Advisory Opinions - Hamburger Mary's Risqué Drag Show

Episode Date: November 21, 2023

Sarah and David have a big ol' pod today, wherein they discuss a First Amendment case involving risqué drag shows at a burger joint, hunter harassment laws, and challenges to Donald Trump's ballot access. Spoiler: Sarah was right. Also: -Masked protesters and Anti-Klan laws -Bad facts make bad laws -Lawyers and Non-germaine activities -David's window-dressing ignorance -Boudreaux's Butt Paste -Trump's ballot access in Colorado -Guys: you gotta get married. Show notes: -Hamburger Mary's at SCOTUS -Hunter Harassment laws challenge -Compulsory bar membership -Trump's ballot access challenge in Colorado -The Meaning and Ambiguity of Section Three of the Fourteenth Amendment -Ilya Somin in Reason Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome back to Advisory Opinions. I'm Sarah Isgerd. That's David French and a big old pod today. We've got a Supreme Court opinion relating to an order. We're going to talk about over-breath challenges and injunctions for non-parties. I mean, just the really sexy stuff, guys, like heading into Thanksgiving, this is what you need. We also have that Colorado state judge deciding that the 14th Amendment Section 3 does not apply to Trump. We'll tell you why. Spoiler alert, I'm very smart and right about everything. And then

two pretty fun first amendment decisions coming out of a couple circuit courts that were originally highlighted by David Lattin's original jurisdiction newsletter that we just thought yeah that'll be fun we'll just do a little highlight bounce around on those and we'll end with the New York Times story that is breaking women's groups everywhere dating thatating. That's a mess. I cannot wait. Can we just skip to that one? Because I'm so curious about your assessment. But anyway, we'll do law first. I've been struggling with it, David. Okay. Because I know you want to know what I think about it. And I had my initial reaction

and then immediately wanted to take back my initial reaction, have a more empathetic reaction. So the like knee jerk part of me is struggling with the empathetic part of me. And I think the knee jerk will probably win, but empathetic will get its word in too. Okay. Okay. All right. We'll table it. We'll table it. Okay. All right. We'll table it. We'll table it. Okay. So this Supreme Court opinion relating to an order involves the Florida ban on drag shows, as it's sort of known. What the law actually says is that it makes it a misdemeanor for a restaurant or bar to knowingly admit a child to an adult live performance defined as a sexually explicit show that would be obscene in light of the child's age. An Orlando restaurant called Hamburger Mary's sued.

Hamburger Mary's sounds like a burger flipping joint, but I guess they do a lot more. I don't know. Sounds pretty fun. Including hosting some, I guess, some pretty risque drag shows. I don't know. Well, what's interesting is while Hamburger Mary sues to get an injunction against the law, they also, though, say that what they're talking about would not violate, that nothing they're doing is obscene. That's where this overbreath doctrine is going to come in.

And just so we can do a little over-breath. So, right, David, we've talked about as applied First Amendment challenges. That means this law, when applied to my conduct, is unconstitutional. Then there's facial challenges. This law, applied to nearly anyone's conduct, would be unconstitutional, whether it's unconstitutional applied to my conduct or not. Right. Overbreath is the idea based on, for instance, that facial challenge to help with standing. It's the idea that the law is, it's sort of like a vagueness thing, that the law is so overbroad that it's going to chill a bunch of speech that would otherwise be protected. And it's chilling, including those third party speeches.

That's what makes it kind of like a facial challenge. But it is uniquely different. So anyway, we'll get back to that in a second. But Hamburger Mary brings this over-breath challenge to the law. The district judge fines for Hamburger Mary. And then Florida moves to have a stay pending appeal. The 11th Circuit, 2-1, says no stay. Judge Brasher having an interesting dissent that we'll also touch on there.

Then it goes up to the Supreme Court just on that stay posture because the district court enjoined the law from going into effect basically at all, for all things in Florida, for all businesses, not just against Hamburger Mary. And so when Florida brings their appeal to the Supreme Court, it's just on that injunction part. Shouldn't the injunction have just been for Hamburger Mary? They can now hold whatever shows they want. Hamburger Mary, of course, arguing like, no, no, we'd like our big, big injunction.

That sounds more fun to us. You have Justices Thomas, Alito, and Gorsuch, my little three of the 333, saying they would have granted the stay, i.e. they would have said that the injunction only applies to Hamburger Mary. Everyone else, the law goes into effect. So then you have the other six justices saying no stay, and you have Justice Kavanaugh and Barrett explaining why. In short, David, the explanation is, look, you didn't appeal on the merits on the First Amendment or on overbreadth doctrine. You appealed just on the scope of the injunction. Now, normally, this would be a good vehicle to talk about whether you can have injunctions that apply to non-parties,

about whether you can have injunctions that apply to non-parties. But that over-breath doctrine makes this really unpleasant to deal with. So we're not going to do that. And interestingly, David, just for those playing at home on what the factors for a stay are, I wanted to read them because at the Supreme Court, they are just a little different. And I want you to check out all of the words that are supposed to be giving you the probabilities, right? So number one, a reasonable probability that four justices will consider the issue sufficiently meritorious to grant certiorari. Two, a fair prospect that a majority of the court will vote to reverse the judgment below. And three, a likelihood that irreparable harm will result from the denial of a stay. Kind of a steep hill. Kind of a steep hill.

It's a whole lot of, you know, 50% plus around there being multiplied on top of each other. So Justices Kavanaugh and Barrett saying, no, you just didn't, you didn't meet those on the injunction question alone, which is the only thing you appealed on because the overbred thing makes it messy. And so we wouldn't have granted cert on this question. Right. So they're only deciding it on that number one, a reasonable probability that four justices will consider the issue sufficiently meritorious to grant certiorari.

But David, here's what's kind of funny about that. Three of the justices dissented. So really, what we're talking about, they're saying there wasn't a reasonable probability that one other justice will consider the issue sufficiently meritorious to grant certiorari. No courtesy forth, man. No, no. Very interesting. I agree with the decision. I mean, overbreadth is a different animal compared to some other kinds of challenges. And it is relatively common for district courts to block enforcement of laws, not just for the litigants themselves, but for people who are not parties. Block enforcement for people who are not parties to the lawsuit. This is something we've talked about at length, Sarah. This is a version.

It's not really a nationwide injunction. It's a Florida-wide injunction because it's Florida law. But this is the perennial question. Who can a district court enjoin beyond the parties in front of it? And we keep dancing around it and dancing around it. And it turns out that this isn't going to be the vehicle for deciding that because it's overbred.

But it's fascinating. So Justice Kavanaugh included a footnote. Justice Barrett did not join that footnote. And I always find moments like that interesting. Like you way over read the footnote then. So I want to mention this footnote. So this is what Justice Kavanaugh wrote. Importantly, this issue is distinct from the issue of courts setting aside a federal agency's rule under the Administrative Procedures Act.

