Advisory Opinions - Guess Who's Back? (It's Sarah, Sarah's Back)

Episode Date: September 28, 2023

Sarah's back from her first maternity leave ever to for a live recording at Georgetown University Law School. Together with host emeritus David French, they preview the 9 most dramatic cases coming before the Supreme Court this term. Also: tips for law students and a live Q&A (at least as long as our batteries work). Here we go:-Kavanaugh didn't flip his vote (surprising few) -We called it (on Alabama) -Welcome to the South Carolina case! -Rahimi: The one we've been waiting for -Hearth and home: down with redundancies and repetitions! -How to clarify 'Test, History, and Tradition' to make sure bad guy loses? -Standing and The Great Flipping -Chevron rises again? -The antiestablishmentarian conservative -SEC... yes. -Purdue Pharma bankruptcy: can bankruptcy courts do that? (No.) -Sympathetic plaintiffs versus federal taxes -The blocking-people-on-Twitter cases -Tips for law school graduates -Questions from the audience Show Notes: -District of Columbia v. Heller -Quick Facts on Felons in Possession of a Firearm (Section 922(g)) -Miles Law -Arlene’s Flowers Learn more about your ad choices. Visit megaphone.fm/adchoices

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For details, visit your local Ford store or Ford.ca. You ready? I was born ready. Jership Captain. Welcome to the Advisory Opinions Podcast. I'm Sarah Isger and I am back. I know you all didn't miss me much because we have a huge thank you to give to David Latt for filling in this month while I was at home with Kevin Keller. He is a little potato of a baby making his way into the world. We call him Case. And he is doing quite well. He's gaining weight. He is sleeping, eating. And for two hours a day,

he screams at me for no discernible reason whatsoever. I am joined by David French. Joined by David French. And we are doing our first show back at Georgetown University Law Center. Thanks, Georgetown. And I've met Kevin Case Keller. And he's spectacular. He's fantastic. Whenever I come into town, I say with Sarah and Scott.

And I've gotten to know. Now I'm getting to know Case and I've gotten to, now I'm getting to know Case. I've gotten to know Nate. Nate was showing me all of the toys that he received as compensation for not being an only child any longer. And it's an oppressive array. Yeah, he didn't even show you the cowboy boots. No. Yeah, Case got him cowboy boots

and also a million other things that my parents clearly indulged on when I was gone. Two days in the hospital, you'd be shocked how much they can buy. It was really impressive. All right. We have a great show. We're going to do a little Supreme Court preview, our top nine cases from this term, as well as some thoughts on post-law school life, mentorship, how to think about your job, and then questions from you guys, whatever else. And yeah, actually, we're not going to do any of that. We're just going to do Taylor Swift and Travis Kelsey today. That's right. Upon further

reflection. Upon further review. Why do some people in the right all of a sudden hate Taylor Swift so much? I don't know. But look, like the making everything political, obviously has already gotten old. So I've just been enjoying the women who are trolling their boyfriends by saying that Taylor Swift has really put Travis Kelsey on the map. That poor guy finally getting some recognition for playing in the NFL. So if you're one of those dudes, like she's trolling you. It's a joke. It's it's girls daring each other to see how mad they can get their boyfriends. Yeah, exactly. And he was my number one draft pick for the Franklin News team,

which is my fantasy football team. And so far, all I have to say about the Dispatch Fantasy Football League is it's corrupt. It is rigged. There needs to be an investigation. There's no reason I should be one and two. But yeah, let's do Supreme Court. Okay. So this week, long conference.

We're about to get, in theory, a lot more cases granted. But we're looking today on the cases that have already been granted, scheduled for argument, et cetera. And you and I split up sort of the nine that we thought were most interesting. Why don't we start with the one that had a little bit of breaking news? There is a South Carolina redistricting case that will be heard for argument. It's under the court's mandatory jurisdiction. So the fact that they took the case doesn't actually tell you a lot about how this case would turn out.

It tells you nothing. They didn't have much of a choice. But the Supreme Court did deny, I was going to say deny serve. They denied everything in the emergency case coming up from Alabama. So if you remember last term in the Milligan case, Alabama's redistricting plan that they came up with had a single minority district. They were sued that there needed to be two minority districts. And the Supreme Court said, no, they upheld Section 2 of the Voting Rights Act. Alabama was told to try again. So Alabama did. And they came back with a map that had a single minority district. And we talked about that some and said that, look, they weren't openly defying the Supreme Court in the sense that that's not actually what the Supreme Court said.

I thought they had an argument, and I thought the Supreme Court wouldn't care for their argument very much. The circuit court in this case, the appellate review, was like, no, you have to have two minority districts that what we said, just do it the way we said it. They went to the Supreme Court. The Supreme Court just denied review. No noted dissents. So Milligan was 5-4. Kavanaugh and Roberts joining with Kagan, Sotomayor, and Jackson. I think Alabama thought,

you know, they can go straight at Kavanaugh, see if they can flip his vote. I don't think it's surprising that Kavanaugh didn't flip his vote. You and I talked about that. What's maybe a little surprising for Alabama, at least, is that there weren't any noted dissents. Like they didn't even get Alito or Thomas to say like, well, look, they have a point. The communities of interest are important.

And they did keep all of the communities of interest together. If this had been the first map they had come with, maybe we would have done it differently. Nope. silence. And we both predicted that. But I talked to some very smart people literally days before the Supreme Court's decision most recently,

and they were convinced that Kavanaugh was going to flip. They were convinced that- Wait, are these doom scrollers though? I mean, we know them and I don't know that we'd call them doom scrollers, but I would say they have an excessively negative view of the current court would be the right way to say it. You know, look, I think the longer we get removed from the most recent term, the more the combination of Allen v. Milligan, the Alabama redistricting case, and the affirmative action case will be seen, it will be read in a particular kind of harmony.

And that harmony is you're going to lose if there's evidence of invidious, that you've engaged in invidious discrimination. And Harvard, for example, there was abundant evidence that there was invidious discrimination against Asian applicants. And one of the things that I've said to a lot of folks who've argued with me about that case and have supported Harvard's position on affirmative action is I've kind of turned it around and I've said, justify Harvard's treatment of Asian applicants to me, please. Like, just tell me that was fair for Asian applicants. And then if it wasn't fair, if it was wrong, why was it wrong? Like, what was wrong with it? And you get really pretty quickly into the conclusion that when there's invidious discrimination, there's going to have to be a pretty strong remedy. That's the Alabama situation, the key situation. And even though there are many people in Alabama who would say, no, no, no, no,

this is a partisan gerrymander. This is not a racial gerrymander. The interesting thing that Roberts did was say, look, there are some jurisdictions in which the partisan gerrymander is the racial gerrymander. And Alabama is one of those jurisdictions. And the really interesting question to me, Sarah, and we've talked about this a little bit, is in a way, did Roberts resurrect not preclearance exactly, like Shelby County preclearance, but kind of a version of it, that if there is enough of a history of partisan polarization and voting, and you can trace it back to actual invidious discrimination, are you going to have extreme judicial skepticism when that state comes to you and says, this isn't a racial gerrymander, this is a partisan gerrymander?

And I think the answer is probably going to be yes, probably going to be yes. Welcome to the South Carolina case. So this is the case being heard, this term, like I mentioned, where South Carolina absolutely argues this is a partisan gerrymander. And in order to make it a partisan gerrymander, they took all of the black voters out of Charleston, South Carolina, so that they could have a Republican district. So it's both, right?

It is a racial gerrymander and a partisan gerrymander. And there's lots, though though of, you know, if Milligan was about whether section two was going to survive and that question has been answered. Yes. Section two is going to make it and how you are going to deal with thinking about race and not thinking about race at the same time. Like maybe we didn't answer that too specifically. But South Carolina's case is way more in the weeds about sort of the standard of review, how courts are going to presume bad faith or good faith,

how you determine the mixed motives on something that is a partisan gerrymander that used race, basically, to make it a partisan gerrymander, for instance. So there are different questions in South Carolina, but I'm curious whether the result will actually just be the same for your sort of philosophical reasons. Yeah, it's a really good question, because one of the key things that Roberts went back to in Allen v. Milligan was how extreme the racial polarization was in the voting. So we have racial polarization in voting all over America. So white people in New York vote Republican more than black citizens of New York vote Republican. But the gap is not giant. You know, it's not one is 80-20 and the other one's 90-10. It might be 80-20 versus 55-45

or something like that. So, it's a reasonable polarization. It's not excessive. But some of these states in the old Confederacy, they have massive polarization on the basis of race and voting, just massive. And so the question then becomes, oh, does, is that all traced to partisanship or do you trace that back to race? And I feel like these states in the old Confederacy are going to have a lot harder time than say Wisconsin in saying that, no, this is, you know, this is cleansed of sort of the taint or the stain of all of that racism. But I don't know. We were not to toot our own horn,

but to toot our own horn. We were some of the only people who, after Alan Mevilligan oral argument said, Alabama's gonna lose that case. So I'm, you know, I'm very open to this one going either way. And I'm going to be very intrigued by the oral argument. All right. One of nine.

