Advisory Opinions - Dipping Into the Mailbag

Episode Date: June 7, 2022

David and Sarah breeze past three boring Supreme Court cases before answering listener questions on everything from the Ninth Amendment to hearsay rules and to a brutal discussion of their greatest disappointments. It's a potpourri podcast as a prelude to the avalanche of Supreme Court cases that awaits us all.   Show Notes: -Siegel v. Fitzgerald -Gallardo v. Marstiller -Southwest Airlines Co. v. Saxon -Gallup: “Abortion Poised to Be a Bigger Voting Issue Than in Past” Learn more about your ad choices. Visit megaphone.fm/adchoices

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You guys just about finished. Sorry. We got excited. Thanks for snagging those tickets. Make every purchase highlight worthy with the BMO Toronto FC cash back master card. Ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And Sarah, do we want to start with the good news or the bad news? What's the good news? I don't even, I'm not aware of any good news. Three Supreme Court opinions. Okay. As long as we don't have to talk about what they are. So three Supreme Court opinions. That means what? There's only 30 more to go this term? Yeah. Which in theory is

supposed to wrap by the end of this month. Um, yeah, those three opinions. Well, we can get to them in a minute. So the good news is three opinions. The bad news is everything else. Uh, the 30 remaining opinions include all of the interesting ones. All of them. So we're going to briefly run through those three opinions. We've also got more abortion polling to talk about briefly. An interesting new development in the battle over free speech involving my friends at FIRE. And then we're going to actually answer some reader questions. We're going to dip into

the mailbag today a little bit. Sarah, this is a real feast or famine life that we live, David, especially in June. We can't prepare other stuff because we might have all of these big Supreme Court opinions, but then when we don't,

we have these like backup topics. Yeah. Anyway, it today's a famine day, but it's still going to be a great time. It's still going to be a great time. But it means also that the feasts that are coming are going to be too big to eat all at once. I'm on top of problem. So let's start with one CERT grant today. It was on a statute of limitations on a private rural road. So nope, we probably won't be revisiting that one. Two, we had a CVSG. That's where the Supreme Court asked for the views of the Solicitor General's office as to whether they should take a case. Mildly interesting, David. Yep. This is whether the justices should hear a case

on Facebook, meta, now meta platform, WhatsApp. Whether WhatsApp can pursue a lawsuit accusing Israel of exploiting a bug in the messaging app to install spy software. This is the Pegasus dispute. Now, generally speaking, CVSG, which is the acronym for Seeking the Views of the Solicitor General.

Wait, CVSG? Yeah, yeah, no, it's not actually seeking. It's calls for the views of the Solicitor General. Gotcha. Okay, okay. That makes more sense. Unless it's like an old Solicitor General. Gotcha. Okay. Okay. That makes more sense. Unless it's like an old English spelling of seeking. Yeah. All right.

So that's a cool CVSG. Now, when they do that, your chances of getting that case granted skyrocketed. Pretty much no matter what the Solicitor general's office says. Remember, they did this in the Dobbs case and the solicitor general was like, don't take it. And they were like, thanks for your opinion. Oh, no, sorry. That was the Harvard affirmative action case that they that the chief asked for the views of the solicitor general. So look, at this point, they're almost certainly taking the Pegasus case, but they're going to get the Solicitor General's office involved and get their views in advance. OK, so then that's all in the 930 a.m. hand down.

Then we have the 10 a.m. opinions. Now, for those who want a refresher from last year, here's how this works. At 10 a.m. on opinion hand down days, you get an opinion. And what you're looking for on the Supreme Court website are two things. First, do you have an R number? That's like how they, you know, their file system, basically. If you have an R number, you're done for the day. If you don't have an R number, then you want to scan on over to who wrote the opinion. So the first opinion handed down today was from Sonia Sotomayor. Now, because they go in reverse seniority in handing down opinions, you know then that for any other opinions coming down, that you have to have

someone more senior than Sonia Sotomayor, which only leaves Breyer, Alito, Thomas, and the chief. Now, the chief is the most senior no matter when he was confirmed, but otherwise it goes in order of confirmation. So the first case, David, unanimous opinion. Unanimous. On the United States trustee program in bankruptcy law. Now, if you were following this, which I'm sure all of you were, bated breath, this was expected to be unanimous. That basically the bankruptcy clause requires Congress to establish uniform laws on the subject of bankruptcies throughout the United States.

Basically, Congress created a little carve out for six judicial programs in North Carolina and Alabama to opt out of the trustee program. The Supreme Court saying, nah, dog, that's not uniform. And unanimous written by Justice Sotomayor. Next. One quick thing on that one that made my, like, that was a blast from the past. The name of this case, Siegel, trustee of the Circuit City Stores, Inc. Liquidating Trust.

That's a blast from the past. Circuit City Stores, bankruptcy, liquidated. Circuit City! Yes. Yeah, and according to the impeccable researchers over at Wikipedia, to tell you how long these kinds of

cases can go, I think the last Circuit City store closed in 2009. And here we are litigating over Circuit City in 2022. I'm going to have to revise my stale lawyer's joke about the great thing about America is that everyone gets their decade in 2022. I'm going to have to revise my stale lawyer's joke about the great thing about America is that everyone gets their decade in court because it's a little longer. So,

yeah. But I remember Circuit City. Do you remember Circuit City? Oh, of course. Obviously. I remember Radio Shack. Oh, that's still out there, I think, isn't it? I think it is, actually. Yeah. Okay. So I'm sorry. So then 10 minutes later, you're going to get your next opinion.

