Advisory Opinions - Evangelizing vs. Proselytizing

Episode Date: April 3, 2025

Sarah Isgur and David French discuss Wisconsin's unemployment tax case, which touches on the intersection of religious liberty and legal standards. When is an institution operating primarily for religious purposes? The Agenda: —We don’t cover internet beefs —Trump v. All —Can Catholic Charities keep its tax-exempt status? —Wisconsin Supreme Court races are vicious and cruel —Generalists vs. specialists —Evolution of activist legal organizations —Answering listener questions about Trump running for a third term in office Show Notes: —Catholic Charities Bureau v. WI Labor Review Comm'n oral argument Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French. David, we have a lot to get through. I want to start with a little bit of sausage making so that people understand how we approach what we're going to cover on the show, especially as frankly there's so much to cover

and we're having to do more picking and choosing. So for instance, right now, there are seven emergency docket cases pending at the Supreme Court. Almost all of them have the word Trump in the title. seven emergency docket cases pending at the Supreme Court. Almost all of them have the word Trump in the title. Trump v. JGG, Trump v. Washington, Trump v. New Jersey, Trump v. Casa.

These are the preliminary injunction, nationwide injunction cases that we've been sort of talking about the nationwide injunctions as a theoretical matter. And I've said, for instance, they're like, well, for me, I'm not that teed up on all of this because they're temporary, because they're appealable. And in like three or four months, you get it resolved by the Supreme Court,

a whole bunch of other judges have seen it. It's still only temporary until the rest of the case is litigated. But how are we deciding when to cover the actual nationwide injunctions and the substance of them? Yeah. So first, my general and our general default rule is if it's a nationwide injunction coming

from a district court that we know is going to be immediately appealed, just immediately appealed, our general view is to keep our powder dry until we get the circuit court decision, which comes usually within a matter of weeks. And the reason for that is we could be chasing our tail. As we had with Judge Costa, you could have nine different cases, eight come out for the White House, one comes out for Trump or against Trump. And then what are we gonna do? Ignore the other eight and laser in on the nine? The reason why you wait a little bit for the circuit court

is that's when the actual decision-making, the legal decision-making process starts to get a lot more consequential. Let's sort of think about it as this pyramid where you have the broad base, and of course the narrow tip at the top. One of the reasons why we cover circuit court opinions so much is that circuit court opinions are more often not the final rule of the case.

The vast majority of the cases that go to circuit courts do not go on to the Supreme Court. There are very important issues that do ultimately get decided by the circuit courts. And so we do cover those. Also, the circuit courts tee up the Supreme Court. And so if it's a very Supreme Court worthy case that a circuit court is weighed in on, it's very much worth describing that

because that tees things up. That frames the case. A perfect example of that would be Texas or Free Speech Coalition versus Paxton, where you had a really unique, in my view, Fifth Circuit opinion that influenced dramatically the question presented to the Supreme Court. This was that rational basis review

applied to a Texas anti-porn statute. Very unusual to apply rational basis review in that context. And it also made the question presented in the Supreme Court kind of interesting and unique. So that's why we really do focus on courts of appeal, not all courts of appeal cases, but important ones and the Supreme Court. And then also Sarah, there's this whole other category

of legal dispute, we'll call it, that we don't tend to cover at all. And we'll call that the Twitter argument. And there's a really good reason for that. So if you're brand new to the podcast, you're not going to hear us adjudicate a Twitter battle between JD Vance and say Billy Binyon or somebody from like a Reason Magazine legal writer or the back and forth that you'll see between law professors and things like that.

One, I think it'd be a much worse show because it would be like just covering the internet of beefs, right? And other people do that very well. Like one of my favorite podcasts that I'd listen to is Blocked and Reported. And it covers sort of that world of internet beefs, and especially those that kind of get weird

and niche and consequential, but also oddly consequential very, very well. That's not what we do. I'm just, I don't think that's something that is our core wheelhouse. But that becomes a little bit more difficult to stay out of it when it feels like you're watching some sort of real world oral argument

on Twitter sometimes, or not oral argument, tweeted argument on Twitter, where everyone's engaging in grandiose proclamations about the core identity of the executive as the embodiment of the will of the people, or waxing eloquent about due process here, or doing these other trending legal arguments. The reason that we don't weigh in on those,

there's really a couple. One, often they're extremely difficult to cover in a way that is consequential, because the arguments themselves are that is consequential, like because the arguments themselves are not really consequential. And then the other reason is all of them, or almost all of them, are covered, use it with bold declarations based on very limited information. The bold declaration might be right, but if the information, based on whether they, their current perception of the limited information, but you the information, based on whether they, their current perception

of the limited information, but you're one tweet away from the limited information changing. And so we've seen this happen in a number of disputes where you had totally innocent person who's like, pure as the driven snow is in El Salvador prison. And then the administration comes back, no, he's a grim murdering associate of terrorists. And then there administration comes back, no, he's a grim murdering associative terrorist.

And then there's a response, wait, that was based on one confidential informant who was later discredited. And you just go back and forth and back and forth. And that's why you wait for the court proceedings, because that's when you have the actual sworn evidence, that's when you have the actual facts of the case start to, and the evidence, when I say sworn, that makes it very important. It's not spouting on Twitter.

