. I mean, frankly, I think the PRC, I'm sure they have some opinion over who they'd prefer,

but I'll tell you what they prefer over both candidates. Total chaos, violence, insecurity and unscrupulous. I don't know if y'all can hear, but there are some kids outside having so much fun. Yeah, children screaming in a happy way. Yeah, so that's great. We like happy children and we feel bad for their parents. So the argument really centered on a few areas.

Is this gonna be under strict scrutiny or intermediate scrutiny? Did Congress need to show that they considered other less restrictive means? Like for instance, every time you open TikTok, maybe there's a little disclaimer that pops up that says the People's Republic of China can see everything you're doing.

Are you okay with that? Click OK here. To which everyone except the TikTok lawyer was like, what? No, that is not a reason. But look, on the other hand, there were very pointed questions to the government about the fact that like, yeah, it's really cute to go after the divestment aspect and the data aspect. But if the content weren't a concern to you, let's be real, you wouldn't have done this law that this is about getting to propaganda from a foreign government. And so yeah, you're fine if it divests

because you think that that will cut down the propaganda aspects of it. Yeah, and I do think that the- And propaganda is protected by the First Amendment. Propaganda is protected. People lie all the time and it's protected by the First Amendment. One person's propaganda is another person's patriotism.

And so, but the bottom line is I'm gonna disagree with the idea that this law would not have been passed but for the content because the information vacuum that is TikTok is the real issue here. That is the real issue. There is content stuff that for a lot of people is sort of the cherry on top that, okay, yeah. But if they could suck up the data but not do not then reuse the data basically through that app as well, right? That's the circle, right? If they could just suck up the data, I don't know that Congress would have bothered.

It's that they can use the data and then send stuff to those same users based on that data. And that is First Amendment protected stuff in my stochastic terrorism example. But for example, one of the reasons why the DOD took action against TikTok is they found out that the PRC was able to suck up location data about individual American soldiers. Yeah.

So regardless of whether they then use that to spit back some sort of stupid dance back at the American soldiers is not really as important as they have individual location data on American soldiers, their families, their kids. So yeah, I agree that that propaganda loop is part of the justification. But the location and other information alone is more than enough to uphold this law in my view. Kaitlin Luna A lot of the questions that the oral argument also turned around, what if we were at war with China?

Would that make any difference? Could you seriously not ban your literal war adversary from doing this kind of thing? I think we're headed towards an opinion that has a lot of the deference in times of national security regarding national security that we've talked about before. There's certain thumbs on the scale in the law. We saw it during COVID, right? We called it pandemic law. That things that wouldn't fly,

if there weren't a global pandemic, like in the middle of a crisis, you're gonna defer to the executive branch. And here it's Congress, it's not even the executive. And at one point you had one of the judges saying like, it sounds to me like you want us to treat Congress like it's an agency and Judge Raoul continued by saying, and I don't have the quote in front of me,

but she said, look, Congress doesn't do a lot, but here they actually did something. They actually passed a law and you want us to strike that down? Like incredulously? And again, it's important to note, right? This is someone who's really railed against the excesses of the administrative state.

So for her in particular, that's a credibility issue because if her whole point is Congress needs to act, and then when Congress does act, she's like, well, unfortunately, you didn't consider the least restrictive means. That, I think, would push Judge Rao off the train anyway. And of course the idea that, so under strict scrutiny, compelling government interest,

and you had to pick the least restrictive means, the TikTok lawyers seem to be saying that they have to have proof that they considered all possible means, and then from that menu picked the least restrictive effective means. When in fact, I think it's there is an objective least restrictive means to achieve that goal. Did they pick that or less? That's not like an agency where under the Administrator Procedures Act, you really need to show you considered everything, which also by the way,

we've said before, like a really bonkers standard. But anyway, David, that's TikTok. And if anyone can explain why Instagram Reels is still not nearly as good as TikTok, it's not really a legal question, but it is an important one for me. Algorithm. I know, but like, come on, they've had time. America is the best at anything we put our minds to. We went to the moon.

Why can't Instagram's algorithm be as good? That's a great question, and it actually is directly linked to a lot of larger national security issues over whether China is actually ahead of us on AI, on whether China is ahead of us on drone technology, on whether China is ahead of us on hypersonic missiles. So there's a lot of questions now. We're used to, we spent the whole Cold War as our edge was qualitative, not quantitative.