If you don't see that R number, and again, it's going to have to be from someone more senior than Justice Sotomayor. So at 1010, we got a Justice Thomas opinion with no R number. And David and I started getting really excited because the only person more senior than Justice Thomas is Chief Justice Roberts. And so who knows? Could be anything, right? Could be really exciting.

But first, it's a 7-2 opinion from Justice Thomas. And it's on Medicaid Act reimbursement. Womp, womp, womp. Held, the Medicaid Act permits a state to seek reimbursement from settlement payments allocated for future medical care. This actually is a very sad case about a little girl who gets off the bus one day

and is struck by a truck in Florida. Okay, so 10 minutes later, David. 10 minutes. We're getting very excited. It's 1021. And, oh, it's another Justice Thomas opinion. Because you could do that too. It doesn't have to be more senior.

It could just be the same. It was another Justice Thomas opinion. And this time it was the Federal Arbitration Act. Yeah. No, Sarah, I just have to say, I really like how you're dragging this out to show people how we experience this. We start at 9.30 Eastern on these days and we're sitting there on Slack together and we're so excited. It's like, David, no whammy, no whammy, no whammy.

Whammy. And we just got whammed. We got whammied hard. Held. Saxon belongs to a class of workers engaged in foreign or interstate commerce to which Section 1 of the federal arbitration acts exemption applies. Yeah, we're not even. No. Yep. That's the end of that. That's

it. So we don't have another opinion hand down day on the calendar yet. I'm quite certain that Mondays will continue to be hand down days, even though they've not been calendared. They start adding Thursdays about this time usually. So could be Thursday, could be Monday. We got 30 cases to go. And it includes all of them, David. It includes Coach Kennedy, clean power plan, guns, abortion, obviously, and well, 26 more. Yeah, yeah. I mean, we've got at least five cases that are going to

be lit, one of them super mega lit. So yeah, we've got a lot to look forward to, but not today. Not today, Sarah. Today we had what we just had, but I do appreciate how you let others sort of step into our shoes and gave them a sense of anticipation only to let them down. All right. That's how my morning felt. Yeah. So we've got a little bit more abortion polling, and so we need to go into that as well. And this is, so this is once more a poll has come out, and here's the headline that came to me. Abortion poised to be a bigger voting issue than in past. 27% of voters say candidate must share views on abortion. Record low, 16% say abortion will not be a major issue for them. Abortion more of a key voting issue for those on the political left. Okay, tell us what this means. Gallup, Lucy put out a football. I saw the headline. It was like, oh, this will actually be the evidence that I am totally wrong about abortion playing a major role in the 2022 midterm elections and potentially, you know, bringing down that red wave the Democrats are expecting,

particularly in House races that tend to be more bobbing in the ocean water when it comes to wave elections. I mean, I just fell for this last week, David, just a few days ago. Yeah, just a few days. But I fell for it again this morning and I was like, oh, this is it. So you read the numbers and here's the implications. Gallup wrote their own little implications at the bottom. U.S. voters, particularly those who identify as Democrats or liberals, are more likely than in the past to say abortion will be a key issue for them this year. at the bottom. U.S. voters, particularly those who identify as Democrats or liberals, are more likely than in the past to say abortion will be a key issue for them this year.

If, as expected, the Supreme Court overturns Roe v. Wade, a greater share of voters than in past elections appear poised to cast a ballot to seek to move public policy in a pro-choice direction. While that should work to the Democratic Party's advantage this year in elections for governors and members of Congress, it is not clear if that will be enough to overcome the challenging electoral environment for the party. who now put abortion as a top motivating issue, A, already voted in 2018 and 2020 and we're planning to vote this year. And B, we're already voting for Democrats. The only way it can have an effect is if you either change turnout or the party in which you're voting for.

None of this polling actually suggests either of those two. What it suggests is that a lot of Democrats are now just listing abortion as a more motivating issue for them. That's it. So again, under the party sorting mechanism, Republicans were already voting for pro-life candidates, Democrats were already voting for pro-choice candidates. And under the very high turnout that we had in 2018 and 2020, very unlikely, I think, to see a people are listing abortion as a major, you know, as an important factor in their vote? Yeah, I guess. But it's also like super in the news all the time. So I'm not surprised that people sort of say what's top of mind and that abortion has gone up as it has been more in the news. But it doesn't actually mean that it's impacting

the outcome of elections. Right. I mean, you know, as you were saying, if you're talking about it's adjusting what independents think or what Republicans think, then your eyebrows raise up. But there's no evidence of that. And then the other one is, well, turnout.

Are more people going to the polls? And there's no evidence of that from this polling. Although the one caveat I would say, I think over time, if you have a minority of voters who are committed to an issue, but your side has a majority of that minority, and they're very deeply dedicated to it, over time, that leads to an advantage on the issue. I think gun control is an example of that. There's a minority of voters who, a lot of voters have sort of casual ideas about gun control. A minority of voters are very committed to the gun rights issue. A majority of that minority has been, for years

and years and years, the pro-gun rights community. And then you see this sometimes in the life issue as well, that amongst those people who vote on judges, a majority of that minority of people has been Republicans for a long time. And I think over time, it bleeds into an advantage, but not in any necessarily given any given news cycle. And I think some of the advantage that you see is actually something that comes up in the primaries much more than the general election. And indeed, we're down to one pro-life Democrat in the House of Representatives and none, no pro-choice Republicans in the House. And then one or two of each in the Senate.