Yeah, underline that word. Yeah, it's under oath. So you're gonna take it more seriously. You have documentary evidence. And so as frustrating as it sometimes can be to maybe wanna tune into a podcast, a legal podcast to resolve the legal dispute that you've been furiously tweeting about all day, that's 99% of that stuff is really premature. Now one of us may weigh in at any given moment on Twitter that says, well, that's not actually

what this document says, or this assertion of what this Supreme Court case means is wrong, but that's not really podcast worthy. That's just a quick interjection into a dispute to say X or Y, you're getting X or Y wrong, or just just sometimes a fun snappy retort, like when somebody says, we don't give due process to illegal aliens. Like, how do you determine if they're illegal

absent of process, right? But that's the whole podcast. That would be the shortest podcast in the world. So the short way of saying it is we're really trying to focus in on when disputes are legally consequential and when we have enough information, record evidence, etc., to really create informed and intelligent opinions about consequential legal disputes. And if you want to see our tweet links views on any given dispute, you can see that on

Twitter. But neither one of us are like volume users there on social media. No, and less and less as the days go by. Okay, I'll just be like the fly girl, like repeating parts of the chorus here, but it reminds me a little bit of how we've explained that we don't do celebrity murder trials or whatever. And there's a few reasons for that as well.

One of them's the same, which is facts. We don't arbitrate facts on this podcast. We don't know the real facts. We're not here to tell you the real facts. That's just like, we're not experts on that. Why would we know the facts better than you would? Also, for those, we're not on the jury. And so the things that you see in the internet or even watching on television, if it's a televised celebrity trial, are not the same as what the jury sees. And you always have to keep that in mind when you're covering these if you're actually

trying to tell people what the outcome might be. So when you're thinking about these preliminary, well, almost pre-preliminary injunction things, there's a lot of factual disputes in a lot of them. And we're not going to cover that for the most part. He says this, she says this. And then we have no way to tell you which one's true. And as David said, then the facts evolve.

And then the second part to emphasize, it's the sworn part, David. A lot of people say a lot of things on Twitter. And then when they go into court, they don't say those things. And nobody seems to notice that they don't say those things in court when they have to sign an affidavit under penalty of perjury. And related to that, perhaps, is also the fact, and this has been so true in the immigration tweets, I'll just say, and stories, the two sides are asymmetrical. So DOJ only speaks through their filings.

Whereas if you're a defendant or you know these are often civil proceedings so you know whatever if you're the person who has been picked up you go immediately to your lawyer who goes immediately to the press who says like this is a Boy Scout who has all these lovely things about them and is contributing to society and then you hear nothing from DOJ for a while. And so then all of these news stories happen credulously reporting this very one-sided version when we know there's got to be another side. We just have to wait for the court part. And then as you say, David, it's almost this like shifting burden problem.

Then DOJ says like, nope, stone cold killer. And then they say, well, nope, that's based on false information. And then DOJ is like, well, here's our witness. How false is that now? And they're like, oh no, that tattoo is something else. And DOJ is like, no, it's not. Like factual dispute. We do legal disputes. And when you get to the appellate level,

we more or less take the factual findings of the district judge, who has then determined all of that for us, gotten it all out in the open and said, you know, here's where things ended up. Now, let's talk about how to apply the law. This is a how to apply the law podcast. So when we think about these seven emergency docket cases pending as of Wednesday morning, as I said, almost all of them are Trump related, and they're all going to be

legal questions. I'll read a few of them. Whether the Supreme Court should vacate the district court's order blocking the Trump administration from summary removal under the Alien Enemies Act. Well, there you go. That's your Venezuelan preliminary injunction case. Whether the Supreme Court should vacate the district court's March 10th order, which requires the government to immediately reinstate millions of dollars in federal grants that had been terminated. And by the way, note, March 10th order, it hasn't been that long. You know, for all the flip out over nationwide injunctions, March 10th, it's now pending at the Supreme Court within three weeks.

I don't know. Is that a huge problem we're trying to solve? Whether the Supreme Court should stay the district court's injunction ordering six departments and agencies to immediately offer reinstatements to over 16,000 employees who were laid off. That's your Office of Personnel Management versus American Federation of Government Employees. And the list goes on and on. So we will update you absolutely as the Supreme Court decides those emergency docket cases. Speaking of the Supreme Court, David, we had an interesting oral argument this week. Let me tee up the facts because we have like a meta conversation to have about the oral argument,

a substantive, we'll start with the substantive conversation. This is about which religious entities have to pay the state's unemployment tax in Wisconsin. So I'll read you just a quick section from the introduction of the brief. This case is about whether Wisconsin can pick and choose which religious groups to tax based on the state's own cramped idiosyncratic understanding of what constitutes quote religious behavior. Specifically, can Wisconsin disqualify Catholic charities

from an otherwise available tax exemption because in keeping with Catholic teaching, it hires both Catholics and non-Catholics, helps both Catholics and non-Catholics, and does not proselytize those it serves. So, Wisconsin law exempts certain quote churches and religious quote non-profit organizations from paying taxes into the state's unemployment compensation system. So, like, the Roman Catholic diocese definitely does not have to pay the unemployment tax. But it held that Catholic charities, which is separately incorporated in Wisconsin,

does have to pay the unemployment tax. It does not count as a church or nonprofit organization that's religious because it's not doing quote, typical religious activities like helping the poor. Nobody thinks of that as being religious in any nature. Basically their argument at the Wisconsin Supreme Court was, yeah, but secular groups help the poor also. So it is not a purely religious activity. And so David, this was off to the races and we'll put this in the political context as well. Remember the Wisconsin Supreme Court has been

a bit of a lightning rod politically in the state of Wisconsin. It had been controlled. It's a nonpartisan election for the Wisconsin Supreme Court, but I'm going to use the terms Republican and Democrat because the parties do endorse candidates. The state had Republican endorsed justices in the majority for a while, and then it went back to having after a big, huge, very, very expensive election, Democratic majority on the Supreme Court in Wisconsin. Of course, there was just an election this week where once again the Democratic endorsed candidate won the seat. So it will stay in that, you know, Democratic endorsed control. And because it has been such a lightning rod of money, it has become a lot more polarized and a lot more ideological than you'd think the Supreme

Court in Wisconsin and otherwise purple state would be. And you're using words that are very nice euphemisms for vicious and cruel. These races, whoa. Yeah, the races are vicious and cruel and it leads to a Supreme Court that I think is less ideologically balanced, especially for a purple state.