We spent the whole Cold War that our tech was better than Soviet tech. And we also spent the whole Cold War with our economy is stronger than the Soviet economy. We're now entering into a new Cold War where you cannot say American technology is better in all areas than Chinese technology. You cannot say that America over the next 20, 30, 40, 50 years is going to be able to out-produce China, have a larger economic engine than China. So it's a very different world than it was in the Cold War, where the challenge from the Soviets was a combination of ideological and military.

With China, you've got a real economic, technological, and military challenge, but Chinese ideology doesn't necessarily something that people are worried about. But there is definitely a difference between these two conflicts that America has found itself in. All right, next up, Bombshell News Report coming out of the New York Times from Jody Cantor and Adam Liptak. I'll read a portion of it. Last February, Chief Justice John G. Roberts Jr.

sent his eight Supreme Court colleagues a confidential memo that radiated frustration and certainty and then lays out the criminal case against Donald Trump related to January 6 and how it was you know headed towards the Supreme Court. The Chief Justice's February 22nd memo jump-starting the justices formal discussion on whether to hear the case offered a scathing critique of a lower court decision, the DC Circuit, and a startling preview of how the High Court would rule would later rule according to several people from the court who

saw the document. The Chief Justice tore into the appellate court opinion green-lighting Mr. Trump's trial, calling it inadequate and poorly reasoned. That is not in quotes. One more key point he complained, the lower court judges, quote, failed to grapple with the most difficult questions altogether, end quote. He wrote not only that the Supreme Court should take the case, which would stall the trial, but also how the justices should decide it. I think it likely that we will view the separation of powers analysis differently from the appeals court, he wrote. In other words, grant Mr. Trump greater protection from prosecution. The rest of the story also talks about Justice Alito losing his majority opinion in the other January 6th defendant case and the 14th amendment ballot disqualification about Donald Trump.

The reporters say, this account draws on details from the justices private memos, documentation of the proceedings and interviews with court insiders, both conservative and liberal, who spoke on the condition of anonymity because deliberations are supposed to be kept secret. David, there's so many questions that people have after this. Big picture. Is this a bigger breach of court security than the leak of the Dobbs draft? No, no, no. The leak of the Dobbs draft was like the Pearl Harbor of breach of court. What if they had printed the memo? If they had printed the memo? If they had printed the memo. If they actually had the memo in the article, this February 22nd memo from the Chief Justice

to the other eight justices? Is it like, my point is, is it the having the document itself or is it the context? Because see, I'm going to push back because in Dobbs, we were going to see that a month later no matter what. We were never supposed to see this memo. We were never supposed to see the draft. Fair.

So this is a draft opinion. You were definitely not going to see this memo. We were never supposed to see the draft. Fair. So this is a draft opinion. You were definitely not gonna see a draft. You see the final product. So, but that was an opinion in almost full. I mean, the final opinion that was released was 99.9% what the draft opinion was. It was a final opinion released to the public before the release of the actual opinion. It's was a final opinion released to the public before the release

of the actual opinion. It's hard to imagine a greater breach than dropping that opinion into the public. But this is, to say it isn't Pearl Harbor is to not say that it isn't significant. Like Pearl Harbor is like the biggest surprise attack, breach. So this is very significant. And I think what's interesting about this, so there's many things interesting. What's interesting about this is it really,

and this is gonna surprise you, Sarah, this reaffirms my priors about the opinion that in essence what was the Trump immunity decision, this is the subject of the memo, that it seemed to me that if as I read the Trump immunity decision, it was as if the Supreme Court was writing from a blank page. In other words, okay, if we have a separation of powers principles, how should immunity work in the separation of powers context? And this is our good faith, best judgment as to how immunity should work in a separation of powers context.