Yeah, and there's an interesting piece, and I'll find it and I'll put it in the show notes, where essentially what, and it's by Rui Teixeira of the emerging Democratic majority fame, who's sort of really been, kind of ever since he wrote that, saying, don't misunderstand what I wrote. It's not inevitable that the Democrats are going to win everything. And he had a really interesting substack piece where he said that Democrats have

been misunderstanding the suburban vote, that they are thinking of the suburban vote as far more liberal than it actually is. It's a very interesting piece, and we'll put that in the show notes. But yeah, I'm not seeing any indication that this is substantially changing the electorate. Can I actually give you the biggest contraindication that I've seen in actual voter behavior? Yes. Because it's actually sort of, it's contra everything. It's contra this Gallup data, but it's also contra a little bit what I've been saying, which is the runoff in Texas between Henry Cuellar and Jessica Cisneros.

So Henry Cuellar is now the last pro-life Democrat. He represents a Texas congressional district that has a little bit of San Antonio all the way over to the border to the West. By any measure, really, the most moderate Democrat in the House of Representatives. He's challenged by a former Bernie Sanders staffer. a former Bernie Sanders staffer. Neither one gets 50% in the March election. So it goes to a runoff. That runoff was last week. And it's really, really close. It went to a recount. At this point, Cuellar has expanded his lead. He started in the lead on election night, and it's only expanded. He's declared victory. We'll see if she concedes and what's going on. But taping this podcast right now, I feel pretty comfortable saying that Cuellar is going to hold on to his seat. So what does that mean for our conversation, David? Interestingly, it absolutely blows out of the water the idea that Gallup's numbers are reflected in real voting behavior, at least in this congressional district, which, again least in this congressional district, which again,

a Democratic congressional district, pretty safe Democratic congressional district at that. And that any of those voters voted specifically for the pro-choice candidate over the pro-life candidate in a Democratic primary. So there's that. But also, David, on the sorting mechanism and this idea that everyone's already sorted themselves, you know, here's the one that hasn't sorted and we're still not seeing any real effect so that it's actually maybe not the sorting at all. It's just that it's not that relevant, which is closer to your thesis than it is to mine. Yeah. My thesis is, for those who haven't heard it, is if abortion is for all but a pretty small minority of voters is pretty far down the list of priorities. And so therefore,

but you don't really know that and you don't see that if you're online a lot because the people for whom this issue is very, very intense are very disproportionately online. Though in fairness, those people are intense about any number of issues. Yes. And so if they actually have to choose between why they're voting for one candidate versus another, it'd be much more interesting to see them have to pick

among all of those things they are intense about. Right. Exactly. Exactly. All right, Sarah. So next topic is something that's interesting in the free speech world. So this is about my former colleagues at FIRE, my great friend, Greg Lukianoff, president of FIRE, which was until today, the Foundation for Individual Rights and Education has now become the Foundation for Individual Rights and Expression. Now, why is that interesting? Why would that be remotely interesting that you've changed the name there? It's because FIRE is announcing a $75 million expansion into off-campus free speech advocacy and defense. Now, I think this is interesting, Sarah, because it's pretty obvious to me that though the

ACLU still does some free speech work, it still does, I'm not going to say that it doesn't, it is obvious to me that FIRE has perceived a void in the off-college campus free speech advocacy space. In other words, where FIRE's hallmark, its calling card, is that it will defend your free speech rights on campus no matter your ideology. And FIRE has been put to the test on that and has always passed the test. I mean, when I was president of FIRE, we had some pretty wild expression that we defended. And it still does to this day. And I think it's perceived a void out there, a vacuum out there. Many of the free speech cases that you'll see come up often come up through, say, a conservative advocacy group that

tends to take, say, conservative or religious clients. It's not going to take necessarily atheist clients. Or the ACLU is not taking many clients at all on free speech issues. And so it feels like to me, and seems to me, that they're filling a void and they're filling it in a big way. $75 million is a lot of money. And Sarah, I can't help but be nostalgic because when I was president of FIRE, and this goes all the way back to the early summer of 2004, when I inherited FIRE, there was, I think, six weeks worth of operating funds in the bank. That might have been optimistic. It might have been a little bit less than six weeks of operating funds in the bank, and I had no fundraising experience. So that was a very fun time. So that was a very fun time. The tale can now be told 18 years later. But I'm encouraged by this. I'm encouraged by this because if the vacuum is going to be filled, the free speech vacuum is going to be filled, I want it to be filled by an organization that is absolutely, and look, everyone knows I'm biased. Greg is a great friend. But I want it to be filled by an organization that is relentlessly,

relentlessly nonpartisan in its defense of free speech. And that's what FIRE has been since its founding. Here come the carrots making their way upfield, followed by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. All right. On to some mailbag. We have some good mailbag today, actually. Yeah, we do. We do.

Okay. Let's just like, let's dive into the deep end of the pool here. Would either or both of you consider sharing any professional failures? Such a strong word. Shortcomings, disappointments. Disappointments. And what you learned from them, how you improved from them. Hmm. Yeah. See, this has been a mailbag question hovering in the background for a long time.

It has. And I've been kind of not wanting us to get to it. Why? No, I don't know. It's just, yeah, it's a good question. It's a good question. And I know the answer off the top of my head. The only question is how transparent do I want to be about the answer? Welcome to podcasting life. Yes. Yeah. So I'll go. I'll go. Some people will kind of, some listeners will be able to, I'm going to conceal identities, but some people will be able to figure this out. So I was a finalist all the way back in 2016 for the presidency of a pretty significant religious liberty organization. Oh, I thought you were going to say a pretty significant country.

No, no, no, no, no, no. And or I thought even before that, you were going to say you were a finalist for like Survivor back when you were auditioning for that. They never even called me. So that's a pretty... Well, those were two other, you know, professional disappointments.