Two of nine. Two of nine. Rahimi. Rahimi. Oh, this is the one. This is the one that I'm watching most carefully. For a legal reason and a practical reason. So let me start with the practical reason.

A legal reason and a practical reason. So let me start with the practical reason. This case has the potential to essentially moot out an enormous amount of our gun control argument in the United States of America. So if you're arguing about red flag laws, for example, and Rahimi says that if you're subject to even an agreed order of, an agreed civil order, domestic violence restraining order,

and you can't be divested of your weapons in that circumstance, how does a red flag construct survive? That's a really interesting question. And then also they're going to be fleshing out text history and tradition that I've talked a lot about on the podcast. And how are they gonna flesh that out? And if tradition that I've talked a lot about on the podcast. And how are they going to flesh that out?

And if they flesh it out in a certain way that essentially says, look, basic view is laws that are, I mean, weapons that are in ordinary use for lawful purposes are going to be presumptively lawful. You're going to immediately have ramifications for so-called assault weapons bans. Because if there's one weapon in America that is in widespread use for lawful purpose, it would be the AR-15. It's the most popular rifle in the United States.

So it's in widespread use for a lawful purpose. And then if you say history and tradition says, you know, domestic violence restraining order is not an impediment to owning a weapon, it's really going to open up a lot of the very basic standard gun control measures that have been in existence for a very long time. And you start to wonder, would then wonder, is Bruin really not an extension of Heller, but a departure from Heller. And I'll read there really real quickly. So here's what Heller says.

So Heller talks about the right of law-abiding, responsible citizens to use arms in defense of hearth and home. It talks about protecting weapons that are ordinarily used for a traditionally lawful purpose. But then it says, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carrying of firearms in sensitive places. Bruin would basically come and say,

everything in this opinion casts doubt on these longstanding prohibitions unless they're longstanding enough. And so I think that's where we are in Rahimi. And I honestly don't know. This looks like another Roberts-Kavanaugh swing vote situation. And Kavanaugh has said some really interesting things

about the Second Amendment, but also in Bruin took the position that he sometimes takes of, this might look really radical, but it's not as radical as you think. So it will be, I don't know, Sarah, where do you think this is heading? I get really confused about the phrase hearth and home

because isn't the hearth in the home? Yeah, it's just a rhetorical flourish. I reject that coming in a Supreme Court opinion. Because I'm actually being a little bit serious here. This is the problem with the text history and tradition. So on the one hand, and we've talked a lot about our beef with the text history and

tradition. Lower courts are clearly having problem with text history and tradition. We've had folks ask, what work is the word tradition doing when you already have the word history? Jeff Rosen from the National Constitution Center had an interesting argument on this, which is that text, text, fine. History is original public meaning. That's sort of the originalist hook there. And tradition is everything that happens after that, which is living constitutionalism. But of course, text, history, and tradition was a

Justice Thomas, not that he came up with the phrase, but rather he's the one who used it and made that the test in Bruin. There's no way he meant text, original public meaning, and anything that's happened since then that people felt like doing. So I liked Jeff Rosen's definition from a that's what words can mean standpoint, but it's obviously not what these words meant. And this gets me to the hearth and home problem, which is, first of all, good writing doesn't use cliches. Hearth and home is a cliche, I think at this point. Text history and tradition maybe not, although it might be soon enough. The Supreme Court holds staffers in Congress to every word that they use in a statute as if they had the Oxford English Dictionary in front of them and were looking at all the potential definitions when it comes to textualism, for instance. And certainly we do that with original public meaning as well. We literally look to dictionaries from time and are like, how did people use this word?

word. So if you are coming up with a text history and tradition test and you didn't look up the word tradition and think of Jeff Rosen's possible explanation, you have failed the very test that you put on all of these 25-year-old Hill staffers as if they're doing it. So that bothers me. Anyway, that was my rant on hearth and home. What were we talking about? No, I- How's Rahimi going to come out? Yeah. So some interesting thing here. One, because of Hunter Biden, suddenly everyone seems to know a lot about 922 laws. And I was on ABC a few weeks ago and John Carl said something about how these cases,

quote unquote, are never brought. And I was like, whoa, whoa, whoa. These cases are brought all the time. 922 felon in possession cases, for instance, are the most common case that the Department of Justice brings. Now, under 922, you also have the Hunter Biden substance abuse.

Now, Hunter Biden's charged with both the possession of a gun while he was addicted to a controlled substance, but also lying on the form. We don't need to get into the distinction of that. Some people make the distinction. Some people don't. Does it count on lying on the form if the thing you were lying about wasn't lawful restriction anyway? Judge Easterbrook has thoughts on that. We can do that another time. But around the country, these are all getting challenged.

So you have a court that's already struck down the substance abuse part. You now have a court that's struck down, what, there was some other, was it the felon in possession? It was felon in possession, but if the felon is of a nonviolent felony. That's right, the welfare fraud case

where like in the 1970s, this guy got convicted of welfare fraud and now still can't own a gun. So that was struck down. And you have Rahimi. So just to be clear. And the Barrett dissent before she was on the bench on nonviolent felons. Yes. Yes.

So you have the elderly gentleman who was convicted of minor welfare fraud before we were born or i'm looking at them david i'm sorry the youth to which i belong or you've got rahimi who has shot at more people in a 24-hour period than like Elmer Fudd has gotten after that rabbit, which case did the Supreme Court take? Rahimi, the bad dude, right? Like nobody is going to want to say, give this guy a gun.

He didn't just have a domestic violence order against him. He had two. He didn't just shoot at one person on a saturday night he shot at five i think and then the next morning woke up and was like i'm so sorry let's go back to boom boom boom like shoots more people um so to the extent you want to read any tea leaves and you don't want to know anything about the law i'm gonna just go ahead and file this one under bad guy. Bad guy loses. That's where I would put it too. And the big question to me is how do they clarify text history and tradition to make sure the bad guy loses and then to sort of make sure that all the bad guys lose

going forward. Well, you've got a problem also where, and I think that the fifth circuit actually did a nice job of illuminating the problem with text history and tradition, which is the analogy. And we've talked a lot about this. There isn't an analogy on several fronts to 922G when it comes to the domestic violence part. There's the due process part of it, which Judge Ho points out in his revised concurrence. I actually think that is persuasive, and I'm very curious how the Supreme Court will grapple with that part of it but then there's the parts of it that I think are I'm new back to the podcast batshit crazy we'll just delete that for those listening at home which is this idea that the analogy has to be so tight in disarming people for things like this. Well, here's the problem. At the time of the Second Amendment,

guns were serving a pretty different purpose in people's lives. If they disarmed you, you had no way to defend yourself, maybe no way to eat food, depending on where you lived. And so this idea that they were regulating to the maximum allowable under the Second Amendment, that to me is silly. And so this idea that you only look to the maximum allowable under the Second Amendment, that to me is silly. And so this idea that you only look to those analogies and if they didn't have it, that means that the Second Amendment can't incorporate those regulations. Well, then you're assuming that they were regulating to their maximum ability, which I don't think there's any real argument that they would have been. Yeah. And I think the text is the analysis of the Second Amendment and all of the just wildly different ways in which state legislatures have legislated going way back

demonstrates one of the problems with that test, which is, and let's just put it in layman's terms, in terms I would especially understand. Let's suppose we passed a new constitutional amendment and the first state legislature to write legislation following the passage of that constitutional amendment is mine in the state of Tennessee. The idea that 80 years from now, people would look at that collection of people and say, they're the scholars who knew what this really meant.

Frankly, sends a shiver up and down my spine. Because one of the first things that we recognize and we realize when you look at American history is how often elected bodies immediately or nearly immediately contradict or depart from text in response to moral panics, in response to national emergency, you name it. And so, you know, the old example that we look at, if text history and tradition starts to govern, what do we do with the Alien and Sedition Acts then? That's-

Always my go-to. Always the go-to, because that was not just proximity to the founding. Like we're talking founding generation stuff here. Though I do appreciate the principled people out there who are arguing that the Alien and Sedition Acts are just fine. Right. Honestly, like because at least...