And it's entirely defensible on that basis. In other words, if you took nine smart people, six of them are going to think about one construct, three are going to think about another construct, both of them have a lot of strong points in their favor, especially the immunity decision was made when Trump was openly threatening to prosecute people in the Biden administration, including perhaps Biden himself. And so this was not hypothetical that a president could prosecute a predecessor because not

only was Trump threatening it, Biden's DOJ was doing it, right? So this was a non-hypothetical situation. And a court opinion read as if nine people got to, or six of the nine sat down and said, what should we do here? An advisory opinion almost. An advisory opinion, like what's the best course of action? And what really got me alarmed was when Justice Gorsuch

in the oral argument said, we are writing a rule for the ages. No, no, no, no. The rule for the ages has already been written. It's the Constitution of the United States and the Constitution of the United States. I feel like you're just relitigating your feelings on this opinion, David. I am. Not so much the New York Times leak here. I'm using the leak in a transparent effort. You'll see to go back and listen to any of David's many hours and publish newsletters

and op-eds talking about this. Yes, but rather than making you Google, I'm just repeating it. Okay, David didn't like the opinion. But the second question that people are asking about this, so first, is this a bigger leak than Dobbs? How much does this breach court security? How will the justices' interactions change based on this type of breach of decorum? But the second is a whole lot of people are assuming that a justice is the source. Right. And there's also

been noted that obviously the six conservative justices are mentioned in a negative light. Justice Sotomayor is mentioned and that she tries to reach out to the chief justice to find some area of compromise on the Trump immunity case and is rebuffed. And it really I think portrays Justice Jackson as the hero of the January 6th defendant case that her reaching out to the chief justice to find compromise was accepted. And she basically salvages through compromise and by being willing to join that opinion, the ability of a lot of those defendants to still be tried. Soon after, Justice Kentanji Brown Jackson deployed her vote to change the outcome. Her intermediate position gave her leverage.

She said she would join the majority if they would send the case back to the lower courts to be reconsidered. The conservatives said yes. The final vote was six, three was Justice Barrett siding with the liberals and Justice Jackson with the conservatives. Prosecutors would get a shot at salvaging some of the cases,

including the charges against Donald Trump. So that's sort of the rundown of all the justices that are mentioned in this news story. That's eight. Justice Kagan isn't mentioned. And so the sort of conspiracy theory on the right is that, you know, look at the person who's absent as the source, because she's able to keep herself out of the story and of course says nice things about her colleagues being, you know, the heroes or the martyrs in these other cases. I will tell you, David, that just like with Dobbs, right, there was a theory that Justice Alito himself was the leak of that.

Sure, I can't disprove that, but there's absolutely no evidence that it would be a justice again versus clerks versus who knows. I mean the main evidence is that Jody Cantor and Joan Biskupic keep getting leaks from the court term after term and how do they keep getting clerks every single year to leak stuff like this to them. You know the private memos absolutely clerks have access to that. The you know at other points because after that statement that I said about this account draws on details from, basically the rest of it isn't sourced. So we don't even know at which points Jodie Cantor, the reporter, for instance, is speaking for herself, if that makes sense,

like where she says, in his writings on the immunity case, the chief justice seemed confident that his arguments would soar above politics, persuade the public, and stand the test of time. Was that her opinion of what the Chief Justice thought? Because when she read it, that's what she thought. Or did someone tell her that? We don't know. And for the rest of really the story, there's not a lot of sourcing of whether that's her

or someone else's opinion, which is all to say, could it be a justice? Yes. Could it be not a justice? Absolutely. Yeah. Yeah. I mean, at some point, Could it be a justice? Yes. Could it be not a justice? Absolutely. Yeah. Yeah.

I mean, at some point, this is one of the interesting things where I think you guys growing up entirely in the social media era, it is normal to sort of have people who are in journalism to say, to speculate out loud about who could the source be. And it's all just that.

It's entirely speculation. It's entirely speculation. And I have reservations about that because it's the kind of thing that, you know, if we're talking, we've read this article and we're talking over dinner, who could it be? That's completely harmless conversation. But if you have any sort of position of influence or any sort of significant audience, and you're then saying, well, eight were mentioned and one wasn't, it's gotta be that one.

There are thousands and thousands and thousands of people who are gonna read that and go, this person whom I recognize as an expert has named the source. And must know something that they're not sharing potentially. Exactly. So there's this, I think the bottom line is like, we don't know who the sources specifically are.