You expect it to be kind of moderate and it's just not. Like when it comes to redistricting rules and now Catholic charities, the pendulum swings violently back and forth depending on who wins these elections. And I guess because it's a purple state, you have all these millions and millions of dollars pouring in that make it more vicious. So with that political backdrop, the Supreme Court granted cert in this case. And David, I mean, you've pointed this out before, but like, this is one of those cases that the second they grant cert, you know what's going on.

Yeah, absolutely. This is a case that, you know, most of the time when a religious liberty case comes to the Supreme Court, we kind of, we highlight the cert grant, talk about the cert grant at some length, we'll talk about the oral argument at some length, and sometimes we'll talk about the opinion at the length of the whole podcast. Because these are the cases that make history. Your major religious liberty Supreme Court cases are the kinds of cases that get taught in school 50 years from now. This will not be that case because this is one of the very rare, and we talk all the

time about what the Supreme Court does and doesn't do. One of the things that we say is that it tends to resolve, say, circuit disputes. If there's a confusion at circuit court level. It resolves circuit disputes. It's not a court that's going around looking for a wrong decision. It's not a court of error correction. You'll hear that all the time from the justices. Exactly. So they're not roving the legal territory of the United States looking for every circuit

court or state Supreme Court decision that they disagree with. And I would guarantee you if they did that, there would be probably more than a few that they would have disagreement with the outcome. But if they did that, it's an out of control amount. We talk that, hey, Supreme Court, you should decide more cases, maybe 20 more, 30 more, not 500 more or 1,000 more. That's not what we're talking about. So it's not a court of error correction. It's not roaming the land looking for wrong cases. But every now

and then, the wrongness is so offensive to the nostrils, the aroma of wrongness, they just can't get over it. And so they're going gonna accept cert on this case. And so the moment they took this case, it was like, okay, the court is not an error correction court except right now. Right now on this one, it's an error correction court. So for instance, much of this argument turned on this quote in the Wisconsin statute that to get the exemption, you have to be, quote,

operated primarily for religious purposes. So you're gonna spend a whole lot of time on exactly what operated primarily for religious purposes means. As I said, the Wisconsin Supreme Court said that Catholic charities was not operated primarily for religious purposes because helping the poor is not religious per se. Secular people do that. They weren't evangelizing. They weren't proselytizing. And by the way,

the oral argument, we spent some amount of time on the differences between those two words, which I had never given any thought to whatsoever. David, did you have a strong sense of the difference between evangelism and proselytization? No, the only difference that I really in my life had thought about is the difference between evangelization and proselytization is that if you're doing the evangelizing, it's evangelization. And if you don't want the evangelization, it's proselytization. That's the difference. That's the difference right there. Well, during the oral argument, the advocate for Beckett Fund said that the difference

is evangelism is sort of speaking about your faith and proselytization is conditioning your service. So if we say the Lord's Prayer together, I'll give you this soup. If you attend mass, we'll give you a shelter for tonight. I totally disagree with that distinction, but I don't think it matters at all. Versus evangelizing would be, here is the soup, I give it to you in Jesus' name.

That's evangelizing. You're not making the person do anything to get the soup, but you're expressing- I would call only Christians get this soup, I give it to you in Jesus's name." That's evangelizing. You're not making the person do anything to get the soup, but you're expressing- I think I would call only Christians get this soup assholery. No, you're not saying you have to be a Christian. It's saying you have to attend mass. Oh, oh, oh, oh, gotcha, gotcha. You have to go through this thing with me so I can show you how great my religion is. Oh, no, that's like, that's another form of assholery. It's coerciveness. Yeah, yeah, yeah, yeah, yeah. Yeah, so proselytization, they argued, is coercive.

Evangelizing is just leaving it out there. Right, right. This is why I'm telling you why I'm doing this thing for you. You don't have to do anything in return. Anyway, that's a bit of a side note, but I do like words and I like to know what they mean. And now I'm just waiting for the comments that say, I run, I have saved hundreds of lives and all I ask them to do is read a gospel tract before I operate on them. How dare you, sir.

Okay. So I guess let's do the substance first because operated primarily for religious purpose, it really turned on whether the motivation behind an organization's work was religious, okay? Yes, in Catholic Charities case. Or is it the activity it performs? Is that the purpose? In which case Catholic Charities would not count. That's fascinating to me, just that semantical difference that you can read that or operated primarily for religious purpose, differently, except almost all of the judges, justices, sorry, definitely thought it was motivation.

Like purpose is motivation. The purpose is not to help the poor, if that makes sense. The purpose is to help the poor poor, if that makes sense. The purpose is to help the poor because it is your religious calling. The religious calling gives you the purpose to help the poor. Yes. Right, it's a motivational test.