If you're going to go for it, go for it. There is a principled argument there. They're like, no, no, everything we think about the Alien and Sedition Acts is wrong. And actually, it should be included in our body of thought on the First Amendment. All right, we ready to move on to number three? Yes. What is number three? Atchison.

Atchison has not gotten its due. And we're going to love on some Atchison right now. So this is a standing case. For those of you who aren't lawyers listening to this podcast, just go ahead and hit the forward button a few times. Because I know that you guys are not the biggest standing fans out there. But this audience of Georgetown Law students... This is what they've been waiting for.

They've been waiting for Atchison their whole lives. I've seen the impatience. Yeah. Also, I will just note that there was a guy in the audience wearing a beat Texas hat and he has taken it off. And I'm just curious, are you from Oklahoma? Oh, I love it. Oh, I love it.

I love it. He says he's a boomer. He did the horns down sign. I am triggered. This will be the rest of the podcast. He's under my skin. No, I appreciate it. I was just in Austin

and the arrogance radiating from that entire city after they beat Alabama at Alabama was unbelievable. And if they actually, if Texas actually is back. Do you want to see pictures? I have pictures of Nate and Case wearing their UT gear with a Bevo stuffed animal and the cowboy boots. I'm so nervous because in the history of name image

in the new NIL world, name image and likeness, when you have UT Austin, which is not the real UT, but when you have UT Austin, its alumni database has a GDP larger than most European countries. Nobody's outspending Texas. And so I'm very nervous about that. But that's a whole, that's a whole nother podcast. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. And we'll take a quick break to hear

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Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right. Well, speaking of standing, standing up for your state, I appreciate that. It's got to be lonely here from Oklahoma. All right. So the Americans with Disabilities Act puts a lot of requirements on places of public accommodation, like hotels, for instance. And Atchison is the name of a small hotel that none of you have been to. Although they're getting a lot of publicity, at least in this minor world of legal nerds. So good for the Atchison Hotel, I suppose.

There are people out there who consider themselves sort of self-appointed testers. They go to these websites and make sure that they're complying with the ADA. They have no intention of actually going to this hotel. And in fact, the woman in this case has filed, her name's Laufer. I believe she's filed 600 of these cases.

600 cases, yeah. As a self-appointed tester. And so she filed against Atchison Hotel. And Atchison Hotel has this argument that in fact, she does not have an injury. She never intended to go to the hotel. So therefore, there was no injury in fact. And this case would be interesting no matter what, because there actually are a ton of these cases. And just what would be interesting no matter what, because there actually are a ton of these cases. And just what standing means, and we've had all these problems with, for instance, aesthetic standing that we've talked about. What if it hurts my feelings? Is that an injury in fact? Well, this is adjacent to that. The sort of injury in hypothetical, let's call it.

But the case got weirder and more fun as well. So first of all, when Acheson went to the Supreme Court to get this case granted, normally you would go up and say you have a circuit split. That's not uncommon. And there was a circuit split here over whether these hypothetical injuries are injuries for Article III standing purposes.

But here, Acheson Hotel got to cite for their circuit split, Laufer. In fact, in the Fourth Circuit, there was a circuit split with just her cases alone. And that is really fun to me. That is amusing. Okay, but it got even weirder because Laufer dismissed her case

at the district court after the Supreme Court granted cert. Now, there's some like messy reasons for this. Her attorney has been sanctioned. So she got new counsel. It turns out that dude was filing like thousands of these cases and not telling his clients things like that he filed them, that he dismissed them, that there were settlement offers,

you know, things that all good lawyers do. Just law students, tell your clients when you file a lawsuit on their behalf. So she got new counsel. They dismissed the case at the district court level, which may remind you a little bit of some of the standing problems, the jurisdictional problems, for instance, in some of the past cases, last term 303 creative, there was a lot of grief around that, of whether that case actually, whether the court still had jurisdiction over that.

But here's a fun fact. So standing is an Article III jurisdictional question. So is the dismissal. And the court can choose which one to address first. So in theory, they could toss the case, dig, dismiss as improvidently granted, or they could address the standing question first and dismiss it on those grounds if there's not, in fact, an injury.

The court has declined to dismiss it so far. No digs yet. But I just find this case really fun as standing continues to be an ungodly mess. Yeah, and it's interesting because you're going, you're about to see the great flipping. Okay, so in 303 Creative, a lot of people were very upset about that case,

not just because the outcome, they said it's not a real case. She doesn't have an injury. In fact, she has an injury and hypothetical. She doesn't actually have a business. She doesn't actually have anyone who's asked her to create a website. So it actually does look a little like the law for case. It's an injury that she could have if she went to Atchison Hotel, which she admits she has no intention of doing. So civil liberties lawyers, like I've spent my career as a civil liberties lawyer. We're looking at the 303 creative controversy and going, are you kidding me? Facial challenges are the most normal thing in the world.

They happen all the time. This is not something that's completely novel. If you couldn't mount a facial challenge, it would have been very, very difficult, for example, for me to ever file a speech code lawsuit, because I'd have to find a plaintiff who had had the speech code hammer fall on them and be willing to file a federal lawsuit. It's not as easy as it sounds. Like a lot of people who have the speech code hammer fall, the last thing they want to do is just keep fighting that kind of thing. They just want to, it's not why they went to college. I don't know if you guys went to college to file first amendment lawsuits is not why they went. So it's not. And so the chilling effect can persist and magnify in the absence of the facial challenge. Well, here it's the civil rights attorneys who are saying,

whoa, these tester lawsuits are incredibly valuable tools of civil rights enforcement. And if you remove this, then you're going to find yourself in the same place that say the free speech litigants would find themselves in. Massive chilling effect, large scale violations of statutes, no real way to systematically address them. So just watch out. You're going to see op-eds as this thing approaches that say this is important for civil rights. as this thing approaches that say, this is important for civil rights. It'll be interesting to see how many write that op-ed who absolutely crapped all over 303 Creative.

That will be very interesting to me. I expect to see some people. And when I do, I shall not tweet threads at them mercilessly. But yeah, watch for that. That's gonna be interesting. Okay, but just to be clear, watch for that. That's going to be interesting. Okay, but just to be clear, you think that all of them should have standing?

Yes. Yeah, I think so. Unless you, well, here's the distinction. I do think that if it is absolutely clear that there is absolute no intention whatsoever. So for example, in 303 Creative, there was no evidence that she didn't intend to create a business.

She never said on the record she had no intention of the equivalent of visiting the hotel. So on the one hand, she hasn't visited the hotel, but also 303 Creative hadn't started the business. Right. Okay, so you would give them both standing. I'd give them both standing. Yeah.

And we talked about this before, which is for conservatives, this would give them both standing. I'd give them both standing. Yeah. And we talked about this before, which is for conservatives, this would be a real change. Conservatives were generally anti-standing or at least standing side-eye, standing discomfited. But you are pro-standing. Well, one of the...

Yeah, I'm pro-standing. So one of... You squishy, squishy lib. I know. But see, one of the interesting things is, especially when you started practicing in the mid to late 90s, is that the definition of a conservative judge back then was very plaintiff unfriendly.

Correct. Trial lawyer unfriendly. As a general matter. So like if you were a plaintiff in the Fourth Circuit Court of Appeals in say the early 2000s, just go ahead and get ready to face a tough, tough time. And standing was a way that you kept them out. And standing was a way that they were kept out. And so the, and then all of a sudden what begins to happen is as the speech code regime

locks in, as a lot of the sort of left institutions become extremely intolerant to religious liberty and free speech, all of a sudden you began to see a bunch of conservatives filing lawsuits, which is what happens when you don't have power anymore. So you're very plaintiff unfriendly typically when you have a lot of institutional power because plaintiffs are doing what? Challenging the power. You tend to become a lot more plaintiff friendly when guess what? You don't have power. It's the same pattern that exists with free speech. People who have a lot of power often tend to be quite ready to figure out ways to suppress dissent. And then people who had not

given free speech four seconds of thought, as soon as their speech is suppressed, become, speech, four seconds of thought, as soon as their speech is suppressed, become, you know, the ACLU on steroids almost immediately. But I am for beefy standing, like beefy, you know, like Travis Kelsey standing. The Travis Kelsey standing doctrine. Yeah. Okay. But I want to think more about this case where the plaintiff says that they have not,

will not, have no intention to be injured. Yeah. That may just fall on the other side of the line. I think if you have concessions on the record, like, so if Lori, I think it is Lori Smith. We'll just pretend it is for a moment.

My apologies if it's not. And this is like true AO fashion. Like if there's one thing we're going to get wrong, it's going to be a name. For sure. And she's just lucky I didn't pronounce it Lori Smythe.