Good reporters do not reveal anonymous sources. There are times when circumstances will unfold in such a way that you can be pretty sure you know who it is. But one of the more famous incidents of rampant speculation is the Watergate era. I was gonna say, are you gonna do Deep Throat? Cause that, oh, I was so into that as a kid. Yeah. I was like, daddy, what if we never find out

who Deep Throat is? I'll be so sad. Like, can you imagine when you're like 10 year old saying that and you're like, why don't we go outside and play? But he said touch grass before that was even a saying. I'll be so sad. Like, can you imagine when you're like 10 year old saying that and you're like, why don't we go outside and play? But he said touch grass before that was even a saying. But yeah, you know, so the deep throat,

I spent my entire life as a political nerd hearing speculation about who deep throat was. And it was sometimes really interesting and exciting, you know, is it Henry Kissinger? And then it turns out it's an FBI official that obviously was in position to know an awful lot of these things, but absolutely not the super interesting.

He was sort of the Occam's razor pick that wasn't exciting. So he was on every list, but nobody talked about it. And the other thing that happens, and a lot of people don't know this, in Washington, there's always kind of a layer of people that nobody knows, but they're always in the room. We saw some of this post-January 6th when you had the Cassidy Hutchinson testimony. So Cassidy Hutchinson was not somebody who was running the Trump White House.

She was an assistant within the Trump White House. And so assistants are always there. Like they're there. And so- And so we're deputy FBI directors, as. Like they're there. And so, you know- So we're deputy FBI directors as it turns out. Deputy FBI directors. Andy McCabe. So there's always a bigger circle, or not always, but almost always a bigger circle

of people in the know than you think. I mean, yes. I think speculating on who the league is has the potential to undermine the institution in an unfair way because we don't know. But I will say just based on my own gathering, there haven't been a ton of changes on internal court security and document cleanliness, if you will, post-ops. And so you wonder at what point the Chief Justice, now that he's been hit several times by Jodie Cantor,

he's now being hit by the New York Times, sorry, Joan Biskupic, and now Jodie Cantor. Hit by? This was a pretty big hit. I think reporting. Sorry, I mean, reputationally, this is not what the Chief Justice wants out there. It wasn't just reporting on the memo.

It puts it in a light where it looks like, how many times does it say, for the purpose of helping Donald Trump, right? That is not something that he's gonna be super keen on being out there. It's not good for the court. It's not good for the chief justice. The leaks aren't helping.

What are they gonna do about it? Well, one thing that is going to trigger additional leaks is the original leaker apparently just got away with it scot-free. So when you have somebody who absolutely drops the leak bomb of all leak bombs and they're never caught, I don't think we're necessarily close to catching them so far as I know. And so what does that mean?

It means that, oh, wait a minute, a person can leak. They can leak. And so this is a world in which leaks really in any institution are the rule, not the exception. And the Supreme Court has been the exception for a long time. Not entirely. There have been some famous incidents in the past, but it's been the exception for a long time. Not entirely. There have been some famous incidents in the past, but it's been the exception for a long time. And I do wonder if the Dobbs detonation and then the leaker gets away with it completely has meant that is the Supreme Court going to become like other Washington institutions in that way?

I did take issue with one sentence. Both conservatives and liberals saw the Trump immunity case as an epic win for Mr. Trump. No, I didn't. Oh, you didn't? I mean, look, I said the delay was a win for him for sure, but the actual substance of the opinion, I think, will leave in place three of the four charges. And indeed, the Department of Justice has now continued with all but that one charge that the Supreme Court dropped. With that, let's take some of your questions.

All right, so the question that we got is what we think of the various legal AI tools that are coming out, including Harvey, both legal education and legal practice moving forward and David, this is a topic that we talked about when lawyers were getting in trouble for turning in, you know, ghost briefs, where they were citing cases that didn't exist.

That was probably a year ago, and then less, maybe six months ago. And boy, it feels like a lot has changed in that year, in that even just six months. There are now things like Harvey coming out that don't have the ghost problem anymore. I really think that we're looking at something closer to a calculator slash a computer,

where yeah, we're still gonna teach kids how to add and multiply, but a lot of the time, we're gonna be teaching them how to use the calculator. And so I could see a world in which a lot of legal education for me was shepherding, learning how to use Westlaw and LexisNexis, as well as having to sort of start from, you know, 19th century common law, do you eat the kid on the boat when you're stranded? And it was both. I think now they're just going to have to add in, you're still gonna need to learn to use Westlaw

and LexisNexis and things like Harvey or other legal specific AI tools that do everything from summarizing the case before you read it, which can be really helpful, like provide me an outline of this before I read it so that I know what I'm looking for basically to what are the best arguments against the majority opinion? You know, if it's a three zero what I'm looking for basically, to what are the best arguments against the majority opinion?