The APA expressly authorizes a court to hold unlawful and set aside agency action that violates the act. Therefore, unlike judicial review of statutes in which courts enter judgments and decrees only against litigants, the APA goes further by empowering the judiciary to act directly against the challenged agency action. This statutory power to set aside agency actions is more than a mere non-enforcement remedy. In these situations, the courts do hold the power to strike down an agency's work, and the disapproved agency action is treated as though it had never happened of course if a lower court sets aside an agency rule under the apa the federal government may promptly seek a stay in the relevant court of appeals or in this court if the government

wants the rule to remain in effect while the appellate litigation over the rules legality is ongoing which part did she not want to join david there's's like three sentences in there, each one of which, like she could agree with two of the sentences and just disagree with one of them. Like, is she disagreeing about, I mean, it's fairly controversial, the idea that you can do nationwide injunctions if it's the APA because of that set-aside language.

Yeah. So maybe she simply isn't quite bought into the idea that you can do nationwide injunctions because it's the APA. Or maybe she's totally bought into the idea that you can do nationwide injunctions because it's the APA. Or maybe she's totally bought into that, but she disagrees with the idea that if a lower court does that, that then this court, meaning the Supreme Court, could change it. Like, who knows? Or she rejects it all, including every syllable, including and and the.

That's right. Or she just doesn't want to get into it, doesn't think it's relevant to this discussion. Yeah. And wants to say more about it, even if she agrees with the overall sentiment, but doesn't think it's relevant here. You know what this reminds me of is, remember the scene in Forrest Gump where he's running and all kinds of people are just running behind him. Yes. Just waiting for a word to come from his mouth. And then he turns around, and I can't even remember what he actually said. I can't remember what actually came out of his mouth. But it had to be treated as profound because everyone was following every step that he took. That's how Supreme Court lawyers are with Supreme Court justices. They're all just running behind them. And then when one of them turns around and says something,

a hush settles over the crowd. Forrest Gump says, I'm pretty tired. I think I'll go home now. Yeah, profound, profound. I wanted to mention the lower court opinion here at the 11th Circuit, because I mentioned that it was a two-to-one decision that agrees with the Supreme Court's decision here.

But there was a dissent from Judge Brasher. Andrew Brasher, sort of one of those judges that when they write something, I'm just going to pay a little bit more attention to it because he's a thoughtful, smart nerd. He was making a really interesting distinction of what the purpose of an over-reath challenge is, or rather where it fits into the order of operations. Like think of this as a math problem. Like if you've got some

plus signs, some minus signs, some multiplication signs, like how do you know what order to do things in? And his point, and I'm putting total words in his mouth that I'm sure he will find offensive in any number of ways. But his point is you're putting overbreadth in the wrong order of operations. So I'm just gonna read a portion of this. The majority makes no attempt to explain why the district court needed to enjoin the enforcement of the challenge law against non-parties

to provide complete relief to Hamburger Mary's. That's because it didn't. Hamburger Mary's runs a restaurant and nightclub in Orlando. Hamburger Mary's injury is the fear of being prosecuted for violating Florida statute. A preliminary injunction prohibiting state officials from enforcing that law against Hamburger Mary and anyone acting in concert with Hamburger Mary would completely remedy Hamburger Mary's injury. Nothing more is necessary or appropriate. Under our precedents, that's the end of the matter and the motion for a partial stay should be granted. The majority says that we don't need to follow these established principles because Hamburger

Mary brought a First Amendment over-breath challenge to this statute instead of some other kind of claim. But I don't see how the nature of HM's claim moves the needle. A district court can't enter an overbroad injunction just because it's dealing with an overbroad statute. To hold otherwise, the majority, and this is the part where I'm talking about that order of operations, to hold otherwise, the majority conflates the merits of a legal claim with the scope of the remedy for the claim. The First Amendment overbreath doctrine is relevant to the former, but not to the latter. That is, the doctrine recognizes that state law may be unconstitutional because how it applies to most people, even if there is no problem with the

statute as it applies to the plaintiff's unique circumstances. But a plaintiff with a successful overbreath claim gets the same relief as a plaintiff with any other successful claim. A remedy that is no more burdensome to the defendant than necessary to provide complete relief. And then they go on to talk about some cases, well, really one case that would apply here. But I don't know. I really, really like the parsing. I'll tell you that. But, and he may be right, that when it's time to parse, this is some important parsing that

needs to be done when it comes to overbreath challenges versus injunctions, versus overbreath challenges with merits. And maybe the overbreath doctrine's kind of a hot mess to begin with, by the way. But I think I also agree with Justice Kavanaugh and Barrett that this ain't to be resolved on the emergency docket. Right, right. Yeah, yeah, exactly. Let's figure out overbreath doctrine first. Then once that's all figured out, then we'll figure

out how it applies to remedy issues like injunctions. So yeah. So once again, by the way, big, big picture, here's the court gnaw-dogging the emergency docket. The rush to get the Supreme Court to undo something that's still percolating at the lower courts. Yeah. And we've been seeing more and more and more of the gnaw-dogging of the emergency docket. It is on the wane. Especially by Justice Kavanaugh and Justice Barrett. Yes. It is on the wane. And the more of these kinds of pairings that we see, when are you going to get your apology letter from everybody who scorned you about 333? see, when are you going to get your apology letter from everybody who scorned you about 333?

I'm taking it in these, in every time I see one of these. Yeah, just take a little bite-sized piece of satisfaction. That's right. Every time. Because on that, again, vertical y-axis institutionalism that I've been saying that I think Thomas Alito and Gorsuch are just less institutional, what better example than the emergency docket? The emergency docket is, in its essence, an anti-institutional thing. This idea that we're not going to follow regular order, that we're going to like bop into some of these cases and move the needle or the status quo while the litigation's pending, despite what a trial court said and a circuit court said. That is anti-institutionalist.

So I'm not surprised that you have six justices nod-dogging it. Well, really the three middle ones and then whichever three agree with it bouncing in to make the six. Here you have, you know, the three liberal justices bouncing in for it. But yeah, I mean, and remember, so all that happens is that the current status quo that the law is not in effect continues as this litigation then makes its way back up to the Supreme Court on the merits, wherein they may well talk about, well, they will talk about overbreath doctrine. They may well talk about injun will talk about overbreath doctrine. They may well talk about injunctive remedies for overbreath doctrine and where one fits overbreath doctrine into the

analysis. Is it a standing question? Is it a merits question? Or is it a remedy question? I really appreciate Judge Brasher breaking it out into those buckets. However, by its nature, when you're talking about the whole reason that you get the remedy is because it's chilling everyone else's speech as well, it does imply a remedy. Yeah, it does. Yeah. That's what makes this not the best vehicle for examining this question, because the essence of an overbreadth finding is that it's chilling a lot more people than just this plaintiff. Yep. So interesting that Florida only appealed

on the injunctive relief part. Yeah, that is interesting. I'm sure they're kicking themselves a little bit for that. I'm sure they thought like, no, we want to bring them the narrowest issue. And unfortunately, this is one of those few times where narrowing it for the court cost you at least

what could have been a longer opinion denying your stay. Because the problem is, right, I think Kavanaugh and Barrett don't want to have this on the emergency docket. So you were already paddling against the tide, the Kavanaugh-Barrett-Roberts tide, for sure. But you gave them an easy out.