But yeah, so if you're Lori Smith and you say, I'm going to challenge the Colorado public accommodation law and I have no intention of entering into the business, that would be different for me than, so if there's actual admissions on the record,

I have no intention of going there. I have no, all I'm operating as is sort of a private police force. That's over the line for me, but yeah. All right, next up for numbers six, seven, no way, I can't count. I can't count at all. Four, five, and six.

Do you want to do your little trio of regulatory cases? Yeah, let's start with that. Some Chevron, some SEC, some CFPB, all the letters. So let's start with Chevron. And this case, the Loper Bright Chevron, this is the Loper Bright case. And this is the case involving, this is Loper Bright Enterprises versus Raimondo.

And this is Fisherman., this is Loper Bright Enterprises versus Raimondo. And this is fishermen. And so this case is really interesting because federal fishery law makes it clear, and this is the Amy Howe summary on SCOTUS blog, makes it clear that government can require fishing boats to carry monitors. People are sort of monitoring like the intake of the fish, the operation, et cetera.

But it doesn't address who pays for the monitors. And so what the regulatory agency said is, well, it doesn't address it. It's entirely reasonable for us to say that you, the private citizen, have to pay for the monitor. And so the case is actually taken on not on a narrow basis, but on the broadest basis. And here's the issue, whether the court should overrule Chevron versus Natural Resources Defense Counsel, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference. Okay. So there's the broad, should it overrule Chevron, and then the at least. Or clarify.

Or clarify. But then the at least element of that is so precise. Yep. And relatively narrow. But this is because Chevron zombified 10 years ago. They haven't mentioned Chevron in I don't know how many terms. And so someone's like, yeah, what happened to Chevron, y'all? In this case, Paul Clement.

Yeah, so it's fascinating to me because Chevron is another one of these cases where you have seen the conservative position shift over time. And you've also seen it shift in the person of one Antonin Scalia. So when Scalia came onto the bench, he was pretty pro-Chevron. I mean, not the bench, the Supreme Court bench. He was pretty pro-Chevron. And then over time became anti-Chevron.

Before he passed away, he was pretty decisively anti-Chevron. And so, you really see a difference, I think, in the way that conservatives view institutions and the way they view Chevron. So... And Chevron, just for those listening at home, because I know all the law students here know that. It's not about gas stations. Yeah, it's where you defer to the agency's interpretation of their own powers, in short. Right. And so the Supreme Court's gotten around that. The reason they haven't mentioned Chevron is because it was supposed to be when it was a close call, when there was ambiguity.

And so instead it's been like, there's no ambiguity. So that's why you don't get to interpret your own powers. And that's how Chevron became a zombie. And so here you have like, hey, remember Chevron? Do you want to overrule it explicitly? Here's your opportunity. Or at least clarify that it's a zombie. And it's interesting, you know,

I've written many times about this concept called Miles Law, which is, it was a rule of bureaucracies, but it also resonates in human nature. So Miles Law says that where you stand is based on where you sit. In other words, basically your position in life and in the world very heavily influences your outlook in ways often that trump

your sort of abstract rational thought. Your personal experience really matters. And I find it really interesting as conservatives have felt less welcome in institutions, how they've become more fans of anti-institutionalist legal doctrines. So free speech is often a very anti-institutionalist legal doctrine.

It's the foundation in many ways of how you challenge an institution. Chevron is a very anti-institutionalist, I mean, is a very institutionalist doctrine in an anti-institutionalist time. And the institution that Chevron really defers to is, do we have like music to cue for this? The deep state. And so it's a very anti-institutionalist time, particularly on the right, particularly aimed towards the organs of the federal government. And Chevron was one of the ways that institutionalists preserved institutional power.

And I think you're right. I think Chevron is a zombie doctrine at this point, just a zombie doctrine. But I do wonder if they're gonna implement the coup de grace here. And I don't know, but the issue presented gives them an out. Hot take. No, Chevron does not get explicitly overruled. It's just more zombified. Yeah. They will just clarify how you're never

going to find ambiguities again. So it's like a zombie in Walking Dead that's just the head sitting there, biting. Yeah. And you have to like stick your hand in the mouth to really have a problem with it. All right, do your quickie on SEC and CFPB. So essentially on CFPB, what you're talking about is the funding mechanism of the CFPB. And this case is interesting to me. And here's the issue, whether the Court of Appeals erred in holding the statute providing funding to the Consumer Financial Protection Bureau

violates the appropriations clause in Article I, Section 9 of the Constitution. And in vacating regulation promulgated at the time when the Bureau was receiving such funding. So it's funded in a way, allegedly, that violates the Constitution. And therefore,

because it violates the Constitution, then it will be, then because that funding violated the Constitution, the actions undertaken while being funded are void. It's a really interesting case to me because it's, the case reminds me of a lot of issues that we have seen as Congress

has sort of started to abdicate a lot of its duties. And longtime AL listeners, there's a few in here, know that one of our mantras is Congress, do your job. So the question is, how much can Congress say, nah, I'm not going to do my job. I'm going to punt my job to various agencies. I'm going to punt our revenue raising authority to various other mechanisms. And on the one hand, you would say, wait, David, Congress did its job. I was going to say, that's the pushback. They did their job. They came up with a funding mechanism. They just don't have to fund it themselves every time. Right, exactly. So that's the answer is that, well, Congress did its job. And if you're looking

at the administrative state, every single creation of the administrative state was born by Congress. And if anything, there's a delegation problem here where they were like, it's whatever you CFPB director think you reasonably need to run the CFPB. Like, what is that? Yeah. And so it's funding by vibes. So it really is a very interesting issue with regarding whether or not Congress has to do its job every year or Congress can do its job one time and it's done its job for all the years that follow. As we're heading into a government shutdown,

one feels like if they could do their job anytime, we could be happier, but whatever. It's true. All right. SEC. This one is not a close call to me. It's not a close call to you? Okay. So there are three issues here. Whether statutory provisions that empower the SEC to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment okay next question all right we're done with that um whether a statutory provisions that authorize the sec to choose to enforce the securities laws through agency adjudications man i'm already oh i'm sorry

no whatever the bad one keep going okay and whether congress violated article two by granting four cause removal protection to administrative law judges and agencies whose heads enjoy for-cause removal protection. Yeah, yeah. It's for-cause all the way down. Definitely not okay. So that case is quick. Okay. Done. I'm just kidding. Basically, the SEC gets to be prosecutor, judge, and you can't remove them because to remove them for cause, they then get to appeal to other people who can only be removed for cause. You need a jury trial. You're guaranteed that. You can't have all of these independent people running around. This is nonsense. SEC nonsense, I tell you.

And it really is how much can you take? How much can Congress not only delegate to the SEC doing its job, how much can it delegate to the SEC doing a jury's job? How much can it delegate to the SEC doing its job, how much can it delegate to the SEC doing a jury's job? How much can it delegate to the SEC doing a prosecutor's job? How much, well, the prosecutor's job would be the executive anyway. How much can it combine everything under one roof? And the facts here aren't great, if I recall correctly, in that part of it is that the SEC, as prosecutor,

improperly accessed files because they were also the judge. And it actually shows the problem with not having a true adversarial system and a neutral arbiter for that adversarial system. So, yeah, I'm a gnaw dog on this one. Yeah, I agree with you. Okay. Okay, Purdue bankruptcy. This actually matters a whole lot to bankruptcy practitioners.

So not much to me at all. As you know, I believe that bankruptcy courts are largely unconstitutional, which you can see is either disloyalty to my father, the bankruptcy judge, or that I'm trying to get him a promotion into article three. Regardless, this will get lots of headlines because it's the opioid settlement with the Sackler family, wherein the bankruptcy is with Purdue Pharma. But part of the bankruptcy reorganization plan

included a liability waiver for the Sackler family. They had taken, I'll get this slightly wrong perhaps, $11 billion out of Purdue Pharma. Part of the reorganization plan is they put $4.5 billion back in and got the liability waiver. Can bankruptcy courts do that? It actually doesn't matter what comes before that question for me because the question, can bankruptcy courts do that, for me will always be no. because the question, can bankruptcy courts do that, for me will always be no. Yeah, the background is Sarah thinks the bankruptcy court system

is unconstitutional root and branch. Root and branch. It is an Article I court, similar to the SEC. Nope, nope, not that the SEC is Article I. I mean, my thoughts on it are similar to the SEC problem. Your poor unemployed father. I know. When your doctrine becomes law. Maybe I'm just

trying to get more childcare at my house. It could be. I'm just thinking of case, you guys. All right. So that case will get a lot of headlines because of the underlying topic, bankruptcy finally having its day in the sunshine. Speaking of the nerds getting to sit at the popular kids table, the tax lawyers are having a moment as well. This is the Moore case where it's an actual 16th Amendment case. Now, for those 1Ls who had a little too much bourbon one night, you may have already had the conversation about whether the 16th Amendment was properly ratified or whether it is in fact a false amendment to the Constitution. If you are having those conversations, I urge you to find new friends. If you are the one instigating those conversations, I urge you to find a new hobby. This is not that case.