If it's a three-zero panel and you're the lawyer, why sit around with your partners at $1,000 an hour? That's the reason why. But to save your client money, you don't need to sit around and have those brainstorming sessions anymore. You can just say, what are the best arguments? And it'll pop those out. And that's at least a great starting point for that conversation. You save your client several thousand dollars just off the bat to

hear the points I want to make in the appellate argument from this district court opinion, write me the first draft of the brief. And yeah, of course, you're not turning that in. Of course, you're going to edit it. You're going to site check it. But again, it's like a calculator where you're getting that, you know, the short work and then you're checking it in your head of like, is that, does that sound like what five times seven is? It's not 730, right? Like, so you'll know if that's wrong, but like, oh, that looks about right. Okay. I think of, you know, when I think of legal, the AI, legal AI, I think of it as something

that's going to help with a lot of law that is just rote. Because a lot of people, if you listen to this podcast and this is your exposure to law through this podcast, we focus on the 0.01% of cases in America, which are contentious, which have really strong arguments on both sides that become nationally important enough to get to, to be talked about as circuit court cases, certainly as Supreme Court cases, 99% of law is really rote application of legal principles to specific facts and incidents. And so there's always been a lot of tools available

to help you with that rote application of law. AI is not the first one. When I was coming up in, and even Westlaw was not universally used, it was so expensive that I had to get authorization to use Westlaw on a given case. And so you had to go to paper and there were all kinds of shortcuts from from shepherdization to the way in which legal treatises would have capsule summaries of case law. It was, there were tons of shortcuts,

and the shortcuts had to be used correctly, or you could destroy yourself. And so I think this is going to be another shortcut that you're exactly right. You're going to have to be trained how to use it correctly. But the bottom line is you're gonna still need the human overlay to see if the unique or unusual situations apply.

You're still gonna actually need some human check on the facts. And then of course, that 0.01% of cases, the ones that the Supreme Court contentious cases and all of these, I'm not sure how helpful AI is going to be for them. I'm sure some people in the comments section will be able to enlighten me on that. But it strikes me that you might have a very powerful shortcut tool here, but the law is not at all unfamiliar with shortcut tools.

I mean, even first drafts of briefs, every big firm that I ever worked for had a brief bank and we had them arranged by topic. And you could literally just take the whole brief, put it in a new document, and you would have a lot of the language you're going to use in your next brief, a lot of it. And so the shortcut tools have existed for a long time. I think that the danger is gonna be when they become not just shortcuts, but like actual crutches or ways in which, you know,

patients right now, if you have a serious illness, everyone's familiar with Dr. Google, the Dr. Google patient, who's done all of the research online and comes in and is telling the doctor exactly the course of treatment that they should receive. You're going to have that and you're going to have the doctor Google legal client. They're going to have AI this thing and they're going to come in and they're going to say

this is exactly what you should say and you should do. But I think it's, I don't know, I could be the most wrong about this, but I think it's as of now less revolutionary than people think. I think it's gonna kill off first through fourth year associates entirely. Extinction level event. For first through fourth year associates? Yeah, and then the problem is, of course,

how do fifth year associates get born? Yeah, that's right. They're not spawned. That's right. So, but it's a problem. No one's gonna pay for first through fourth year associates. They're useless at the law firm. It's sort of like how legal secretaries

used to be absolutely vital. And now there's very, very few legal secretaries left. It was an extinction level event, the computer and internet, frankly. So that's where I think it's headed. All right, more questions. Oh yeah, now we've got questions. Now it's coming.

It's always the first icebreaker. Yeah, So my question Was about kind of two interrelated questions about what you were saying about I guess neutrality institutional neutrality. I think a lot of things here were not just about whether princeton itself would take a stance Which it kind of did before but More about whether princeton especially like prin, would divest from, I guess, funds that had to do with Israel. Is the argument that any student who disagrees with that should not go to a private institution?