Versus like what the activity alone is. So then the next question is, well, if Wisconsin's saying that you have to evangelize or proselytize, and really, they were evangelizing doesn't count. It has to be proselytization in their view. Does that discriminate against different religions? I mean, obviously it does. So Catholics then wouldn't get the exemption, but let's say Baptists would. Jews definitely wouldn't get the exemption because it's actually against their religion

to proselytize or even really evangelize, depending again on probably how you define that term. But, you know, maybe some Methodists would or something. And Wisconsin actually had an interesting answer to that, David, because at first you're just like, this is nuts why you would basically give it to what looks to be Protestant denominations and nobody else. Right. Especially with the history of anti-Semitism and anti-Catholic sentiment

throughout these parts of the country, like, oof. And now Wisconsin's answer though was not crazy to me. Still a loser argument by the way, to give you the spoiler. But they were talking about like the purpose of this law is so we don't have to get entangled into unemployment disputes. So if you are out there doing proselytization and say like, you have to say the Lord's Prayer

before I give you this soup. And that person says the Lord's Prayer incorrectly, so you fire them. We, the unemployment person says the Lord's Prayer incorrectly, so you fire them, we the unemployment, you know, division of the Wisconsin government, don't want to have to sit there and decide whether in fact they said the Lord's Prayer correctly or whether that was a pretext for their firing. Whereas if you don't proselytize, we can decide whether you showed up on time to work at Catholic charities, whether you did in fact dole out the correct amount of soup,

that's a secular thing you're doing. So there's no religious entanglement if you're not doing a religious thing, even if it's religiously motivated. We don't care about your motivation. This is just about unemployment. And Justice Kagan was just having none of that. was just having none of that. So, I mean, Justice Gorsuch and Justice Kagan were the two movers, I think, at oral argument in this case. Justice Jackson spoke quite a bit, a little harder to decide where she's gonna come down on this.

But Kagan and Gorsuch were not hard to pin down. They are very much, I mean, as you said, David, they took this case for a reason. Motivation is the primary purpose, not the activity itself. And if you're talking about entanglement, like as the reason why you're discriminating between denominations, how is it not entangling just at an earlier stage to decide whether they're doing enough religion?

You know, as Justice Kagan was asking, like, what's enough? If you post a leaflet on the front door that says, I'm doing this because I love Jesus, is that enough? And they're like, no. And she's like, what if I make the sign of the cross when I give you the soup? No. What if I make you make the sign of the cross? Yes. Like, I mean, how is that not entangling as well in terms of what is religious? And, you know, that was basically, substantively the end of this. There are some interesting questions

over how Wisconsin loses this case. They can lose, not even in more narrow or wider ways, but it's a real menu of options for just which way the Supreme Court goes down this road. But I think they'll pick the discriminatory way that you can't discriminate against different types of religions in terms of giving this. But Wisconsin had an interesting pushback at the end to that, which is we do that all the time. Think about, for instance, the Obamacare individual mandate. If you had a religious objection to an individual mandate, then you don't have to be part of the individual mandate.

Some denominations will have that objection and some won't. But it's just so different when it's an individual and the thing itself is about the religious objection to that specific act. I think that's very easy to distinguish between, nobody's talking about that you have a religious objection to unemployment insurance. It's the exemption applies to some religions

and not others. And I really felt that like the oral argument to me was, here's what we wanna do. We're going to rule for Catholic charities. There's no question about that, y'all. We're ruling for Catholic charities. But here's what we don't wanna do. What we don't wanna do is create a scenario

where you can take a secular activity and just religious and make it religious by your own fiat and then exempt yourself from all, get all of the benefits of tax exemption, et cetera. So let's take an- I started a restaurant because I love Jesus. Yeah, or I, yeah, I belonged. How dare you tell me that my first church

of tire rotation and balancing is insincere. I'm entitled to religious exemptions from unemployment tax. So that's what they don't want. They don't want you to sort of say, okay, whatever I do, anything that I do, if I say that I'm doing this because of my faith, that therefore you're golden

on all of the religious tax exemptions. So it was very obvious to me what was going on, which was how do we write an opinion on a 90 to maybe 81 basis that recognizes what's as plain as the nose on your face, which is, if there is anything that the church does that is part of its religious mission, it serves the poor. I mean, literally, you will find in raw numbers in the scripture more admonitions to serve the poor than you will find to evangelize. There are more admonitions, more admonitions. And so, if somebody is out

there serving the poor and someone's evangelizing, of course, you're both engaged in traditional Christian religious activity, but the idea that the serving the poor is the less religious of them is mind blowing. So that's, to me, I was, I was watching the oral argument, I mean, reading, reading oral argument and the, and it was just obvious from five seconds in, which is Catholic charities is going to win and the Supreme Court really does not want to make it for it to win in such a way that you can just kind of create a completely self-concocted exemption from tax law. How do you do that? And that to me is what was the whole oral argument was about in my view. It also highlighted, I think once again, what makes Justice Barrett different.

And again, this is my like two dimensional Supreme Court game. She is not different on that x-axis ideologically. What she is different on is that y-axis and you know, I've called it this institutionalist axis, but honestly that has like a whole bunch of different items in that bucket. Consequentialism is one of them. Not writing separate opinions, like speaking as an institution is one of them. But another one is that something slightly different than consequentialism, it's practicalism. Justice Paredes' argument was just being very practical. So she, for instance, at one point asked, like, okay, how are we defining a religion? Like, you know, if you're helping the poor

and saying that's part of my religion versus helping the poor and it's not, like, what if that other person wants a tax exemption and say that it's their religion also to help the poor, their religion being not wanting to pay unemployment tax? Right. You know, we'll get to the more philosophical areas of oral argument here in a second. But the answer was this very poetic answer about the creator. And Justice Bear was like, stop, stop. I can't write an opinion like that.