This is about whether income has to be realized. As in, do you need to actually get the income? We do not tax, for instance, property, even if you're under the 16th Amendment and federal income tax. If your property has gained a whole ton of value, you don't owe the federal government money on that property.

Well, but if it's your income, you do, obviously. But there's all sorts of things in between. So these very sympathetic plaintiffs had invested money in a corporation that gave farm equipment to poor farm workers in India. And all of the dividends from that investment got reinvested back in the company. But that was an accretion, if you will, like their money did grow. They just didn't personally realize that growth because it went back into the company. Nevertheless, the federal government taxed them on it. So that's the Moore case. Is that a violation of the 16th Amendment? Well, you know, there's a lot of folks who are highlighting this case from a

standpoint, an apocalyptic standpoint, that if this goes against the federal government, it's going to blow a huge hole in federal revenues. Reminds me a little bit of the make Oklahoma great again chaos theory, right? Yeah. We know at least one justice who's like. Justice Gorsuch is like Leroy Jenkins, you know, to that. And I really hope you know the reference of Leroy Jenkins. But yeah, I, this is one of those cases where it's hard for me to see the federal, I could see a Gorsuch dissent. Yeah. Let me put it this way. But it's hard for me to see a federal, I could see a Gorsuch dissent, let me put it this way.

But it's hard for me to see a Gorsuch majority opinion in this case. Also, these folks are the opposite of Rahimi. They are the most sympathetic. So it's an interesting case in that sense. It is very interesting. Yes, it is very interesting. And it's something that's sort of slowly emerging on the radar. It's one of those cases where some people say,

wait, explain this to me again. What are the consequences? Yeah, this is going to be very interesting. So we've had some, well, I don't even want to call them bad facts make bad law cases. They're just the facts make the law. And I'll let y'all decide whether that's good law or bad law.

This last one though, is a little bit of Trump law for me, where I think that when you insert Donald Trump into the legal question, you totally distort how anyone views the outcome of cases. This is the blocking people on Twitter cases or line of cases. So if you remember, when Donald Trump was president, he blocked people from his Twitter account. They sued, claiming that, in fact, his Twitter account was, for all intents and purposes,

a public forum, that that violated the First Amendment. And the appellate court sided with the blocked. Donald Trump then was no longer president and the Supreme Court mooted out that case and the monks, Muncingware vacator, which is fun to say and even more fun to figure out when it applies

because there's a lot of disagreement on that. But the idea that because he couldn't really appeal it and they couldn't get into the merits, it zeroes out the lower court opinion. However, there was a nice little Thomas thought bubble. Justice Thomas- He's been doing that more. Yeah. Justice Thomas concurring in the Munson wearing of that. I'll just read that to refresh everyone's memory. When a person publishes a message on the social media platform Twitter, the platform by default enables others to republish, retweet the

message, or respond, reply to it, or other replies in a designated comment thread. The user who generates the original message can manually, quote, block others from republishing or responding. Then he walks through the history of the case and why it's getting mooted out. I write separately to note that this petition highlights the principal legal difficulties that surround digital platforms, namely that applying old doctrines to new digital platforms is rarely straightforward. Respondents have a point, for example, that some aspects of Mr. Trump's account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.

Because, of course, remember, Twitter at this point had deleted Donald Trump's account from Twitter entirely after January 6th. All right. So fast forward, we now have two cases that are going to get heard the same morning, both involving local government officials with their personal accounts that are doing public, you know, their official statements, if you will, press releases, answering questions, et cetera, on those social media platforms and blocking people. And they each come up under the opposite decisions from the circuit courts. Okay, so in this, you have two cases coming up at the same time, one coming from California, one coming from Michigan.

The circuit courts decided opposite ways. The Supreme Court decides to take both. They'll hear them both on the same morning. I've got friends on both sides of this. It'll be a really fun morning for me. Yeah. And I don't have strong feelings of how this should come out. I also don't know that it matters. And I mean, like matters in a broader sense. You know, part of the discussion here will be whether they are performing, quote unquote,

a duty of the office or invoking the authority of their office. It's one thing for Donald Trump to like, pew, pew, random things on Twitter. And another, if someone's like, hey, is this a no parking zone? And you're like, it's definitely not a no parking zone. That would be using the authority of your office.

Maybe you shouldn't be able to block people from interacting with that or something. Also interesting to me because the Michigan one was about COVID. And the Sixth Circuit said that it was fine to block them because the official was not operating his Facebook page as part of his duties as the city manager. So blocking this dude did not violate the First Amendment. In the Ninth Circuit, you have two parents criticizing school board members. The Ninth Circuit ruled that the board members blocking constituted government action so the board members did violate the First Amendment when they blocked parents. And of course, Twitter, Facebook, all of these guys can take down all of these pages whenever they want, as Donald Trump learned.

I know this is a First Amendment case and I should be super worked up about it, but I'm not. Yeah, I'm not either. What I want to do is I just want people to apply their sort of right frame. And so I got really, I got exercised about the Second Circuit decision against Trump because I thought it was just, it used wrong analogies.

So what came up during the Second Circuit case, and I'm looking at a piece I wrote all the way back in July of 2019. But you're citing yourself? I'm citing myself. Okay. No, but it has the relevant Twitter language in it. So I'm citing Twitter. But people were saying, okay, well, if a public official rents a conference room, right?

And they have the right to exclude somebody from the conference room, and they exclude you from the conference room, even if it's at the Hilton or the Hyatt or the Mayflower or whatever, that's an official action. They've leased the space. The space is theirs for that time. And when they use the power that they have over the space, then no one would say that they hadn't used, that wasn't state action. But that's not the analogy. No, that's not even close. At all. Because there's no exchange of money here. The user has no right to the platform. Not only can Twitter eliminate your access entirely, it can censor and control every use of the platform at all. And here's, and not only that, but everything you say, oh, Twitter owns as well.

So it's not, so here's Twitter grants itself a right to your communications. This was the provision in force at the time of this case. I don't know if X still does the same thing, but get a load of this. By submitting, posting, or displaying content on or through the services, you grant us a worldwide, non-exclusive, royalty-free license in print with the right to sub-license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute such content

in any and all media or distribution methods now known or later developed. I can't wait for them to adapt your Twitter feed to a screenplay. That'll just be amazing. Unreal. So watchable. This is not renting a room, okay?

This is not even really your own expression at this point. This is a joint enterprise with Twitter where Twitter has the ultimate control over everything that you do. But I felt like around the Trump thing, you had a whole bunch of liberals saying, oh my God, Donald Trump shouldn't be able to block people. And you had a whole bunch of conservatives being Donald shouldn't be able to block people and you had a whole bunch

of conservatives being, Donald Trump should be able to do whatever he wants. And now, if you put it in the COVID context, for instance, public officials shouldn't be able to ban me from criticizing them

on social media pages, says the Republican Democrats. Why should you have access to their public media page just so you can spew your disinformation on COVID? Like, really? Just no?

Yeah. I think there's a good comparison that a professor Greg Dolan made. And this is again, back in 2019. He actually compared, he said the better offline comparison is like a radio call-in show where you have a radio host

and you have a politician and someone calls in and starts berating the politician. And the politician says, get rid of that guy. But he can't get rid of the guy unless the host gives him the power, get rid of that guy. But he can't get rid of the guy unless the host gives him the power to get rid of the guy. And so I thought that was a good analogy. So I just don't know if the outcome of this case is going to change my life

or politics in any fundamental way. No, it's a very niche dispute, but it will be interesting to see how they handle the online aspects of it. Because as Justice Kagan said last time, we are not like the nine greatest experts on the internet. And they could mess things up. It's entirely possible to have limited understanding of the internet and mess things up here. So I am interested in it. I don't really care one way or the other, to be honest,

if a public official can block me or not on a platform. But the way they deal with the online aspect of this will interest me because I have found, and maybe in the Q&A, you can challenge me on this, in almost all online speech disputes, you can find very interesting offline analogies that can help guide. For example, Section 230 and moderation. If you think that moderation converts your speech, if I'm the moderator of Twitter and I moderate you, if you think that me moderating you means that your speech suddenly becomes my speech, what's your position in a, let's say you're in a public university classroom and the teacher says, I want all questions in here to only be on the topic of the class. That's moderation, right? You cannot say anything off topic or I will shut you down. Does that mean that all of your comments are

therefore my comments? No. Or if you say at a public meeting, you have two minutes and we're going to turn off your mic if you go off topic or that's moderation. It's pretty common moderation. Does that mean that the speech of the people, the random folks from the town suddenly become the city council speech? No, it doesn't. So sometimes offline analogies can be helpful. And I've also talked about in the pornography context where there's offline restrictions that prohibit children from accessing pornography offline, even when they impose some additional burdens on adults. But somehow when we get into the online world, we think if there's any additional burden on an adult,

that it can't be constitutional. But I don't quite get that. So I'd like to make the offline and online analogies, but just make them good. All right. So those are our nine cases for this upcoming term. Long conference, as I mentioned, is where they're going to consider a zillion pending cert petitions. We will have very special guests joining us for an even more robust post-long conference Supreme Court term preview. Very special guests, yes.

