Advisory Opinions - Gun Salad Kits (Live at Columbia University)

Episode Date: October 15, 2024

Sarah and David break down two cases from the Supreme Court's recent oral arguments and take questions from Columbia Law students. The Agenda: —Can the ATF regulate gun kits? —Is a salad kit a salad? —Death penalty case in Oklahoma —Bad writing from the Oklahoma Supreme Court —Racist Penn professor —Audience Q&A Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we are at the Columbia Law School. We are. You'll get to see how the sausage is made, and Adam's gonna hover over me creepily the whole time. It's actually very special to have producer Adam here in person.

I mean, we do schools all the time, but to get him, that's a huge deal for you guys. So you should be pretty impressed. So Sarah, this is a point of trivia. This is the first time I've spoken at Columbia University Extended. This is Columbia Law, but in the Columbia Extended universe without having to walk through metal detectors

because of fear of violence. So the piece is very nice. The last time I was here was late 04, when the Columbia Unbecoming documentary had come out. Barry Weiss, many people know who Barry is, was part of this movement of students calling out anti-Semitism in the Middle East Studies Department. Anti-Semitism at Columbia University, Sarah.

Hard to imagine. Hard to imagine. And it caused the campus to lose its mind. And so when I came and spoke in defense of the students' academic freedom for producing the documentary, it was lit, as the kids say. So yeah, it's nice to be back

and it's nice to be in a more peaceful setting. Well, we are here as the Supreme Court oral argument term has started. We have two cases to talk about from this week. One Glossop, the death penalty case, and the other one, Vanderstock, the gun case that remember is not a second amendment case, it's a statutory gun case.

And David, I have to say, I like the summer. I like warm weather. I like pools and apparel spritzes. But to have oral arguments happening again, it just, it feels good. It does. I mean, what marks the beginning of fall more? Is it oral arguments or college football? Depends who you ask in my house,

but obviously for me, it's oral argument season. So why don't we start with Vanderstalk? So again, not a second amendment gun case. This is about the 1968 act of Congress that regulates guns, machine guns, like we dealt with in the bump stock case. And it was a funny little case. So the question is whether a gun kit that is not assembled and needs some, you to do some work is a gun that's regulated under the act. If so, you need a serial number and you need a background check. If it's not a gun, if it's just, you know, random pieces of metal, then you don't need

a serial number and you don't need a background check. And that's why we call them ghost guns. So the ATF promulgates this rule that says that like, Hey, yeah, no, these are definitely guns. The oral argument was fun. We got to talk about things like Trader Joe's salad kits and stuff like that. Have you ever done one of these kits, a gun kit? No, I have not, although a member of my family is a gunsmith.

And so he is routinely getting the lower assembly portion of an AR-15 and turning that lower assembly portion into a full-fledged AR-15. So I'm familiar with the sort of the overall gunsmithing process at a very high level, Sarah. So I'm just gonna go ahead, anytime you talk about guns, you've got listeners who know everything about everything. So please forgive us in advance,

if there's a terminology hitch, I'm gonna do my best. But yeah, I have a member of my family who I would qualify say is a very good gunsmith actually. So these gun kits are gonna come in all shapes, sizes and forms. Some of them are assemblable in 21 minutes. So this thing comes in the mail and 21 minutes later, you have a functional firearm.

But in all of these cases, you're gonna need to drill a hole, for instance, at least one hole, sometimes more, and file down some plastic. This all comes about like why now? Why the Ghost Guns now? Because of the polymers and sort of 3D printing, I guess this has made it easier, lighter to actually assemble

these and make these sort of kits. And in fact, the kits now also come with, in some cases, the jig, the tool that you actually need for some of this. So it really is a Trader Joe's salad kit in a lot of ways. Okay. Some terms that we need to get out of the way. Part A of the statute is going to talk about the readily convertible, you know, readily convertible into a gun. Basically part B separately is going to talk about the frame or receiver. It took me quite a while in this argument to figure out exactly what a frame or receiver was, but David, as best I can tell, it's the thing you hold onto.

Well, no. So I mean, it's the thing that contains the mechanics, but like, isn't that the part I hold onto? What's the, the part you're going to hold onto is going to be like the grip of the pistol grip that the pistol grip does not contain the hammer. That is, so if you're gonna pull the trigger, it's going to create a cascading series of vents, which is going to end up in many weapons with a hammer hitting the cartridge,

igniting the explosive and propelling it. And so the- That's a good point. That has to happen in the top part. Let's say the horizontal part, not the vertical part. I'm holding the vertical part, but sort of by definition, that's where I just put the clip with all the bullets in it. So that doesn't have any mechanical thing in it.

Right. So originally, so the definition of frame or receiver was that part of the gun that is going to hold essentially the mechanical working parts of the gun. This is the part where when the hammer, that's where the hammer is going to hit the cartridge. This is where when you pull the trigger, that's going to trigger movement in that frame or receiver.

Now, what makes this difficult is that in the advancement of firearm manufacturing, the frame or receiver does not, some firearms, the frame or receiver, now we're getting into it listeners, so just preemptive forgiveness, Okay, so in some firearms, the frame or receiver contains all the key working parts. But like if you have an AR-15, you have a bolt assembly and you have a lower assembly

and they're not the same. And so of the key working parts, the bolt assembly, which is above the frame, the lower assembly is going to be absolutely necessary. Both of them are necessary to make the gun work, but they're not in one, one piece, if that makes sense. And so it does not. Okay.

But yeah, this is why this case is very interesting. And also so helpfully, this is very, very helpful guys. The statute does not define frame or receiver. Correct. It doesn't define it, but it also doesn't say that it can be readily convertible into a frame or receiver. Right. It says a frame or receiver. Right. It says a frame or receiver as if a frame or receiver is a coherent thing. Yeah. But sometimes a frame or receiver is actually two things. Right. Or maybe it needs one hole drilled through it

to become. What really, what we're dealing with is to use Justice Gorsuch's favorite word, judgment. So most, if you're talking about a gunsmith from say the 18th century, they're literally like working with iron and wood or steel and wood or iron, you know, metal and wood to just fashion and create a firearm.

They're not receiving sort of a, they're not necessarily receiving a kit in the mail to create something. So a gunsmith can be everything from, I have a block of wood and I have metal and go to it to, oh, look, I have this kit that came in the mail and I just insert tab A into slot B and drill a hole and boom, I have a gun.

That's the spectrum we're dealing with. And it was very clear for moral argument. They were thinking how far away from the just existing pre-usable framer receiver do I have to get before it's just not a not a firearm anymore. So let's move to the oral argument. This case is going to break down, I think, along three three three grounds. And so I want to walk through some of the justices and the different the different types of tests that we were discussing here. So let's do Alito versus Barrett first.