How am I writing an opinion defining which ones are religious and which ones aren't? Waxing poetic. Nope. Stop again. Clearly, no. I can't write the opinion that way. Never mind. She moved on. Very practical questions coming from her. As time goes on and we see,

I think more why high institutionalist judges, I'm refining my definition of what all falls into that institutional bucket and why she is such an institutionalist, even though at other points, it's not the same institutionalism as the chief justice, for instance. I really hope, Sarah, that practicalism can move into the sort of national conversation

in the way your 333 formulation did, because I think it's a subtle and important difference from consequentialism. I think you really hit something important there. It's an almost kind of judge version of the office space meeting with the consultants where they say, what is it you say you do here, Bob? In other words, just explain it to me like I'm five. Like, what does this mean, right? And there's just a kind of, yeah, I really like that.

So make it so listeners of advisory opinions, introduce practicalism, spread evangelized practicalism as a word. I think that's pretty much good on the substantive stuff. The only thing we didn't really talk about is like if Catholic charities had organized itself with the Catholic church, this wouldn't be a problem. It really is that they separately incorporated,

but they're called Catholic charities. They are still run by religious figures within the Catholic church. So there was some discussion over whether like, are you coercing religious organizations into different corporate forms than they would otherwise pick? And is that okay or not okay? Is it coercive or just incentivizing? Where do we draw that line? By the way, like evangelizing and proselytization, coercive versus incentivizing are very much in the eye of the beholder. I mean, those really are largely the same. And we haven't talked about the state law versus the federal law, but frankly,

that's a little in the weeds for our purposes. I do want to talk about the oral argument because you had the advocate from Becket Fund who was representing Catholic charities. You had Curtis Gannon, who we've talked about before, from the Solicitor General's office. Curtis clerked for my judge and he's a dear friend. So that's my disclaimer on things I say about Curtis. And then you had the representative from Wisconsin, from the Wisconsin Attorney's General Office. David, on this podcast, I am quick to point to oral arguments that law students should listen to, to learn how to do oral arguments.

I try to flag those when I hear them and I listen to the oral arguments and David reads them and we do this mostly on purpose so that we can have sort of different flavors of the oral argument. David, we also try to have a kind podcast. David Keltner Right. Lauren Henry This is, it is also important, I think, if you're only listening to great oral arguments, you may not know what makes one great versus not great. So I'm going to do something I don't think I've done a lot on this podcast.

I'm going to flag this oral argument to listen to what not to do in an oral argument, and particularly for the Catholic charity side, and to a large extent, the Wisconsin side, though, for very different reasons. So, here's what has happened in activism litigation world. Basically, these groups all started popping up in the early 90s. Pacific Legal Foundation, Alliance Defending Freedom, Pacific Legal Foundation's a little older. I think it was actually the first one.

I think it started in the mid to late 80s there. The Becket Fund. What other ones am I missing, David? Well, you've got ADF, ACLJ, Beckett Fund, and the religious liberty space, you've got IJ. All the other ones that popped up after Pacific Legal Foundation that were also the regional names ones. Oh, oh.

Southeastern, yeah, anyway. The point is all these groups pop up and for a long time, they're very, very small. And so they are often hiring outside people to argue these cases. But in sort of the small dollar fundraising world that we're in, I would argue that what's happening is it's a lot easier to raise money when you're doing everything in house. And the more money you raise, the more you do stuff in house because you've got the money

to have more people in house and the more money you raise the more you do stuff in house because you've got the money to have more people in house. The problem becomes that you're in this fish bowl and you don't know you're in water. So you become an expert on this relatively narrow part of the law, which sounds like a good thing, but the Supreme Court isn't an expert court. They're generalists and the best Supreme Court advocates in the country, if you look, every single one of them is a generalist because the justices are generalists. And I think it makes them, you know, the type of person who's going to work at one of these advocacy organizations also is just less likely to be fluent in the other side's language because they're true believers, right? That's why they're dedicating their careers and their lives to finding these types of cases and litigating them. I think they're incredibly important in the litigation environment. However, at Supreme

Court arguments, I've been hesitant to flag this and I'm putting it all on this argument, even though it is not all on this argument. But time and again, we are seeing in-house arguments fall flat, but then they win the case because the legal questions and the reason the court took the case are to flip whatever the lower court problem was. And so then they get to say they won the case when in fact they actually probably lost ground at oral argument in some pretty serious ways. This was a bad oral argument, David, on the Catholic Charities side. There was a lot of not understanding the justices' questions, not answering the justices' questions directly, trying to answer it the way you wanted to, which we've said time and again, you're not there to persuade

them. You're there to allow them to talk to each other. Basically, it's the first time they're getting to talk to each other since they granted cert on the case. Otherwise, they have not really discussed this case. Their clerks might have talked about it briefly, but this is the justices getting to hear one another through you, the advocate. When they ask you a question, they want an answer to that question, not your talking points that are sort of related if we go over here for a few minutes. There was a lot of fumbling.

It just didn't seem very comfortable, very fluent. There wasn't a lot of expertise in some of the side issues that weren't the purely religious expertise issue questions. And then you get to this exchange with Justice Barrett. I want to pick up on Justice Kavanaugh's question. So you agree that there has to be some way of separating out religiosity from non-religiosity, that's right? Okay. And is your answer to Justice Kavanaugh that if we articulated a test for that, it's sincerity of belief primarily, and then this thorough distinction between religiosity and someone who simply says this is just a philosophy?