Because obviously public schools would be different, but should not go to any private institution that might have its funds touch Israel because that seems questionable? Or is that just separate from institutional neutrality as an opinion take? And on that note, kind of what you were talking about with Dobbs and the FDA, for instance, Princeton has UHS where they pay medical professionals who, for instance, prescribe birth control, prescribe perhaps medication abortions. Where does that line get drawn?

Because Princeton has a healthcare plan. Does that cover abortions and medical does that line get drawn? Because Princeton has a healthcare plan. Does that cover abortions and medical care for contraception? So like, where does the line get drawn with money and institutions and neutrality? So the answer, a robust neutrality statement should include investment as well. So if you're saying, we're institutionally neutral,

but we're divesting from Israel, you're not institutionally neutral, but we're divesting from Israel. You're not institutionally neutral. And so that is actually a much more concrete statement of institutional position is you're a politically directed investment strategy is a much more concrete statement of political position than just say, we're going to fly the Palestinian flag or the Israeli flag in the quad. And so the divestment issue, and a number of institutions that have been confronting this divestment issue have said, we are institutionally neutral on these political issues.

And so you're asking us to take the entire financial power of the university and tilt it in your political direction. And that's the opposite of institutional neutrality. It's the opposite. It's much more strong statement and much more strong in university intervention than issuing a statement and would have much the same kind of chilling effect that you have if you are making statements as well. When the institution moves and puts its weight behind one side of a contentious issue,

then what you're talking about is a, it creates a climate on the campus and it creates a cultural issue on the campus where dissenters are absolutely feel institutionally on the outside. And this is an issue when you're talking about, look, if Princeton wants to say tomorrow that we are not a major research university, that we are an ideological institution in the same way that say Liberty University is an ideological institution, and our goal, we teach math and we advance this particular cause.

Like, Liberty teaches math and it advances fundamentalist Christianity. Princeton absolutely has the ability to do that. Sure, fine. The problem that you've had with a lot of these elite institutions is they try to have their cake and eat it too. And so you come into them and they're all broadcasting words about academic freedom, marketplace of ideas, adopting a lot of the language about open inquiry

and free debate and all of this. And then you arrive on campus and you're at Liberty University and you didn't know it. And all of a sudden you see that the institution is from the very top to the very bottom is fundamentally tilted against your point of view. And a private school has the right to do that for sure. Absolutely, Liberty has a right to be Liberty.

But these elite universities, they're not willing to pay the price that comes along with being intentionally, explicitly ideological. So they try to have it both ways. They're not willing to pay the price that comes along with being intentionally explicitly ideological. So they try to have it both ways. They advertise themselves as not. And then once you get there, you realize that they are.

Okay. So what about then the point about health care? Princeton University provides health care for its students. It also has a pension plan for its professors. If there were a legal case about pension plans, surely you wouldn't think Princeton couldn't have an opinion about that since they are a large, I would think, pension plan provider. And so then why not healthcare?

So the fact that an institution has a pension plan or the fact the institution has healthcare facilities does not therefore mean it is directly invested in all questions about pensions, plans, or healthcare. One of the questions that I have is now, for example, the Dobbs decision did not in any way impact the ability of Princeton to provide services. I know, I sort of want to pick a different school as an example. Rice University. Rice in Texas. In Texas. Yeah. So they provide healthcare for their students. They're in Texas, which now passes a new law or let's just say, you know, it's up for a vote and Rice University provides healthcare for its students. Can Rice as an institution, let's say they'd signed a neutrality statement, I don't know

whether they have, say, we are a healthcare provider and we believe this would be bad for the healthcare of our students passing this law. If Texas passes a law that prohibits activity on campus that directly impacts the campus. Just like if you have a affirmative action ruling that means that you have to change your affirmative action policies. Yeah. So your point is that affirmative action case actually directly affected the university's ability to do X, Y, or Z. The Dobbs decision and Loperbright, for instance, are one step removed.