So Justice Alito asks, you know, if I have a grocery bag and it has eggs, ham, butter, and, you know, cheese, is that a Western omelet? And like, no, the answer is no. And then Justice Barrett's like, okay, but if I buy a thing from Trader Joe's called the Western Omelet Kit, And like, no, the answer is no. And then Justice Barrett's like, okay, but if I buy a thing from Trader Joe's

called the Western Omelet Kit, and it has all of those ingredients in it and in the spatula or whatever to flip the omelet, is that a Western Omelet? And the answer is like, oh, that does feel more like a Western Omelet now than it did before. And again, you think like salad kits, that's even gets you, I think even closer because what else is that going to be? On the Alito side, he's like, okay,

if I have a blank piece of paper and a pen, is that a grocery list? It's like, well, no, because that could be literally anything else that one uses paper and pen for. And so the first question I think to think about in this argument is how far along does something need to be before it can't be anything else? And when you think about these gun kits, to your point about the blacksmith, David, the stuff they sent you can't be used to make anything else but a gun.

I mean, maybe a paperweight, maybe you could throw it at someone's head and it would hurt them a little if you had good aim, but like the purpose is to fashion a gun out of this. It's not like, you know, like we get Lego sets at my house and it can be an astronaut, a spaceship or like an alien or something like, well, at least it can be turned into three different things depending on which instructions you follow. But if I get a Lego kit that can only be a gun, what else can it turn into? So that I thought was the first access

that we were discussing, the like separate groceries versus kit. Even the Trader Joe's salad kit isn't quite analogous because I can use some of the salad kit and not all of it. Like I can not use the croutons or I can not put on the cheese and I still have a pile of lettuce that I can maybe put on tacos. There's some use for the Trader Joe's salad kit even aside from the salad. Whereas with this, with these gun kits, it's literally just as you said, a paperweight. And you just gave them a marketing idea, paperweight or gun kit.

It'd be a pretty expensive paperweight. It'd be a very expensive paperweight, but it is, there is one role for this. There's just one role for this. And, but it's a class, it's one of the other. And just so you know, by the way, this is, I did a little bit of research and was like sort of Googling what all this looked like.

So the first site that comes up when you put in gun kit sells you it. The kit is called a Glock 19 compatible pistol build kit. It's like they're not being subtle about it. And by the way, this isn't a Glock. They have to have a disclaimer when you click through. That's like, this isn't a Glock. We're sorry for any similarities. And it's literally called a Glock 19 compatible pistol build kit.

It'll run you just over $300. And I don't know. What do you think, David? It looks like it has about 20 parts. Well, yeah. Or they could say Glock kit and or most expensive small set of Allen wrenches you can ever buy. No, that's the furniture that I try to buy and build myself.

Okay. So let's talk about the other, the two tests proposed by the side. So the government, it was Solicitor General Prelogger arguing for the government, and she kind of adopted this, it can't be anything else test. She actually did build one of these gun kits, she said. She had to drill six holes and file down some plastic knobs. And her point was that is readily convertible. And that's what the statute encompasses is readily convertible. The advocate arguing for these kit companies said, no, the test should be that it's completely machined. And by the way, he used that term over and over again until finally someone was like, what does that mean?

I think it was actually Justice Alito who asked him to help define that. So completely machined means there's nothing else that you need a machine to do that you the human could maybe like click some things in together. But if you need a drill or a file or something that only a machine can do for you,

that's not a gun that you are having to machine is the intermediate step that makes it not a gun yet. He had an interesting argument because there's that readily convertible part in section A. I think she wins that. Obviously this that readily convertible part in section A, I think she wins that. Obviously, this is readily convertible, but it doesn't say the framer receiver can be readily convertible. It makes it sound like it needs to already be a framer receiver. So if you're missing one drill hole in the thing that will become the frame or receiver,

it is not yet a functioning framer receiver. It is that one drill hole missing enough. He says, the advocate for the kit company, yeah, that's not a gun because the statute doesn't say readily convertible to a framer receiver. It says that it already has to be a framer receiver. And Solicitor General Prelogger argued, it is a framer receiver just because it's missing one hole. It is still just, you know, like, what was the example?

A 1967 Corvette, blah, blah, blah. That's like up on Jack's cause the tires aren't on yet. It's still a 1967 Corvette. You can't drive it yet, but we don't call that a hunk of parts or something. We say that's a Corvette. You can't drive it yet cause I haven't put the tires on. Right. I mean, if I got a lower assembly of parts or something. We say that's a Corvette. You can't drive it yet, because I haven't put the tires on. Right.

I mean, if I got a lower assembly of an AR-15 and I had to just screw in a couple of screws, it's not a lower assembly. It's just not a functioning lower assembly. And they seem to imply in there the word functioning framer receiver as a necessary element of the statute. But the interesting thing about section, and this is why these,

when I was interviewing Justice Gorsuch and talking about sort of the court civility and everything, and he was talking about, hey, our measure of civility is how well we work together and how often we will often cross the lines on all of these cases that we take are hard cases is what he said. They're all hard cases. And this is, I think, a great example. And also the next one we're going to talk about the death penalty case, a great example of this, because if you look at the statute, you know, the readily converted language would seem to just settle this, right? But it's any weapon which will or is designed to be

or may readily be converted. So they would say that kit you're getting isn't a weapon. So the fact that it's a bunch of objects that can be readily converted, but it's not a weapon that can be readily converted, which is a weird way to write the statute, by the way, because what weapons are readily converted to fire? Like I can't readily convert a sword into a firearm,

a preexisting weapon that can be readily converted. I'm not sure exactly what that is. And in fact, they get to this in later in the conversation with the justices where Justice Barrett asks about a point made by lower court Judge Oldham, who was the Fifth Circuit panel writer. I'll just read you part of this transcript.

I have a question about AR-15s. So Judge Oldham expressed concern that because AR-15 receivers can be readily converted into machine gun receivers, that this regulation on its face turns everyone who lawfully owns an AR-15 into a criminal. So right, you follow that, right? If it's a weapon that can be readily convertible, then an AR-15 is readily convertible into a machine gun by this, well, drill one hole test.

Here's Prelogger's answer. That is wrong. So I want to be really clear about our interpretation of the statute. We are not suggesting that a statutory reference to one thing includes all other separate and distinct things that might be readily convertible into the things that's listed in the statute itself.

So the example we give in our reply brief is that a pair of pants is not regulated as a pair of shorts if you have a statute referring to shorts, even though the pants could be readily converted into shorts. That's because pants are a distinct object in their own right and they have a separate identity. And the rule itself incorporates this principle by requiring that the regulated object, before you even get to a readily analysis has to be clearly identifiable

as the unfinished component part of the regulated weapon. So what that means is you would have to say this thing is a clearly unfinished component part of a machine gun, a weapon that's designed to fire automatically more than one shot with a single function of the trigger, but you couldn't say that about an AR-15. That is obviously something that's designed and intended to be used for semi-automatic fire. As in it's not an unfinished component part. But this gets to your point, David, about the consequences of one statutory interpretation.

Yeah, it really is. Guys, if you're drafting statutes in your future life, include definition sections, please. Or if you have a definition section, make it complete to include all of the material terms in the statute, because we've got an issue here. This is a classic example, I think, of how, this is a good example of how post-chevron, A, some degree of regulatory interpretation is necessary, because this is not a self-interpreting statute.

So the, the, you know, federal agencies, when a statute is passed, don't then immediately file a declaratory judgment action in court to declare the meaning of the statute. They have to interpret the statute. And so the question here is, the interesting question here is going to be, OK, in a post-Sovereign environment, is this interpretation now the one that's going to be chiseled and granite?

In other words, once this is decided, this is the interpretation of the statute that is then going to bind future presidents. And that's how I think the post-Chevron world is going to work out. So I've talked about Justice Barrett. She seems pretty into the idea that gun kits are regulated or the ability to regulate them. Chief Justice Roberts, I'll read you a little snippet from argument from him. Just what would, what is the purpose of selling a receiver

without the holes drilled in it? This is now the advocate for the kit sellers. Well, some individuals just like some individuals enjoy like working on their car every weekend. Some individuals want to construct their own firearm, Chief Justice. Well, I mean, drilling a hole or two, I would think doesn't give the same sort of reward that you get from working on your car on the weekends. And prelogger in her rebuttal at the end said, basically, in short, don't forget,

you can still sell these hobbyist gun kits if all these people are just clamoring to build their own gun, it just needs a serial number and you need to do a background check. And she said, but this regulation has gone into effect, the Supreme Court let it go into effect first. And she's like, nobody's buying them because it would require a serial number

and a background check. The whole purpose of these is that they are being marketed and used by people who don't want to have a serial number and a background check. It's not hobbyist or else you would just sell it the normal way. So I think Chief Justice Roberts pretty skeptical at the idea that this has some real purpose and that you're not just coming up with a way to say that it's unfinished, leaving one hole out for instance. And then Justice Kavanaugh pushing Solicitor General Prelogger

on the mens rea requirements, what mental state would be required for the government to actually bring these charges. And Prelogger basically saying, we're not trying to hide the ball here. We're trying to put everyone on notice. Various parts of the statutes do have mens rea requirements. Yes, some don't, but we're not looking to go after people who are genuinely a grocery store selling eggs and cheese. We're going after people who are selling a kit that's called a Glock 19 kit. And that seemed to satisfy him as well.

And so at the point that you're counting Barrett, the chief and Kavanaugh, I do think that Gorsuch, Alito and Thomas were much, much more skeptical of this regulation applying. Though I'm not sure they love the completely machined tests either, but regardless, I can at least count to six. I think the ghost gun guys lose.

Yeah, and I think one of the most, there was a point in the argument, and I can't remember exactly when the exchange occurred, but it was something like this that actually hits a theme that we've talked a lot about in here, and in the podcast, which is, okay, there is a line here. There is a line between something being so un-machined, if that's

a term, that it cannot be fairly called a frame or receiver. There is absolutely a line, but we're nowhere near that in this case. That okay, you can sort of from an academic standpoint, justices, you can talk about what is the line here, but from a practical standpoint, we know whatever that line is, we're well within it when we're dealing with something marketed as the Glock 19 kit. But this was the question that I had during argument. What about your friend who is only buying half of a gun kit, if you will, he actually is a hobbyist who wants to mess with whatever part you said he was building. Basically, can I now just sell two separate gun kits?

One gun kit is the, you know, I don't know, the head and one gun kit is the tail, and I have to buy them separately, but no single gun kit is readily convertible into a weapon? Yeah, that's a much closer to the line situation than the one we're dealing with. I'm not even sure it is. I think it might be the ball game there,

which is a problem. If, I think that if, so in other words, this would be, okay, a Glock one kit and a Glock nine kit adds up to the Glock 19 kit. Weird math, but yes. Yeah, well, I mean, the one and the nine, I guess. But the, yeah, that's a great question. I also think that, yeah, that's a very good fair question.

I think there are commercial practicalities that render that difficult. But I also think that if you're talking about, the bottom line is this frame or receiver really is in most circumstances, one object. When I talked about the AR-15, that's a design unique to that gun.

You're talking about something that is very difficult to actually split into two pieces and would require a bit more, and I can't help, please listeners, that would require a bit more, and I can't help, please listeners, that would require a bit more than just snap into place kind of. So the closer you're getting to legitimate gunsmithing, the closer to the line you are.

Hi, I'm Nick D'Otogio, AKA, Alla Pundit, a man of few spoken words, but many written ones. I've spent nearly every day of the past 20 years covering politics, especially the Republican side of it. And honestly, it's not going great. But one nice thing about a civic disaster is that it's never dull. In my Boiling Frogs newsletter each weekday evening, I try to make sense of how the American right is evolving and how national politics is evolving with it.

Does conservatism have a future in the GOP? Does populism have a future as a governing ideology? Will Donald Trump's movements survive him? Why do his fans and right-wing media sound like North Koreans talking about Kim Jong-un? At Boiling Frogs, through the lenses of populism and pessimism, we'll track the embarrassing 2024 election and the even more embarrassing cultural developments that led us to it. Join me each weekday on a journey of despair by becoming a member of the Dispatch end for

a limited time only using the promo code frogs10 to enjoy 10% off your membership. And if you're already a Dispatch member, head to the dispatch.com slash newsletters to make sure you're subscribed to boiling frogs. It beats screaming. All right. Shall we go on to the death penalty case? Yeah, this one. Wow. to boiling frogs. It beats screaming. All right, shall we go on to the death penalty case? Yeah, this one. Wow. This is the case of Mr. Glossop, I believe. Is this his fifth or sixth time up for review? It has been going on well over two decades at this point. He was the manager of a motel.

The owner of the motel is killed brutally by Mr. Sneed. Mr. Sneed testifies that Glossop put him up to it, paid him to do it so that it was a hit. Sneed gets life in prison. Glossop gets the death penalty. That conviction's thrown out. he goes to trial again. Same result, it goes up to the Supreme Court on the drug protocol at one point,

that's used in Oklahoma for death penalty, that's put on hold for a while as they figure out the three drug protocol. Now it is back up on, well, on a couple things here, because this case gets a little complicated. back up on, well, on a couple things here, because this case gets a little complicated. So first of all, of course, Mr. Glossop thinks his conviction should be overturned. He argues that there was a Brady violation.

The prosecutor didn't turn over evidence that they should have that would have been exculpatory. And second, that there was a napoo violation that the prosecutor knowingly suborned perjury, um, or at least when the witness lied on the stand, the prosecutor does have a duty at that point to correct, um, any false statement that a prosecution witness gives. So Sneed when he's on the stand is asked, basically, you know, are you on lithium?

He says, yeah, it's for a cold. This is actually a lot of stuff is disputed in this case, but for our purposes, a psychiatrist at the prison had prescribed lithium and had diagnosed him with bipolar disorder. So one of the questions in this case is going to be, is that fact, the fact that he had seen a psychiatrist and he was on lithium, let's say for bipolar disorder,

is that the kind of fact that would have changed the jury's mind? Or given all the other things they knew about Snead, you know, he was on lithium, they already knew that, maybe not relevant. Second problem with this though is, what if they had known that Snead had just lied to them, and it doesn't really matter what he had lied about,

that you have the key witness who just lied under oath on the stand to the jury, maybe he lied about what day it was. And so you have both the substance of the lie and the fact of the lie and the fact of the lie are either of those reversible error when it comes to a death penalty case. You also have whether in fact it was a Brady or a Nappu violation in the first place.

Attorney general for Oklahoma did two investigations into this and decided that the prosecutors had in fact violated, I believe Brady, but not Nappu. And I hope it's one of them and not the other, but regardless, they confess error. The attorney general's office then refuses to continue arguing this case. And so the Oklahoma Supreme Court is like,

so we've got Glossop and we've got the attorney general and they're on the same side at this point. This is no longer an adversarial proceeding. And the Oklahoma Supreme Court says, okay, we're gonna look at three issues. Well, actually this is what the Oklahoma Supreme Court was supposed to do. They were supposed to say,

we're gonna look at three issues. Federal Brady violation, no. Federal Nappu violation, no. Federal Nappu violation, no. State sort of timeliness and diligence waiver, no. And so if there's an independent state law reason that the case would have continued, then it doesn't matter. The Supreme Court basically doesn't have that jurisdiction,

but they would have to leave it be. An independent adequate state law reason that the Oklahoma Supreme Court held. But as I said, this isn't adversarial anymore. So at the Supreme Court, you're gonna have three different people arguing. Someone for Glossop, someone for the attorney general, and a court appointed counsel

so that it is an adversarial process, which happens once or twice a term. And I think it's really cool. And it goes to sort of this rule of law idea that even in, they're often pretty losery cases that you get appointed, but the Supreme court justices will actually pick usually an up and coming potential appellate advocate to argue the side

that nobody else wants to argue. And in this case, Chris Michelle from Quinn Emmanuel was appointed. And so just shout out to Chris, congratulations on being court appointed counsel. That's kind of a fun job because it's sort of steelmanning. You're basically up there to steel man the case, provide the other side that no one else wants to.

And at one point he was asked, you know, would you encourage us to remand for, you know, for their factual findings? Like, I don't even know if I have the right to do that. He's like, I'm not actually really here in some sense. I don't represent anyone. I mean, he represents the decision of the Oklahoma Supreme Court.

It's not really a party in interest, if you will. So David, a lot, a lot being tossed around in this case, the adequate and independency of the opinion itself. I have never heard the Supreme Court justices who normally like to compliment and defer to the opinions of lower courts have such a aggressively negative attitude toward the writing skills of the Oklahoma Supreme Court justices.

The argument from Justice Kagan, for instance, or the questions rather, really centered on how intertwined all three, Brady, Napappu and the waiver, the state waiver argument seemed I mean, we were parsing sentences. It was like, well, it started with moreover. Moreover means a separation in the, it was like, okay, at the point we're having to moreover shouldn't even be in your legal writing. Let's be clear. So right there, moreover is a bad word. Once we've gotten to the word moreover, you failed. Did my editor pay you to say that? Because I have a bad habit of putting moreover. It's a terrible word.

I like it and he hates it. He hates it. And so I sometimes forget and I put it in and he's like, and he'll just put a bracket. So I think you've been paid. Here to four, we will not use the term moreover in our writing. God, you're not even doing legal writing. That's egregious, David.

I know, I know. Okay, so we have, is it adequate and independent? Was it actually, like, were they correct on state law? Was it the timeliness and the adequacy waived? And then those lying issues, the lying on the substance versus the fact that he was lying, was it a Brady violation? Was it a Nappu violation? Interestingly, the attorney general, by the way,

even though it wasn't adversarial exactly because they did confess error, was quick to say he thought Glossop did it and they're gonna retry him regardless of how this turns out. Yeah. Yeah. So this is out. Yeah. Yeah. So this is an interesting case.

It reminds me of the Marcellus Williams case that we talked about and that I wrote about, in the sense that it's one of these cases where elements emerge after the trial is over that you're not going to say establish innocence, but cast doubt on the verdict. And that is the law, the interesting thing about death penalty cases is there is a difference

between establishing innocence and casting doubt. So for example, here's the Oklahoma, the lower court, Oklahoma. Claims of factual innocence must be supported by clear and convincing evidence. Factual innocence claims are the method to sidestep procedural bars in order to prevent the risk of manifest miscarriage of justice.

The evidence of factual innocence must be more than that which merely tends to discredit or impeach a witness. So the argument here from the Oklahoma court is wait a minute, okay, it is not the case that if you are on post-conviction relief as a criminal defendant who's subject to the death penalty, that you can be removed from the death penalty merely by saying, wait a minute, we could have impeached this witness better had we had the evidence that was subject to the Brady inquiry, etc. We could have impeached him better, and if we'd impeached him better,

the jury probably wouldn't have returned the death penalty verdict. Now they're saying, no, no, no, you got to have this clear and convincing evidence. Well, wait a minute. Is that what we want the standard to be? Really? Is this where we want to be when post-conviction evidence emerges that is actually quite material but not clear in convincing evidence of innocence, what do you do with that? And this seems to be one of those, this is another one of those cases where this is coming up. And the other thing though, let me just sidetrack for just a minute. Most of the coverage I've seen of this case,

when they describe the facts of the case, they say he was only convicted on the strength of the testimony from a meth addicted, bipolar disorder afflicted witness. That's not correct. No, it's not correct. I was gonna say, I do think this is different than Marcellus Williams, where I do think those new facts cast doubt on the verdict.

I really am not remotely convinced that this cast real doubt given the other evidence. Bingo. So this case is similar to Marcellus Williams in that new evidence emerges that cast doubt. It's different from Marcellus Williams in that new evidence emerges that cast doubt. It's different from Marcellus Williams in that the new evidence is not nearly as compelling.

Not nearly as compelling. You know, when Marcellus Williams was executed, he was executed without, there was no evidence that he matched the bloody fingerprints at the scene. There was no evidence that his feet matched the bloody footprints at the scene. There was no evidence that his DNA was at the scene. There was no evidence that his feet matched the bloody footprints at the scene. There was no evidence that his DNA was at the scene.

There was no evidence that there was none of his DNA under her fingernails, although there had been testimony, there had been defensive wounds. I mean, like the level of doubt here was just really escalating. Here it is, yeah, everything, there's no doubt at all about multiple elements that corroborated the guy,

such as they split some money that they found underneath, you know, in the, in the, like the car of the decedent. Glossop helped him afterward. He helped him hide the body and clean up. Helped him clean up the broken window. Why is he helping? There's just so much going misdirected. Hey, I murdered your boss.

Will you help me clean it up? Yeah, sure. I've got nothing else going on. I was going to watch some Netflix, but this sounds more fun. Misdirected the police from the scene. Like, there's a ton there. He was the only one who knew where the money would be? Only when you, I mean, there's so much more here than just the meth guy's testimony.

So it's very frustrating to me that a lot of the coverage is, it's only a meth guy's testimony put him in. And now we know he's also, is that a proper term meth guy? Yeah, sure. There's, he's not just a meth guy. He's a bipolar meth guy. And that's the only thing that put him away. No, no, that is not. That is not the only thing that put him away. So I think the substantive like, oh, if the jury had only known he was bipolar, they wouldn't have thought he was a credible witness is, I mean, as close to laughable. I don't find death penalty cases laughable, but like as close to laughable as something in this situation. Like he was not a good witness in a variety of other ways. He also admitted to

brutally killing someone and like, oh, but if only they'd find out he was bipolar, they wouldn't have trusted him, murder aside. However, to be able to impeach, to have the prosecution frankly, have to impeach their own witness during his testimony and say, well, wait, did you just say you hadn't ever seen a psychiatrist? Do you want to take that answer again?

Right. Now there is a real question on top of all the questions in this case. Maybe he had been prescribed lithium for the cold, even though lithium would also be prescribed for someone with bipolar disorder. So it's possible he didn't lie. I did not know lithium was prescribed for colds.

It can be. I have not been prescribed lithium. What kind of robust cold do you have? Like that's a serious cold. But yeah. Probably a man cold, the worst form. But and you know, the pushback from appointed counsel was that it's important to look at the strategy of defense attorneys during it.

The defense attorneys for Glossop did not want to emphasize Sneed's mental problems because the whole point is that they needed him to do this on his own. So saying that he was easily under the persuasion of someone else because of mental disabilities or drugs and that he could be convinced to do things would have hurt their defense. And so they wouldn't have wanted to pursue this. Again, that's sort of missing the parsing between the substance of the lie itself,

versus the fact that a guy who had just said he was gonna tell the jury, you know, the whole truth, nothing but the truth, lied on the stand. But David, six, three, Glossop ain't going nowhere. Yeah, I think it's, this is an interesting case because it's interesting to me that they took this case, but not the Marcellus Williams case. So that's interesting to me, but, you know, once again,

you know, we've talked about how much facts tend to matter and a lot of these, you know, once again, you know, we've talked about how much facts tend to matter and a lot of these, you know, on the one hand, you've got an abstract issue of constitutional law, but on the other hand, you have a concrete set of facts. And this is one of the situations where the concrete set of facts is very different in my view from the Marcellus Williams case. And so in many ways, this is a poor vehicle. Bad man stays on death row. Right, this case is a poor vehicle

for analyzing the underlying legal issues because of that. Now, I tend to think that the AG's approach here is actually the better approach. I think the AG's approach that says, hey, we need to retry him is the better approach. It would to me if it weren't 25 years later. The problem is you lose witnesses, you lose evidence. Like there's a reason Glossop wants another bite

at the apple over and over again, because each time maybe there'll be another mistake and you just run out the clock. We never heard from justice Gorsuch in this case. And for good reason, he was recused. So this is actually an eight justice court at this point, meaning it's not actually going to be a six three decision. It's five three is the worst case scenario, I think for Mr. Glossop. Some case of four four overall though, I'd say I think he's going to lose

this case and that his death penalty conviction gets upheld. In part because if it's four four, he loses. That's right. Four four. The tie does not go to the runner. The tie goes to the lower court opinion and it's, it just gets upheld. Second, Barrett was certainly concerned about the Oklahoma Supreme courts.

Well, they seem to be glossing over some of Glossop's arguments and this waiver issue, something they had never done in any previous case was even though both sides were willing to waive a hurdle that was not jurisdictional, that the Oklahoma Supreme Court said, oh, that's not really up to you. We're deciding not to waive it. And when asked if they'd ever done this before, they pointed to one other case that they had done it in,

the previous Glossop Appeal. So I think Barrett was a little concerned about that. I don't know whether that's full on dissent, a concurrence, but regardless, I think I can still count to five. I think I can still count to five. I think I can still count to five. And I'm wanting a good vehicle, a better vehicle for this concept of, wait a minute, do we need the clear and convincing evidence in the actual innocence analysis? Because that is quite the burden if there is new evidence emerging

when a person's life is on the line. And we need a better vehicle for that kind of determination. All right, next up, Amy Wax and Penn, give us a rundown of the background of all this and the update. What's the line from Princess Bride? Let me explain. No, that's too much.

Let me sum up. It is a long and winding road where essentially Amy Wax is a law professor at Penn. She has sort of engaged, unquestionably engaged in kind of an escalating level of what we're called in the academic freedom context, extramural statements. So an extramural statement, whenever you hear that in an academic freedom analysis is when a professor is talking, giving a speech at another university or they're talking to the media

or they're writing an op-ed or they're posting on social media. This is stuff that is outside of specific job related speech like in a classroom, et cetera, or at a university event or something like that. And so this is extramural communications that are gross. Like what I'm about to say, no one should interpret me talking about Amy Wax's

academic freedom as me supporting the things Amy Wax has said, they're gross. We need more. Isn't it the whole point if you don't need academic freedom for the stuff we all think is good. And that everyone likes. But you know, we need more white European immigrants. We need fewer Asian immigrants.

She has, it's just kind of an escalating form. And I think you've all seen this, if you spend any time on Twitter, any time online at all, how right-wing folks who in 2014 were dog whistling in 2024 or bullhorning their racism. She did the dog whistle to bullhorn process. But also there were alleged comments she made to students, alleging that, you know, she

told a student that the only reason that she had gotten into undergrad was because of affirmative action. There was a moment where she was being introduced to some new students. And some students said their name and they said, finally, I'm talking to Americans. Now she said she was referring to finally, I'm talking to people with American names. So that's better, because she understands American names better than foreign, whatever. So there was the question of, okay, and then she also did something of inviting a guy named Jared Taylor repeatedly to come speak in her class.

And who is Jared Taylor? Jared Taylor's another one of these bullhorn racist kind of guys. Think about him as maybe a more, is this the right word? More eloquent Nick Fuentes. I was gonna say more nuanced Nick Fuentes, I don't think that's correct. Like more eloquent Nick Fuentes to her classroom. So, and the university has decided

that she is going to be face some academic sanctions. So here's the question, is this appropriate? Is this right? Now, Penn is a private school. So Penn has the ability to craft the rules that it wants to craft for its professors. At the same time, Penn is also subject to Title VI and Title IX,

so it has to protect its students from harassment. I don't think there's a real argument that what she engaged in was actual harassment to the level of you could sue her under Title VI or Title IX. So then the question becomes is what kind of sanction can you give as almost a prophylactic against harassment? Now if it's an extramural statement, I think there's the university should keep its hands off. It's hands off.

There's a much harder call when it comes to things like the very contested statements with students. And there's some interesting evidence from the record that essentially the folks who took a close look on this, at this, couldn't really determine what happened. And some smart folks say, wait, the repeated invitation of Jared Taylor to the class, is that something that's problematic? I think that's much closer to the line.

But the issue here is how much did Penn even really separate this stuff out? How much were the extramural statements actually a part of all of this into this mix? And I think the answer ultimately has to be, if an extramural statements cannot be a part of this mix, they cannot be a part of this mix. And to protect academic freedom, universities have to be very careful the extent to which they engage in a prophylactic analysis when dealing with interactions with students. So this is a case where I think on balance,

Penn got this wrong. But a lot of the coverage, so for example, there was an article that said, Penn professor Amy Wax punished for inconvenient facts. No, no, no, no, no. I mean, like there's this thing that happens in right-wing world, which is like all of the dissenters that are being punished are being punished

for their courage. No, no, no, no, no, no. This is not somebody who is telling some brave truth teller. This is somebody who's become like an outright racist troll, which is not unfamiliar on college campuses as we saw after October 7th. of truth teller, this is somebody who's become like an outright racist troll, which is not unfamiliar on college campuses as we saw after October 7th. So, you know, and this also raises

some of the double standard arguments you see on college campuses. There are people on the far left in elite universities who have said stuff, especially post October 7th, that is every bit as repugnant and reprehensible as what she's said about race. And antisemitism is not morally better than racism, okay? And so part of this hovering in the background

is anybody who's spent any time in elite academia knows that there have been gross, gross, repugnant, bigoted, hateful, call for violence people who have been in the faculties of elite universities for some time, full circle. Some of the stuff from the Columbia Unbecoming documentary that I was here for in 2004, oh my gosh, guys, look that up. Look that up.

Some of the stuff that was said on this campus by professors or alleged to have been said on this campus by professors. My gosh. And the protest against that was seen as a gross violation of their academic freedom. So we need to be consistent in our, both in our application of academic freedom standards and by the way, and in our moral outrage.

And the concern here with Amy Wax, I think is not that she was punished for telling the truth. It's that what she said as reprehensible as it was, especially in the extramural context was covered under traditional notions of academic freedom with the gray zone of the interaction with the students. And that's still not clear enough as to what actually occurred and did not occur.

All right, I wanna open it up to questions from you guys, but I'm gonna start, cause I have a question for David about that. David, I wanna propose two classes to add to the university's curriculum. One is a view from Gaza and the description of the classes, we are going to hear from anti-Zionist advocates who do not believe Israel has the right to exist.

It will include various speakers who, you know, believe Jews control the weather, et cetera. Right. Okay. Class number two is white supremacy, a look up close. And it's gonna have speakers like the one you talked about who's gonna come to class every semester and explain his views on white supremacy

to students who want to understand radical movements. And why wouldn't those classes be okay? And then why do you think that her inviting that speaker who in my class would probably be okay, wouldn't be okay in her class? So I think, you know, so a couple of things. One, let's just look at your layer of academic freedom. So a university department would, I think,

have the ability to say, that class, no, we're not going to offer that class. Okay. But let's say they decide to offer that class, which would be within- I think it'd be a really interesting class, by the way. Within the scope of academic freedom. So the difference is, if I am taking a class that is called

The View from Gaza, here's what I'm expecting. The View from Gaza. If I'm taking a class that is called White Supremacy 101, here's what I'm expecting to hear, a boatload of white supremacy. Now, so there's a, there's, you know, fair warning of about what I'm about to get into and a complete understanding. So for example, when I took the ethics of- And the academic purpose of it. And the academic purpose of it, it's all there. Jared Taylor's talking about talking to a class on conservative thought.

Now is what he offers conservative thought? I mean, I don't know. Many people would say yes. Many people would say that. I only raised the Jared Taylor invitation because there are smart people who've, who's viewed that I have respected in the academic freedom category who say,

wait, the repeated invitation of Jared Taylor, that is more troublesome than I think, than the extramural stuff, because that's in the class. The class was not about conservative political thought. See, I think that's the least. In fact, I think that should be some of the most protected stuff. It reminds me, you know, back in my day, the thing that was really controversial is that a porn star was invited every semester to human sexuality. It would be a real shame if the university didn't allow that

because they thought it was gross or made them uncomfortable when it has an academic purpose. If you want to understand conservative thought, I don't think it's crazy. It's not the class I would teach on conservative thought, but it's not crazy to include fringe spectrums who claim to speak for conservative thought. Well, at the same time, however,

I do think that there would be an element where what you're trying to do, a person could come in and if they give an academic discussion about here is the source of my views. Look, the porn star wasn't giving an academic discussion. He's not capable of giving an academic discussion. But if the porn star actually performed a pornographic act in front of the class, then you're going to have a sexual harassment issue. And a lot more signups for that class.

Right, but you're gonna have a sexual harassment issue. And so there is a way in which if Jared Taylor says, here's the source of my quote, and look, gosh, let's take him out of it because I'm not familiar with all of his views. Let's say you have Joe Blow, grand Klansman of whatever, County and rural Tennessee comes in and talks about the source of his racism,

then starts to harangue a black student in class. Well, that's not gonna be okay. That's not gonna be okay. And so the question would be, all right, could the university say there's such a risk of this vicious racist haranguing black students that is a prophylactic measure? We're not going to have the grand wizard come in and speak. That that's a much more that's a to me that's a much more, to me, that's a much more gray area. How much can be prospective prophylactic

versus retrospective compensatory if it actually occurs? And I think that is an issue that I think is more of a gray area. All right, questions from you guys, go for it. So question from the audience on how I'm counting to five when Barrett and the chief justice seemed pretty skeptical. Yeah, look, I, my confidence in this prediction is relatively low. All things considered. I do think Barrett is the one most likely to add to four. Um, and with Gorsuch recused and you have an eight eight court, you know,

there is a chance that you would split four. What did I say? Eight eight. We're just, we're on a roll right now. With Gorsuch recused, there is a chance you would have a four four court and which has the lower opinion would be affirmed. It's sort of like the Supreme court never happened

when it's four to four. So Glossop would need both Barrett and the Chief Justice. You raise a good point, the Chief Justice also had some side eye for the Oklahoma Supreme Court not sort of having the unusual procedural posture that seems to apply only to Mr. Glossop. I really did enjoy, I think again, it was Kagan who said, can you cite me a case that is not about Mr. Glossop? And there was, you know,

much hemming and hawing about, uh, why that shouldn't count. But, um, yeah, look, I think that Mr. Glossop's conviction and death penalty gets upheld. Am I, how confident am I? Minimally. I'm minimally confident on that as well. Like I'm in part, in part because, yeah, just reading this oral argument was one of those oral arguments where I get had an impression, but it's very, very shaky. Our ghost gun case, I feel much more firm on that.

Much more firm that I think the government's gonna win in ghost gun and Glossop. I'm super shaky about the prediction. Okay, so the question is when it comes to Vanderstoc, you know, we're almost lagging when it comes to this case because you can buy what amounts to a 3D printer with the plans and a block of acrylic stuff or whatever it's made of that'll make the gun.

And surely that wouldn't fit into the readily convertible or it would be an extreme version of the completely machined test, for instance. So aren't we just gonna be playing whack-a-mole with this? And isn't that maybe a good reason to hold that this isn't a regulated, that the gun kits aren't we just gonna be playing whack-a-mole with this? And isn't that maybe a good reason to hold that this isn't a regulated, that the gun kits aren't regulated because otherwise you're just gonna chase regulation

of gun kits all the way down until you, yeah, are dealing with, you know, Plato. You gotta interpret the statute. So I think that, you know, the question here is more, what's the fairest interpretation of the statute? And I think that in this context, the Glock 19 kit, the fairest interpretation of the statute. And I think that in this context, the Glock 19 kit, the fairest interpretation of the statute is that it is encompassed by this definition. However, I also think that this definition does not in any way, shape

or form encompass, I own a 3D printer. And so therefore, if I have an advanced enough 3D printer that I can I can manufacture a gun out of just a block of material. Yeah, someone selling you the the the map thing that the program basically that clearly is not enough. If someone sells you the program, they have not sold you a readily convertible weapon. Right. So what you're going to end up seeing, if it is, if we get to a point where 3D printers are cheap enough and plans for guns are readily available, 3D printers are cheap enough to where people at some level of scale can just start creating guns out of blocks of, you know, the necessary material, you're going to have to a statute, you're gonna have to amend statutes. Like this is the kind of thing that, you know, a functioning Congress will amend statutes to reflect technological developments. A non-functioning Congress says, we passed a statute in 1968, and the ATF needs to just go ahead

and evolve its understanding of the statute as the technology evolves. That is not the way this is supposed to work. So the short answer to the question is, well, in a functioning federal government, you should amend a statute. If technological changes mean that the intent of previous statutes is easily circumvented,

amend the statute. But where we are right now is statute stays, interpretation changes. And that's an unstable legal environment. Yeah, I mean, I think the gun kit that I'm looking at fits very easily and healthily into the current statutory language. In fact, I think it's what they had in mind by and large.

But in general, if there's ambiguity, I want stuff sent back to Congress. I want to strip the executive branch of that power. Anything beyond the current kit that I'm looking at, I think I would say to your point, David, make Congress do its job. Yeah, because obviously the goal was, because gunsmithing has been around forever

in this country, you know, and the intention was not to stop, was not to shut down gunsmiths. That was not the intention. So then the question is, are you a gunsmith if I'm rich enough to buy a 3D printer? That's a different sort of thing. And so, and I think under current law you are. Now under, I think that's not even close under current law.

Now, so then the question would have to be, do you change current law? Or do you ask the ATF to reinterpret current law? Congress do your job. All right, what's next? Do we have thoughts on the rise of Elizabeth Prelogger, SGBOT3000, who argued the Vanderstot case? It's interesting.

I almost want to say she's become a bit more of a controversial figure than I thought she would be. There have been some recent criticisms, it's kind of a strong term, frankly, but there's been some recent notes that she is arguing more cases than past solicitors general versus giving arguments down the food pyramid to some of the line attorneys in the SG's office. I can't imagine a criticism I care less about than that. I mean, she's there to run her office. She was hired, frankly, I think, to make as many of the arguments as she could.

They hired her to advocate on behalf of the executive branch. If she can do one more argument per term than her predecessor's, good on her. I don't think she has any responsibility to give arguments to people who are not as good at arguing as she is. So I'm very unpersuaded by that criticism. I will tell you, I was annoyed by the Vogue spread, but not at her.

Frankly, she looked quite lovely in it and all of her statements in it. I, okay, I'll admit I skimmed some of the middle. It just, it was so long. I thought she acquitted herself quite well. No surprise. She has a nice little line in there. You know, she was Miss Idaho and someone asked, you know, what's the through line?

Like a beauty pageant queen becomes solicitor general. And it's like, I guess I just like appearing in front of judges. Ha ha. You know, yeah. And I'm her, we went to law school together. We're the same year from that law school that's a little further north than here

in less of a big town. But I really think she is a generational talent when it comes to this role. I was annoyed by the framing of the Vogue article because it made it sound as if her job is to... There it is. Vanity Fair, Elizabeth Praelogger stands up to a runaway Supreme Court. Yeah. So how Elizabeth Praelogger stands up to a runaway Supreme Court. Her role as the government's last line of defense may be her toughest yet. She has had to be the face of a democratic administration in front of the most conservative and unpopular Supreme Court in nearly a century. One remade by Donald Trump, beset by ethics scandals and responsible for setting the American project back several decades.

So look, some of these are factual, if perhaps phrased in a way that I wouldn't have chosen, remade by Donald Trump. That's true. He confirmed three justices to the court. Beset by ethics scandals? Yes, though I would argue a lot of those scandals were created by the very people writing about them. But there's some nugget there that's very real. Responsible for setting the American project back several decades is just pure editorializing. And weird. And weird. What? I mean. So I didn't like the overall piece, but again, she doesn't get to pick the headline. She doesn't get to choose what they write. That's not a quote from her.

And yes, I think she's off once again to a brilliant start. The fact that she had actually put together one of these gun kits before she argues in front of the court, I thought was a very smart move. And she didn't overemphasize it, right? She didn't start in her intro by like, I've done this and let me tell you about it. Instead it sort of brought in there,

almost halfway through her argument. And she's like, well, I did this. So if you want to know my experience, I was like, oh, that is clever. Yeah, I mean, there's several things going on at once. One is she's just super talented and very, very successful. And it is an absolute total reality of life that if you are super talented and very very successful there are people who will try to rip you to shreds because either because they're envious they want to supplant you or if you're very very effective and you're on one side of the aisle they want to dilute your effectiveness so sometimes you when you say here there's critiques of so-and-so, well, that's just, look, you know, people critique John Morant, and I never understood why.

But no, there are, so part of it is, people who are very, very successful always have layers of criticism around them. There's no question. Number two, there is this interesting way in which the press, both the more liberal, I would cut Vanity Fair is generally more left-leaning press outlet.

I said Vogue, didn't I? I meant Vanity Fair. Vanity Fair, I put that in the more left-leaning outlet. Yes. There are right-leaning outlets. And one of the things I hate about the current moment is how partisan outlets turn politicians or political figures into rock stars, really hate the fanboying

and fangirling around political figures, judges. And so part of this is, you know, the eye roll of the Vanity Fair treatment is why are we doing this? But the bottom line is she's just really good. She's just really good. And she does her job very, very well. And you know, I don't know her personally, but she's just really good. She's just really good. And she does her job very, very well. And I don't know her personally,

but she's just really good at her job. Okay. Yeah, one more. Such a great question. Many law school graduates say they feel unprepared or underprepared from their elite law schools to argue in front of conservative judges and justices because they weren't in their three years really taught anything about the judicial philosophies

or what would be effective avenues of argument in front of judges who maybe don't share the judicial philosophy of the majority of law professors. A, I think that's a hundred percent true. It's funny because I find it really interesting how often I see advocates who are hired by clients to argue in front of the Supreme, this Supreme Court who don't speak originalism.

It seems like a really weird business choice, let alone anything else. And as terms of of you asked what one could do as a liberal law student at a liberal leaning elite institution to learn some of that, I think listening to the oral argument is a great way to understand what the justices themselves are actually interested in.

And for the most part, that's reflected in the circuit courts as well. And there's most part, that's reflected in the circuit courts as well. And, you know, there's plenty to read out there, but law review articles put me to sleep for the most part. So I would say the oral arguments are what like I get jazzed about. So that's what I would do. Yeah, totally.

I mean, listen to Elizabeth Prelogger argue to these justices. Here's another one. Listen to the Bostock oral argument. So in Bostock, what you had was liberal advocates. Was it David Cole from ACLU, I think that argued Bostock? They made a textualist argument, basically focusing like a laser on Justice Gorsuch.

And they did a brilliant job of it to the point where after oral argument, I remember very clearly, we were like, that whole thing was aimed at Justice Gorsuch. And so listening to the oral arguments, I think is a very, is probably the best way to do it. But can I just editorialize also for a second, this idea that you can go to elite law schools and not be exposed to the dominant political philosophy of the current Supreme Court is just such a gross failure. You know, one of the things that made it was just so mind-blowingly absurd was watching

Stanford Law students shout down, which judge, which judge was it? Duncan. Duncan, that's right. Watching Stanford Law students shout down Judge Duncan. Like, some of those guys were going to be arguing in front of him possibly. And you know what they don't get to do? When he starts asking them questions, just start screaming.

Like, could you imagine that? Like start chanting, no justice, no peace, or something like that in the middle of an oral art. I mean, the absurdity of that moment, just the absolute absurdity of that moment, really to me, summarize the way a lot of people are approaching education right now as a process of affirmation rather than exploration. And look, I'm gonna go back to an album side

that I've had for crying out loud, law schools, undergrads, stop preferring activists in your admissions decisions. Good Lord, these 18 year olds, and I'm sorry guys, cause I was there with you once too, 22 to 25 year olds getting into law school, haven't figured the world out yet. And this idea that we want the cohort of people

have been most active in taking on the most difficult issues and then expect them to come in and actually be in a learning mode, a curiosity mode is just completely, you wonder why you have a problem. Okay, can I just do a little fracking side note on this? There was a fracking incident.

Involving the word from Battlestar Galactica or, yeah, yeah, frack. That's the F word in the 12 colonies, yeah. You had a group of young people interrupting a panel about fracking and just, you know, screaming that fracking was wrong and it needed to end. And, you know, they weren't willing to actually listen to any other thoughts on fracking was wrong and it needed to end. And they weren't willing to actually listen to any other thoughts on fracking.

And look, fracking may have significant environmental downsides. And if all things were equal, maybe we wouldn't do fracking, but you know what has to come with banning fracking? Drastically lowering the country's energy consumption because otherwise you are getting rid of our energy, increasing energy consumption, which is what's actually happening. And you have to get that energy from somewhere.

And you know where we're going to get it from. Russia, Saudi Arabia. Not only are they adversaries of the United States, and you may not want to prop up regimes like that, but also they're doing it in less environmentally friendly ways. So if your whole point is to protect the environment, you also have to believe that Russia's

on a different planet than the United States of America. And my point in any of this is not that they're wrong and we actually need to keep doing fracking. It's beside the point. The point is that every difficult public policy issue is trade-offs. And if you're not willing to have a discussion about the trade-offs and why you think one trade-off is better than the other,

don't be part of the conversation because you're not a serious person that is worth talking to about it. If you can't acknowledge why this thing that you feel so passionately about hasn't happened yet, it means it's a hard question. 99.9% of the time, it's a hard question. And so if you're at a liberal institution,

a leader otherwise, and you think there are questions of public policy out there right now that are easy, they would have already been solved. So now assume they're hard and go figure out what the trade-off is that's forcing us not to resolve the issue. And the odds are it's not the corruption of my political opponents, right?

But yeah, a lot of what we're facing right now in our modern culture, and we're now filibustering, so we need to wrap up, but a lot of what we're facing is people who don't understand the problem, making the problem conform to their limited understanding. So classic example is hurricane relief after Hurricane Helene in Western North Carolina. People don't know how disaster relief works.

They have no idea, including the aerial portions of it. And so they're just completely susceptible to total nonsense online because they have no clue how it works. But the one thing they do know is the other side is bad and we have to figure out a way to fit that in to the other side is bad. And you've said this before, Sarah,

and this is something I wanna write about, which is life is complicated, culture war is easy. And so what ends up happening is you look at something that's very difficult, very complicated, culture war is easy. And so what ends up happening is you look at something that's very difficult, very complicated, like how to get an enormous amount of resources into a weather blasted remote mountainous area. And you say, huh, Biden bad. And it just, it's, but this is what we're doing,

what we do with climate, what we do with the Middle East. It's just again and again and again. And this is also a product of bringing in activists. You know, the dominant posture of a student should be curiosity. Okay, last note on this and your original question. I didn't mention this when I talked about the court appointed counsel in the Glossop case that remember there was an advocate for Glossop and there was an advocate for the attorney general and they were on the same side in terms largely of how to resolve this case. What was fun also about that though is you rarely get to hear two advocates arguing the same side to the same justices with the

same facts. And it made Glossop an interesting case because of that, because you can now go hear Seth Waxman and Paul Clement make the same argument, especially on the waiver portion of Glossop and see who you think did a better job of speaking to the individual justices and what they were interested in and compare and contrast

why you thought one was more effective than the other. And that's a fun reason to go listen to this argument as well if you're interested in oral advocacy and effective persuasion. With that, thank you for coming to this construction edition of Advisory Opinions. And thank you Columbia for having us.