Sure. And I think you can kind of put a little bit more meat on the bones there by thinking about, you know, what is religion? I don't think you have to answer the question, Justice Barrett. It's kind of a big question, right? It is. It is a big question. It's a fascinating one. And I think if you go back even to the Virginia Declaration of Rights, you know, it says, the duty which we owe to our Creator and the means of discharging it. And then Professor McConnell, you know, sort of extended that a little bit more broadly to just this idea of transcendent binding truth, because the problem that comes up in these issues for the religion and the law and why it is important, what religion is for the law is conflicting obligation. So if you go to Madison's memorial

and remonstrance, you see there's this conflicting between the obligation of God and the obligation of the government. And Madison says, you have to navigate that. So I think you have to be able to see that things are religious or not, because you look at whether there's a transcendent truth added. And you just have Justice Barrett basically say, can you give me like what an opinion would say? I mean, we're not going to talk about philosophy and an opinion, right? So if we had to articulate a test

to distinguish religion from non-religion, can you concisely tell me what the test would say? And David, that was like a total change in tone where when you got to this area of expertise for the advocate, all of a sudden, there's this like depth and breadth of knowledge that he really wants to spend all this time on when the questions were about

how to organize the corporate structure. It was like, well, I don't really know and I don't understand the question. It didn't work. Okay, let me turn to Wisconsin, because that also did not go well. You had Wisconsin coming in to defend basically an indefensible position that was a losing position. I think they should have known that going in that it was a losing position, that that's

why they granted cert. There's no other reason. As you said, there was no circuit split here. So they've granted cert to flip the Wisconsin decision. But okay, maybe you don't know what the vote is. However, you've now heard Catholic charities and you've heard the Solicitor General come up who actually has the argument that the justices are going to follow on the discriminatory effect sort of test there. And you can count to seven. Seven justices have made clear they think

this is discriminatory. Maybe all nine by this point. I know that it is hard to change your argument on the fly, but sort of digging in your heels isn't going to do you any good. That argument has already lost. And. You really see Wisconsin here basically saying, no, we're not going to change our argument. I know it's a little more complicated because you've written your brief, you can't just abandon everything you wrote in your brief, but you're going to need to have some fallback positions.

You should have had those in your brief as well. You know why they took the case. At one point, you in the middle of the argument, start chucking off parts of the case. And at one point, you sort of in the middle of the argument, start seeing like chucking off parts of the argument. So for instance, in their brief, they had serving co-religionists as a test. And at oral argument, he, I thought actually pretty effectively, it was like,

look, that's marginal factor at best. We're not gonna defend that. And he keeps sort of repeating, like we're giving up on the co-religionist test, you must serve only Catholics to get this exemption. But then really sticks to the proselytizing test in this exchange with Justice Gorsuch and Justice Kagan. And then eventually they trap him in this corner and he has to give up on that test too largely. And basically he's like, yep, okay, like, I cry uncle. Um, I felt like this was one of those that there needed to be more fallback positions in the brief

so that at oral argument, you weren't just coming in to lose or tell them how you want to lose narrowly. Like just, you know, defending the Alamo here isn't very meaningful if everyone's just gonna get killed in the end. Okay, I'm... You just said the exact analogy I was gonna use. I was literally, I was literally gonna say, you view, walk into this oral argument viewing it like you've been invited to the Alamo. So, literally, I was going to say that you've received an engraved invitation to the Alamo and you're in the Davy Crockett role, not the Santa Anna role. And so how do you manage that? Like what is it that you do in response if you're in the Davy Crockett role? And I think the answer to that is you lose

as narrowly as humanly possible. Because what's at stake here isn't just a tax exemption for one specific entity, what's at stake here is a scheme of taxation, is a statutory scheme of taxation. And so what is it you can do that can preserve as much of sort of the state's taxation schemes or the state's taxation philosophy versus a sweeping loss

that is just gonna kind of resonate far beyond this particular case. And there are different strategies. There are very different strategies for saying, I'm gonna come in, this is like a last stand. This is not a triumphant offensive. Like these are different things. And so, you know, I'm with you totally on this idea

that when you are making that last stand, when you are in the Alamo, you've got to have the fallback and the fallback and the fallback without question. And you raised something very interesting about activism, Sarah, you raised something very interesting. And I wanna write a piece one day or have a segment like on our podcast one day,

where we talk about activism the way Homer Sipson talks about alcohol. He says, alcohol, the cause of and solution to all of life's problems. We need activists. You know, like we need people who absolutely are their cause. I have been an activist. I worked for activist legal organizations in my career.

You need those people. You need people who know everything to know about a particular issue, who have a particular virtuous cause. Hopefully they pursue that virtuous cause in virtuous ways. So I'm not crapping all over activism as a concept. We need it. But I do wish activists had a greater self-awareness as a class, a greater self-awareness of two things.

One, you've narrow-casted man. And so a lot of your firmly held convictions, you haven't necessarily thought through the way they interact with other firmly held convictions, other doctrines, other things in a wider, bigger world, okay? So you've narrow-casted in some ways. The other thing that you've often done is you fall into a trap of sort of also narrow casting what the other side of the political spectrum is like.

Because what you end up doing when you're an activist is you tend to only start interacting with the opposition through the prism of your opposing activists, who tend to be just as sort of extreme in their perspective on the other side as you are in your own. And so some of the most committed sort of zealous partisans are pulled out of that activist community because they don't see the holistic vision of what your median Democrat is or your median Republican is. Their whole perception of the Democratic Party or the Republican Party is filtered through engagement with the other side's activists. And that can have this, that can kind of distort your thinking about your fellow human beings

and your fellow citizens. And I'll just say as a matter of confession for myself, unless I had firewalls and plays internally, I wasn't always my best self as an activist. I would become less charitable when I was an activist. And one of those firewalls, I actually felt like I was a better version of myself in some ways when I was at FIRE, but we had this firewall there that we helped anybody who had a free speech claim.