Well, the president one of the United States, that wasn't a professional disappointment because I just never tried. But had I tried, it would have been a professional disappointment. But yeah, so I was a finalist for a presidency of a pretty significant religious liberty pro-life organization, arguably in the short list of the most significant in the united states and i felt like i had a pretty good chance and then i didn't get it who knows how far down the list i actually was sarah but i it's one of those things where if you had asked me in the front end of the process do you think that you've got a really good chance of this I would have been dubious but the longer it went on and the more like people got you know when you know the the

the field was um the field shrank it got down to me and a few others then I started to think huh I think I've got a real shot at this. And when it didn't happen, it's hard to really describe because on the one hand, you say, wait, I didn't get something that I... It's not like I sat there and think, oh, I deserved it, that I was clearly the best person. This was an injustice done. I was clearly the best person. This was an injustice done. But even sometimes when you're reaching for something and you don't get it, even though you know intellectually it's a reach, but once you sort of in your mind move yourself into that position,

it can be pretty profoundly disappointing, to be honest. It can be pretty disappointing. And so- So what'd you learn from it? What did I learn from it? Yeah. The same thing I learned from another disappointment that happened two years later that was something that I haven't talked about, where I was on the cusp of a pretty, pretty remarkable dream offer in the world of media. And then my past association with this very religious liberty organization caused me to be canceled before I was even hired. So anyway, what do I, and both, again, both of these things sort

of came unlooked for, and then, but then I put my heart into them, and then when they were gone, it was much more, it was much more upsetting than I thought it would be. Look, not to get, you know, too, not to get too, you know, religious about this, but in my family, we have a saying that we are providentially limited by our circumstances. And that essentially what it means, it's a kind of a long way of saying, you just trust that this was not what I was supposed to do. That the thoughts and dreams and the hopes that I had for it, you just readjust. And then also one of the things that I learned was about this very notion of disappointment itself in the context of when you're reaching for something

and you don't get it, it really makes you sort of work through your own feelings of what a sense of entitlement is and how you can make yourself feel entitled to something that by no objective measure are you entitled to, if that makes sense. And if someone said to you, David, do you think you're entitled to this? I would say absolutely 100% not. But somehow emotionally, as you are working through the entire process, you start to kind of feel like that, if that makes sense. And then involuntarily almost. And so you have to be sort of self-aware enough to say, this thing that I didn't receive, self-aware enough to say, this thing that I didn't receive, that's profoundly disappointing that I didn't receive it. Why am I so disappointed? I never, you know, should I, is this something I

would have been entitled to? Is this something that, you know, somebody looking on the objective from the outside would say, well, that's a real injustice. No, no. So why should I feel like that? Why should I feel like that? And so part of it is just you're trusting God's plan for your life, and you have to understand that His ways are not your ways. And then another part of it is really a check on your own sort of sense of entitlement and ambition. And what is it that you think about kind of at this deep emotional level about what you're entitled to in this life? And it can be a really good check on that sort of creeping sense of entitlement that I think we all need to ward off, that we all need to keep at arm's length.

So anyway, that's my story. That was a good answer. I have so many professional failures and disappointments. It's like hard for me to get them in any sort of organized fashion that would be acceptable on a podcast. And I also think it's, I try to talk about at least one of them as often as I can to students and stuff, because I think you can look at someone's resume or where they are and think that it was a straight up path. Like I used to sort of have this metaphor in my head, if you will, of like being on a freeway. And as long as you stay on the freeway and you don't take any of the exit

ramps, you're just headed in the right way. And it turns out that is unrelated to how life works. It's more like chutes and ladders. And it can be very random and it can be hurtful and all of those things. So let's see. The first major professional disappointment happened six weeks after I started my first job and I was fired from it. This was on the Hill. I had gotten my entire sorority to help me basically mail every office in Congress. We had like a little, you know, conveyor belt of my resume, writing sample, stamps, addresses. I'd done like a little Excel sheet. I printed it all on little address stickers. And we just like got those out the door, man, about what a great press secretary I'd be. And I

got a call and I got the job. And I was like, yes, this is how you do it, right? If you send out, this is how you do it, right? If you send out, you know, 300 resumes, this all works out. And I got to the office and it was miserable. I basically cried every day on my way home from work. Everyone at the office, not everyone, that's not fair, but many of the people at the office were quite mean to me. You know, like the way people are mean, like not, not nice, like went out of their way to be not nice. It felt like to me. Um, and it's also, we're telling the slight anecdotes. It'll come into how I processed it at the time. I was asked on the first day, I was told that the most junior person in the office makes coffee. And I was like, well, I don't drink coffee and I don't know how to make coffee. And no, that's not going to happen for the people who drink coffee, feel free to make coffee,

but it is not my job to make everyone coffee. And it felt a little gendery, David, to be honest. And it felt a little gendery, gendery. And it felt also like I had come in to do speech writing and press secretary work for a member of Congress. Gosh darn it. I'm not a staff assistant. Like, you figure it out. So I was fired. And it's interesting because I called my dad on the way home. And we sort of knew it was coming.

I mean, it was a bad fit all around. And here I was, I just moved to DC. I had an apartment and a lease. I was by myself. I didn't really know anyone in the city. Um, I really didn't know anyone and I didn't even have a cat. It was just like nothing. And now I'm getting on the subway without a job. And that was like a stark moment. But what's interesting, David, it was the first time on my way home that I hadn't cried in weeks. Oh, really? Well, that's a sign.

It was a sign. Now, I ended up going through the classified ads in the Washington Post. I found like a temp job where the office was kept at like 58 degrees. I wore like a winter coat in all summer. I could not work there. It was so like physically miserable. My fingers like were blue under my fingernails and stuff. And I would hold hot water to try to warm up. It was really bad. And then I got this job from the classified ads, which was like awesome. And the best boss that I've ever had in my life.