Dobbs said states now get to decide, so the universities could put out statements, for instance, based on state law or state proposals or ballot measures, et cetera. They're impacting the policies on campus. Correct, but Dobbs itself didn't actually impact every school, like for instance, Princeton. And the default position should be,

we are maintaining a platform for engagement. We have students, as much as we may dislike the pro-life position, we have pro-life students. As much as we may dislike the pro-life position, we have pro-life faculty members. And this idea that from the top of the institution to the bottom, we're going to put our weight on one side of this argument, that has a problematic effect on both students and faculty, especially young faculty who are not tenured. When you're not, you're untenured. I have had conversations with faculty members

back when I was practicing law. They were in these institutions that were weighted on one side and I would have conversations where a faculty member would shut the door and speak in a hushed tone about their political point of view. And they're at a major research university, and their political point of view wasn't that they were Nazis.

It was that they were voting for, say, Mitt Romney. Okay? Like, this is the level of intolerance we're dealing with in these universities. They need a lot of—many universities need some shock therapy to get them out of this mindset that says that they're going to constantly put the thumb on one side of extremely contentious issues. I just think you're still describing the world as it should be and the schools that are signing these neutrality statements are going to struggle a little bit.

There will be a transition. As students simply try to frame their desire for a statement in terms of how it affects students and therefore it affects the school and they end up being pressured to put out some statement. Then once again, they get charged with hypocrisy five years from now, then they put out a stronger neutrality statement and we've still got a few more iterations to go.

It's not that hard guys. They literally just need to have a little bit of a spine here because it's not like we have a- Again, the world as it should be, not as it is. But we actually have schools who do this. But they're the ones who, of course, signed onto it before they were pressured to do so, and that's the big difference, I think.

Well, and also there's another factor I think you're underplaying here. These schools who are signing these neutrality statements, many of them are being subject to lawsuits that could have really serious impacts on campus. And so this is not just happening because they woke up one morning and said, we've been misguided for 30 years. A lot of this stuff is happening because they woke up and realized, oh, I'm still facing

a Title IX complaint that I couldn't get dismissed from federal court, and that I now know that if I continue in my hypocritical path, it's just gonna cost me and cost me and cost me. And so it's the one-two punch, I think, of the Title IX litigation because of the rampant- Title VI. Title VI, yes, Title VI litigation because of the rampant anti-Semitism.

So there's this sword of Damocles is hovering over a lot of these institutions. They're not living in the same world they were one year ago today in any way, shape or form. And so I think the sword of Damocles is, and now look, UCLA and these others, they may capitulate the next time the encampments go up and they may well do that. It's entirely possible. But I will tell you this, step one to having a better policy is having a better policy. Fair enough. Step two is enforcing it.

So I'm not going to preemptively declare them failures when they've just done the very thing that I think is a wise step one. Hi. So I ask this as a non-TikTok user, but it's a question on the TikTok case. I'm sorry to ask you to speculate, but what do you think happens next if the ruling goes the way that you think it will? What U.S. company do you think is best positioned to buy or to take over TikTok from the PRC? I thought maybe Meta, maybe X, but I think there are big monopoly issues with both of those. So the first thing that's going to happen is whether the Supreme Court will then take the case. And if it's a 3-0 opinion from the DC Circuit and they all mostly agree on the reasoning as to why, there's a decent

chance that the Supreme Court says, we don't need to weigh in here. And that's the end of the line. Now, of course, if the Supreme Court takes the case, I would assume that the law would be stayed while the Supreme Court's considering it. So then the sword of sorts hangs over TikTok for a while until the Supreme Court decides it. I think the Supreme Court, based on the net choice case from last term, disclosure, my husband was counsel of record in that case, would still probably come out against TikTok.

So that's the first thing that has to happen. In terms of the actual divestment, this does get to be a tricky part because you can argue that Congress knows that TikTok cannot be divested from bite dance, that the People's Republic of China will not allow it to be because the algorithm is proprietary to the Chinese government.

They would argue potentially, they in fact have a national law there that says that basically bite dance cannot divest TikTok. So while Congress claims, of course, that it is not banning TikTok from the US, they in fact know that the result will be the ban of TikTok from the United States. And they've just come up with a clever way to do it.

And I, you know, people have that argument. I think it's too simplistic, but not totally wrong either. Yeah, you know, in some ways I think it might actually because of the PRC protectiveness of the algorithm, you might actually have TikTok go dark. It might actually go dark. I don't think that's probable, but it's more possible than I thought at first

because when the law was first passed, I wasn't necessarily think of Meta buying it or of Elon Musk buying it, but I did think there's a lot of money in Silicon Valley and TikTok is a phenomenally popular phenomenally popular social media site. There are some months where it's the most trafficked website in the world.