It will be, drumroll, Lisa Blatt, Sarah Harris. Huge, huge. We will also, at some some point revisit our 14th Amendment Section 3 conversation with a special guest who I did bait, in fact, into coming on the podcast to defend his law review article. I won't say his name. We'll just wait. You can guess. You can guess. Yeah. So we have a lot of fun things coming up on this show in the next few episodes. But David, before we turn it over to the law students,

we're going to open with our own question from a hypothetical law student. Okay. Which is, you've graduated law school. Let's say you've clerked for a year or you're just straight out of law school, deciding between two jobs. or you're just straight out of law school deciding between two jobs. In one of those jobs, you're going to be like the 12th man,

if you will, on the team. If you get to do doc review, that would be a lucky day for you. You're getting coffee. But you're getting coffee for the biggest fish that there is. The smart person who's argued a zillion cases does exactly what you want to do when you grow up for the Travis Kelsey of, you know, the biggest

law firm. Okay. But your other job, you're going to be like the guy. You're going to get to write your own briefs, maybe argue your own cases, but you're not going to have a whole lot of hands-on editing, mentorship, help. You're not going to be anyone's number two. You're going to kind of get to run your own show. How should you think about deciding between those two jobs? Being the big fish in a small pond, straight out of law school or out of your clerkship, or being the small fish in a small pond straight out of law school or out of your clerkship or being the small fish in a big pond, but where the bigger fish are really experienced? Yeah. That's a great question. So I have, and this is a question that you guys, a lot of you guys will face. So I have an answer that depends a lot on your own goals. So if you, for example, know you want to be something,

I wanna be a prosecutor, by golly, I wanna be a prosecutor. Then I would argue much more for aiming towards the hands-on, I'm diving in as a prosecutor, I'm gonna start making my name as quickly as I can, getting as much experience as I can. Because in some professions or in some categories of the legal profession, repetition really matters. Just getting in those reps

really matters. And when I've talked to a lot of prosecutors, especially at the state level, they have found it incredibly valuable to get in reps early on lower consequence cases, just get them in. And a lot of, one of the most valuable aspects of my early legal career is I had some partners at law firms who let me get in some reps on some very low stakes cases that I was nonetheless so nervous about before my first oral argument

that I literally did not sleep one minute before I argued my first argument on a discovery motion. But anyway, but here's the other one. I don't, I'm out of law school and I don't really know all the ways in which I want to use this law degree. And then I default to what's my option expanding choice. And the option expanding choice in that circumstance is to sit at the feet of the masters. Travis Kelsey. Travis Kelsey, right. You're here as backup, or maybe you're on the practice squad. That's an option expanding choice. Getting another one of these sort of key credentials, watching people at the absolute top of their profession work, it sets you up for success.

And it's also because of the additional credential. You worked for Travis Kelsey. You were Travis Kelsey's backup. Yeah, exactly. And everyone's gonna be like, ooh, Travis Kelsey. He's dating Taylor Swift. That guy, right? Right.

I haven't heard of him in any other context, but it's pretty cool he's dating- Totally unknown before then. Yeah, he's Swift. But that's my general advice on that. I think that's really good advice. I hadn't thought of it that way. My advice is slightly different, which is that your entire career

should actually be bouncing between those two options. And I suggest that you start by being Travis Kelsey's backup. And then the next step- Then go get some reps. Yeah, then go get some reps. In part, because you'll just learn a lot. And in part because the first thing you want to do

is not make a career-ending mistake. Just that. I think right out, you could just use a little bit of hand-holding, a little bit of watching someone else do it to learn the biggest don't't do that. And if you're just send off on a little skiff by yourself, I think that would be my main concern. But I like your version too, which is a little bit more about knowing yourself. I think part of it is since I never have and still do not know what I want to do.

It never occurred to me that one could wake up and be like, I know what I want in life. Don't know what that's like. No experience experience with it so assuming that you're always on the option expanding life path bouncing around in the ocean and the waves like I am then you're gonna keep moving between big fish small fish jobs and having the other reason to start as the small fish is you at least start with one mentor. And so then when you become the big fish in the next job, you've at least got one person you could call and be like, I've got this problem. Now what? And I think having someone in your corner, it's mentally helpful. It's metaphysically helpful, not to mention very practically helpful when you need to make those phone calls, whether to ask the question on the front end

or to call on the back end and be like, I think I've made a huge mistake. Yeah, yeah, absolutely. No, the mentoring aspect, but sometimes it's hard to find the mentor in those institutions. Yeah, yeah. But that's why I always,

so I haven't always had two choices between jobs, but in the times that I have, the two questions that I ask are, one, when my alarm goes off at 4 a.m., which job am I hitting snooze for and which job am I bouncing out of bed for? That's right off the bat. So both, I'm hitting snooze.

But the second one is, which person that I would work for seems like they actually want to invest in me. And that's a little different than the Travis Kelsey question, right? Because like Travis Kelsey, maybe the, you know, the goat or whatever, but like he doesn't care or know who you are.

Maybe he's a terrible mentor because he's very busy with Taylor Swift right now. His girlfriend. I don't know if you know that. Yeah. It's rumors. Rumors. And so your mentor doesn't need to be Travis Kelsey. It can be DeAndre Hopkins or someone else. And if that person's into you, and if you hit it off in the interview, and if they've said things like, part of my goal will be to make you the type of lawyer who can go out and get that next big fish job. So with that, we will now stop with the hypothetical law student questions and move to

the very real law student questions. If you have a question, we have a microphone. I know that kind of sucks. I know it's kind of bad, but... If you don't want to walk all the way up here, we will repeat your question. If the deterrent to asking your question is walking 35 feet, we will accommodate your disability. Yes. So I guess a question about the Rahimi case. What about, I've heard the argument floated

that it really amounts to a due process case, that he might have an argument that there wasn't enough process before this order was granted, and that it might kind of be an out to avoid siding with an extremely unsympathetic plaintiff? Do you guys think there's anything there? The really difficult part of the due process argument is I can easily imagine a due process-based challenge to domestic violence restraining orders

because a lot of them are granted very quickly with minimal review. In this case, it was an agreed order. So, it's kind of hard to make the due process argument when you've agreed to the order. Now, the record may be replete with circumstances as to why that occurred, et cetera, et cetera. But I would think that if you're going to make the due process argument, you would be somebody who contested the order and they were extreme summary proceedings. And you felt like you had no due process. In this circumstance, he agreed to the domestic violence order, which is another one of these elements that says these are facts that are not great

if you're wanting to have domestic violence restraining orders not be a bar to gun ownership because he's actually a spree shooter who agreed to the order. And so, yeah, I think if you're going to be making that due process frontal attack, you would want to be someone who had been exposed to a summary proceeding that you had no opportunity to cross-examine witnesses that you, maybe even it was ex parte, for example, that it was an ex, because there are ex parte domestic violence restraining orders that are granted. So in that circumstance,

I think you'd have a lot more solid due process argument. But sure, I absolutely think that the court could use that as an out and say here, he had agreed to the domestic violence restraining order. In fact, there were two, one of them was agreed to, one of them was not.

So, and to say like, and so here are the factors that we shall consider or, you know, some version of that where Rahimi, bad dude, gets his gun taken away, but, you know, domestic violence restraining orders now get a totally different look in how they're granted. I think that's one version.

That's the Judge Ho concurrence in this case. You know, there's times where the concurrence in this case. You know, there's times where the concurrence is responding to your fellow judges on the panel. And there's times where the concurrence is like a little love letter to a very specific Supreme Court justice with like an XOXO Judge Ho at the bottom, hypothetically. And like, this was, you you know everything but mailed um to one first street so absolutely i think that your argument there which is not yours your question there which was judge ho's concurrence was not written to the fellow panel members whatsoever or to the rest of the fifth circuit it was written directly to um let's say justices that could be on the fence in this case

that might have been in the majority for 97% of last term's decisions to be like, yeah, but what about this? Yeah, come on down. Come on, just come hang here in the front row. Y'all didn't sit in the front row, which no one does, and I get that. But now here's the microphone.