If you ever run into someone named Kim Pyle, just give her a hug, maybe a kiss on the cheek. She's like just this incredible guardian angel and human in my life. And so David, it's actually interesting to me because I learned something different at the time than what I look back and think that I learned from it, which is maybe more interesting at the time. To your point of entitlement, David, I felt very entitled to the path that I was on and that they simply didn't appreciate my brilliance, my ambition. This was sexist. It was a bunch of, you know, cow pokes who couldn't handle, you know, whatever, whatever. And looking back, David, I think there's a good chance I was fired for being obnoxious. What?

For a lack of humility, for a sense of entitlement, for being obnoxious. Not necessarily because I wouldn't make the coffee, but perhaps the way I handled not making the coffee. Yeah. Oh, interesting. Right? Yeah. You know, and so it was a huge, huge professional disappointment. It felt like an enormous setback.

You know, they always ask in job interviews, you know, have you ever been fired from a job? And so I was going to have to say yes for the rest of my life. So, yeah, so I think what I learned from that was this path was not going to be the free way that I thought it was. I wasn't just like getting on a conveyor belt and was going to be the freeway that I thought it was. I wasn't just like getting on a conveyor belt and was going to get taken to the White House. And there was going to be a lot of scraping and clawing and just taking every opportunity I could find along the way and proving myself. And, you know, maybe one of the most important things that

I learned is the title doesn't matter. The pay, as long as you can feed yourself, doesn't matter. Having a boss that believes in you matters the most of anything. And I've never taken a job since where if I had two offers, which has not always been the case, I look for two things. One, when my alarm goes off at 6.30 a or 4.30 AM, some of these jobs, which one am I excited to get up and start the day? Even if I'm really tired and it's miserable and I don't want to get up, which one am I like, ooh, but I'm curious what's going to happen next? And then two, which one where my immediate supervisor believes in me the most and wants me to succeed and is going to be doing everything in their power to help me succeed. So I learned those two things.

But David, my next major professional disappointment, and here's the short version, and I've actually never told this story before, so that's fun. So I worked for Ted Cruz when he was running for attorney general. And then that race didn't happen because the dominoes didn't fall, right? Greg Abbott was supposed to run for governor. Rick Perry was going to not run. But in fact, Rick Perry did run. And Greg Abbott just ran for attorney general again. So there was no opening for attorney general.

The campaign ended about a year after it started. Now, we knew there was a Senate race coming up in 2012. But that's still, it was like, you know, 2011. And so, or sorry, it was like even before that, it was probably 2010. And so they were like, hey, we've gotten you this job for a year and then you'll come back. So I went and did this job for a year. I learned a ton from it, you know, some ups and downs and there was some weird moments in that job. Definitely. But we won't even get into that. That was a like a sentence pregnant with meaning. Yes. Yes, it was. So come then the next spring, they're like, great. And I was like, okay, I'm putting in my notice. And I'll, my notice. And I'm coming back to the campaign. And they were like, great. Yada, yada, yada.

Here's the address. So I quit my job. And then I never hear back from the campaign, David. Literally. Really? Months. I was emailing every day for a little while, then once a week, then once a month. They never emailed me back. So like I quit my job

and nothing. And I never went on the campaign as you, I had a title on the campaign, everything. And then it never happened. This caused a few problems in my life because I wasn't like looking for a job because I was just like, oh, they're, you know, working on the start date or they don't have the money right now. But like, I'm the policy director. Right. That's a pretty important position. Days turn into weeks, weeks turn into months. And I realized like, it's not that they're saying, hey, hold on a sec. Like they're not, weeks turn into months. And I realized like, it's not that they're saying, Hey, hold on a sec. Like they're not even answering my emails anymore. Nothing is happening. And I, it was very hard. I was unemployed for a long time after that, because at that point,

the cycle was already well underway and everyone else had hired. And I wasn't some senior person. I was a mid-level at best. And look, I'll save you all the drama from that one. But like that was one of those, like I had trouble getting out of bed times in my life. And what I learned from that is nothing. I learned absolutely nothing. Nothing. Nothing. No good came of it. There is no silver lining. I mean, I can tell you all of the very bad things that came of it. But there is something to even be learned from that, David, which is it won't last forever. Yeah. Like I had sort of, I think, built up once again, that sense that I was on a freeway, that it was a conveyor belt, that as long as I worked harder than everyone else was smarter than everyone else, you know, and just took every opportunity and worked every hour of the day that I could be awake, that like somehow that would entitle me to success. And then when it didn't, it was just devastating.

And it lasted and it lasted and it kept going and it kept going. But you know what? It passed eventually. Yeah. Yeah. And so, yeah. I mean, look, I think that when you get asked these questions at college campuses and stuff, oftentimes the question, you know, you're trying to find like a lesson to impart, but we're on this podcast and I feel like people listen to this pretty regularly.

And it's kind of important to hear the truth, which is sometimes it just hurts and you just have to keep swimming, you know, keep treading water. And at some point someone will throw a life preserver, but it might not be a few hours or days or weeks or months later. It might be a while. Yeah. I mean, you know, sometimes the thing that as you grow up and you keep growing up, I mean, I'm 53 and I'm still changing and learning and growing and maturing in different ways, is you're going to reflect differently on different points of your life. And the story is the story even about your own past isn't set as you continue to get older

and gain more wisdom. But for me, this sort of confusion between sort of between sort of desires and entitlements, that's a really difficult thing to sort through. You know, for a lot of people, the way your mind works and the way, like especially when you're in sort of an application program and you're in the process of kind of selling yourself or you're in the application process and you're selling yourself, where you're in the application process and you're selling yourself, you can kind of start to believe your own press clippings, you know?