A genuine free speech. So I was constantly interacting with people well to my left who had been censored. And so it humanized them to me. We were co-belligerents in a case. So somebody well to my left would be my client and it created a relationship. It created empathy. It created a greater understanding of their point of view. So my pure First Amendment advocacy actually helped me have a broader view and a more open view of the world. Conversely, when I left that nonpartisan First Amendment activity and moved to much more

activist First Amendment activity, I mean, not truly partisan, but more representing people mostly or almost entirely on one side of the ideological spectrum, it began to have that subtle effect of kind of rotting away my view of the other side of the aisle because I was only dealing with the most extreme elements of the other side of the aisle. And so, you know, I would, a lot of folks who are in the activist world listen to this podcast, and God bless you, you're doing some great work for justice, but I've also seen the negative effect. I've also seen the downside. And maybe you're a better person than me, and are totally able to separate out that,

oh, I'm dealing with the most radical people on the other side. Hopefully you're like that. But I know for me, it had a tendency to really influence at times and created in me a tendency to paint with a broad brush. Did it also make it difficult? My thing is really about the specialist versus generalist.

You're speaking to a generalist court, as you say, people who are thinking about how these doctrines interact with every other doctrine and that the best advocates, it's not a coincidence, are all generalists. They can argue an Orissa case and they can argue a religious liberty case and they can argue angry cheerleader and everything in between. And so how do you keep that generalist muscle going

as an activist, or can you? Yeah, yeah, yeah. I was making a broader cultural point. You're making a much, I think a very good point about just how do you approach your actual job. But I think it's cultural as well. If you're an activist and you're trying to persuade people and you're trying to like move the needle,

you need to talk to generalists in life. True, very true, very true. You're absolutely correct about that. And also that's one way when you're in that activist world, everything about your professional interactions is with other activists until that quick moment when you're in front of the judge who's the generalist where the jury that is,

I don't know, generalist isn't quite the right word because they're just kind of coming, they're coming in. Yeah. When you're on TV, your audience is a generalist. Right. You know, like, everyone out there who's not an activist, I'm calling a generalist. I'm putting the world into two camps alone. And yet when you're on TV and you're an activist, so often to me it

sounds like the activist is talking to activists. Exactly right. And they're generally, often Sarah hears a little secret, they often intentionally are because what they're doing is they're not actually talking to the general public, they're also they're trying to talk to the donors who are within that public, right? But that distinction between generalist and activist or generalist and specialist, let's make it like that, can often sometimes mean you narrowcast so much that you actually lose ability to analyze the thing

that they're the specialist in. And because general factors start to influence it, I'll give you a perfect example as listening to an after-action report by Russia specialists and military generalists after the initial failure of the Russian investigation. I mean, invasion of Ukraine. Here's what's fascinating.

The Russian specialists tend to get what happened completely wrong, and the generalists got what happened right as a rule because the specialist was looking at hundreds of billions of dollars in Russian military modernization. The specialists knew the full capabilities in theory of the T-80 tank. They knew what, you know, all of this stuff. And the generalists, they knew like enough. They knew about, they didn't,

they weren't ignorant of the Russian military, but they were looking at other things. Why are you taking only 180,000 soldiers and trying to conquer a country the size of like Texas? Why are you advancing on five axes instead of one or two? These are general military principles and all of the modernization in the world couldn't compensate for catastrophic intelligence failure and stupid tactics.

And so the generalists actually got the outcome of that initial invasion right and the specialists didn't. So it is a difficult thing. It is a difficult thing because you're in an area where you unquestionably know more granular details, but the general facts outside of that area can influence your area of specialty. So you always have to have one foot in the granular and one foot in the global at any given moment to do your job correctly. This is the Isaiah Berlin Fox versus hedgehog problem, right?

The fox knows many things, the hedgehog knows one big thing. And it's actually been proven over many different areas, David, that generally, so from making forecast, foxes do better than hedgehogs. Yeah, interesting. Not just the Russian invasion, they've actually done like social science studies on this as well. So we need hedgehogs. But if you wanna be an effective hedgehog, you need to have a little fox going on. Keep a little fox DNA. Yeah.

Before we leave David, a little discussion from Donald Trump about running for a third term in office. He was asked about it on NBC News, and he said he was not joking about a third term, and insisted there were, quote, methods to circumvent the two-term limit set out by the 22nd Amendment. We've gotten many, many listener questions about this. So just to lay out the legal facts here, the 22nd Amendment says, no person shall be elected to the office of the president more than twice, and no person who has

held the office of president or acted as president for more than two years of a term to which someone other person was elected shall be elected to the office of president more than once. So this is what people are focusing in on, David. The 22nd Amendment is about being elected to the office of president. Not about serving as president. And so you've had people come up with a scenario where actually, JD Vance runs as president with Donald Trump as vice president. And then as soon as he wins, JD Vance resigns, making Donald Trump the president again. And that wouldn't violate the 22nd amendment. Haha, we solved it.

There's a few problems with that. One, the idea that the American people are like going along and following that like jiu-jitsu maneuver. I'm not really buying into that. And nominating just all of it. Two, though, you know, the Constitution also says that the Vice President must be eligible to be the President, not the elected President. Right. And so does that encompass any of this? So what do you think, David?

Third term, is it possible? I'm going to put it this way. It's possible, but don't worry about it, is how I'd put it. So there's a couple of ways. You mentioned one, like in theory, JD Vance could say, I'm running, but really the instant that I am elected, I'm stepping down. Donald Trump is going to be president again. There's a couple of barriers to that.