Yeah, both of you come on down and just go one after the other. Yeah, come hang for a sec. Yeah, good. Y'all are wearing, well, two of you showed up in jackets. I'm curious if that's everyday wear to show respect for your fellow students, or if you were coming from somewhere.

It's not everyday that AO fangirls get to see the real deal in person, so I wanted to dress appropriately. I love it. So, my name's Jack. Thanks so much for coming. Two questions. One for David, one for Sarah. So for David,

given your beef with the Texas strange tradition test, would your ideal be a return to the Heller standard or something new? And then for Sarah, and this is a favorite topic of yours, could you please give us a brief refresher on why bankruptcy courts are unconstitutional?

And if Gorsuch, and I split Gorsuch and you got your way and threw it out and restored Article 3, how would the legal system not implode? What is the remedy for bringing your ideal to reality? I'm going to go first because it's important to note that the reason that I get to be here today

is because my father is with my son. So I'm very grateful to bankruptcy judges as a general matter and as a specific matter as I sit here today. Hate to say not the center, right? Yeah. Okay. So quick refresher, not for you guys in this room. Article 3 is where judges are confirmed, right? That's life tenure. They can't be removed except through impeachment. Good behavior, right?

Their salaries can't be diminished. There's all these protections to make an independent judiciary. This is what we fought a revolution over. And then sneaks in these little Article I judges. So Article I is the legislature. So these are congressionally created judges. For our purposes of this discussion, we're going to talk about magistrate judges and bankruptcy judges. So magistrate judges are the little helpers to the district court. They do all sorts of criminal proceedings and fact-finding, and the district court can look at everything brand new. De novo review from the district court. But nevertheless, like, the magistrate exists for a reason. It's to lessen the burden on the district judges and take some of that off their plate.

Bankruptcy judges are way worse in my view. They have a lot more power. And while yes, the district judges can still throw out everything that they did, their expertise, the trials that they're holding, the hearings with gazillions of witnesses, all of that basically makes them like an expertise court. And yet, they're not Article III courts. They're literally not in the Constitution as far as I'm concerned. Because of that, the Supreme Court has grappled with this a few times. And in several of those cases, they've limited the powers of the bankruptcy courts and said that, in fact, district courts need to be making these decisions.

I think that for the very reasons you say, there's a chaos element to this, that the Supreme Court has not been willing to just say, no, where did this come from? However, it would be really easy to fix. You just make them Article III judges. Why hasn't that happened? Because of our judicial confirmation wars, neither political party wants to give the other one a windfall of magistrate and bankruptcy judge appointments. Are there ways around that?

Sure, you know, for the next 10 years, and bankruptcy judge appointments. Are there ways around that? Sure. You know, for the next 10 years, every two years, 70 openings, well, you know, and you just spread it out. But it hasn't been a real priority, I would argue,

because there's no fire that's been lit. Because as long as you keep narrowing the bankruptcy court's discretion little by little, it's the frog in the water, to quote the vice president of late. Did you hear her do that story? She was like, oh, no, no, no. See, there's one frog and she made it like the longest version of the frog in boiling water, which if you don't know it, you can just Google it. I don't need to like refresh your memory. So anyway, that's why. I just don't think there should be any judicial proceedings outside of Article 3, for that's the SEC.

The administrative agencies are doing the same thing. The legislative courts are doing the same thing. I absolutely want bankruptcy courts to exist. I'm fine with magistrate judges existing as well. They just have to have the Article 3 protections that they should if they're going to be doing Article 3 protections that they should if they're going to be doing Article 3 work, which is what they're doing. Okay, your answer to my question,

that's a passion about these courts. But again, I just want to thank a very specific babysitter out there right now from Article 1. So I don't really see what's wrong with layers of scrutiny. So a lot of folks will say, well, layers of scrutiny are kind of made up, right? Not kind of. They are made up, yes.

However, the question that we're dealing with here is when you're talking, it's as opposed to what, right? So, for example, one of the reasons why I favor layers of scrutiny and make that strict scrutiny when you're talking about enumerated rights is that what you're then doing is you're privileging the text and accommodating change at the same time. So it's not living constitutionalism because at all times the text is privileged. If it is right to bear arms and a strict scrutiny analysis, that makes it very much like Congress shall make no law that's, you know, restricting the freedom of speech. And so the text is here under a strict scrutiny analysis. The text is always here. Under the text and tradition, text history and tradition, oddly enough, the text isn't always so primary. Because if you've

got text and then history and tradition that really starts to contradict the text, beginning immediately after the text was passed, then I feel like you've got a real problem. It's actually undermining the text. And so there's a lot of sensibility, sort of judicial sensibility around the idea that what the text does is it functionally establishes the layer, the level of scrutiny. Because we do know that there is no such thing as, for example, a constitutional right to send an email to China if we're doing a classified surge of aircraft carriers to protect Taiwan, for example, to tell the enemy

that when ships are sailing. So we know easy questions like that, but there's always gonna be edge cases. And so a framework for deciding edge cases is indispensable. And if that framework for deciding edge cases is rooted in state legislature circa 1877, you're going to struggle. You're just going to struggle.

And so whereas the layers of scrutiny, we have an enormous amount of judicial experience with those. And to me, my problem with pre-Bruin law was that it was this two-step process resulting in intermediate scrutiny. And the intermediate scrutiny was almost always just deferring to the legislature. You could just go through case after case after case after case under this intermediate scrutiny standard, which we've always said is the, you know, rational basis is the government wins, strict scrutiny is the plaintiff usually wins, and then intermediate scrutiny is the judge wins. And so if you're talking about enumerated rights, my view is your default is strict scrutiny

because that is the highest level of respect for the actual text. We'll keep our answers shorter. Yes. Now that the questions are picking up. Thanks to both of you for being here today um and please correct me if i sort of mischaracterized what you said but david seems like you have a theory that um conservatives when they lose power in institutions

tend to become anti-institutionalist um when they lack power when they lack power When they lack power. When they lack power. When they lack power, yes. Interesting. Because I understood that to mean instead of trying to get back, get power back, they essentially fight those institutions. And I was wondering whether that was a sort of a good long-term strategy,

especially if you think, like I do, that institutions are a good thing and having strong institutions is a good thing? Yeah, you know, that's a really good question. I think that when you both lack power and you feel like you've been injured by the institution, because there's a big difference between sort of saying,

you know, I really lack power at Amazon, but it's done nothing bad against me. I mean, rings of power, I liked it, you know, so I don't have a beef with it. I lack power. I don't have a beef. But if you lack power and you feel like you've been injured, there's always, let me pull it back from sort of civil liberties for a minute. And let's talk about labor and management. So a lot of times our worldviews are formed when power is out of balance in one direction. And so I grew up in the 1970s when labor was, had overwhelming power and especially in the car manufacturing world. And labor was doing a very bad job making American cars. So, and the,

and management had very little ability to do anything about it. And so American cars over time just got worse and worse and worse and worse. There was a power imbalance. The management couldn't impose consequences for incompetence, for example. And so then all of a sudden here come the Japanese cars, the Japanese cars start eating our lunch, and then the power starts to revert back more to management. And then now a lot of people would say, management, it's gone too far.