And yeah, it makes a ton of sense. Are you crazy to think about anybody else? No, but you really do find that your heart goes where your desires go. And desires are not the same things as entitlements. And sometimes things you legitimately should get, you don't. And that's one kind of deep disappointment. And another kind of disappointment is the thing that you didn't. You know, maybe objectively, it wasn't the best for you to get.

You didn't get get and it still hurts oh man i was also so embarrassed about this afterward i like couldn't bring myself to talk about it or ask even like later what happened um i have since asked by the way and the answer was like they have no idea like it just wasn't it's not that salient in their lives. So like, they don't know. And, you know, when I worked on the Scott Brown campaign, I wanted to be chief counsel when he won, didn't get that. And then all of my law school classmates, not all of them, obviously, many of them, including my current husband,

all got offered chief counsel jobs for senators that year. I was like, wait a second. I've worked on all these campaigns. I've done all this work. I've worked on a presidential campaign like you guys have done nothing. And, you know, they were all men. I was the only sort of female in that group. And literally, like, every chief counsel on the Hill, I feel like I knew. And I couldn't get a job. And I was like, are you kidding me right now? So I feel like I've had more professional disappointments

than I have successes, David. And I'm not even sure it's close. Well, Sarah, all I know is I tried to get you in the White House. In 2015, I put pen to paper and said, Carly Fiorina, she is the outsider for this new cycle. I mean, for this presidential cycle. Again, once again, I thought you meant if you ran and won, what would my job have been? I mean, my goodness, the sky's the limit, Sarah. Yeah. Yeah, deputy president. Deputy president.

And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at

the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com dot com. Use code advisory at checkout to save. Terms and conditions apply. All right. Yes, another question. Let's get to a law question.

I really liked this question because I thought it was smart. A longtime fan of AO, I want to first commend your coverage of Dobbs so far. Here's the question. With all the Ninth Amendment unenumerated conversation, I was wondering if the Ninth and Tenth Amendment are somewhat mutually exclusive. If abortion is an unenumerated right in the Ninth Amendment, then, quote, the power to regulate abortion, there's some brackets in these quotes, but it's really well done, the power to regulate abortion, which isn't delegated to the United

States by the Constitution nor prohibited by it to the states, wouldn't actually be available to the states either. So David, I'm going to refresh everyone's memory on the Ninth and Tenth Amendment. So the Ninth Amendment. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. So this is the idea that was concerning people when they were ratifying the Bill of Rights that, well, but if we have a Bill of Rights, then someone down the line could interpret that to mean that these are the only rights in the Constitution. So the Ninth Amendment is meant to cover that, that just because it's not enumerated in the first eight doesn't mean it's not there, the unenumerated rights amendment.

The Tenth Amendment says the powers not delegated to the United States by the Constitution, so both enumerated and unenumerated, nor prohibited it, sorry, nor prohibited by it to the states, as in the Constitution doesn't say the states can't do it, are reserved to the states respectively or to the people. So David, I just wanted to do a quick refresher on like how some of this stuff interacts because the Bill of Rights, rights of course only applied to the federal government not to the state so the first amendment freedom of speech freedom of religion states could abridge any of that they wanted to uh until relatively recently we call that the incorporation doctrine so the enumerated constitutional rights uh they now have all been incorporated against the states through the 14th Amendment.

And except, so we had the big, big fun case just, what, two terms ago on unanimous jury verdicts. That was one of the two remaining unincorporated, enumerated rights. So we've got one left, David, enumerated rights. So we've got one left, David, that I am aware of. Do you know what the one is? I, if you would just ask me 10 minutes ago, I would know it.

But no, go ahead. I know, because we covered it with Judge Sutton. Yes. Grand juries. That's right, that's right. Yeah, yeah. So grand juries are an unincorporated right, meaning the federal government has to give you a grand jury,

but states don't. I don't really see that changing anytime soon, by the way, David. And then you have unenumerated rights. I don't I'm sure that there are scholars out there who have written about the incorporation of unenumerated rights, but I'm not really aware of it. But in theory, you should have the exact same distinction of incorporated and unincorporated, unenumerated rights. And then you have the 10th Amendment, which covers rights that you might have, but which are neither enumerated nor unenumerated, that can belong to the states or even to the people separately.

And so you've got like all of these buckets running around, and it does make the abortion conversation, I think, more difficult. Yeah. So I've always thought of 9th and 10th like this. And a big caveat when we talk about the 9th and 10th Amendments, there is a whole cottage industry of people out there who've done fascinating scholarship on the 9th and 10th amendments that where you could listen to them talk for two hours. This is such an interesting, rich topic. And so we're giving it a relatively short shrift,

but there is a distinction I want sort of folks to take away from this. So the concern with the Bill of Rights and the concern with enumerating rights, the benefit of enumerating rights is you remove any ambiguity. If you enumerate a right, you know it's protected by the Constitution. You know free speech is there. You know free exercise is constitution. You know, free speech is there, you know, free exercise is there, you know, um, you know, freedom from unreasonable search and seizures. It's all there. It's enumerated. It's theirs. But the concern was, can we enumerate all of the rights that people have? And if you don't, and if you try to enumerate them, you're going to leave something out. And, and we don't want to say if something's not there then you definitely don't possess a right um and so they threw in this ninth amendment which sort of says look everything that

happens before it's not the complete list of all of the rights of human beings then the tenth amendment comes in and it note it talks about powers powers So there's this whole concept that we talked about, especially in the context of the pandemic, of something called police powers. So police powers are sort of the general power of the sovereign. And the way I've long interpreted the 10th Amendment is it's specifically saying states, unless a power has been removed from them by the Constitution, states still possess that police power. And so you've got rights that are not enumerated, but states still possess a police power. And it's not clear where your unenumerated right, what rights are unenumerated, nor is it necessarily clear what's the full extent of the state police power. But both of these two provisions, we're trying to