I was just going to say, one quick thing that's interesting about the case is when you compare the public rhetoric about sort of the drag queen story hours, et cetera, with what they actually try to do in the statute, is they're kind of trying to publicly say we're banning drag queen story hours while the actual text of the statute is trying to do something else. Ban them only if they're obscene as to minors,

which is a concept under the law that there is such a thing as obscenity as to minors. But it is just very interesting to me, Sarah, that they don't actually try to ban the whole thing. They kind of publicly state it as if it's a ban, but what they're doing in the actual fine print of the law is something a lot narrower than that. A lot narrower. Well, we talked about this. It's unclear to me what the new law prohibits that old laws didn't prohibit. Right. And that's the argument about these, for these, is that they're just window dressing laws that are sort of response to like a culture war moment. I think that's unfair to window dressings. Window dressings do work, you know?

Yeah, well, true. They block direct sunlight. I don't know what a window dressing is. They block direct sunlight. I don't know what a window dressing is. So I may have chosen my analogy poorly. So I just, I went with window dressing as something relatively meaningless and cosmetic. Yes. So look, some window dressings are. Window dressings, they're really referring to those

like sort of maybe 1970s, 1980s, like they're sort of like a pleated thing at the top that runs kind of along the frame of the window. But even so, they can still do a little bit of diaphanous work on the sunlight. Did not know that. Glad I know it. I still think the analogy generally holds, like it's more decorative than functional. But this is then the problem, I think, where overbreadth, which again, I'm not, I have mixed feelings on overbreadth doctrine,

but this appears to fit squarely within why overbreadth doctrine exists. You passed a law that had no purpose except to try to chill people from doing a thing that was maybe otherwise protected. You didn't change the underlying law. You just like underlined it and growled. Yeah.

Well, and that's what it's interesting because that's exactly the argument that came up in this Hunter case that we're going to talk about out in the Seventh Circuit, where they basically said, oh, yeah, all these new provisions of the law that we passed recently, they don't actually mean anything at all. They're just essentially a reaffirmation of the existing law, which is kind of a weird argument to make because normally people pass laws to actually have an additional effect when they add language. So, yeah, it's interesting how it connects with that case, which involves... Let's do that one next then. Yeah, let's do it.

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Wisconsin's hunter harassment law. So in short, the hunter harassment law, rather they amended the hunter harassment law to make it a crime to interfere intentionally with a hunter by maintaining a visual or physical proximity to the hunter by approaching or confronting the hunter or by photographing videotaping audiotaping or otherwise recording the activity of the hunter the plaintiffs oppose hunting and they make little documentaries about the inhumaneness particularly of wolf hunting in Wisconsin. And their stories are pretty harrowing. Now, I'll put my priors out there. I'm not a big hunting fan.

In the modern era, I don't think you need it for food. I understand the argument that, for instance, with deer hunting, the deer overpopulate. So it is actually a blessing to be shot in the stomach as a deer rather than starve to death overpopulate. So it is actually a blessing to be shot in the stomach as a deer rather than starve to death over the winter. But you know what? There's probably some other solutions to that. There's a reason the deer are overpopulating. It's because you killed all the

wolves. So, you know, just saying. I'm not a big fan of hunting. But even so, I think I would also find this First Amendment stuff pretty gross. So basically, these people are on federal or state land, public land, with their video equipment. And these hunters, I mean, not just like verbal abuse, etc., but at one point are surrounding their car, refusing to let them leave, saying now we've got them effed, you know, while they wait for law enforcement. Law enforcement then comes and harasses them some more, takes all their equipment, takes seven months to agree that in fact they committed no crime and give back all of their equipment. At one point they're pulled over and the little, you know, handheld computer thing that gives you a ticket. Maybe I'm betraying how much I'm getting pulled over these days. But anyway, it broke. And

so the guy couldn't give them the citation. That's the only reason they weren't given a citation for violating this law. And frankly, I find it galling that the state argues that they don't have standing because it hasn't been enforced against them. Oh, right. Oh, yeah. That part was hilarious. it's only activity, not speech. And the Seventh Circuit, no thank you, ma'am, that in fact, videotaping for a documentary, like this is pretty core First Amendment stuff, actually, not just speech, but also press. Yeah. Yeah, absolutely. And the interesting thing about this case, which is fascinating to me, is to go back to what we were just saying, is the difference between the old statute, which was held to be constitutional, and the new statute. And I want to sort of walk through some of the differences here. prohibited harassing hunters by harassing a wild animal or engaging in an activity that tends to harass wild animals. I think that that's constitutional. Impeding or obstructing a

person who's engaged in lawful hunting, fishing, and trapping. That's clearly constitutional, I would say. Impeding or obstructing a person who's engaged in an activity associated with hunting, fishing, or trapping. Dist, disturbing the personal property of the person engaged in hunting, fishing, or trapping, or disturbing a lawfully placed blind or stand. And what you'll notice if you see those older provisions, all of them really say, in essence, you're doing something to physically obstruct, really say, in essence, you're doing something to physically obstruct, to physically impede somebody from engaging in this lawful activity. Now, here we go with what's added. Engaging in a series of two or more acts carried out over time, however short or long, which is a weird way to say over time. However short or long. However short or long. They show a continuity of purpose

that are intended to impede or obstruct a person who is engaged in lawful hunting, fishing, or trapping, blah, blah, blah, including any of the following. Maintaining a visual or physical proximity to the person. That's not the same thing as impeding. Nobody, nobody would think that that's the same thing as impeding. Approaching or confronting the person. That is not the same thing as impeding, again, or obstructing. Confronting can be just talking to them. Photographing, videotaping, audiotaping, again. Nobody would say that's an equivalent of impeding. That's what documentarians do. It was just wild to me, Sarah, that they took these extra provisions in the statute and basically said, added nothing.

And this was always the same as stalking and they have no standing. Weird. Yeah. Sort of, frankly, undermine the credibility of Wisconsin here a little bit. Wisconsin has had a few of those moments, let's just say.

A little bit. Look, obviously, what I liked about this was saying that videotaping people that does not impede them, etc., is First Amendment protected. Now, I want to, like, I'm pulling that out to highlight the fact that this is used in other contexts that I'm not going to like. You know, videotaping, we've seen it recently, of videotaping people who pull down posters of kidnapped children. Okay, well, maybe I like the substantive part of that. But the purpose of it is to get people fired from their job for doing something that you disagree with politically, but that is not against the law, etc.

So again, imagine, I strongly disagree with people pulling down those posters. But imagine they're posters of something I don't like, or whatever. Anyway, I think it's important to come up with what is First Amendment protected and not in those sort of less politically sensitive cases. So it'll be interesting to see how that fares. And then, of course, I think the rest of it just follows from that, which is like, well, if it's First Amendment protected, just you lose a thousand times over Wisconsin because you're just barring it. The two or more doesn't help you. The overtime hurts you. The standing question to me was laughable. And again, this is where I think they really undermine themselves, Because if you're arguing that detaining someone repeatedly for hours doesn't give them standing to think that

this might be enforced against them, what? That's concerning from a law enforcement perspective that is like, well, you can hold someone up for hours and hours. As long as you don't give them a ticket in the end, they have no standing to sue. Crazy. These hunters, by the way, holding themselves out as law enforcement, the statute does have private enforcement. But of course, you don't get to,

Yeah, no. you know, imprison someone temporarily as part of the private enforcement. Yeah, you don't get to engage in false imprisonment. Yeah, it's a wild, it's a wild case. Now, I do think that there are, you know, already they had the anti-impeding or obstructing language. I think that's fine.