And so the thought that there would be no money there to pull this in felt a little strange to me, but if the algorithm is held back from the deal... It becomes a lot... I mean, the value is only in the user base and no longer in the product. Right. Over the summer, the Department of Education wrote out a new set of Title IX regulations. Of these, I want to ask about the new adjudication procedures for assault cases and harassment cases and their due process or the lack thereof. Firstly, what do you think is going to happen to these new adjudication procedures in the courts? And secondly, why do we broadly accept much weaker due process protections,

especially in sexual harassment and assault cases on college campuses in particular. Great question. Great question. So this is an area where the Loper-Brite case will matter, because what we have seen over the last several presidential terms from Obama to Trump back to Biden is a seesaw back and forth. So Title IX, the statute has not changed. What has changed is the regulatory interpretation of the statute administration by administration. So I do think that Supreme Court is going to say enough with that because you can't ... and much like in the bump stock case, in the bump stock case, you had one administration said a bump stock is lawful. Another administration says it's not lawful, but the underlying statute never changed.

So the Supreme Court is taking a dim view of the seesaw interpretations of statutes. So I think you're gonna end up with basically like, here's what you can do with Title IX and nothing else. However, I'm not so sure what that resolution will be. So I do think that the original Obama Title IX guidelines created a lot of incentives that essentially stripped due process out of the, if you read the guidelines carefully, they did not mandate the stripping of due process, but they definitely permitted it

and in some important ways encouraged it. So you begin to have a single investigator judge model often you would have inability to confront a witness, you would have lack of access to evidence against you. And the interesting legal question is, do I have a due process, a recognized due process interest in a public university adjudication process.

And if I have the due process interest in that, how much process is due? Because it is not the case that when you say due process, that means a full trial-like atmosphere. It doesn't even mean necessarily that it has to be pre-deprivation of the right. They're going to look at what processes do here. And I think that the outcome may not be as clear-cut all on one side or all on the other side as we think. So I do think that universities that pursue sort of that single investigator model,

universities that pursue the model where they prohibit or limit access to evidence against the accused or limit the accused access to information, and also provide no opportunity at all for a cross-examination of a complaining witness, they're going to, those kinds of systems are going to lose. The question that I don't know the answer to is are they going to require a level of due process

that's trial-like, where I have a right directly through either myself or my lawyer to confront the witness against me? I'm not certain how that's going to go. But I do think that the universities who sort of race to adopt a less process as a result of the Biden changes may find themselves in court trouble. And the other factor that's overlaying all of this is there are multiple circuit court decisions that govern different university systems that they have already articulated a due process standard.

And that Title IX revision is not going to change that due process standard these courts have articulated if it's rooted in the 14th Amendment. And so it's a mess. It's been a mess. It's going to be a mess until the Supreme Court really weighs in. And I don't think that anyone can predict exactly what level of process they're going to say is that minimum necessary. Do you have any insight on the implications of this brief breach and then other breaches like it on ongoing political stances taken by congressional members or the executive branch on letters of impeachment, ethics codes, all those sorts of reforms that are going on within the Supreme Court.

Yes. So you're really asking, will this latest thing affect this ongoing conversation about the institution? I think yes in the following sense. As you drive down trust in the institution, and as the institution loses some of its mystique and prestige, which these leaks do, then I think the willingness of the public to mess with it increases. And, you know, there was some pullout. And by the way, I have a whole thing on why issue polls are dumb and bad, and we use them for dumb bad reasons, this falls very much into that category. It asks people basically, do you favor adding seats to the Supreme Court? And actually not that many people said yes.

But then you ask them, do you favor term limits? And it was something like 72% said yes. And I'm like, yeah, did you tell them any of the downsides or how it would work or what it would require? No, just that sounds good. So I think any time an institution looks vulnerable, looks like it's flailing or failing, looks partisan, it becomes, you know, gets dragged into the culture war and the partisan moment even more and the Supreme Court is just getting sucked in by the riptide. Thank you guys so much for having us.

Yes, thank you.