say to the states and to the people, we understand there's more power here for states than the Constitution specifies. We also understand that there are more rights here for states than the Constitution specifies. We also understand that there are more rights here for people than this Bill of Rights specifies. And so that's led to an awful lot of controversy, an awful lot of case law, an awful lot of scholarship over, well, what are these other rights? What could they be? And that's, you know, a big part of the, not so much the 9th and 10th Amendments, but the 14th Amendment is the other amendment

that kind of swoops in here from a standpoint of protecting unenumerated rights. And voila, we've had decades and decades of controversy over this. And fascinatingly, but not surprisingly,

for the most part, the left, political left, decades and decades of controversy over this. And fascinatingly, but not surprisingly, for the most part, the left, political left, has favored the Ninth Amendment and the political right has favored the Tenth Amendment. And we saw the Tenth Amendment get all of a sudden like a lot of love and scholarship around the rise of the Tea Party movement. Right.

And you see the Ninth Amendment flare up again around conversations like abortion, for instance, or other, you know, something that you want very much to be a right that isn't enumerated. Maybe it's unenumerated. But to answer your question, Andrew. Yeah, they're a little bit mutually exclusive in the sense that you're right. If abortion is an unenumerated right in the Ninth Amendment protected by the Constitution, then it is not delegated to the states. So the states would have a floor, if you will, set by the unenumerated right in the Constitution, assuming that it was incorporated against the states, which in the abortion context, it somehow is going without saying that if it were an unenumerated right, it would be incorporated against the states. But actually, we will need them to say that if they want to say

that. Because again, grand juries, an enumerated right, not incorporated against the states, the states still get to do whatever they want. So interesting on unenumerated rights and gun rights. So I did a panel with the National Constitution Center retreat down in Miami that we were at where we talked to Judge Sutton. And Akhil Amar, Yale professor, one of the more respected legal minds in the US, was talking about- Definitely, I have a brain crush on him, by the way. Huge brain crush on Akhil Amar. Oh, he's brilliant. He's brilliant. And he made an argument, and I'm trying to remember it as best as I can, but he made an argument that was, okay, wait a minute. Even if you're going to argue that the Second Amendment really deals with militias, sort of this right of the people to form a militia and to own weapons to participate in the militia, a well-regulated militia, that the right to bear arms for self-defense

would have been encompassed in the Ninth Amendment, that there would have been no real argument that your basic ability to defend yourself would have been an unenumerated right. And I found that to be a pretty interesting sort of analysis of how you discern what some of these unenumerated rights are because he was going all the way back to, if you look at the English Bill of Rights, if you look at the law and the practice and the colonies, this is the kind of right that was presumed to exist. This is the kind of right that was presumed to exist, presumed to exist. So I thought that was an interesting kind of wrinkle on the gun rights debate from Professor Amar. I mean, that's also particularly fascinating given, I mean, he's a self-described Democrat who's pro-choice and presumably would favor pretty extensive limitations on gun rights as well.

And presumably would favor pretty extensive limitations on gun rights as well. And here he is, you know, in March, he wrote the end of Roe v. Wade for a constitutional scholar and a pro-choice Democrat. There are reasons to endorse the leaked draft opinion overturning the 1973 abortion decision and to see it as a vindication for a range of liberal priorities. By the way, I said March. I meant May, obviously. of liberal priorities. By the way, I said March. I meant May, obviously. Yeah, so Akil Amar out there saying unpopular smart things. Again, this is why I have a brain crush on him.

Big, big brain crush. Okay, David. Next up. I got a note from Father of the Pod a while back. Oh, nice. No, not a good note. Uh-oh. A criticizing note

that I had given at minimum short shrift to our hearsay conversation about the Herd Depp trial. I don't remember exactly what I said, but basically a lawyer showed, um, a lawyer asked Johnny Depp when he was on the stand about a picture that his manager had showed him on the manager's phone. And that picture was of poop in the bed. And, uh, the, her, uh, yeah, Amber Heard's attorney objected saying it was hearsay. And I sort of brushed that off as a dumb hearsay objection. And Father of the Pod was like, you're wrong. That is not a dumb hearsay objection. And I was like, no, no, no.

I actually do know hearsay. I mean, maybe not. But does anyone really know hearsay? Hearsay is kind of in your heart. But we got a lot of questions about it also from other people who were nicer to me. And so I just thought it was worth going over hearsay and kind of why it exists. So the point of hearsay, by the way, is this idea that instead of just repeating something you hear through this

game of telephone in an adversarial system, you want to put the person on the stand who is actually the source of the information. And so that way on the stand who is actually the source of the information. And so that way you can cross-examine the source of the information and not simply someone who heard it from that person. That's sort of the reason behind it. But there are exceptions to hearsay, as you can imagine. Um, so excited utterance is, I think, one of the best examples of a hearsay exception, David, because it gets to the whole philosophy of hearsay in the first place. So this is the idea that if this other person makes a statement relating to a startling event or condition while they were under the stress of excitement, then you can repeat what that person said.

The idea being, David, we don't think people lie when they're scared. Right. And so you don't need to cross-examine that person as much. If they go, ah, a gun! Yeah. You can say, they said, ah, a gun. And what did you take that to mean? Well, I took it to mean they saw a gun that they weren't expecting to see.

And so there's a whole bunch of hearsay exceptions that fall kind of around that idea, the idea that you're not lying about this thing and we kind of know it because that's how human beings work. Yeah, there's a lot of pop psychology. Yes, there is. In the hearsay exceptions. And like Blackstone era pop psychology. Oh, yeah.