So a lot of what happens is when power starts to go break out of its bonds, whoever is being harmed by the breach becomes the sort of the anti-institutional champion. And that can go too far as well. You can sort of say, well, management has gone too far. So therefore, labor needs to be as powerful as was in the 1970s. No, no, there needs to be a balance of power. And so I think one of the really interesting elements of this anti-institutionalist age is a lot of people have a burn it down mentality

as opposed to check the excess mentality. And one thing I like about civil liberties, being a civil liberties lawyer, I have never thought of civil liberties as you know, being a civil liberties lawyer, I don't, I have never thought of civil liberties as burning down authority. I've always thought of civil liberties as checking authority and creating ordered liberty. So, ordered liberty is not burning down authority. What it is, is it's reigning in its excess. So, for example, you know, a perfect example of that is the due process clause, where it doesn't say the state cannot deprive you of life, liberty, and property. It can deprive you of life, liberty, and property. It just can't do it without due process of law. That's what the balance is. And I think that one of the things that we've seen, especially as America becomes more polarized, is we tend to jerk between extremes.

because we tend to jerk between extremes. So if this institution is flawed in the way it's interacting with me, well, we want to defund the police or we want to abolish the FBI as opposed to check excess power. So the Supreme Court's taken a lot of like regulatory cases, free speech, free exercise. They're going to work through text history and tradition

one way or the other. But what's something that you wish was on the Supreme Court's radar? Maybe a case you think they should take more of a type of cases that would give more guidance to lower courts. What do you want to see more of coming from the Supreme Court? Has the Supreme Court fixed qualifiedimmunityyet.com? That's my answer. Yeah, I think that's a huge one. I think that's a huge one. And I think David and I don't even agree necessarily on how they should fix qualified immunity, but they should do something. It's not working. There's a zillion of these cases percolating through the circuit courts. I think the circuit judges are actually all doing their best,

courts. I think the circuit judges are actually all doing their best, but it's getting pretty heated down there in circuit world. We talked about that Ohio case with the spoof or satirical Facebook page where he's putting up memes of like, come into this police van if you want to be molested or whatever. So they arrest him. And then there's the one at the border in Texas where she's asking questions that they don't like with a source. So they arrest her for doing her job. And those are qualified immunity cases. Wild to me. So yeah, we've got to do something on qualified immunity. It doesn't have to be in the excessive force context. In fact, I think it probably shouldn't be. It should be in, frankly, what I think are easier cases where you've got plenty of time to think about what you're doing. They tend to be in the speech context at schools or

reporters doing their jobs, etc. So that's qualified immunity. Easy one for me. The other one for me is... The other one for me is... Last term was supposed to be the tech term. Last term was supposed to be the tech term. Fizzled. Big time. You got to take the net choice case. Disclosure. Husband of the pod. Remember, works on the net choice case. He represents net choice. And Scott's got to argue that. Scott's got to argue that. No, you got to take the net choice case. And the other thing I think that really needs to be done is we really have to have better Supreme Court guidance on this line between convincing and coercing when it comes to the

state interacting with private entities. You know, we just had a case, the Fifth Circuit, Missouri v. Biden, where it reversed about nine out of 10 elements of the lower court's injunction, but did hold that the Biden administration, I think rightly held that the Biden administration crossed that line into coercion, applied this test out of the Second Circuit, NRA versus Vulo that we've talked about. We don't need the Fifth Circuit having to go to the Second Circuit to get the standard. We need a standard because that issue is absolutely not going away. So we need the tech term that we have been long denied. And should we wrap? Do you have one more question?

One more, yeah. Hi guys, thanks for being here. When someone comes with their question in a moleskin notebook, you know that they're at a Federalist Society event. So actually, I have a confession. I a Federalist Society event. So actually, I have a confession. I'm actually an undergrad student.

Exciting. And I'm a philosophy major, so I'm going to give you a philosophical question, but sort of related to the Moore case. I just want to be clear. You look like a law student.

If you're a philosophy major, I hope you realize you will be going to law school soon enough. We don't have jobs for philosophy majors without JDs. Best dressed, least tattooed philosophy major I know. Well, law school soon enough. We don't have jobs for philosophy majors without JDs. Best dressed,

least tattooed philosophy major I know. Well, law school is the goal. So hopefully. And just to be clear, Georgetown Law Center is on the other side of Washington, D.C.

from Georgetown. So this is not like you walked across campus. You commuted here. Yeah. Impressive. With Jack. All right.

Aw, that's why you all wore jackets. Oh, yay, undergrads. So to what extent should the court weigh the negative policy impacts of a decision when deciding a case? Who wants that? Okay, so let's just be clear.

Our undergrads have asked excellent questions today. They are very impressive. You're already into law school, if it were up to me. But again, since you have a philosophy major, you know that this is where you end up regardless. Look, so how the court should think about the effects of their decisions, there's a should and then there's a how it actually works. Like, judges are citizens in this country.

Of course, they think about the consequences of their decisions. I think Bush v. Gore is an interesting example of that, where you want them not to think about the consequences at all, to decide that case purely on the law and the facts. And you wish you could delete the names of the two candidates involved, but you can't. And these justices live here. They vote here.

They watch the news here. They read the newspapers here. And that's impossible to do. It gets though to this institutional access that I've talked about on previous episodes where you have the political access at the bottom, conservative to liberal and all of that. And everyone spends all their time on that. And I find it really boring after a while.

But you've got this other axis because otherwise you need something to explain why Kavanaugh and Gorsuch aren't on the same side of cases a lot. And my explanation for that is that Gorsuch doesn't care about the effects of his decisions and Kavanaugh does. I don't think that makes one morally superior to the other or a better justice or augh does. I don't think that makes one morally superior to the other or a better justice or a smarter justice. I think it just makes them very different justices and maybe a little bit of what David was saying about where you stand depends on where you sit. Justice Gorsuch sat in the 10th circuit. And so when you're going to look at some of the outcomes of those decisions, it absolutely seems to be relevant that he has a little bit of a side expertise,

if you will, on Indian law. And then in terms of my personal, like where my heart is on these things, it's so hard. I mean, some days I'm Justice Gorsuch and some days I'm Justice Kavanaugh. Like I want to be Justice Gorsuch because I think it's the erasing the names on Bush v. Gore, right? Like there's something pure about saying that you don't care how the case comes out and you shouldn't care. But I'm Justice Kavanaugh on so many days. Yeah. I look at it like this. So my judicial

philosophy, if I was a judge, I'm an originalist. But also, I'm a believer in judicial restraint. And an unelected branch of government should not be the dominant force in people's lives. And so my view would be, what is a decision that is consistent with originalism? And also, a modest decision, most modest realistic decision consistent with originalism. And to me, that's one of the reasons why Dobbs came out the way that it did.

There was no way to come up with another standard, whatever it is, let's say, well, the constitution now says it's 15 weeks, right? It does, where'd that come from? So if you're gonna talk about Dobbs, there was no real way to be both originalist and restrained, if that makes sense. Roe, if you're going to have any trace

of originalism, Roe really had to go. But there are many other cases. Let's go Fulton, the Philadelphia Adoption Agency case. You can say, consistent with originalist principles that the adoption agency can win that case. You do not have to, have to,

strike down Employment Division v. Smith to do it. So that's where you had Kavanaugh and Barrett saying, people are just to strike down Employment Division v. Smith, but we haven't seen what the alternative would be. There's a lot of unanswered questions. So that was a question that's, that was a case consistent with originalism and what you might call incrementalism. And so when you can harmonize both of those values, I would be an incrementalist. When you cannot harmonize both of those values, I would be originalist is the way I would think it.

I want to amend one thing about my answer because I'm concerned that for those listening at home, they'll think that Bush v. Gore, I'm talking about the political outcome of the case, when in fact, I think a better example might be the text history and tradition, where on the one hand, if you're a Gorsuchian, as I'm using that sort of phrase, you don't care whether the lower courts are historians or have any time to look into the history or tradition, whatever tradition means, about the question before them. But if you're Kavanaugh, you're thinking, what? How are these guys going to spend six months researching original documents, some of which haven't been digitized, some of which haven't been digitized in the founding era debates over surety laws when it comes to domestic violence at the founding.

And so I think it doesn't mean that the Kavanaugh way of doing this is somehow more political or more concerned about who benefits from the outcome. It can be a very practical situation like we've seen. Yeah, I mean, in my view, and Bruin would be, what's the incrementalist slash originalist approach? The originalist approach says, yes, you have an individual right to bear arms. That's in the text. The incrementalist says, and let's slot that straight into the way we deal

with all other enumerated rights. And so that would be that combination. All right. And with that, thank you, Georgetown Law Center. We've had the best time. Y'all are wonderful. I will also note for those considering law schools, they had smash burgers here for their snack. So right up there with Kentucky's Chick-fil-A. For other law schools that are considering inviting AO to do a live podcast, do include what food you will be providing the students. That's how we're making decisions at this point. So thank you.

It's great to be back. Thank you AO listeners for all your support and kind notes. Yeah, this, it's a journey to have a second baby, but I'm making it and um you know poor producer adam will just have to keep up with you know this like gap in my knowledge for three weeks where i just didn't i didn't look at anything david i didn't listen to you guys i didn't check in no nothing yeah no we're so glad you're back. But no disrespect to David Latt, who, as I said in the last podcast,

I had the distressing experience, the same one I have now, which is people come up to me and say, advisory opinions is amazing. Sarah is great. Oh, thank you. And then the next, you know, week later after David comes in,

advisory opinions is amazing. I love David Latt. Also, I didn't realize this, but David Latt, of course, named his son Chase, which we talked about. And then I named mine Case without even thinking about it. And so now our sons

are one letter away from each other. Yeah. And three months apart. Yeah. So, yeah. A lot of Latt love here. Thank you, David and Zach. All right, we're signing off.