You don't get to block people's path. And that, by the way, you also didn't need, that would always have been illegal, but I actually am fine with something saying we're going to make it an additional misdemeanor for hunters because we've had this problem. They were citing a specific issue where some native tribal folks were impeded from getting their boat out to a river for a lawful fishing trip. Right, right. Then yeah, that's obviously not okay. It's lawful to fish. It's lawful to hunt. I can't just physically

block someone from doing so. Or, and I even appreciate the like, or sort of other activities like, oh, I can't block them from hunting. But every time they try to go to the bathroom, then I can stop them from peeing. Right. Like no. Or putting up their blind. Like, again, I'm against hunting, but if it's legal, I don't get to personally decide to make it undoable. Yeah. So, yeah, it'll be interesting to see specifically how the, do you have a right to videotape someone doing a lawful activity? I think the answer is obviously yes, but it's coming up in a lot of other contexts right now. Yeah, well, you know, we're seeing it with the posters being torn down.

We're seeing it on campus where people are videotaping people at die-ins and other kinds of protests. And then that's leading to physical confrontations where people are saying, hey, you don't have a right to film me at this public protest, which, again, what are you talking about? Well, an interesting, which state was it, David, that's, Virginia, sorry, it's Virginia, that says public protesters can't mask their faces and shield their identities? I don't know that I think that's constitutional. Interesting. You're engaged in a protected First Amendment activity. I don't see why I have to show you my face any more than I have to put my real name on an op-ed.

Good point. Good point. These are the anti-Klan laws that were passed. Again, I don't like it. I think people should show their face. If you've got speech that you want to engage in, you should tell us who you are. Same with anonymous speech on op-eds.

But it doesn't mean it's not First Amendment protected. Like, I'm going to take your argument less seriously in either situation. You can't put your name on the op-ed or you don't show your face at the protest.

Well, then I don't know how much you believe what you're saying. But don't show your face at the protest, well, then I don't know how much you believe what you're saying. But yeah, it should go to the credibility, not the constitutionality. No, I think it's very interesting. I've had that same question. Ever since I've learned about these laws, I've had some of the same questions. I'm sure it's been litigated. I'm sure because these things date back 50, 60 years. But not by us, David. Not by us. Okay. That's true. An assignment for our listeners. Give us the case authority on this. Regardless, and I know this isn't a good thing for our overall judicial philosophies that, you know, shouldn't change over time. But this is like the bad facts make bad law problem.

If you're litigating these questions in the context of the KKK, the principle is just going to look pretty different than when you're litigating them in the context of hotly contested cultural, societal, and political issues. And again, I may fall on one side of those political, societal, cultural issues, but it doesn't mean that I think we should, you know, strip down the First Amendment. And the second reason that I think they would be decided differently today is that we've moved to a far more First Amendment absolutist,

not just this court, but overall judges. Because as American society, the Overton window has expanded. It's just more pluralistic in a whole lot of ways. First Amendment absolutism is starting to look pretty good because you don't know when you're going to be in the minority on any issue. And that wasn't the case through all of American history, obviously. All right. Speaking of First Amendment, the Fifth Circuit decided a case about compulsory bar membership. And I know that some of you listening are going to be

super into this, which is why we're going to cover it. So if you're a lawyer and you're barred by a state, it is usually not voluntary and you have to pay them a lot of money to be able to say that you're an attorney, to hold yourself out as an attorney. I pay that money, David, I'm sure you do too. Yep. Now, what do they use that money for? Nobody, not nobody, but it is relatively uncontroversial to say that a bar can use that money to police its own. You know, they need some money simply to have the bar exam, decide who can be a lawyer, or to say that you, by stealing your client's funds to use it on OnlyFans.com, are going to get disciplined by the bar, or you're stripped of your membership in the bar. That's all going to take some money, some administrative money. There's people who dispute that from sort of an occupational licensing standpoint,

but you're really going to want to start with horse dentistry, florists, interior designers, way before you get to doctors and lawyers. Everyone wants their doctor license. Most people want their lawyer license, but you know, I hear you on the occupational licensing. Okay, but what happens when the state bars are in fact using the money for other things like lobbying on unrelated things like climate change or tax policy or whatever else. Well, the Fifth Circuit held a while back that in fact, you cannot use the bar, mandatory bar dues for non-germane activities. And this was applying to the Texas bar. So Louisiana bar was like,

okay, totally hear you on that. Okay, we'll stop doing the lobbying. We'll stop doing the legislative stuff. But surely it doesn't apply to like de minimis things like tweeting that walnuts are good for you. This is one of the actual examples in the case. They tweeted that walnuts and blueberries are good for you, which it's so funny because literally yesterday, someone was telling me that I needed to eat more walnuts and blueberries, David. Is that right? Yes. This came up in my life. Was it the Louisiana Bar Association? It was the wife of someone who was a licensed attorney. Yeah.

Okay. Okay. There you go. So there were other tweets. One was LGBT in June, an LGBT pride flag. One was around, I believe it was Halloween and Thanksgiving, mentioning food drives in Louisiana that you could donate to. This is all pretty innocuous stuff,

but Mr. Boudreaux, and by God, thank you, Mr. Boudreaux, for having literally the most Louisiana name you can have. Yes, love it. As David Lapp pointed out, Boudreaux's butt paste is just the go-to in our family, certainly, for diaper rash. Unrelated as far as I know. There is actually something called Boudreaux's butt paste? Yes, there is, David. Amazing. I can't believe that you, as a grandfather, do not have some lying about the house.

No butt paste anywhere in the house. Maybe that's a failing as a grandfather, but I can stay with authority. There is no butt paste at this house. Well, next time David Ladd is on, we'll have a debate because he put Boudreaux's as number one. Interestingly, I think I put it as number two. But, you know, these are the sorts of debates that we can only have here on Advisory Opinions.

Wait, are you saying there's better butt paste than Boudreaux's? Yes, I'm going to say the words butt paste as many times as I can. I think Boudreaux's is just a tad bit thicker than I want it to be for easy application. And I really enjoy the smell of the A and D. More gel-like. The smell is a little more menthol-y for me. Okay. And if you're putting something on someone else's butt, you're going to want that smell to be pleasant to you. Fair enough. Fair enough. Okay. So the Fifth Circuit held, in fact, that as innocuous as these are, there is no de minimis exception and that no, it is not germane to tell lawyers that it will make them healthier

to eat walnuts and blueberries because that it's sort of like the vaccine mandate case, David. It was not specific to lawyers, walnuts are healthy for everyone to eat. So it's not your to lawyers, because then there's no limiting principle, you could simply tell them all sorts of things that you think are healthier for humans to consume. In general. You could have entire segments, you know, you could hire someone just to do yoga shows with Bardu's membership. That's a little extreme, but I take judge to this point. On the LGBT Pride Month, he's like, no, that's just a federally recognized month, not germane to lawyers in particular. And while diversity may be good in law firms, this was not about law firm diversity. It was just overall American diversity. And on the pro bono, he's like, if it had been specific legal pro bono activities, that would be fine. some additional goodwill for lawyers to participate in food drives, it is not germane to the practice of law the way that, for instance, highlighting pro bono activities would be. So I got to say,

David, I love to see it. I think that the bar dues thing is insane. I think what bars advocate for is insane, that they get to spend my money to do that. I think that even the idea that germane lobbying and taking positions on public policy issues that have to do with lawyers is somehow okay to do with mandatory barbership runs absolutely afoul of the Supreme Court's case in that labor union decision from a couple of years ago. They recognize that in the circuit opinion, but basically there's another decision that's still out there that is binding precedent on this.

So I bring this all up because like, my bar due membership should be limited only to the activities of the bar. Germane to that, not germane to the practice of law. Disciplining lawyers. Licensing and disciplining. Licensing, disciplining, CLEs, things like that. Yeah, yeah.

Now, pour one out for the poor, you know, low-paid social media manager who's desperate for content on Thursday afternoon. It's like... I just want to be clear, they morally did nothing wrong. No, no, they're like, I just want to be clear. They morally did nothing wrong. No, no. They're like, I I'm supposed to tweet at three. Oh, here's some food banks. Here's some food banks. Nobody will be upset about food. Everybody loves food banks. Wrong. Mr. Boudreaux, the butt paste empire. Righteous indignation about the food banks and the walnuts.

righteous indignation about the food banks and the walnuts. Limitless funds from butt paste. Yeah, that's what's so funny about this case. I mean, I think it's right. Yeah, you're saying things, you're funding saying things that have nothing to do with being a lawyer or specifically to do with being a lawyer. But just the facts of the case are so funny to me, Sarah.

There's this guy sitting there going, health and wellness? I'm not funding that. He sits there with a fried turkey leg, glass of bourbon. How dare you tell me to eat walnuts with my own money. Blueberries? I'm a Southern man.

Blueberries? No way. Yeah. But yes, thank you, Mr. Bourgeau, for fighting on behalf of the rest of us. It may have felt de minimis, but it wasn't. And let's chip away at this absurd mandatory money that we all have to spend on things we don't agree with.

And social media managers, we don't want to hear anything about yoga, charity, or wellness, mental health. Just get that, get that away. Not with my money, I don't. It's true. All right, next up, that Colorado state judge deciding about whether Trump can be kept off the ballot in that state. Boy, this was 102 pages. And the first 95 pages walk through her findings of fact. And then her findings of law on whether Trump engaged in an insurrection. She finds that he did, in fact, incite an insurrection something david that

you have said you think is probably yes and i have said i think is a hard no on the incitement issue but she finds that he did incite and therefore he did engage in an insurrection and then on page 95 does section 3 of the 14th amendment apply to president trump and in the next six pages out of again 102 pages yeah the answer is no now she finds that it doesn't apply to him on both the on you know of the united states issues so you, again, it applies to someone trying to hold an office under the United States. She's in fact going to find that that is not the presidency. That does not include the presidency. And then of course, if you've taken an oath previously as an officer of the United States, she's going to hold that in fact, the oath for the presidency is not,

the president rather, is not an officer of the United States. David, we've certainly gone over all of that at length with Professor Bode included. It's interesting that every court to decide it so far, though, has gnaw-dogged Bode. Yeah, yeah. Every court so far. Every court so far has agreed with me. Yeah. Every court so far. Every court so far has agreed with me.

There was one interesting part of her opinion, though, in this pages 95 to 101 that I wanted to highlight in part because remember, I actually just seated the office under the United States in our boat conversation. It was like, fine, fine. The presidency is an office under the United States. Like, I don't even need to argue that because he's not, he was not an officer of the United States. So I only need to win on one. You have to win on everything. But so we didn't spend any time on it. So I thought we should a little bit here. So she cites a professor who provided historical evidence that the presidency was understood

as an office, civil or military under the United States, such that disqualified individuals could not assume the presidency. The most compelling testimony to that effect was an exchange between Senators Morrell and Johnson during the congressional debates over Section 3, where one senator explained to the other that the presidency was covered by office, civil, or military under the United States. This professor also testified that it would be preposterous that Section 3 would not cover Jefferson Davis. We've heard all that before. It all seems pretty obvious.

The court holds that there is scant direct evidence regarding whether the presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order, starting with the highest levels of the federal government and descending downwards. It starts with senator or representative in Congress, then lists electors of president and vice president,

and then ends with the catch-all phrase, any office civil or military under the United States. To lump the presidency end with any other civil or military office is odd indeed and very troubling to the court because, as interviewers point out, Section 3 explicitly lists all federal elected positions except the president and vice president. Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional. Finally, and this is the part, David, that I found really interesting, Kurt Lash published a law review article on October 28th of this year, so quite recently, the meaning and ambiguity of Section 3 of the 14th Amendment. And he found that an earlier version of the amendment read, no person shall be qualified or shall hold the office of President or Vice President of the

United States, Senator or Representative in the National Congress, etc., etc. The fact certainly suggests that the drafters intended to omit the office of the presidency from the offices to be disqualified by the fact that that was the earlier version and not the enrolled version. David, what do you think? I was just going to ask if at the very bottom where it says signed by, it's like the last name of the judge, comma J. I was wondering if it was signed Isger, J. Because it was music to your ears.

I mean. Music in the sense that I'm right. Absolutely. And music in the sense that I think. Right, right. Not that you're like, yeah, Trump. I think this outcome is actually better for the country as a whole.

I think if it's a close call, you let the political will of the people win over unelected judges. Now, interesting background, by the way, since you mentioned Judge Sarah Wallace. There we go. There we go. With an H.

So she actually only took office January of this year. She has not been on the bench long. She was a partner at Ballard Spar, a very well-regarded law firm where she specialized in mortgage-related, trade secret, reach of contract, employment, and insurance coverage litigation. So this has landed on her plate welcome to the bench sarah welcome to the bed but look i actually thought um she did a pretty nice job walking through all of this ilia soman over at reason threw a lot of shade about how absurd he thought her outcome was, etc., and how nobody could think this. Ilya Soman clearly doesn't listen to our podcast. He does, though. Ilya,

Sarah is sorry for defaming you. You're absolutely a friend of the podcast. Just, you know, if you're shaken, if you're upset right now, just listen to the sound of my voice. Can I just tell a little story on Ilya? I've known him for quite a while. So Scott and I did one of our few joint appearances at an event at George Mason together. And the event ran a little long and we were all sort of loitering around afterwards. And I assume he did not recognize who I was,

but Professor Soman barked at me to start moving chairs because he had a class in here next. And this was not, you know, how Federalist Society should run things. And I was like, what? I'm not a student. And do not take this tone with me, sir. So maybe he just thinks I'm a law student still. I don't know.

I don't know. I don't know. But did you move the chairs? Absolutely. Yeah. Well, there you go. There you go. I believe what I said was we're taking a picture with these students right now, and we'll move the chairs promptly after. Yeah. So and then her section on officer of the United States

follows exactly what we talked to Professor Boat about. She goes through each of the clauses in the Constitution that mention it, and then the court agrees with interveners that all five of those constitutional provisions lead towards the same conclusion, that the drafters of Section 3 of the 14th Amendment did not intend to include the president as an officer of the United States. Here, after considering the arguments on both sides, the court is persuaded that officer of the United States did not include the president of the United States. While the court agrees that there are persuasive arguments on both sides, the court holds that the absence of the president from the list of positions to which the amendment applies, combined with the fact that section

three specifies that the disqualifying oath is one to support the constitution, whereas the presidential oath is to preserve, protect, and defend the Constitution, it appears to the court that for whatever reason, the drafters of Section 3 did not intend to include a person who had only taken the presidential oath. To be clear, part of the court's decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3. And David, is this the Purcell principle writ large? I think what we're dealing with is the

Purcell principle. And for those who don't remember the Purcell principle, this is the principle the Supreme Court articulates to not permit changes in voting close to an election. And so, for example, let's take the Alabama voting rights case. This was a case that came up to the court in the run-up to 2022, but too soon, too close to 2022. And so the court punted essentially until after the election, and then it decided it when the Purcell principle didn't apply. There was plenty of time before the next election. And this feels like a very similar thing where we're talking about, well, okay, he incited an insurrection and he's still eligible to be president. And we are about to start voting.

We're about to start voting and we've got these cases winding through. And this feels very Purcell principally to me, Sarah, but what disturbs me is it's not being decided on the basis of a Purcell principle. They're not saying that. They're saying it just doesn't apply to it. And- Right, there's a little bit of both going on here.

Yeah. So for me, the reason that it is not a good Purcell candidate, not the timing, the timing is well within a Purcell window when it comes to a candidate being on the ballot. It's not the election that matters here. It's the ballot qualification deadline. sell principle to a statute or to a district line where it's still totally relevant for the next election. That's not true when we're talking about a specific candidate, for instance. So the only time that the 14th Amendment Section 3 is going to come up is in the run-up to a specific election with a specific candidate trying to get on the ballot. So it's always going to be percelled if it's percellable. And for those who are thinking mootness doctrine, there's actually a pretty broad exception when it

comes to campaign and elections capable of repetition yet evading review. But that's for deciding it ahead of time, not for deciding it after it's definitely mooted and not going to come up again. Right, right. Yeah. No, I, you know, I'm really worried that we're going to end up with essentially this clause in the Constitution being a dead letter because people didn't want to do this so close to an election, but there was no real option to do it, but so close to an election. And here we are. Yeah, I mean, and look, some of this is going to be the drafters. We can kind of put it at their feet a little bit. So she quotes at the very end, Attorney General Stanbury, this time period, he noted when construing the Reconstruction Acts, quote, those who are expressly brought within its operation cannot be saved from its operation,

where from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter. You know, that's from 1867. It's pretty clear that if an ambiguity exists and we mess this up, don't apply it. Don't over-apply this thing.

And again, I liked the way she laid out, you know, and when she did her questions of law, she just put out the question and then you can read her answer to the question. The only problem with that is you end up with 95 pages, at least 50 of which are so you didn't need because she didn't need to decide whether he had incited an insurrection if the law wasn't going to apply to him for other reasons. And that, David, felt almost a little like this reverse Purcell issue. It's a little like Jim Comey's Hillary Clinton press conference. You can just say, assuming without deciding that he engaged in an insurrection, now let's answer the question of whether it applies to him. And instead there's like 50 pages on engaging non-action incitement, whether Brandenburg applies,

whether the constitution means that it trumps Brandenburg. Like this is a constitutional provision pitted against a different constitutional provision. And this comes after the first amendment. Therefore the first amendment can't limit 14th Amendment Section 3. I think overall, by the way, I agree with that. Except it's not expressed about that whatsoever. You're right. Yeah. But anyway, we have 50 pages,

you know, marinating on that. And then five pages being like, but never mind, it doesn't matter. But never mind. In general, it's sort of like, it goes against my, I like concurrences that do exactly this, I guess. But for some reason, in a district court opinion, I was like, eh, this felt like you were trying to show people that you actually do think Trump is a bad guy, even though you're going to let him stay on the ballot. What if she just concurred with her own opinion?

Then, you know, I'm great with it. Yeah. I'm great with it. Yeah. Speaking of concurring with their own opinions, you know, my writing crush, Judge Newsome, famous for concurring with himself. David, I have exciting news for listeners. He has graciously agreed to come on the podcast to talk about, among other things, how to write like your writing crush. Outstanding. Yeah, I'm just burying that news here. Yeah, that's excellent news.

All right, so David, walk us through the New York Times piece, and then I'll give you my reaction. Yeah, so at the risk of oversimplifying what is a long and interesting piece, essentially it's written by Anna Louise Sussman, a person who writes about gender, dating, et cetera, et cetera. And she's talking, kind of writing in response to a lot of these books and policy papers that are saying, look, guys, you got to get married. Like, if you want to be happier in this country and this life, if you want to do better financially, if you want to be happier in this country and this life, if you want to do better, so, you know, financially, if you want to do better psychologically, emotionally, get married. There's a new book coming out by Brad Wilcox that says, Get Married, Why Americans

Must Defy the Elites, Forge Strong Families, and Save Civilization, for example. We've seen other commentary like that. And look, I've written things like that as well, that America works really well for married people. It really does. And so, you know, one of the things marriage matches in some circumstances, educational attainment, for example, is a measure of how you're going to do in life. And so what she did is she responded to this by kind of saying, okay, let's get real. All of this advice is sort of way,

way upstream of people's actual lives, like way upstream of their actual lives. That where people really live, all of this advice about go ahead and get married and find somebody, people are trying. They just can't. That this is something that it's not the case that women don't want to get married now or that women are viewing marriage as a capstone. They're just trying and it's really bad out there.

And nothing that you're arguing for in these policy papers or whatever is making anything better out there. And that the real issue is people want to have relationships. They can't have them. And the thrust of it was because of problems with men, although not exclusively problems with men, but big thrust of it was problems with men. And so I read this. It got a ton of readership, like people really responded to this. And so I thought, very interested in Sarah's I didn't just find someone to get married to. It's the best. And I love being married.

And I found just, I didn't settle one tiny iota. I didn't have to. I also got married at a relatively late age to Scott. I was in my late 30s by any definition. So it's, you know, why should I get to throw stones on the women out there having trouble? But here, let me try to throw some stones. Throw them stones, Sarah. Okay, here's the problem. I do know a lot of women who are having trouble finding someone. They tend to be much, much older. They tend to be high achieving in their careers.

That to me is a problem with men. You know, she mentioned, for instance, women taking their PhDs off their dating profile. Hey, I don't know that the PhD needed to be on your dating profile at any point in life, but I get that that will narrow your pool because there's plenty of studies out there that show that women, for instance, do actually want men who are taller than them. And men do want women who are shorter than them. And that applies not just to height, but to income, to education, to everything else. And so as you're a woman moving up the height, income, education, you are narrowing your pool of men. So for instance, putting in your dating profile, you're knowingly narrowing your pool of men. So for instance, putting in your dating profile, you're knowingly narrowing your pool of men, which may be okay. Cause maybe you

also want only that pool of men. Um, but this is part of the problem with feminism. I consider myself not, I mean, a feminist with no, like no asterisk, but everything's a trade-off. And when you told women that we could have it all, well, you can't. And this is one of those huge trade-offs that we just haven't fixed culturally. That if women are going to prefer having men who are at their attainment level or higher, and men are going to prefer having women who are at their attainment level or lower, that hurts women, especially as they keep attaining more and more and more and men keep falling behind. You know, we cite the stat all

the time of 60% of college grads are now women. This problem is going to get worse. Okay, so that's my first reaction. My second reaction is that the story that she uses is about a 37-year-old single mother. And she goes through how she had a partner for two years, a boyfriend, and they got pregnant. And then he had had some drug problems, some problems holding onto a job. At some point in the pregnancy, she says something to the effect of, you know, I'm just concerned that like at some point we'll be left alone. He gets really mad at her and leaves, leaving her alone. This guy's a horrible person as far as I'm concerned. You know, we're taking her version of the story. But, like, yep, that's terrible.

And, you know, good for her for being an awesome mom. But I think what these guys, and I don't mean that in the male sense, all of these people saying we need a culture of marriage, But I think what these guys, and I don't mean that in the male sense, all of these people saying we need a culture of marriage, that she shouldn't have gotten pregnant with a guy she'd been dating for two years. They should have been married. Because that would have then prevented her from being a 37 single mother who's now trying to date and having trouble finding someone. That's going to

make your dating life harder in all sorts of ways. Finding men who want to take on a child, literally the time you have to date, your ability to like bond with someone over days, etc. Well, nope, you've got actually a pretty rigid schedule. So I thought that was an odd example to give compared to some other examples that she uses later on in the story, for instance, of the woman who has 100 circles on her fridge because she is committed to going on 100 dates to try to find a spouse. And she's more than halfway through the circles and not married. And it's true. I know a lot of single women out there who are awesome catches. They make a ton of money. So they're financially independent. They're smart. They're funny.

They're beautiful. But they're also like in their 40s because they weren't dating to marry in their 20s. And so that's my third bucket. Your 20s is not to F around. I mean that literally and figuratively. Your 20s was to date to marry. And again, this is where the empathy part of me is like, Sarah, you don't get to throw stones because you didn't do a very good job of that yourself. You in fact got dated to get married in your 20s and got divorced. Yep. I'm very, very lucky. I made that sound weird, but like, I'm very lucky that I then found my penguin later on. So yeah, anyway, David, those are all of my thoughts. They're not consistent with one another necessarily. I think the thing that you were saying at the

beginning, I think is sort of the, really the single most important factor here, which is we're dealing with the collision between people's revealed preferences and just math. So if women do prefer, and it is demonstrated by revealed preference time and time and time again, to marry someone as successful as them, if not slightly more, as educated as them, if not slightly more, if that's a revealed preference and a very, and these percentage of men who can meet that is diminishing every year, something's got to give. And it looks like what the thing that's giving is the relationship. The relationships are not forming because the revealed preference isn't really changing.

And I think, you know, this is one of the things that when we're talking about public policy, for example, it gets really, really, really, really hard for public policy to bring something to bear here. Because what's public policy going to be able to do truly about this really alarming drop-off in educational attainment of men. Now, I think it's not that I think it's helpless to do anything, but this is a very broad-based problem that spreads throughout the country. And I think it's safe to say nobody's got the specific prescription for this thing. Nobody does. Can I give you another collision of the similar variety? How do you want to discourage single motherhood? Make it harder for single moms out there? Oh, wait, you're pro-life? Hmm. If you make it harder for single moms, which by the way,

it's already incredibly hard for single moms. It's hard for married moms. Let's be real. The daycare crisis in this country to find safe, reliable, affordable daycare is a joke. So that's already disproportionately hurting single moms over married moms to begin with. But then you're like, but you have to have the baby. Okay, I get adoption is like sitting somewhere in between those two, but those are on a collision the same way that public policy around fixing men is on a collision when men have had plenty of advantages. Why are they falling behind? You know, and the other thing is, if you're going to say to people, well, your preferences have to change. That's a hard thing to tell somebody because, you know, not to use cheesy language there,

but there is sort of a heart wants what it wants kind of dynamic. That's why I mentioned the height thing, because I think it's actually the exact same as the educational or financial thing, but it's easier for us to understand from that sort of almost evolutionary drive way. Yeah, and I also do wonder, so, and I think we've talked about this before, what if you had revealed preference change to where somebody has to be just as successful as me in the intellectual pursuits that I pursue versus what if a doctor marries a seal? A Navy SEAL, not a barking one.

Not a barking SEAL, a barking, a Navy SE seal. What if a doctor marries a ranger? You know, what if a doc, like, what if you're talking about, or somebody who's a fireman, you know, somebody who's extremely accomplished in an extraordinarily respectable field, but it's not the same. And this is where you're going to see more men sort of disproportionately in some of these more physical pursuits where they can, by the way, make quite good livings. But you don't necessarily see somebody with a master's degree marrying a plumber. Even if being a plumber can be an extremely lucrative and stable profession. Can I tell you some other anecdotally bad news on that front, just from my Harvard Law female experience? Yeah, please.

Which admittedly is so far at the end of this spectrum, but it's almost helpful in that way. I have several girlfriends who have been divorced from men they married who are similar to how you described, very accomplished in different, less intellectual fields. accomplished in different, less intellectual fields. And I, the reason has sort of come up to me over time, which is that over time when she's the primary breadwinner and the more intellectual one, um, or the more intellectually recognized one is probably the better way to phrase that there becomes a settling effect and a man does not want to feel settled for. And so in both of the cases that I'm thinking of,

it ended in adultery by him, but he felt very justified in that adultery because he felt unappreciated at home and someone else out there was willing to say he was amazing and, you know, home and someone else out there was willing to say he was amazing and, you know, super muscly and all of those things. And he felt like, you know, she was constantly just settling for him as a spouse. Now, from her perspective, she's like, I never said that. I never thought that. But it became over time, just like the, we call it the H-bomb, right? For women, the Harvard law thing, it doesn't matter what you're saying or what you're doing. It's like this constant vibe you're putting out that you're smarter and better than people, regardless. So, you know, I had, I went on a lot of dates, a lot of first dates in my 20s. But I can think of two different occasions

where the person found out where I went to law school. And one, he was like, okay, never mind, literally left. And the other one, I wore a Harvard Law t-shirt. And he said, this is just like advice to you. We were like doing like an outside exercise activity, wearing a t-shirt was appropriate on the state, to be clear. He wasn't objecting to the t-shirt. He was objecting to what it said on the t-shirt, which was Harvard Law Texas Club. And he said, I just don't think you should be wearing that in public. It's really obnoxious. I was like, it might be obnoxious if I hadn't gone there or if it just said Harvard Law, like I'm effing awesome or something. And it's a t-shirt that I own. Right, right.

Interesting. So I do think women run into this problem. But David, I'm actually, I've been working, can I confess something to you? I've been working for weeks on writing something like my own sort of feminist manifesto. And it's the longest I've spent writing something because I'm all over the place.

But I feel like feminism died about three years ago and nobody sent me the memo. And so I'm trying to write out how I think feminism died and why there's so much work yet to be done. So where are all of our fourth wave feminists to like, come take this banner and run up the hill the rest of the way. And instead, intersectionality is like vilifying, literally vilifying second wave feminists as Karens, frankly. Right. Well, you know, also you've seen this incredible rejection, for example, around the Israel, the Gaza situation,

where all of these accounts of rape, for example, now we're moving way afar afield from dating. All these accounts of rape, for example, now we're moving way afar afield from dating. All these accounts of rape are just discounted, completely discounted out of hand. Because of the oppressor hierarchy. Exactly. You only believe all women when they're higher up on the hierarchy than the person who they're accusing of raping them. Right. Exactly. And so you're seeing this distinction between sort of small L liberal feminism and illiberal intersectionality.

And the two things really don't meet. They really don't. And so I've been shocked, just stunned, by the way in which a lot of people on the intersectional left have just scorned these horrible, substantiated allegations. You saw the Sexual Assault Victim Center in Canada signed onto a letter casting doubt on the claims of rape? I mean, what? And the person who signed it was promptly fired. Yeah, well, good.

Yeah. But look, on the dating thing, it is simply just true. Now, for those who are about to write me, I know that there's plenty of men out there who also want amazing, stable, wonderful marriages who are also single and just looking for a decent woman. I have several on my bingo card right now who I am searching for ladies for. Good looking, smart, well-off dudes can't find a woman.

But this becomes, the devil's in the details, right, David? Right. Because a lot of these men want to potentially still have families, and they've put off their family-making time. Ah, yep. But they now want a woman who's in her family-making years.

So they need someone much younger. The women who have put off family-making have a much tighter window. It gets to my multiple clerkships objection and everything else. Frozen eggs ain't going to cut it, ladies. I'm sorry to say. Well, you know, when public policy is running up against revealed preference, public policy tends to bow to revealed preference. And always. And I think, you know, I do think that some of these books that are about marriage and, and really add talking about how valuable it is. I think it's an absolutely valuable contribution to this course because we did have for a time

pushback from the cultural left. Essentially marriage is not what what you it's not what it's cracked up to be. Marriage isn't truly a factor in either adult happiness or child's happiness. How dare you judge people? They get to make their lifestyle choices, even though all of us here in the elites are married. Exactly. Like this giant gap between rhetoric from the left elite and conduct when in conduct, the left elite is extremely traditional, traditional, extremely. You know, I remember looking back at some statistics about what are some of the zip codes in the U.S. where it is the highest percentage of children living with their mother and father, their biological mother and father. And one of the zip codes was like West Hollywood, you know, the home of the cultural left. And not exclusively, of course, but this is where people,

they get married, they stay married, by and large. And I get the frustration at saying, why are you sort of advocating that marriage isn't anything special when by your conduct you're demonstrating that yes, in fact, it is quite special. I totally get that. But I don't think that necessarily having the blue elite's rhetoric match its actions is going to have that effect that people want it to have. And I agree with you. Having a conversation that it's not as easy as telling people that being married is good for your children. It will, over generalities, lead to better outcomes for children to have two-parent households.

That's a fine and good thing to say. You should also recognize where people are and that a lot of people would love to get married. It's not a moral failing on their part, failing to get married. They're trying. They're trying. This problem between, with men in particular,

is going to cause that problem to get worse in the next decade or generation? Absolutely the case. So I appreciated the article. I didn't agree with all of it. I think that, as you say, like what was not recognized was that intersection between policy preferences

and revealed preferences. You know, that's life. And feminism should frankly be grappling with that a lot more over time. And I hope that we will once we get feminism back because I feel like it's been taken away from me. Well, I can't wait to read what you're writing on that. I can't wait to read that.

I don't know. I don't know. I don't know if I'll even publish it. I'm very torn on the whole thing. David, we have a big AO revealed preference to share with our audience. So while we were recording, the Eighth Circuit released their voting rights opinion case

that we've been waiting on. To answer the question, did Congress give private plaintiffs the ability to sue under Section 2 of the Voting Rights Act? This is a huge deal because almost all of these Section 2 claims are Voting Rights Act. This is a huge deal because almost all of these Section 2 claims are brought by private parties. Two to one, I'm seeing that the Eighth Circuit

in fact said no, which will be a huge, huge thing. Certainly will go to SCOTUS. But David, this is a 30-page opinion and our revealed preference on this podcast is that we do not stop the pod for circuit decisions. True. True.

So this is going to have to wait until after Thanksgiving. Yes. But it's only 30 pages? It's only 30 pages, but it's still going to wait till after Thanksgiving. And we've talked about what, is it a rule or is it a standard that we don't stop the pod for anything other than a Supreme Court decision being handed down? So can you come up with something other, you know, any exception? Fifth Circuit disqualifies Trump from the ballot. That would be that you would stop Fifth Circuit, arguably most conservative circuit, if it disqualified Trump. Yeah.

Then that's a stop the pod. I don't know. I'm going to say that if any circuit said that Trump it disqualified Trump. Yeah. Then that's a stop the pod. I don't know. I'm going to say that if any circuit said that Trump was disqualified from the ballot, I might vote to stop the pod. But you also mean we only have two voting members. Fifth circuit just off the top of my head. No question. No question. Ninth circuit.

Yeah, maybe you're right. Maybe we wouldn't stop. I don't know. On Bonk, Ninth Circuit doing it, we'd stop the pod. With Boumete writing. Yeah, there you go. There you go. All right. Well, David, have a wonderful Thanksgiving. What's your go-to side dish? Oh, by the way, this is my flu pod, as opposed to the flu game from Jordan. This is the flu pod with much less quality than Jordan's flu game. But without question, the only time of the year when I eat dressing or stuffing, however you want to call it, that's my absolute go-to. Because it's the only time of the year I'm ever having anything like that. You don't make Thanksgiving all year round?

I do not. Never. So Scott went to the grocery store two weeks ago and the turkeys were on sale for $5. So we definitely did a dry run Thanksgiving. Oh, nice. $5 turkey that can feed you for days. I can't even believe that exists. Yeah, I think they were trying to clear out their inventory before the new turkeys come in or whatever.

Yeah, no kidding. It was a real steal. Just my little advertisement for giant grocery stores found everywhere on the East Coast. And when are we going to note that this pod was brought to you by Boudreaux's butt paste? The second best butt paste in America. But the first best for most people. I'm in the minority. Most new parents would say that Boudreaux's is the go-to.

Well, let's start to the listeners. What is your definitive butt paste rankings? All right, with that, we are going to take Thanksgiving off. Y'all have a wonderful, wonderful time. And just know, we don't say it enough, but we are thankful for you, listeners, and the new listeners and the old listeners, all of you just bring us so, so much joy. Doing this brings us joy. So we're thankful that you let us do this.

Amen to that. Bye.