One, I can't imagine a situation in which that is going to be clear enough to voters, combined with compelling enough to JD Vance to work. Okay? Because guess what happens if JD Vance wins the election under those terms? He's the President of the United States. He will be sworn in as President of the United States. And you're telling me that a adult human being sworn in to be President of the United States, and you're telling me that a adult human being sworn in to be president of the United States is going to then immediately tender a letter of resignation he is under no legal obligation to give at all, at all, and allow somebody

else to be president. So can we kind of get real about human nature for five seconds on that one? Now, in theory, you could imagine a situation where, let's try another scenario, Trump for some whatever reason, either runs for House and becomes Speaker of the House or is selected Speaker of the House. You don't have to be a member of the House to be selected Speaker. And something catastrophically terrible happens to President and Vice President. He becomes President.

That would be a possible scenario. He would meet the constitutional criteria for eligibility. You're not elected if you've acceded to the presidency through some other means. But the way I would put it is the fact that you and I can sit here and war game out totally unprecedented, bizarre world scenarios where this could happen does not mean on the list of things to worry about, this should be on that list. When I think about things to worry about, I worry about extra constitutional means more

than I worry about constitutional means. I do not think that the fact that a bunch of lawyers can sit down and think there's a nine-dimensional constitutional chess you can play that could get about it in the White House is in any way anything remotely realistic. And I'm not worried actually about extra constitutional means either. I'm not actually worried at this point that he's going to try to just seize and hold power. So if I'm not worried about that, and I'm even less worried about 90 constitutional chess,

we've got a lot going on right now, can we table that? Let's just table that. I'm so uninterested in all of the questions that I'm getting about like, well, if he tries to run for a third term, how would you sue that? Who would have standing and how, what judge will do? No, I just don't, I don't care right now, honestly.

I think it's so far-fetched because I feel like I know why Donald Trump's doing this because it's happened over and over and over again where a reporter will sit down with him and try to get him to bat down some crazy notion. He will never bat down the crazy notion. That's the whole point. He refuses to say he won't run for a third term is a

perfect headline for him. He didn't say he would run for a third term. The refuses to say is like the most classic Trump media domination strategy back from 2015. And instead of talking about what Trump is actually doing, you talk about Trump refusing to say X, Y, or Z thing that you want him to say. Trump refuses to say Hitler was a bad guy. He didn't say Hitler was a good guy.

And now we're off to the races with a million stories about Trump refusing to say, you know, it's the media attention grabbing equivalent of when did you stop beating your wife is asking Donald Trump To say something and then him refusing to say it. When are you going to say when is the most megalomaniac? Man that I've ever known in high office gonna voluntarily say yeah, I'm going to relinquish power that's not something he's gonna do even if he's going to voluntarily relinquish power. And, well, and it's not even voluntary.

He's going to relinquish power, okay? And he's also, I think there's something else going on here, which is he's very well aware that lame duckism hits. Exactly. There's the media reason to do it, and then there's a political reason to do it. He wants enough people out there, kind of of in the water for his most core supporters, a little chum in the water to get his most core supporters to sort of like,

Donald Trump's the guy. He's been the guy. He's the guy now. He's going to be the guy in the future. Did you sort of prevent that nearly immediate second termism that starts to set in, because again, remember human nature, human nature, all of these super ambitious people who've previously subordinated their ambition to Trump because they knew if they didn't for this period of time in their lives,

they would have no career, that inherent ambition is gonna bubble up. And good luck trying to find somebody who can A, win a presidential election that inherent ambition is gonna bubble up. And good luck trying to find somebody who can A, win a presidential election, and then B, be willing to voluntarily relinquish the presidency at the end. I mean, let's be real now.

So let me say this, I fear this as much as I fear an imminent meteor strike on the continental US. If a meteor strike happens, it would be horrible, horrible, horrible, and it's something that's possible. It's not probable, it's not even remotely probable, but it is possible. And so if the meteor hits, everyone would say in the rubble,

David, you idiot. But that's my actual risk calculus. My risk calculus on due process and the here and now, high, high, high, high. My risk calculus on whether Trump is gonna try to seize and hold power beyond 2028, right now that's low, low, low. All right, two housekeeping things.

One, the judge in the Eric Adams case did exactly what we said he was gonna do, David. He did dismiss the indictment and he did it with prejudice, meaning DOJ cannot refile it. That's where this was always going to end, guys, and it did. So we can stop all that hand-wringing. I mean, it's amazing the things that dominate the news cycle for weeks,

and then everyone just stops paying attention to it, and then it gets resolved the way smart people said it would get resolved in a pretty, I don't know, non-controversial way. Second, we have a couple of Supreme Court opinions to talk about the next episode. One includes a fascinating five-four lineup, David. It's Kagan, Sotomayor, and Jackson plus Barrett plus Gorsuch. Whoa. So we'll definitely talk about that next time. Also, David, I had another oral argument conversation to have with you about whether bad speakers can be good writers? I think most people think the answer is yes,

but I'm not as sure. And I wanted to give you my theory. Also, we'd said we were gonna do a little, like some parenting or dating sometime soon. And my other question to you is, is it good sometimes for parents to fight in front of their children? I cannot wait for both of those

because the second one you popped in the Slack and I was like, wait, I think we might have really different experiences. Like, I'm just really interested in that conversation. And number two, on the first one, I've wondered about that myself. So to be determined. Especially when it comes to law is what comes first, logical thinking, logical speaking, logical writing, Especially when it comes to law is what comes first? Logical thinking?

Logical speaking? Logical writing? Because they're going to come in some order. Is it the same for everyone? Is it always a certain order? I don't know. So we'll talk about that and more on the next Advisory Opinion. Ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh,