Advisory Opinions - Everybody Wants a Little More Pandemic

Episode Date: December 22, 2022

Vaccine mandates! Title 42 and border policy! Twitter Files updates! Electoral Count Act! “The Imperial Supreme Court”! FedSoc/Sate showdown! Sarah and David are marathoning through topics in the hope of placating the wrathful law gods and preempting a Christmas-time emergency pod. (Knock on wood.) Show Notes: -Adam Liptak’s New York Times piece on the supremacy of the judicial branch -Mark Joseph Stern’s interview with Judge Pryor for Slate Learn more about your ad choices. Visit megaphone.fm/adchoices

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Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight-worthy with the BMO Toronto FC fc cashback mastercard ready i was born ready Here we go. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker.

And we're beginning this podcast laughing because we had some pre-podcast content that was just gold that we unfortunately cannot share with you listeners. We're in a chatty mood. We're happy. We're heading into the holidays, celebrating some Hanukkah around here. That's right.

Good times. All right, we've got a lot to cover. We've got a quick FBI Twitter update. We are going to cover a Fifth Circuit case striking down the contractor, the federal government contractor COVID vaccine mandate. We're going to go through Title 42 immigration issues. Electoral Count Act looks like it is reform is part of the omnibus. And we're going to talk about what's in that.

And that's all going to be fast, fast, fast. And then we're going to slow down for a slate interview of Justice, I mean, of Judge Bill Pryor, really interesting stuff. And there was a New York Times piece talking about the present court and what's different about it in their view. And it was a really interesting piece in the Times. And we're going to chat about that. But let's start with our quick stuff. All right. Let's start first with FBI Twitter, Sarah. You said there was a tweet in the latest Twitter files drop that piqued your interest. See, this is the problem.

Once we talk about something, then every time there's an update, I'm going to have to update what I said. So to recap, what we said was, there just isn't the evidence that Twitter felt like they were being pressured by the FBI. Therefore, they're not state actors. Therefore, no First Amendment violation. That's the short version.

Listen to the last episode if you want the much longer version. So the new Twitter files is not about the FBI asking Twitter to take action or inaction, depending on their policies, about certain tweets that might be misinformation about the election. This is about the Hunter Biden laptop story and related intelligence community stuff on Russian disinformation and things like that. I actually think that the folks who are publishing this don't quite understand the law enough to know what they've got here. It's not a smoking gun, just to be clear. But it very much updates my thought on the likelihood of this argument prevailing in any way. And for those following along at home on Twitter files number

seven, this is tweet number 18 and 19 are what's most interesting to me. In 18, you have emails between an FBI field agent and a Twitter senior executive FBI field agent. A few years ago, Twitter said they would no longer provide their data feed to members of the intelligence community. My colleagues wanted to know if that policy has changed or if you'd be willing to change it. My colleagues are currently contracting with a vendor for an analytic tool for open source intelligence. The commercial version of this tool includes Twitter data feed. However, the feed was disabled because the vendor said they did not want to violate the terms of service. My colleagues are wondering if Twitter would be open to revising Twitter data feed. However, the feed was disabled because the vendor said they did not want to violate

the terms of service. My colleagues are wondering if Twitter would be open to revising its terms of service or whatever, like, give us the info. Okay, Twitter responds. This is the suggested response. Sorry, you're right.

It's the suggested response. Yeah. We don't think that's the best path forward. As a rule, we're not able to directly discuss data licensing relationships sort of goes into some weeds but says no and then uh he is sending an email an intra twitter email in number 19 that says we have seen a sustained if uncoordinated, effort by the intelligence

community to push us to share more information and change our API policies. They are probing and pushing everywhere they can, including by whispering to congressional staff. We should stay connected and keep a solid front against these efforts. stay connected and keep a solid front against these efforts. Why is that interesting to me, David? Because one could sort of create a narrative by which Twitter is more likely to take down content from some like 43 follower account that said the election was on Wednesday for Democrats

and Tuesday for Republicans as a way to show good faith on something easy for them to do so that they can keep saying no to this other thing that they don't want to do because they're feeling so much pressure on this intelligence community side that they're trying to show how helpful they are on this other side. Do I think it's enough to overcome the state actor line for First Amendment purposes? No, but it's significantly closer than what they were trying to show in Twitter files number six, where they were trying to claim that Twitter was in fact a state actor

because of the FBI flagging tweets. That's not the state actor line. This actually is getting you in the ballpark. Yeah, I would agree with you that they don't really know what they have. Yes. And they don't really, they don't really know. Very funny to me. I read this and was like, wait, what? You put this at number 18 and 19? Yeah, this is, and that this is, I think it's because it's the Hunter Biden laptop distortion field, right? Yeah. Because what they're trying to do and what they've been trying to do from the beginning is show that it is because of the FBI directly

that the Hunter Biden laptop was suppressed. When so far we've been through Twitter files one through seven and we have not seen that link at all. The closest that they come is the FBI was saying throughout the election period, be on the alert, be on the alert, be on the alert. We think there will be some Hunter Biden stuff, be on the alert. But then notably, when some Hunter Biden stuff pops up, at least so far in Twitter Files 1 through 7, we don't have, the FBI is directing us to take this down. Nothing like that. And so because of

that, that's the thing, that's the thing that the online right fixates on is the Hunter Biden laptop, which the available evidence, Twitter files one through seven, says was an internal decision to take it down for two days. And then before it was put back up, or access to it was put back up. But what this does is much more about what is the overall relationship between the FBI

and social media companies, in this case, specifically Twitter. And that is absolutely a matter of extreme public interest. That's absolutely a matter that we should be taking a close look at. And it's clear to me, at least so far, that the initial kind of takedown requests that were posted in Twitter files number six, weren't anywhere really near to that legal standard that we articulated before. Now here, the question to me, Sarah, is how pervasive does the persuasive effort have to be

before you start trending towards that line of coercion? Like how omnipresent? And you still need to connect the dots. It could be through testimony. It could be through emails that they find, but it has to say, hey, we're going to hold the line on this. So let's do them a favor over here.

We also still don't have that. But at least now you have a narrative where that coercion could be there enough. And then it results in them doing something on behalf of the government to prevent intrusion in a different part of their business. Yeah. And it was really interesting to me as I was looking into some of the case law around this, how fuzzy it all is. You know, there's sort of two bright lines. One is, hey, polite request from law enforcement. That's not going to be state action.

Then you have another one of cops show up at your house unannounced. That's going to be a lot more like coercion. So you kind of have the two easy answers and then a whole bunch of fuzziness in the middle. And I also forgot to mention that there was actually a Donald Trump litigation against Twitter, claiming Twitter was acting as a state actor when it removed him from Twitter, based on all of the threats from Democratic congressmen. And that got knocked out post-haste. And we can put that district court case in the show notes. But there, the reasoning was just really kind of simple. It was, look, this is what government officials do.

It's not to say that members of Congress blustering couldn't transform into state action under some hypothetical. But again, you'd have to have some evidence that that company believed that, you know, if they did X on behalf of the government, Y wouldn't happen to them or something like that? And just having members of Congress say a bunch of stuff isn't really close.

Right, right, exactly. But I think it's right to highlight that exchange because that is an exchange that illustrates more than any other that Twitter felt pressure. Yep. And that, I think that's, but again, I agree with you. It's just not to take down speech. Right. They felt pressure about something totally different. Totally different and not about the Hunter Biden laptop. One thing that I thought was interesting

was how much Twitter was telling the FBI, we're not seeing election interference. We're not seeing it. We're not seeing it. We're not seeing it. And the FBI was apparently not necessarily completely convinced. So yeah, very interesting stuff. But again, it's just hard to see under the case law how it reaches into that coercion line. Again, defined under the case law. All right.

Next up. Fifth Circuit, Sarah. Woo-hoo! Okay. The once-in-future vaccine mandate cases continue. So by way of some memory here, back in January, you had the private employer vaccine mandate

challenged at the Supreme Court, along with the CMS vaccine mandate. That was the Medicare and Medicaid. If you're a hospital or health care provider that takes federal funding, can the government require you to only have doctors and nurses on staff that are vaccinated? The Supreme Court said no on the private employer vaccine mandate. They said yes on the CMS mandate. And many such cases have continued since then at state level, at federal level. Enter this Fifth Circuit decision, which is on the federal contractor vaccine mandate executive order. So it's a two to one decision. The president's executive order purports to exercise authority given to the

president under the federal property and administrative services act of 1949 known as the procurement act, David. This is a, this is an ever expanding act since 1949. this is an ever-expanding act since 1949. The Procurement Act states that its purpose, quote, is to provide the federal government with an economical and efficient system for procurement, contracting, etc. And it enables the president to, quote, prescribe policies and directives that the president considers necessary to carry out this subtitle, i.e. this allows the president to issue executive orders that help the federal government to contract for economic and efficient systems. Yes. What does that mean? What are its limits? It depends who you ask. If you ask the federal government, the answer is

none. That's not true. They did identify limits, but not philosophical limits. So the Fifth Circuit two to one says you cannot use that broad language to say that federal contractors, employees over 100 people must all be fully vaccinated. That while I'm sure having employees that aren't out sick and don't have COVID might be more economical and efficient, that everything could be put into economical and efficient language if you did that. So continuing the opinion just a little. The government contends generally this express grant of statutory authority permits the president to issue, among others, orders that improve the economy and efficiency of contractors' operations. The state suggests that under the

government's interpretation of this act, there is simply no limiting principle to the government's authority. And here's what was interesting, David, is that I really liked how the opinion walked through the history of the ever-expanding presidential power under the Procurement Act as, you know, someone in the White House counsel's office figured out that that language was so broad. So the first one they point out is a George W. Bush order. This is the E-Verify system, mandating federal contractors to use E-Verify to ensure that their workforce was legally able to work in the United States.

The second one was an Obama executive order, which was the seven days or more of paid sick leave, including paid leave for family care. In that executive order, President Obama said, providing access to paid sick leave will improve the health and performance of employees of federal contractors and bring benefits packages at federal contractors

in line with model employers, ensuring that they remain competitive employers. These savings and quality improvements will lead to improved economy and efficiency. See, as long as you just use the words economy and efficiency, shibboleth, you're great. Okay, so what the courts have said is that you have to have a close nexus between the executive order in question and this economy and efficiency concept. Again, really hard to say what that means, though. And as the Fifth Circuit opinion says, if you combine the close nexus test with deference to presidential determinations,

it basically leaves the president with near unlimited authority to introduce requirements into federal contracts. They use an example of the president could mandate that all employees of federal contractors reduce their BMI below a certain number on the theory that obesity is a prime contributor to unhealthiness and absenteeism. They also note that federal contractors must certify that their employees take daily vitamins, live in smoke-free homes, exercise three times a week, or even at the extremity, take birth control in order to reduce absenteeism relating to childbirth and care. Okay, so maybe we're taking that out on a bit of a limb, but they said that was the extreme. So maybe we're taking that out on a bit of a limb, but they said that was the extreme.

And so the question became, is this closer to the CMS healthcare worker vaccine mandate, or is it closer to the employer, the private employer vaccine mandate? Worth noting, David, that there was also a little bit of a skirmish between the dissent and the majority on major questions doctrine. Basically, the majority kind of after this statutory interpretation question, saying that, look, at the end of the day, if Congress wanted to give this much authority to the president over federal contractors and requirements, they needed to be more clear. over federal contractors and requirements. They needed to be more clear.

Major question doctrine says it's too big a question for Congress to have been so vague. And the dissent, you know, the dissent correctly points out that thus far, major questions doctrine is only invoked when there are potential anti-delegation issues to agencies. So not only is this the president, but it's also the president acting not in a regulatory authority, but in a proprietary authority, as in the government itself is buying these services. The majority answers that question and says the Supreme Court has never explicitly said it's not applicable to the president

or to proprietary authority. Okay. So, I mean, they're both right. So that's where things are left off at this point. I also just, it's worth a quick note that the pandemic is very much going on for the purposes of a contractor vaccine mandate and for student loan forgiveness. But when we get to our next case, that's going to be the Title 42 expelling migrants at the border. The pandemic's over for that purpose. So when we talk about pandemic law, David, it's getting not just attenuated for the government from the peak of the pandemic, they're also contradicting themselves

in front of the same courts now. Right, right. And I think it's interesting, if I had to redo our order, I would do the Fifth Circuit case and then fold directly into the New York Times discussion. Yes, I know. It's tough.

We're going to have to like, listeners, you're going to have to remember the cases that we're talking about for when we get to our philosophical section. Because I think that when we, this is a perfectly indicative of the phenomenon that the New York Times piece is talking about, but a couple of things on it. One, whenever you hear about a vaccine mandate case, think, you have to think in a few layers here. One is, are they challenging the authority in

the abstract of the government to announce them, to mandate the vaccine, just in general. Usually that's not the case in these cases. As a general matter, what they are challenging is not the theoretical authority, but they're saying, was even if that authority in theory exists,

it has not been granted to the president by Congress, by the law, through the law that the president is acting. So that's a, that sounds like a, you know, minor technical point. No, it's a major point because we live in a world with, at the federal government of, of enumerated powers. The federal government only has the powers given it by the Constitution. And then when the president is acting in his executive capacity pursuant to federal statute, he's only acting under the authority the statute has given him. That's not quite the same as enumerated powers in the constitutional sense, but it's still in the sense that the president only has the power in this area that Congress has given him. And when you lift up the rock on a lot of these congressional delegations of power, you find that they're extremely vague and that there's just been a steady progression of presidents,

as Sarah, you walked through quite well, that have just pushed it further out and further out and further out. Because the idea that it's plainly and clearly means that one that to provide the federal government with an economical and efficient system means a vaccine mandate. Really? Is is is that the language right there? really? Is that the language right there? Economical and efficient means vaccine mandate? That's where what we're dealing with here. And a lot of the reporting on this is going to be, it's the Fifth Circuit anti-vaccine or whatnot. But no, the question is, does this language, which gives the president the authority to prescribe policies and directives to provide the federal government with an economical and efficient system, contracting system, mean this. And that's what was at stake in the Fifth Circuit case. And I'm really skeptical that the policy, the language drafted by Congress is that it's so broad that encompasses this. And again, guys,

if Congress wants to pass a vaccine mandate for contractors, that's a whole different case. That's just a different case from this. The question here is under decades old law that Congress drafted that's extremely broad and vague, does it encompass this? Those are different kinds of cases. And I tend to agree with the Fifth Circuit here, that that is an extremely thin reed upon which to hang something like this. Like so many of my Christmas ornaments, which fell off. You know, and I think also you can really distinguish even the E-Verify and paid family leave executive orders as being about the terms of employment. Yeah. And that does have some

relationship to who the federal government is contracting with. I think E-Verify is a little bit closer. Paid family leaves maybe a little bit farther, but okay. That's a classic regulation of the, you know, that's a classic benefit. Employee benefit. The fully vaccinated, first of all, that definition can change of what fully vaccinated means. I had someone who was trying to go onto Georgetown's campus and fully vaccinated now at Georgetown means you need proof of at least one booster.

Now, but not a second booster, which, you know, that's starting to like lose, it's starting to become quite arbitrary. If you will, now Georgetown's private, they can do whatever they want. But second, of course, and we've talked about this before, as we learned that the vaccine

does not prevent transmission as much as was initially thought, the government's interest in vaccine mandates also diminishes. So their purpose for this is, in fact, people being out of work because they're sick is the economy and efficiency. Boy, and this is where I think the court got it right, but I think they could have been more explicit. If now economy and efficiency, boy, and this is where I think the court got it right, but I think they could have been more explicit. If now economy and efficiency equals having fewer employees out for being sick, there is no limit. All sorts of things we know are more likely to make you sick. I think the smoke-free work environment's a pretty good example. The government in oral argument pushing back on that and saying, obviously we couldn't do that. I actually think that is much more likely to fall into the economy

and efficiency than the vaccine mandate, which is so funny that they thought it was so egregious the other direction. Not at all to me. Yeah, it's an interesting expansion here. And I do think on the transmissibility point, I mean, look, the threat, the virus has evolved from the original OG virus for which there was a much greater effectiveness of the vaccines in preventing illness period than later on where it was much more about preventing serious illness, which is extremely, extremely important, but that's a different, that's a different thing. is extremely, extremely important, but that's a different, that's a different thing. But yeah, again, I'll say this again. So many of these disputes that you're, that we're seeing at the court are disputes between expansions of executive regulatory authority without a change in the

underlying statutes. Yep. So the statutes are staying the same. The expansion, the attempt to push through the, to push broader executive authority under the same statute keeps going and going and going. And just put a pin in that for the New York Times. And not to bring this back to toddler care, but it really is like you tell your kid not to touch that. And so they put their finger up

and you're like, don't touch it. They put their finger close to it. Don't touch it. They like, just touch it barely. And you're like, okay, do not put your hand on it. And then they put their hand on it and you come down on them with like, you know, the wrath of God.

And it's like massive overreaction. I feel like that's what keeps happening to the courts. If they're like, okay, fine. You verify. Yeah, kind of. We see some economy inefficiency there. Oh, paid family leave. Okay. Okay.

Standard employee benefit. Right. I get it. Competitive in the workplace. Then they strike down the vaccine mandates. Like, you're anti-vax and how do you not let this happen? It's like, look, at some point there is a limit to what the Procurement Act can be. 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?

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Terms and conditions apply. Speaking of COVID and pandemic law, let's head down to the border. So, David, I wanted to touch on this issue as a emergency pod preemption. We're not going to do an emergency pod on Title 42, regardless of what the Supreme Court does over this holiday. But I want to talk about what the case is so that if they do do something, and they will have to do something actually

in the next 24 to 48 hours, you will feel okay about not having your emergency pod. So remember, Title 42, which it's sort of silly that we call it Title 42, as someone pointed out, there's a whole lot in Title 42, but we've been calling it Title 42. Title 42 allows the government not to let people in from countries that are experiencing health problems, basically, people or products. And so the Trump administration invoked that with the CDC guidance during the pandemic. The Biden administration has been looking to roll that back and it has turned into a legal disaster. Now, the Solicitor General's office

just filed their brief. So I want to talk about the substance here for just a second. But frankly, the procedural part is more interesting to me, David. So substantively, the Solicitor General's office just said, the solution to that immigration problem

cannot be to extend indefinitely a public health measure that all acknowledge has outlived its public health justification. That it does not need the policy in place because the Centers for Disease Control and Prevention, the agency that formally issued the directive, has already determined it is not necessary because COVID cases are far lower now

than when Title 42 was first reinstated in March 2020. Is this a joke? This was also a Fifth Circuit case. So wait, the pandemic's over? Or it's not over depending on which courtroom you walk into for oral argument? Right. This is insane. But procedurally, David, here's where this gets really interesting. You had a whole bunch of cases about Title 42, one in the Fifth Circuit and one in D.C. The Fifth Circuit one was states trying to prevent the Biden administration from being able to issue their rescission of... Rescission. Not rescission. That's not a word.

Rescission. Trying to prevent the Biden administration from rescinding, you know, Title 42 at the border. In the meantime, a group of migrants file in D.C. in a class action lawsuit saying that Title 42

didn't follow the APA, is arbitrary and capricious, you know, just sort of a standard lawsuit that Title 42 should be enjoined from being enforced at the border, basically. So Fifth Circuit judge, a district judge, says, yes, you cannot issue this rescission order. Title 42 must stay in place. DC judge says, yes, Title 42 being put into place was arbitrary and against the APA. Therefore,

it is enjoined from going into effect. Now, those two look like they're intention, but they're actually not. Because even with the rescission order voided, if Title 42's implementation itself is voided, that trumps, if that makes sense. So the Fifth Circuit one becomes irrelevant. Now you have an order from a federal judge in D.C. saying that the underlying implementation of Title 42 has to be stopped. So the states then jump from the Fifth Circuit up to D.C. and say, wait a second, we want to intervene in this. Because what we see here is that basically the Biden administration got plaintiffs that they agree with. They went into a lawsuit. agree with they went into a lawsuit as soon as the plaintiff the in this case the um the migrants won the biden administration was like okay we won't appeal it thanks we just want a short stay

in order to be able to put it in you know to to wind this down in a um uh orderly fashion so the court gave them until december 21st at midnight to do that. The states try to intervene and the court says, nope, untimely intervention. You can't intervene. And so that's what went to the Supreme Court. And this really annoyed me. There were all these headlines, David, that were like, Supreme Court puts rescission of Title 42 on hold. No, no, hold on. This happens not every day, but like a lot. A lot, yeah. The case came to the chief justice

because he oversees the DC circuit. Remember, each justice has circuits assigned to them. And so if you file something from a circuit, it's going to go to the justice assigned. So it goes to the chief justice. In order to have time to read your paperwork before the court's order will go into effect on December 21st at midnight, you've got to say, hold on, I just need some time to read this. And I need all the other justices to read it so that we can actually have a decision. And so he

issued an administrative stay, saying just keep everything status quo. The government has, I think it was 48 hours to respond. The government responded on time. Now I expect the court to issue something in the next couple of days on this, probably hearing the case. Why? Not having anything to do with immigration, not having anything to do with Title 42, but because of San Francisco v. Arizona, David. This was the case. Of course, right? Everyone knows this.

Everybody knows that. This was the case that got digged last term. Digged, of course, I'm not actually using bad grammar. Dismissed as improvidently granted. And it was about when states can intervene if it appears that the administration has sort of entered into collusive litigation to get through court order what they couldn't do without going through administrative procedure notice and comment. So that was on the also immigration, by the way, but on the public charge rule that you don't let people in to the country if they're

going to then be on social safety net programs. But it was so procedurally weird. They filed in the Ninth Circuit, but actually the order was coming out of the Seventh Circuit and the Supreme Court heard oral argument and then was like, nevermind, hot mess, come back again when you get your ducks in order. And so the states here, Arizona, again, by the way, Louisiana actually is the one on the brief. Shout out to Solicitor General Liz Merle over there. Good brief, real quick turnaround. They're saying, look, this is the same thing, but there are no procedural problems. Take this as the vehicle to decide what you do when an administration is like, well, we

could go through notice and comment to repeal this, that would take two years. It's what the previous administration had to do to put it into effect in the first place. But instead of that process that is required under law by Congress, if someone we agree with will just sue us and a court agrees with them, we cannot appeal it and simply say that we're abiding by a court order. Ba-doom, ba-dum, it's done. And the states are saying, nope, that's when states get to intervene and defend the initial regulatory action that now the federal government won't defend. That's going to be fun times, David. So I can't approve on that

explanation. I just want to make a completely unrelated comment in response. This is why you go to law school. Because this is why law school is great. And let me just say this. We have an overly complicated system of government right now. It is so multilayered. There are so many different ways to collaterally attack any sort of governmental action that, my goodness, what you saw when Tara was walking through that was, I'm sitting there thinking, I'm going to have an inner ding whenever you figure out here's a way to attack something was walking through that was I'm sitting there thinking, I'm going to have an inner ding whenever

you figure out here's a way to attack something that administration is doing. And here's a way to counter that attack. And just all of the legal maneuvering you walked through was pretty remarkable. And I remember when I was about to go to law school, somebody asked me, why are you going to law school? And there was this thing that I had read, and this is 1991, and it's only gotten worse, that really stuck with me. And then it said, with America's labyrinth of regulations and America's sort of labyrinth of administrative law, the United States is becoming in many ways a, quote, lawyer-driven society. And I think that's, a lot of that is right. And so that's one of the reasons why there is some real value in becoming a lawyer, because you are living friends in what is

increasingly a lawyer driven society, which is unfortunate. It should be more of a legislator driven government as opposed to a lawyer driven society. But here we are. So that's my aside before we move on. Also, there was a nice note in that brief from the states. The termination order is plainly at war with other policies of the Biden administration, the one that said that the solution cannot be to extend a public health measure indefinitely that all now acknowledge has outlived its public health justification. Refusing to lift the mask mandate on airline travelers, refusing to repeal vaccination mandates and insisting on discharging members of the military who sought religious exemptions from those mandates.

Of course, the student loan forgiveness program is still relying on pandemic economic effects. So just the list, David, I don't, it's hard to do this with a straight face. Yeah. Yeah. Well, you know, it's, it's time to decide. It seems like everybody wants a little bit of pandemic still. So I do, honestly, I would like to use the pandemic to not leave the house for things I don't want to leave the house for, but then I do want to leave the house for things that sound fun. Yeah.

So, you know, if you're, how dare you lift Title 42 is, you know, a lot of red states are saying, not because the pandemic's still raging, but because the influx that will come in, right? The a lot of red states are saying, not because the pandemic is still raging, but because the influx that will come in, right? The influx of migrants. So on the one hand, it seems like some red states want a little bit more pandemic to keep Title 42. And then Joe Biden doesn't want pandemic for Title 42 purposes, but for student loan forgiveness purposes. I think you're reaching a point where a pandemic is really sort of moving from public health emergency. You can really tell when something is moving from true public health emergency when it becomes so brazenly a political football at this point.

Indeed. And here we are. All right. Okay, now we get to do the philosophical stuff, right? Nope. Electoral Count Act. Oh, okay. All right. all right. You do that one. Okay. So this is really important and valuable. And this is in the omnibus bill,

which is being batted about on Twitter as how dare this old Congress pass through an omnibus when a new Congress should be weighing in on it. I have a tendency to think that one of the reasons why this old Congress is passing the omnibus is because there's some concern that the new Congress wouldn't include things like Electoral Count Act reform, which is included in it.

And so I'll just run through. We've talked about the Electoral Count Act many times. So I don't want to exhaust you by going back all the way through that. But the Electoral Count Act back in 2020 before anyone even knew it was going to be a disaster on January 6th. And it's just a mess of a statute. So it's got a few specific reforms. First, it says that states are going to appoint electors in accordance with state laws enacted prior to election day. So that's very key because they're under a weirdo, extreme

version of the independent state legislature doctrine. There are those who argued that even after election day, if the state legislature wanted to change the way it appointed electors, it could do so. This says, nope. Second thing, and by the way, as I'm walking through one, two, three, four, there's a very helpful Twitter thread that we'll put in the show notes by Andrew Prokop that walks through all of these things with the statutory language. And so I'm using his order, which I think is super helpful. But here it is. Second, the reform says that the executive of each state, the governor has a duty to certify appointment of electors. So in other words, the governor's got to act. But then third, the federal courts have oversight of the governor's certification through expedited legal process.

So you don't just trust the governors. You're going to have federal court review. There's a change where you no longer have to deliver these the electoral votes by registered mail. You can use the most expeditious method available. Then it also says that the VP's role is solely ministerial. In other words, the VP just has no, and this is the language, no power solely determined except reject

or otherwise adjudicate or resolve disputes over electoral votes. This, Sarah, was designed to deal with the Eastman argument that Mike Pence had discretion to accept or reject votes. So this says no. Six, this one is so important. It's so important that this was the one where if there was only one reform that we did, this would be it.

And this raises the threshold for objections to electoral college votes. So it's no longer one congressman and one senator that can then break up the meeting and send both houses before you can stop the count, so to speak, and resolve a dispute. And I think that's a really important provision. Prevents nonsense like the Ted Cruz. It just took Ted Cruz, for example, and if Ted Cruz wasn't going to do it, it just took Josh Hawley to stop the process over and send Josh Hawley and one representative to stop the process and contest the count. So that's a big change. Also limits the grounds for an objection. Also, if some electoral votes aren't counted, for whatever reason, the majority threshold for winning the presidency falls. for winning the presidency falls. So also limits the debate time so that there's no indefinite delays.

All of this, Sarah, the best way to put it together is to say every brainstorm idea that the Stop the Steal folks had to try to use the Electoral Count Act to change the outcome of the election in 2020, all of those brainstorm perceived loopholes are now pretty decisively closed. And of course, the only problem with that is, you know, you're

fighting the last war. You're not seeing what's coming in. But still, we wanted an Electoral Count Act change. It's not done yet, but it feels like it's on the precipice. Yes, it's on the precipice. And it's important. As I said twice, I had clickbaity headlines against dispatch guidelines that basically said, we got to reform this Electoral Count Act and we're idiots if we don't.

And thankfully, we're not entirely idiotic. And I will say this was one of the few cases where I just don't say this about Congress, where any change is better than no change. Now, I don't literally mean that, but like even if they just fixed making the language clear instead of not clear, that would have still been worth it to me

even without like the specific fixes that I want. I didn't have any actual specific changes that I required in order to support electoral count act reform. But this seems good. Yeah, it's good. It's very good. 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. Even better, with unlimited storage and an easy-to-use app,

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or Slate? Woohoo! Great. All right, let's do New York Times. That one's more consequential, I think. Let's introduce it. And I'll just read the opening couple of paragraphs of this report. And it begins, the conventional critique of the Supreme Court these days is that it is lurched to the right and is out of step with the public on many issues. That is true so far as it goes. But a burst of recent legal scholarship makes a deeper point

saying the current court is distinctive in a different way. It has rapidly been accumulating power at the expense of every other part of the government. The phenomenon was documented last month by Mark Limley, a law professor at Stanford, in an article called the Imperial Supreme Court in the Harvard Law Review. law review. Quote, the court has not been favoring one branch of government over another or favoring states over the federal government or the rights of people over governments, Professor Limley wrote. Rather, it is withdrawing power from all of them at once. He added, it is a court that is consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power while at the same time undercutting individual rights. So this is a report on a series of reports. And I've got thoughts, Sarah,

on this, but I'm very eager to hear your reaction. So I have two reactions. One, at a broad level, this is simply accurate. The Supreme Court has been striking down more executive action, like a lot more executive action, but also more congressional. I'd want to see some of the data on that, more statutes, I mean, because I'm not sure they're striking down statutes. They might be striking down certain applications of statutes. At the same time, they're expanding certain statutes like I mean, because I'm not sure they're striking down statutes. They might be striking down certain applications of statutes. At the same time, they're expanding certain statutes like Bostock. I would say that, for instance, the expansion of the major questions doctrine to prevent agencies from running wild is not a check on Congress.

That's an invitation to Congress. So I'm not sure I buy into the, they're checking all of the other branches. I think most of that's just going to come from the executive branch increase. I mean, you think back to the 90s, David, when there were those major Commerce Clause decisions that struck down acts of Congress, like the acts of Congress. That was a check on the congressional, on the legislative branch. There hasn't really been anything like that, shrinking rather, the reach of the commerce clause in the same way at all, but certainly shrinks on administrative agency power through major questions doctrine, presidential executive order power. So, yep, agree with that. However, I don't know that it's the same set of justices. And so the other problem is when you

sort of take the Supreme Court as a whole and say, this is the trend. That's true, but I think you're missing some of the, you know, what's happening underneath the water. There's a whole bunch of little duck feet moving there, even if the whole flock, you know, looks like it's just heading in one direction in unison. And so I think it matters why different justices are pursuing that because it's not all the same reason and why the different majorities are combining the way that they are. I've talked about the 3-3-3 court before. And so you might end up with majorities on a bunch of stuff that checks the executive branch, but they're not the same majorities. And then the part that I think, so that part I think is interesting, worth lots of conversation over. There's some nuance to it that I think was missed, but it's a pretty short piece in the New York Times. Adam Liptak's a great reporter. So no beef with that. However, I do have beef with the ending

where they're sort of not mocking isn't the right word side eyeing the chief justice and his remarks at the judicial conference. You don't want the political branches telling you what the law is, he said, echoing Chief Justice John Marshall's famous statement in Marbury v. Madison, the foundational 1803 decision. It is emphatically the province and duty of the judicial branch to say what the law is. The statement is popular with the current court. Over half of the total number of majority

or concurring opinions in Supreme Court history to have quoted this language from Marbury have been pinned by the Roberts Court. Okay, but don't we want the Supreme Court to say what the law is? That is sort of the role of that branch. And as we just talked about with Title 42 or with the contractor vaccine mandate and the Procurement Act, when you have an executive branch flexing and using old statutory language from 1949, for instance, to find itself new powers, then it's not surprising, in theory at least, that you would have the Supreme Court checking that power if the executive branch keeps overstepping because Congress isn't actually passing statutes. And so there's this presumed ideological bent within this piece that I think I understand why people will see that. But I'm not sure it's there. Because if you just take it on sort of this philosophical ground that the courts used to only overturn the executive branch one out of 10 times, then Congress broke down. Now the executive branch does 10 times more stuff that used to be legislative. And now the

court's striking them down 10 times more often. Shame on that court. Well, huh. Yeah, that was my, as I was thinking and reading through this, the report, what I would say, the big question I have is, has it really been, has it really been limiting the power of the legislature? Or has it in many ways been reaffirming the power of the legislature and limiting the power of the executive. And now the answer to that would be someone say, well, wait a minute, by limiting the executive, you are actually limiting the legislature as well because the executive is only acting under statutes that the legislature has passed. I'm not as convinced about that because it's not convincing to me necessarily, again, going back to the Fifth Circuit, that when the legislature said, you know, we want the president to be able to contract for efficiency, that the legislature was really meaning that efficiency is this word that it becomes sort of like the word that can swallow all other words.

Or when you're talking about, for example, the court's recent EPA ruling. Well, when the court passed the Environmental Protection Act and, you know, and when the court created the EPA in the 1970s, it's not clear from the enabling statutes that it wanted to give the EPA all of the authority that the EPA has therefore exercised. Now, there's an argument and then Congress speaks through its silence to say, well, we're not stopping it. You know, we have the power to restrict the, you know, environmental protection laws and we haven't done that. And we're just letting the president, you know, we're letting the president go. But I don't think that sort of squares with reality. The reality is that Congress has broken down and that that is then throwing an enormous amount of pressure up to the executive,

sometimes legitimately puzzled and sometimes just politically frustrated to take action. So legitimately puzzled would be the immigration case that we talked about last week where Congress says shall detain and then doesn't appropriate the funds to detain so that it is literally impossible to do what Congress asks the president to do. It's just not possible. So what's the president to do?

Well, and the courts have to step in and figure that out. Or, so that's one where Congress just doesn't do its job. The other one is the political frustration, such as, again, back to immigration. Immigration compromises have broken down. And so you've had presidents say, well, now I'm going to act. This was Obama with DACA.

This was Trump with the wall. Congress hasn't done what I've wanted. Now I'm going to strain to try to find ways in which Congress has allegedly already empowered me to do what I wanted to do. And I just think that's, that is a situation that is A, different from years past, and B, and I think this is important, Sarah, almost designed in a lab to conflict with the judicial philosophies of at least some of the justices of this court. And I do think there is a thing, this is where you're going back to the beginning to say, well, there's something real here. back to the beginning to say, well, there's something real here. And I've sort of started to think about this court and bear with me for a minute, almost like a reverse Brennan court in a way, in the sense that we have a critical mass of the court with a lot of prior strands of the law. And when that judicial philosophy is going to collide

with some of these prior legal doctrines, and time and time again, that judicial philosophy is going to win. And we've seen it before in the 1960s, and we're seeing it again from a completely different direction in the 2020s. So I do think there's something real they're getting onto here, but I think it's a bit more complicated. Also worth noting that they're looking at the Roberts Court. I assure you,

if there were some larger partisan point they could make, they would. There wasn't. The Roberts Court has seen seven years of Republican administrations and 10 years of Democratic administrations, and they've been striking down executive actions left, right, and center, man. So in that sense, I take your philosophical point. That's also interesting because in his confirmation hearing, and my goodness, in any interview you hear with the chief justice, all you'll hear about is judicial minimalism. That the court is not a legislative or an executive, that it's supposed to decide these cases as narrowly as possible. the emergence of this emergency docket just exploding in the last three years, you know,

the cert before judgment since 2018, taking off. And it is, I think it is almost certainly chafing the chief justice who wants these as narrow as possible. He doesn't want the court in headlines. He doesn't want the court to be

this preeminent branch of government that was never the court that he wanted to oversee. But it's also not the role of the chief justice. As he pointed out, he gets to sit on the Smithsonian board and he gets, you know, to oversee some administration stuff. But otherwise he's, you know, prima inter pares. Right, right. And so I think that there's, number one, the article, the studies that are cited in the article are grasping something real. But number two, I'm not sure it's accommodating

how much our politics has changed, especially in the last decade or so where sort of the breakdown of Congress has become much more, has been much more manifest. Although it did pass some real legislation in the last couple of years, but the breakdown of Congress has been more manifest. Also, the polarization of our politics, the urgency with which the strategic changes turning state attorneys general into sort of free range administration suing machines when their party is not into power. There's been a lot,

there've been a lot of legal developments. It's like free range chickens. Yes. But suing machines. Free range suing machines. By the way, I did forget importantly, yes, he is the chancellor of the Smithsonian, but I forgot he also,

as we've recently been reminded, is charged with presiding over impeachment hearings in the Senate, and he does get $10,000 extra as the Chief. So I just wanted to make sure that I was fulsome in my thoughts on the distinction of the Chief Justice. Yeah, nice. Well, I would be very interested. I think the studies are interesting. My critique is incomplete analysis of overall context. Yeah, like, I mean, Congress failing to do its job in addressing nationwide problems through statute inevitably leads to the executive having political pressure to address those problems finding any hook with which to do so and then the opposing

party usually let's be honest and frankly the opposing states run by the opposing political party then go to court what's the court supposed to do do at that point? And I have yet to hear a satisfying answer from the court's critics about that question because it doesn't really matter whose party is in the White House and whose party is in the governor's house. The two are constantly at odds right now and they're going to the Supreme Court to resolve it.

You just don't want it resolved. You want only the cases that you agree are egregious White House action to get resolved because that's what I keep hearing really, honestly, from a lot of the critics is, well, that case is fine because obviously what Donald Trump did was awful and evil.

This case isn't fine because what Joe Biden did is for the good. You know, vaccine mandates on contractors, people should be vaccinated. Okay. Yeah. And look, I mean, we have seen it. It is not the case that one party has clean hands

on expansion of executive authority and one party has- Oh God, no. No, it is a universal malady. And so therefore you're going to have a wave of very important legal challenges. You know, Professor Vladek, friend of the pod, Steve Vladek from UT Austin, has talked about the court is using a procedure called certiorari before judgment, which we've talked about before, which was used to be reserved for, as Adam says in the New Times piece, it used to be

reserved for exceptional cases like President Richard Nixon's refusal to turn over tape recordings to a special prosecutor or President Harry Truman's seizure of the steel industry. Before 2019, court had not used the procedure for 15 years, and it's used it 19 times since. So there you are looking at something that is a real change. That is absolutely a real change. It also coincides with the volleying of litigation over administrative actions. So I think these two things are- And frankly, another critique that the court gets,

which is that an administration doesn't finish litigating their policies until they're done with their first term. So you never actually get to implement said policies. That was a huge beef during the Trump administration. They would get a nationwide injunction, you know, the second a policy went into effect and a bunch of those cases were piled up in December of 2020. And the court was like, well, I guess we're kind of done with this. So that's letting it play out through the lower courts. And they've been criticized for that too. Like, oh, this takes too long. The court's sitting on these, you know, I understand the critics, but the Supreme Court doesn't get to be on Twitter. And so I'm here to speak on Supreme Court Twitter that there are answers that they would have to their critics that are just very practical.

Yeah. You can't criticize them for both things. I'm going to go out on a limb and say I think that the expansion of expedited process is actually a good thing. And here's why I think it's a good thing. It actually brings the Supreme Court more firmly within the broader scope. It pulls the Supreme Court into the conventional operation of law in the sense that when you're litigating, and especially in injunction practice, your injunction practice is called a rocket docket for a reason. You are moving very quickly through the court system. And then what you would find on important issue after important issue is you had a two-layer rocket docket followed by an absolute slowdown at the Supreme Court. Well, when there are things like circuit splits, for example, in injunction practice, when there are extremely

important issues of extreme national importance, then the rocket docket, in my view, pulling the Supreme Court into that is bringing the entire judicial process within the normal way in which we practice injunction litigation, the entire process. And I think that's worthwhile. Can't do it everywhere. Can't do it with everything. But when you're talking about issues of true national importance, I think pulling the Supreme Court into that sort of more standard injunction practice that is relatively quick can also deal with some of these criticisms, Sarah, that say, well, you have to, you pass a, you enact an executive order or you promulgate a regulation,

then you have two years of litigation about it, and then there's a presidential election. Well, we should be able to compress that and have less than two years of litigation. So I think in some ways, in many ways, the Supreme Court becoming a part of that fast injunction litigation is valuable for the system. All right, quick treatment on two more things. There was a fascinating interview between Mark Joseph Stern

and Judge Bill Pryor of the 11th Circuit. This came about because Judge Pryor of the 11th Circuit. This came about because Judge Pryor was speaking at the Federalist Society's National Lawyer Convention, and it was a funny speech. And at one point in making fun of these liberal critics of the Federalist Society, he said, no less an authority than Mark Joseph Stern.

And then responding to knowing laughs from the audience, he added, and really, is there no less an authority than Mark Joseph Stern. And then responding to knowing laughs from the audience, he added, and really, is there any less an authority? He was using an article in which Stern had described the conservative legal movement's radicalization machine in talking about the sort of law student to clerkship to judge system for conservatives within the Federalist Society. And let me tell you, David, up front, that I didn't like that speech. And I will tell you why. Not because it was meant to be funny or was funny or wasn't funny or anything like that.

It was well received by the audience. And really, that's what a speech is often for. But, and this is totally self-serving, I'll just put that out there. By name-checking the very reporters that you don't think are doing a good job, you elevated them in the conversation. And you didn't name-check the people who might have podcasts who you think are maybe doing a more fair job in talking about some of these issues, not elevating them. Or reporters, etc. There are actually a lot of great Supreme Court reporters out there. When you only name check the ones you don't like,

I just thought that was a missed opportunity. Just lump them all into one category and then name check the good ones. And yes, I think advisory opinions should be on that list. But frankly, there's plenty of others. I mean, Pete Williams at NBC, who's now retired, was the godfather. You have Devin Dwyer at ABC. I'm going to get in trouble because I can't name them all. Jess Braven at the Wall Street Journal, all sorts of people. But instead, he's name checking Ellie Mistal and Dahlia Lithwick and Mark Joseph Stern. Okay, so that annoyed me. However, Mark Joseph Stern then reached out to Bill Pryor's chambers and was like, hey, could I interview you? And Judge Pryor was like, yeah, okay. And what followed was an incredibly civil conversation where I thought that Mark Joseph Stern put forward

some of the best questions from a extremely left-leaning perspective on the things that they are most concerned about, the sort of corruption aspects of the Federalist Society. And I thought that Judge Pryor gave great, non-defensive, non-pivoting answers. Like he just answered every single question. So we'll put this in the show notes so that you can read it all because I can't read it all to you. But I did want to give just an example or two. For instance,

Mark Joseph Stern keeps going back to this idea that members of the Federalist Society have done things that he doesn't like. And by the way, that I don't like either. Jeffrey Clark is a member of the Federalist Society and he tried to overturn the 2020 election. You know, what does that say about the Federalist Society type stuff? But here's the last question that I think was a really a good example of a civil back and forth with hard questions. Civil back and forth doesn't mean that you're nice to someone. It means you're civil and you let them answer. So this is Stern.

Steve Calabrese, a law professor who is a co-founder of the Federalist Society and co-chairman of its board of directors, filed an amicus brief defending the North Carolina Supreme Court's authority to strike down a Republican gerrymander. That's that Moore v. Harper case that we talked about, David. Yes. He took the opposite view of the Honest Elections Project, a group closely affiliated with Leonard Leo, he's the former executive vice president

of the Federalist Society, which defended the gerrymander. Calabrese told Nina Totenberg that the Federalist Society's board of directors instructed him to ask journalists not to identify him as co-founder or co-chairman. What do you think about that request? Judge Pryor. I think it is important for all the reasons we discussed at the beginning of this interview to distinguish between members of the Federalist Society and the organization itself. Members have their own individual views. I think it's a good

thing for the organization to do what it can to help people understand that distinction. The media can report whatever they want to in identifying Steve. There's nothing the Federalist Society or anyone else can do about that. But I think it's probably fair for the organization to tell that to Steve when he speaks. Yes, all the time. When you're speaking on something, the organization or employer that you belong to will say you're speaking on your own behalf, not the employer. Tell news organizations that when you're giving those speeches, I thought that Stern's question was fair. He clearly it was a real question. And Judge Pryor's answer was absolutely made perfect sense to me. So more of that, I think more judges, practitioners, just legal professionals in general, should be engaging

with one another in colloquies like this, because I actually felt like you had two people who didn't understand the other's position at all, come away not agreeing with the other's position, but understanding their position better. And that's the point of civil discourse. Yeah, I thought it was a great exchange. Good on both of them to do it. I also do agree with you, Sarah,

that it would be better to name check people you think are getting it right. But I think that the ultimate outcome here was a really good discussion. And I think one of the things that I hope people took away from it is that the Federalist Society is a lot more decentralized than maybe external critics might think that it is. And you can debate how centralized or decentralized that the Federalist Society should be. So, for example, if you're going to take action as an organization against John Eastman or Jeffrey Clark, well, that's centralizing the organization a bit more. And you might say, well, it's for good reason. They participated in an effort to overturn an election.

And that's, I think that's a good argument, a good debate to have. But I also think it is just important for people to know that you're not talking about a sort of a labyrinthine conspiracy or top-down directed organization. There's a lot of diversity within the organization, a lot of diversity of views. As we have found, we've done these live podcasts for Federalist Societies. There's a lot of division within any individual school's own Federalist Society between sort of the new right folks versus the classical liberals. And there's real division there. This is not a monolithic ideological entity. And then when you add on to the real division, what I'm going to call an extra category of person, which is the sort of the just pure careerist, because you do, it is a case that

as the judiciary has gotten more conservative, that there are opportunities for FedSoc, for FedSoc students to get clerkships. And whenever there is a president, a Republican president, they're going to be looking as a shorthand in their own decision-making. Many of them look for that FedSoc membership as sort of a shorthand to help them guide their decision. So you're going to have some hangers on now. Whereas when I was in law school, wasn't nothing cool about the Federalist Society.