Yeah, this isn't 20th century pop psychology. This is like way back in the day. Recorded recollection, records of conducted activity document that was created by, you know, a criminal case, for instance, and not have to have a person on the stand who created that document as long as the document was, again, because that's sort of vouching itself for the authenticity that it's probably truthful. that it's probably truthful. Family records, documents that affect an interest in property. Again, that tells you about how old this was, that we were still putting property rights as the ultimate thing that we would need to do. There's so many, and you have to memorize them all in law school. Judgment of a previous conviction. Okay, but David, why did I think that it wasn't hearsay to show the phone? Because there's another big bucket of this, which is that when you're not saying it

to the truth of the matter presented. So if you're asking Johnny Depp to prove whether there was poop in the bed and he talks about a photo that someone showed him, that would be hearsay. But if you're just asking Johnny Depp what he was thinking that day, Tuesday afternoon at 2 p.m., and then he mentions that someone had just shown him a picture of poop in his bed, it doesn't really matter whether there was actually poop in his bed. What matters is that Johnny Depp at that moment thought there

was poop in his bed, and it changed his decision of whether to go back to his house, which is what he was actually testifying about. So it's a difference between saying, I was mad because I thought there was poop in my bed versus I was mad because there was poop in my bed. That's right. One is hearsay and one is not unless Johnny Depp himself saw poop in his bed.

But again- Let's see how many times we can say poop in his bed in one podcast. So I don't know if that made anything more clear or less clear, but to the extent it made it less clear, it's actually a pretty good sign that you're picking up on what the hearsay rules are throwing down. What do you think, David? No, yeah, that makes a lot of sense. And one of the things, hearsay rules, some of them are really easy to grasp and understand. One of them that's really easy to grasp and understand is admission of party opponent or a statement against interest. That's another good one on the lying, the pop psychology.

You probably don't lie to hurt yourself or to embarrass yourself. Right, exactly, exactly. And then some of them are kind of hard to figure out so that before every trial I ever, and I didn't have many trials, but before every trial, I would go back and I would read and reread and read and reread these hearsay objections. Because one of the other things is if you don't object, if you don't object in the moment, you waive the objection. So one of the things that you end up doing is spending a lot

of time thinking about and worrying about in a trial circumstance, especially if you try cases infrequently as I did. I mean, if you're doing it all the time, it just gets to be second nature. But if you try them infrequently as I did, then you're paranoid. You are paranoid that you're going to let something through that you should object to. But at the same time, you don't want to be the objectomatic because it's annoying for a jury. If you're just jumping, bouncing like a pogo stick up and down from your chair objecting. So you got to object wisely. Yeah, I was paranoid about that. There was sometimes in the middle of the trial, before I would go to sleep, I would reread the hearsay objections.

This gets to a whole study idea, David. Do you study more and eat into your sleep, or do you study less and get more sleep? I very much 100% fall into the learning while sleeping school of thought. And so I will not look at something if it means that I could get more sleep. But I know some parents out there who are like, no, no, spend another 20 minutes going over that. Oh, I am a person who I cannot sleep if I feel like I need to study more.

But if I feel like I've got it, I can go ahead and fall asleep. But yeah, but I cannot, if I feel like I've left some, if I've left some effort on the table, you know, I didn't give 110%. It was only 109%. How many all-nighters do you think you've spent in your life? Oh, many, many. Yeah. I think I've had none.

None? Not one? None. I've never, not for work-related reasons. There were multiple, multiple all-nighters that I did in the law firm, that I did in studying. No, I don't believe in them. My favorite all-nighter ever was the fault of one Judge Sonia Sotomayor. Readers or listeners may remember that that's the first case. The first motion I ever argued in my life was in front of Judge Sotomayor. Well, it was a part of a big trial, and she had a rule. This was all the way back in 1996, I think, 96, 97, that parties had to agree

to jury instructions. So you had to submit agreed upon jury instructions. And I got on a conference call with opposing counsel, senior lawyer and me, junior lawyer, at about three in the afternoon on one evening or one afternoon. And we went about three hours, weren't agreeing. Do you want a break? No, we don't need a break.

Do you need a break? No. So then it becomes a test of wills. Nine o'clock, you need a break? No. Midnight, need a break? No. 2 a.m., do you need a break? No, I'm good to go. We negotiated jury instructions for about 14 straight hours from three in the afternoon until about 5 a.m. the next morning. But we reached a degree. Yeah, this goes against my philosophy. I've slept in my office. I've gotten two hours of sleep, many a night on a campaign. But you will not deprive me of all sleep because I feel like that's where your brain actually is able to clear out some old stuff, actually create little neurons for the new stuff you need to remember. And so the worst thing you can do for your own performance in any job or writing task is to pull an all-nighter.

So I don't do it. It's very sound. It's very sound thinking. I've never not regretted an all-nighter. So it's very sound. I'm not saying mine is the way. I'm just saying that was the way that I chose and it is not necessarily the best path. All right, David. I think we're going to save the rest of our mailbags for the next time that we get whammied by the Supreme Court this month. And I feel like it might not be the last time.

No, I'm pretty sure. Because when you're talking about five or six really interesting cases out of 30, yeah, I'm not saying don't tune into the pod. I'm just saying we might have more mailbags. We might have more mailbags. Which, by the way, if you are a member of the dispatch and want to put in some of your big picture questions or a mailbag,

this episode would be a good one to put in your mailbags because this is what I'll look for then for the rest of the month for our mailbag questions. Great point. Great point. All right. Well, thank you everyone for listening on a slow Supreme Court Monday. We appreciate you hanging in with us. Please rate us on Apple Podcasts. Please subscribe and please check out thedispatch.com. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over,

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