It was, nobody saw it as a path to career prosperity. Now there's a path. And so you do have some people who just kind of hanging on there, you know, see an avenue. Like for instance, I even was not taken aback in the like, this is offensive. I was taken aback, like this is a real question that you clearly have. Stern says in the last couple of years, justices of the Supreme Court who are affiliated with the Federalist Society have made appearances at Federalist Society conventions and delivered speeches that are often received rapturously with standing ovations. The view on the left is, well, these people are just applauding a few members of their club who are going to help them achieve all their goals they're celebrating the elevation of this person of power because they think it'll help them with

their own personal causes what do you make of the impression created by justices attending these conferences and getting this rapturous reception it never occurred like i i was unaware that the left was upset that conservative justices were getting applauded at events, that that was somehow inappropriate. And Judge Breyer, in stride, any group is going to have role models, individuals who a lot of members admire. My guess is that if you went to an American Constitution Society meeting, and Justice Breyer or Justice Ginsburg had been introduced, there would be rapturous applause there as well. I think that's okay. Justice Kennedy would frequently speak at the summer meeting of the American Bar Association following a Supreme Court term and would get that kind of

reception there as well. In our legal culture, there are a lot of organizations of lawyers and law professors and judges where a lot of leadership and members have role models within the legal culture. What's different is that a lot of legal conservatives didn't have that kind of organization and didn't have those kind of role models until recently. Yeah. But David, speaking of one of those role models on the right, Justice Brett Kavanaugh went to a Christmas party. People were very upset about it. So Justice Kavanaugh went to the annual Christmas party at Matt Schlapp's house. He is the chairman of the American Conservative Union. You may know them better because they sponsor CPAC, for instance.

They worked together in the Bush White House. Schlapp was out there during Kavanaugh's confirmation hearing. Kavanaugh's been to this party many times before. Also in attendance at this party, Washington Post journalist Ben Terrace, Steve Holland of Reuters, Greta Van Susteren, but also former Trump advisors Sebastian Gorka and Stephen Miller. And Stephen Miller's new organization, America First Legal Foundation, has an amicus brief pending

before the Supreme Court. And so people said it was inappropriate that Justice Kavanaugh attended a party where there was someone with pending business before the court. I'm very confused how a justice is supposed to know all of the attendees who might come to a party. Are they required to ask the host for a list of RSVPs to vet that list? This is different than a private dinner or hanging out in chambers or something. Although even then, I'm not sure it's nearly as egregious

as people knee-jerk had the reaction that it could be. But attending a Christmas party with several hundred people, this is a large Christmas party, David. And one person, I'm sure more than one person, by the way, had pending business before the Supreme Court. Who cares? So I want to give kudos to Ruth Marcus over at the Washington Post for saying her head is not exploding here.

Even Supreme Court justices get to have social lives, and the Kavanaughs and schlaps are longtime friends. Justices aren't responsible for vetting their host guest list and Kavanaugh's mere presence at an event at which another attendee filed an amicus brief hardly seems problematic. By the way, Ruth Marcus wrote an entire book about Brett Kavanaugh that was not friendly, let's say. Yeah. And I think that is some

impressive distinction that is worth noting when you can write a whole book being critical about someone and yet even still see some of their critics as not in good faith. So let's let people go to the Christmas parties they want to at their friends' houses and not overly analyze everything through this ideological or partisan lens. Goodness gracious. Yep, completely agree with Ruth there. I think that's a very important and an important voice to say it. And an important sort of sanity check on this. When you have longtime friends and they invite you to parties that you've been to for years, it's okay. It's okay. And, and this is one other thing that I really want to,

if there, if, if I would say, is there, what is, what is a core ethos of advisory opinions? One of them is we don't ascribe motives. We try to, to, we try to analyze reasoning. we try to analyze reasoning. And so I think my theory is that you can look at Supreme Court justices and know what's really going on by reading their court opinions. And the more time you try to drive yourself crazy by looking at something that they don't write down

as to why they do X, Y, or Z, you're just gonna go down a rabbit hole that's gonna drive you nuts. And this is one of the few branches of government. One of the reasons why I like the law so much is one of the things that you have to do when you're a judge is you gotta explain yourself. You have to explain yourself in detail

as to what your reasoning, what's your conclusion, all of that is explained in great detail. And in my experience, Sarah, I practiced law for a long time. In my experience, there just wasn't much hidden behind the scenes, really. It was what was on the page. And what was on the page was an explanation of motivation, of reasoning, of understanding of the law, that with good judges, over time, becomes pretty predictable. You kind of know where they're going to land, not because of the parties they went to,

but because of the philosophy that they have and that they explain at length. So don't go to another podcast if you're looking for people to ascribe motives as opposed to analyze reasoning. And with that, David, we are done for the year. I mean, barring something really crazy. Yeah, for the year. And I really hope there's nothing really crazy. I just got a great Christmas present. One of our youngest listeners, he has a dad named David and got in the car. He can now pronounce advisory opinions.

His parents are very proud. He told his dad, I know three Davids, you, my classmate David, and David from the podcast. We're so glad that we have that kindergartner contingent listening to our pod. Can't get started too early, really. I mean... So you know who you are out there. Merry Christmas. Happy Hanukkah. Happy New Year. And especially to our younger listeners,

we know there's a lot of you who have to listen to this in the car with your parents. And we just really appreciate your patience. And David's going to tell you to go to law school, but I won't. Just enjoy third grade. It's good times. No, enjoy third grade, but with to go to law school, but I won't. Just enjoy third grade. It's good times. No, enjoy third grade, but with one eye on law school.

I was doing those problem sets, you know, those logic games. I remember doing those on airplanes in elementary school. It was like there's, you know, seven days of the week and there's five monkeys and there's six different colored shirts, which monkey's wearing which shirt on which day, if there's these three, you know, things that you know. So I was prepared. Yeah, I, but to be fair, third grade listeners, I would, I did not have one eye in law school when I was in third grade. I didn't have one eye in law school until I was a senior in college. So I didn't know GPAs were actually something people like looked at. The cumulative part of that really was mysterious to me.

I thought grades were just for our own edification and feedback. So when I got bad grades, I was like, cool, what do I care? I know how smart I am. Oops. Oops. Well, thank you everyone for listening.

We really do appreciate it. Thank you for hanging with us during a momentous legal year. My goodness. And gosh, we had some emergency pods that broke listenership records for us by miles. So thank you for hanging in with us. Thank you for listening. Thank you for supporting the dispatch. So we will be back right after the new year. In the meantime, that gives you tons of time to rate the podcast, subscribe to the podcast, and check out everything that we do on thedispatch.com.

See you in 2023. Although the Maccabee Revolt is pretty incredible. Totally. If it were celebrating the Maccabee Revolt in general, that would actually be very cool and better than eight days of oil. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect.