Advisory Opinions - High Feminism and Lessons from Battlestar Galactica

Episode Date: October 19, 2023

Live from the University of Virginia and before a strangely happy group of law students, Sarah and David cover a range of topics from a convicted rapper who blames AI, disruptions at the Supreme Court, the Fifth Circuit becoming the new Ninth Circuit, and ethics with Amy (Justice Barrett). The hosts then take a series of questions from UVA students. God blesses this podcast. -Does Sarah know her husband's phone number? -AI briefs and ineffective counsel -SC justices interrupting female attorneys -Justice Barrett's opinion on SC ethics -Relationships on the court -Fifth Circuit is the new Ninth -Empirical SCOTUS -If the SC adopts a code of ethics, what should it be? -Consequentialism, institutionalism, and other ism's -What SC topics will motivate voters going forward? -Why is the court not interested in nationwide injunctions? Show notes: -Josh Gerstein reporting on Fugees' trial -Fugees Trial Motion -Cert grant for Chevron doctrine -Supreme Court justices interrupt female attorneys more often than men -Justice Barrett on ethics -NetChoice, LLC v. Paxton -CFPB v. Community Financial Services Association of America, Limited -SEC v. Jarkesy -Campos-Chaves v Garland -West Point Affirmative Action lawsuit -City of Philidelphia v. Fulton Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we are live at the University of Virginia. Also known, Sarah, as the happiest place on earth. Sarah is the happiest place on earth. Totally. You can tell too,

they're better looking than other law students and not like, it's not like a, I think a bottom level attractiveness. It's that it's their happiness. It's radiant smiles. It's like free range chickens. Yeah. I remember when I was in law school and UVA's softball team came up to play

and it was the first happiness I'd seen. And like at that point, a year plus, I would say. No, they're like better dressed. Their hair is washed. All sorts of things that are very different than Cambridge. Sorry, guys. Also, I was checking my phone during those intros because I got the most like 2023 text message where someone had asked me for my husband's phone number and I had sent it to that person by memory and they were like, that didn't work. I was like, oh man, do I not know my husband's phone number? Probably not. I'm still not sure. I've done my best. So anyway, I thought that was an important text to answer. So David, very exciting to be here at UVA. We in fact have a daughter of a major friend of the pod here in attendance.

Yes. Judge Radler's daughter is here coming down from the undergraduate campus. Now- Grounds, Sarah, grounds. Sorry. She says that this was of her free will, but also dad paid for the Uber. So thank you, Judge Radler, true friend of the pod, increasing our audience here with some undergrads

that are related to him. Yes, absolutely. And Sarah, I don't like to say that, it's a bit presumptuous to say that God blesses this podcast, but we have this pattern where we often don't have great topics. And then like in the hours before we're supposed to record, like just stuff

comes flying in. And this is no exception. We have got a treat for you involving, okay, the Fugees. Oh my God, you guys, he got it right for the first time all day. Yes. In the drive, in the car, we road tripped down here together, and as we are wont to do, and he was like, the Fugis have been convicted of some, and I was like, what are you talking about? And I was like, wait, do you mean the Fugis? And he was like, I don't know. So then I made him listen to like all the Fuji songs.

I was like, seriously, killing me softly. And he's like, by Roberto, whatever. And I was like, I don't know. So then I made him listen to like all the Fuji songs. I was like, seriously, killing me softly. And he's like, by Roberta, whatever. And I was like, nope, wrong. Nope, nobody knows that one. Roberta Flack, showing your age. Yeah, showing my commitment to the real ones. Yeah. Okay, so we've got the Fuji story.

We've got interruptions at the Supreme Court, oral advocate, fun times. Is the Fifth Circuit the new Ninth Circuit? And maybe ethics with Amy. Yes. Yeah. So it's action-packed. It's pretty action-packed.

Plus questions. Yes, exactly. So why don't you start us with the Fugees, which you may or may not know how to pronounce. Okay. And forgive me if I immediately mispronounce one of the names. It's not Lauryn Hill. No, it's not Lauryn Hill. No, it's not Lauryn Hill. I know how to pronounce Lauryn Hill. So I was not familiar with, and you guys maybe had tracked this, but I

did not realize that one of the front men of the Fugees, Pross Michelle, is that right? No, they're too young. They're too young. Okay. They were too old. They're too young. Okay. So Pross Michelle, You're too old, they're too young. Okay, so Pras Michelle, Fuji's star, I had no idea, was convicted in federal court, not of the kind of things that like, you know, music stars are typically convicted of, such as, you know, gun possession or drug possession or whatever that we've seen in stars from every genre, right? No. whatever that we've seen in stars from every genre, right? No. Federal prosecutors claim that Michelle took staggering sums of money, about $88 million from wealthy Malaysian businessman.

And again, I don't know if I'm pronouncing this right. YOLO. Okay. It's pronounced J-H. I mean, it's spelled J-H-O-L-O-W. is that yolo or jolo i'm going with yolo and a bid to enhance its influence in the u.s and later to derail investigation and prosecution of low on fraud charges stemming from the collapse of a malaysian sovereign wealth fund the hip-hop star who came to prominence in the 90s was accused of arranging to donate money from foreign nationals to Barack Obama's reelection campaign in 2012

and then making efforts to influence Donald Trump's administration to drop or resolve charges against Lowe. That is not the normal way in which a music star is convicted of federal crime. Once again, your 2023 bingo card did not include straw donation and FARA conviction of Fuji's star. Yes. Killing me softly. Yes. He was convicted of being an unregistered foreign agent for China. Again, not, but that's not why we're talking about this.

We're talking about this. I mean, it is a little though. It is a little, yes. It's a great segue to talking about ineffective assistance of counsel in the modern age. Yes. Because there's a crazy twist here. All right. So I'm going again. I'm reading from Josh Gerstein's article about this in Politico. And by the way, shout out to you, Josh. You included links to all the court documents. That's because Josh is one of the true ones. Yeah.

He's a real one. Yes. Thanks, Josh. Phenomenal. So in a withering motion filed Monday night with a federal judge in Washington, Michelle's new attorneys argued that his Los Angeles-based lawyer, David Kenner, relied on the fledgling technology of artificial intelligence at critical points in Michelle's trial. Okay, what does he mean by that? Let me go to the withering brief itself.

Which again is only one side of this. It's one side. It's one side. The side that wants to get unconvicted of a lot of crime. The ineffective representation by Michelle's trial counsel, David Kenner, leaves no doubt that a new trial is required, says the new lawyers. Kenner outsourced trial preparation, including drafting briefs, critical cross-examinations, and the opening statement to inexperienced contract attorneys who worked for an e-discovery vendor. That's bad. Okay.

And weird. Like, almost to the point that I don't believe it weird, but okay. Yeah, weird and bad. He failed to familiarize himself with the charge statutes or required elements. That would be bad. That's in every brief like this. Of course. That's normal.

If it's true, it's weird and bad. Such as the FARA and the money-landering statute who overlooked nearly every colorable defense. Again, this is the way ineffective assistance briefs go. He failed to object to damaging and ended missile testimony, betraying a failure to understand the rules of evidence.

Again, all that's normal allegations. This is where it gets fun. And he used an experimental artificial intelligence program to draft the closing argument, ignoring the best arguments and conflating the charge schemes. And then he publicly boasted that the AI program, quote, turned hours or days of legal work into seconds, unquote.

But also. And also, it is now apparent that Kenner and his co-counsel appear to have an undisclosed financial stake in the AI program. Of course they did. And they experimented with it during Michelle's trial so they could issue a press release afterward promoting the program. Except their guy got convicted. How is that a good ad? Yes.

Like, hey, we used AI for the closing statement and the guy got a bunch of years in prison. Woo, use our product. What? Yes. That's an odd. Crazy. But I love that we get to talk about this because this is actually

our second time we have seen claims of misconduct by lawyers using chat GBT or AI. Remember several months ago, if you're a faithful advisory opinions listener, we talked about an attorney who was sanctioned after he filed an AI brief that, as I remember correctly, had fictional cases in it. All fictional cases, actually. All fictional cases. So the question is, is this ineffective assistance of counsel, Sarah? So let's forget all of the other things. Let's just do the AI part. Forget all of it. Let's just do the AI. Because I find the e-discovery thing, if any of y'all are familiar with e-discovery contract

attorneys, if you told them to write your brief, I think they'd be deeply confused. Like, that's not what you pay me for. Right. It's not what I do here. So that one. That's weird. It's weird. And it casts a shadow on the rest of the allegations for me, frankly.

Like, OK, but let's just take the AI thing. I'll assume that's true. They did, in fact, put out a press release bragging about using AI. Sorry, not funny. Not funny. A little funny. Gallows humor. Yeah.

Do I think that's ineffective assistance of counsel? Look, the facts are going to matter here a little bit. The fact that you used AI for the closing statement, no. I don't even think you're in the ballpark of ineffective assistance of counsel. No, I don't even think you're in the ballpark of an effective assistance of counsel. The fact that you had a financial, an undisclosed financial interest in it, and you used the trial for the purpose of getting a press release. I don't know that you have an ineffective claim, but I think you have a very different claim against your lawyer at that point, potentially, while you sit in jail. I think you can get some money for that.

Oh, I think you could probably get some money for that. But I'll say that part of the reason I don't think this is even in the ballpark of ineffective assistance on that front is, um, a, it's a very high bar to even get there, but this is a pretty sophisticated defendant who had means and generally the successful ineffective claims that you're going to see are going to be like the person didn't have a choice. They didn't know. They certainly didn't have, for instance, again, now convicted of $88 million floating around in the ethos. So I don't even think we're in the ballpark. Well, let's walk through the standard, which I think is really very interesting.

the standard, which I think is really very interesting. So there's two points. This is 1984 Strickland v. Washington, two-part test. Number one, that their trial lawyer's conduct fell below a, quote, objective standard of reasonableness and, quote, a reasonable probability that but for the counsel's unprofessional errors, the outcome of the criminal proceeding would have been different. It's part two that, frankly, I don't know enough about the outcome of the criminal proceeding would have been different. It's part two that, frankly, I don't know enough about the trial in the case to know if it would have been different had the closing statement been human-prepared versus AI-prepared. You don't need to know, though, David. The idea that a closing statement made or broke this case, I find, in any case, really hard to imagine unless you were like, hey, my client is guilty. And like the fact that there's not a whole lot of quotes from it to show

how like the lawyer sounded like he was having a stroke in front of the jury. And even then, like, no. But the objective reasonableness, I think, is where you're going to have the most fun. Yeah, that's the question I have. Is it an objective standard of reasonableness in this new era to rely upon an artificial intelligence to craft a mediocre closing statement? Right. Is it the fact that it's AI, which makes it sort of sensational, that would make you be more apt to want to uphold this ineffective assistance of counsel claim? Is it worse than, say, the trial lawyer drafted the closing statement while drinking bourbon, for example? Or the night before. Which I will confess, the last closing statement that I ever drafted,

I drafted with a glass of bourbon in my hand the whole time. Okay, but did the glass get empty at one point and you refilled it several times? Not several. I drafted with a glass of bourbon in my hand the whole time. Okay. But like, did the glass get empty at one point and you refilled it several times or just that one glass? Not several. Several is a complicated word. But I can confess to that because we ultimately, thankfully won the case. But so there's no ineffective assistance claim. But it is an interesting question as to whether the AI,

use of AI alone would violate an objective standard of reasonableness. See, you think this is interesting and I think it's a slam dunk. Okay. I think that if you were hoping for another Fuji's reunion tour, it is not going to happen. They did have a reunion, I think, last night. That's only because, like, not because he's won this. That's like a swan song, I think. Yeah. Like, it's done. Yeah. Okay. It's done now. No, because again, like, you will have cases where,

at the famous one, right, where the lawyer falls asleep at the table and they're like, not ineffective. I know that we all wish that there were some pie in the sky. Every lawyer is Atticus Finch, you know, and just trying his little heart out. But like, that's not the case. And to get ineffective assistance of counsel is just the Strickland standards don't come close to explaining how hard this is. It has to be so objectively unreasonable. Falling asleep at the table wasn't unreasonable. Forgetting to call witnesses, not unreasonable. Not ever calling, like finding out if there are witnesses, usually not unreasonable. And the idea that like the closing statement was somehow going to turn this whole thing around for him, the evidence looked pretty overwhelming. Okay. I'm going to agree with you that there's no way that you would have a ruling that simply says the use of an AI is objectively unreasonable.

Would it be objectively unreasonable? You would have to evaluate the content of what the AI produced. But I also think just as a sort of a freebie, it is a really interesting example of how AI is working out differently in different professions. And the legal profession, I believe that is well behind other professions in being able to utilize AI in any really meaningful way. Because what I'm finding is that in the AI world, the more general the request, like let's say you say, chat GBT, draft me a letter asking opposing counsel to extend discovery period for four weeks. Fine, whatever. But AI, dear chat GBT, draft me a brief or a closing argument that's going to explain why my client has not violated FARA. Chat GBT is going to struggle at that. And I do think

it's interesting the more technical the field that requires more precise knowledge, the less right now that you're able to rely on AI. True asterisk. What's going to happen is that you're going to have legal AI-specific programs that are going to get actually very, very good at this. And I think, I know some are already under development, already being pitched, et cetera, to lawyers. Let's wait and see how those are.

If you're using ChatGPT to lawyer for you, I lawyers. Let's wait and see how those are. If you're using Chad GPT to lawyer for you, I agree. Don't do that. Law students shouldn't do that on their exams. Lawyers shouldn't do it in court. But the question is going to be when you get law specific ones that are using a closed universe and not like Google, how good will those be? I think they'll be better than you think. We'll see. worked computer in your house. Because if you remember in the opening strike on the colonies, all the network computers were infiltrated with the Cylon virus and the Cylon AI, but the old school vipers on the Galactica were not networked and able to continue fighting. Do you follow this at your house?

Heck yeah. Yeah. I've got a go bag. I've got like six months of food and a non-network computer. Okay, I was just saying, I understand your food is a network. Oh, yeah, yeah, yeah. I'm an amateur non-weird prepper. Some of those words are true. And we'll take a quick break to hear from our sponsor today, Aura.

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All right, let's turn to the Supreme Court for a little bit. One, there was a cert grant that I didn't mention in the last episode, because it's in some ways not a substantive cert grant, although it technically is a cert grant of I didn't mention in the last episode, because it's in some ways not a substantive cert grant, although it technically is a cert grant of a case. There is a second Chevron case that was granted David in the hopes of overturning, like sticking the stake in the Chevron zombie. The reason that I say it's not interesting is it's a straight companion case with the other Chevron case. They're going to get argued the same day. But it's even weirder than that because Chevron, as you know, affects every administrative agency. It's about deferring to the agency

about the meaning of their own regulations. So like it could be everything, literally every part of the administrative state. But you remember the first Chevron case was about who has to pay for the federal monitors on fishing boats. Do you know what the second Chevron case is about? No. Who has to pay for the federal monitors on fishing boats? Seriously. Seriously. It's the same case, but from a different circuit. And because of that, Justice Jackson is not recused. So there were only eight justices that were going to get to vote on Chevron one, we'll call it. There will be nine voting on Chevron two. So there were only eight justices that were going to get to vote on Chevron one, we'll call it. There will be nine voting on Chevron two. So it looks a little bit like the Harvard and North Carolina affirmative action cases. Turned out not to matter on those. Be

interesting to see if it matters on these. All right. Next up on our Supreme Court section here. So the Supreme Court breaking through more and more often into our mainstream media. And this was a headline from Axios. Supreme Court justices interrupt female attorneys more often than men. So first of all, I have a problem with that headline. It's sort of like female doctors and then just doctors. Like what? Anyway, female attorneys more often than men instead of male attorneys.

Anyway, OK. Look, a lady attorney. So here's what the study found. It has a little chart, and it's likelihood that a Supreme Court justice will interrupt an advocate by gender. It includes a margin of error. advocate by gender. It includes a margin of error. And basically, by the way, they went back 40, a little over 40 years, I think, actually. Yeah, because they've got Marshall and Berger in here. So 50 years. The answer is, first of all, that every justice on the court, at least if you include the margin of error, were more likely to interrupt female attorneys than male attorneys.

So even the female justices? Correct. Okay. All the female justices. Now, this is going to get a little confusing if you can't see this chart. But if you don't include the margin of error, there are justices who, in fact, do interrupt men more often. Kagan and Sotomayor, for instance. but the margin of error takes you to that zero line. Ginsburg, for instance, though, outside the margin of error is more likely to interrupt female justices. And in general,

according to this study, conservative justices were more likely than liberal justices to interrupt female justices. So this was one interesting line, for instance. Although this is an interesting line. I'm the person, by the way, who writes reporters who write about the Supreme Court at other outlets to correct them on some pretty dumb stuff. So I haven't emailed this, but now that I'm reading it, it's wrong. So by the numbers, because that's an Axios thing, a female attorney in conversation with Chief Justice Roberts can expect to get interrupted 2.1 times more often than her male counterpart. So I actually went and read the study, David, and it's pretty dense and I'm not a statistician and I don't do this for a living. So, you know, grain of salt with all of this.

But first of all, I don't think that they actually measured the more likely to get interrupted. It just interrupts female, interrupts male. Right. But whatever. Okay. So, they looked at confounding variables to determine whether those were creating the causality rather than gender. So they looked, for instance, at experience, speech patterns, patterns of speech and ideology. So, right, if women are more likely to represent liberal causes at the Supreme Court and, of course, the justices who disagree with your position are more likely to interrupt you.

Then sure, women are going to get interrupted more, but it's actually just a stand in for ideology. Ditto experience, right? If the female justices, sorry, female advocates are less experienced and justices are more likely to interrupt someone who's not experienced, yada yada. And then on the speech patterns, if you're less confident or if you have a lot of pauses, if there's moments that make it easier to interrupt, you're more likely to get interrupted. So they actually did look at all of those, oddly, separately. They didn't control for them, if that makes sense. And they found that none of those were as good of predictors of interruption.

I guess I would have been more interested in actually controlling for them, which is different in my view. But that's all to say, this is very interesting to me. There's still some other things that they didn't control for. Like for instance, we haven't really had many female advocates at the Supreme Court. So if you interrupt one woman one time versus a whole bunch of men, that one woman's going to actually skew the data quite a bit, especially when we're talking about justices who were on the court in 1969. What? That's weird to me that that doesn't come up in this study at all. Also, of course, if you listen to oral arguments,

there's all sorts of cases that are going to get decided 9-0 or that, frankly, the justices don't seem particularly interested in. They don't interrupt advocates. They barely ask questions of the advocates in those cases. The questions where you're going to get interrupted are the contentious cases. So the other thing that's not controlled for at all in this is like, what if women are just more likely to get hired on the more contentious cases because whatever side thinks like, aha, the women will do a better job or whatever else. So I have lots of questions about this. It's very clear from the study that they wanted the outcome that they found. I'm always skeptical of that. Right.

Like there's, I know this is a little unfair, but like, I know that you want the outcome to be that females are interrupted more when you have a whole section that you have to have on how you know that there's more than two genders. But for this study, you only use two genders because you went through and all of the advocates have always used Mr. or Ms. and none used mix. And you looked for it. And I mean, like, I was like, OK, well, sorry, I'm going to map that on to wanting a certain outcome here. But David, even with all of that, what do you think of the idea that women are getting interrupted more? I'm in my high feminism thing.

I talked to you about feminism on the car ride down here a lot. I have a whole thesis, by the way, that Elizabeth Holmes is the feminist hero of third wave feminism. Because, okay, just to go on this little cul-de-sac for a second. You got to, you can't, you can't just drop that out there and then move on. So first wave feminism is like literally rights, laws, things like that. Second wave feminism is like, fine, you're allowed to work at the place, but they're not very nice to you at that place.

Like just enormous amounts of de facto discrimination. And so what women were doing in second wave feminism was sort of trying to win at a man's game. Being, you know, and my whole theory is you're never going to be a better man than a man is. So I think we found that generally through second wave feminism. My definition of third wave feminism is when women are like, no, no, I'm going to beat the men by being a woman, by using my strengths and my specific skills as a woman. And there is no better example of finally, we have a young woman who is able to defraud old men of millions of dollars that would have been unheard of 30 years ago. And she, she does it as a woman, right? They think she's pretty and

smart and she appeals to like, oh, can you show me how to do this? I mean, it's brilliant. She is the hero of our time. You need to write that piece. For feminism, truly. It's the sign that we've made it. I've told y'all like on other episodes that my, uh, the percentage of women in first class is one way that I judge how far women have come. Um, because generally speaking, businesses pay for your employees to fly first class. So like it tells you how senior the women are if they're flying first class. Uh, and second, the ambient temperature in any room that I walk into because I know whether a woman is in control of the temperature. And how does that cut?

What are you talking about? Hotter? Yeah. Okay, that's what I thought. Like I had to quit a job. So my first job out of undergrad is on the Hill. I'm a press secretary. I get fired from that job after six weeks.

So I get a temp job. I wear a full winter coat. I don't even drink coffee. And I hold coffee in my hand because my fingernails are blue. I only make it six, maybe two months in that job. It was so cold. I was the only woman who worked there. Like, duh. So yes, that's why. Okay. Yeah. Okay. So anyway, feminism. This would look like the justices are interrupting women more. this would look like the justices are interrupting women more.

It would. I mean, it would look like that. Yeah. And I don't have a good benign explanation for it. Yeah. You know, I would like to be able to say as sort of the resident member of the patriarchy that, well, Sarah, what you need to know. Let me, may I mansplain this to you for a moment? Yeah, I don't have a good explanation for it. So like, for instance, so in my number, like there's so few numbers of female advocates, something worth noting, right, is that Lisa Blatt has argued more cases than any other

woman at the Supreme Court. So first of all, the justices know Lisa Blatt really well. And Lisa's incredibly aggressive. So what if Lisa Blatt has skewed this entire study with her cases, what, she's at 44 cases or something? Oh, is that right? Yeah, it's really high. Yeah.

So like, what if they just keep interrupting Lisa? And it would actually explain- That would be the control. Remove Lisa Blatt from this. And then you might not have a statistically significant number of female advocates. A different problem. A different problem. So I would argue that my feminism beef is not on being interrupted because being interrupted actually shows you that the justices are deeply engaged in your case and that they care about the outcome of your case. Versus like, you don't have a hot bench. They're just, you're getting reversed or affirmed nine zero. You didn't need to be there. You as the advocate do not matter in a nine zero case. Sorry. The real problem is that we have so few female advocates at the court. And I have all sorts of theories on the sexism that causes that problem.

It would be fascinating. And I'm sure a listener will do this for us. So listeners, here's your assignment. Somebody in the comments section, please tell us the percentage of total female oral arguments that Lisa Blatt has had. Oh, well, that I'm already doing right now. Oh, you're doing that right now? Yeah, so it's 46. She said 46. But that's not 46% of the female advocates.

Oh, oh, sorry. The percentage of, yeah, yeah. Okay, yeah. As in, could Lisa Blatt skew this? Could she literally one person skew this whole study? Yeah, so the problem is going to be the government, the Solicitor General's office. Ah, yes.

Yeah, that's going to account for just a huge number. And there's more females who argue because there's less sexism and who gets hired. When a client is paying for an advocate, they want to pay for the big name. So that's not that I don't want to pick on any advocates. That's not to say that male advocate is sexist or even that his client is sexist. But like you have to get your foot in the door.

And it's why, for instance, I'm not surprised, you know, most of the major Supreme Court advocates you'll see came from the Solicitor General's office because you get so many reps there. Anyway. All right. Last Supreme Court thing. Let's do ethics with Amy. It's a Supreme Court thing. Yeah. So New York Times had an article yesterday that Amy Coney Barrett gave some wide-ranging remarks in Minnesota. that Amy Coney Barrett gave some wide-ranging remarks in Minnesota. And the top line story was that she called for a robust code of ethics for the Supreme Court. Now, I don't think this is

quite as much news as people are saying, because at this point, I'm not sure who's against the code of ethics. And I think a lot of justices now understand that greater clarity is actually going to protect them. And so I would actually expect to see some movement on that front. I don't know of any real opposition to it. And I think it's going to be very helpful to the Supreme Court if it can expand,

clarify its rules of ethics. And then that transparency, that clarity is only going to be good for the institution. But the thing that was interesting to me about this wasn't the call for the ethics. It was Amy Coney Barrett lifted the curtain a little bit on the interpersonal relationships with the justices. And I thought a couple of these vignettes were really interesting because, you know, one of the things that we have seen, and if you listen to the podcast, you know, the Supreme Court in many ways, as contentious as things have gotten, is still,

I believe, the most functioning branch of government. I think of the federal judiciary as the most functioning branch of government. Okay, we literally don't have a speaker of the House for two weeks, so maybe the bar is a little too low on this. I'm not saying the bar is high, but I'm saying, but it is interesting though, because we have talked about there's a difference between those of us who, when we focus on sort of the broader right of the spectrum,

those people whose beat is the political right have a much lower view of the overall right than those of us whose beat includes the legal right or the legal conservative movement, which I think is the healthiest branch of the conservative movement. Again, low bar, low bar, but it still is. But so there's a couple of aspects. Does Jim Jordan even buy jackets for his suit pants? Or do you just buy the suit pants? Yeah. Yeah, I don't know.

I hope he gets a discount. Although I do have, I have decided if I'm ever made to testify in front of his committee, if he questions me, I'm taking off my jacket. Like, I just, you know, you just, you can't. It's got to be equivalent. Anyway, so the interesting thing about this was she lifts the curtain. Like, I just, you know, you just, you can't, I mean, it's got to be equivalent. Anyway, so the interesting thing about this was she lifts the curtain on sort of the interpersonal relationships. And I think this is interesting because there are actually advisory opinions listeners who

are not lawyers I know of personally who started listening to Supreme Court arguments because they wanted to have their faith restored in American government and civility. And listening to Supreme Court arguments has done this. Well, these little vignettes will help as well. So she talks about sort of the relationship of the justices on the court. She talks about their collegiality with each other, their affection for each other. And there's these two little stories.

Justice Barrett described throwing a welcome party for Justice Ketanji Brown Jackson, the newest justice and the first black woman on the court. After some sleuthing, Justice Barrett said she discovered her colleague's love of the musical Hamilton and hired a Broadway actor to serenade her. Well, A, that's super nice. B, it raises so many questions. So many. Thank you. Which one? Like, are we talking David Diggs level? Like what? Oh, that's your, no, I want to know which song.

Which song? Which person? Is it original cast? Is it just some random, you know, out of work Broadway actor? I mean, even if it's that, that's impressive. But if it's, if you drop the Hamilton name and then, so I have questions. Dear listeners, and you know who you are out there.

You know who you are. And I know who you are and I'll be texting you. I want some answers. Yes. And then she said, Justice Sonia Sotomayor showed Justice Barrett kindness from her first moments at the court making Halloween candy bags for her children

days after she was confirmed in October, 2020. Yeah, but was it good candy? Like, was it Reese's or was it candy corn? Those are very different. That is very, yeah. Candy corn's an act of aggression. Yes. Reese's cups.

Reese's cups is an act of love. He pronounces them Reese's cups when it's clearly Reese's. And we know that because they're advertised. Like, this isn't even a question. Like, if you grew up in Central Kentucky, they're advertised. Like, this isn't even a question. Like, you know, Joe Bluth from Arrested Development. If you grew up in central Kentucky, there are Reesey Cups. So you also add this with, if you remember Justice Sotomayor said several months ago, she was talking about Clarence Thomas and talked about how she wishes she was kind of more like him

and his relationships that he had on the court and the way that he knew the court personnel, the way that he interacted with the court personnel, kept up with their lives. And I know this is an unpopular opinion in some places, but I'm going to say it again. I think in many ways, the Supreme Court is our model branch of government at the moment, not just because it's very serious and very serious minded. It is not putting up frivolous opinions, but also in the way in which they interact with each other and work with each other. And the other thing that Justice Barrett said is the heat goes on the page. So if there is disputes, it goes on the page. It doesn't continue into their personal lives, which I thought was, again, I mean, all of this stuff is like everything I know I learned in kindergarten level, sort of

like how to be an adult stuff. But when we see consistent failures of that basic level, it is, I think, important to point out to people that some branches of government continue to get this mostly right. I also think that Supreme Court has some stuff going for it on that front. Unlike Congress, where the next person might not win their reelection, or you can even help prevent them from winning their reelection if you really don't like them. Those are your eight colleagues for a long time. It's true.

And there's a little bit of, you know, you piss them off now, like, you don't know, like 10 years from now, and they're like, remember how you gave my kids candy corn? Yeah, right. F you. Yeah, right.

There's a lot of self-interest in not making your own social experience miserable. I also, on the Justice Thomas relationship with court personnel, you know, sitting here thinking, and I think I'm just right about this, and I don't even think it's going to be a close call.

If you only were picking which clerk family to belong to, there is not a question that you'd want to belong to the CT family because of the culture that CT sort of has inculcated in his clerk family, like they will murder someone for you. I mean, that clerk family is so tight.

It's one of the, like, um, the parts that I think has been very hard during sort of the ethics scandals that have involved CT is at one point, remember sort of the clerk family closeness was turned against them because they were all chipping in for the Christmas party and stuff like that. But I think a lot of people think of Supreme Court clerics and they think of the CT family because they're constantly, you know, fighting for each other, looking out for

each other, close to each other, getting together all the time. Their justice checks in on them. Like, you know, it's like how you have to call your parents on Sundays and stuff like that's CT. Um, and that's not true for the other chambers. And I'm not going to name names here, but like, it's really not true for some of the chambers. Well, I give, give the Kavanaugh clerk family about 20 years because the Kavanaugh the D.C. Circuit, they were like the—we're just going to talk reputations here. I mean, they're likeoney Barrett, and maybe a couple others, the PAR, some others were in the loop. At one point, the Kavanaugh clerks were so persistent in reaching out to me individually

that I was not gonna be surprised if I would come home one day and there was gonna be a Kavanaugh clerk on my front porch. I just literally, you know, have you considered Justice Brett Kavanaugh? It was absolutely remarkable. It was absolutely remarkable. So there's some incredibly intense personal loyalty there. between a judge and a justice, I would certainly argue in the modern era is that the justices clerks are political operatives, either literally or ability level. Cause it's true of the Gorsuch chambers.

It's true of the Kavanaugh chambers. I would argue it's true of the Brown chambers. I don't know them as well. Jackson, sorry. Why did I say Brown? It's becoming sort of a new normal. That shortlist gets battled out between the clerks, I think, more than people realize behind the scenes.

Oh, and it can get vicious. There, within the conservative realm, there was one judge who did not get picked and those clerks hold a grudge, I know. And maybe rightly so. They got outmaneuvered and maybe unfairly. Yep. On the ethics code, first of all, in D.C., you always bet on the status quo. The status quo was there is no ethics code. Therefore, like something will have to overcome

the status quo. I agree that there's several things that might help overcome the status quo. But I think the biggest one might be that the younger, newer, by which I mean newer justices, they want it because they're not interested in the things that might be available where they're not an ethics code. Right. Like some of these perks that people have availed themselves of, shall we say, might have less appeal. Isn't it like how golfing has fallen out of favor for dudes of a certain age? Like it used to be when you turned 40 and had a family, you golfed all weekend. I made it very clear that I was looking for a spouse that did not golf. But it turns out I didn't need to because men now want to spend time with their children and their wives. Yeah. Yeah. Less interested in taking like 10 days off to hunt elk in like New Mexico. Right. Which is like a different dynamic, I think, of people's home lives and family

expectations that... And especially younger, these justices, a lot of them are pretty young by justice standards. Still some of them, like Amy Coney Barrett still has kids at home. Lots of them. Lots of kids. Yeah. Next up, is the Fifth Circuit the new Ninth Circuit? And I'm going to read a little section here. So the Supreme Court thus far has taken six cases from the Fifth Circuit, which is more than any other circuit at this point. Um, and the question, oh, sorry, they also, between 2019 and 2022, decisions from the Fifth Circuit have been reversed more than twice as frequently as they have been affirmed. Uh, that's a lot. And it's interesting. And then there's speculation as to why.

And are we about to actually see the Fifth Circuit get affirmed a lot more? Because there are conservative judges on the Fifth Circuit who align and kind of came up with the Supreme Court justices. And therefore this idea that like like they're going to decide cases that the Supreme Court justices will like more. And I think that thesis is wrong. And I want to dismantle it here.

But I want to let you go first. Okay. I'm going to say, you know, I think that there is actually a point here to the Fifth Circuit, the new ninth. And let's go with a couple of cert grants for this term. So Rahimi, for example, we've talked about this is the domestic violence restraining order, Second Amendment case. Really bad facts if you want to uphold the idea that domestic violence restraining orders cannot be an impediment to owning a gun. It's very bad facts. This guy shot a lot of people. His domestic

violence protective order was agreed to. He entered into two of them. And it's bad facts. So women. Yeah. Yeah. So you've got Rahimi, which appears will, of course, we're going to wait and see, appears to be granted to be reversed. Then you also have Net Choice Disclosure, husband of the pod or is lead attorney in that case. So Netchoice, which is interesting because the Fifth Circuit already kind of defied the Supreme Court already. Explain Netchoice. Yeah. So Netchoice, this is the Texas social media moderation law case where Texas implemented a state statute that could regulate how social media companies that operated in Texas could

moderate their content. First Amendment challenge, Fifth Circuit panel upholds or denies net choices, motion for an injunction, goes up to the Supreme Court. Supreme Court reverses the Fifth Circuit, remands it back to the Fifth Circuit for more proceedings, the Fifth Circuit says, yeah, we rethought all this and we're sticking with our original position. It's like in Blackjack where you have like 19 and you're like, hit me. And the guy's like, are you sure? And you're like, yeah, hit me. Hit me. I feel it too. Yeah. So they reaffirmed their prior ruling, the one that the Supreme Court had just said, you know, think that through again. And so the smart money would say that they've taken that also with the likelihood of reversal. And those are two of the biggest cases. all the time about this institutionalist versus originalist axis, where you have some justices who are, they're all, all of the six are originalists to some degree, but some of them

are more than others. And some of them are more, as Alito said in the Wall Street Journal, use the term consequentialist, I believe. So I feel like the Fifth Circuit is heavily populated by originalists who are not consequentialists. And the Supreme Court is kind of split on the conservative side between the originalists and the consequentialists. up to the Supreme Court and you know three of them aren't with you and two of them and maybe three of them are actually turning out to be with the three progressive judges more often than they are with Alito and Thomas sometimes, then that's our formula for the Fifth Circuit being the new ninth. So of the six cases that the Supreme Court has taken, you mentioned two, Rahimi and NetChoice. One of the other ones is Consumer Financial Protection Bureau that we talked about the argument that that actually looked like it might, in fact, go the other way, that they would uphold the CFPB's appropriations plan there. So that would be a reversal of the Fifth Circuit as well.

Now, there's also SEC v. Jarcacy, which I think the Fifth Circuit does get upheld on pretty easily. This is the idea that the SEC's sort of double-for-cause protected administrative law judges violate your right to a jury and just common sense. and just common sense. So that might get upheld. I think it will actually, but we'll see. And then there's Campo Chavez, which is an immigration case, which is sort of non-ideological and I don't know. But so I agree with you.

I think they're just wrong. Like the empirical SCOTUS folks are like, so the Fifth Circuit's about to be affirmed and all this. But of course, we know that the Supreme Court takes cases where there are circuit splits or where it's like an important case and the circuit got it wrong. So sort of by definition, once your case gets taken by SCOTUS, it is more likely than not that they're going to reverse the decision of the circuit court. So, you know, the idea of empirical SCOTUS sort of being like, aha, but all that's about to change. Like there's nothing.

And what is it, empirical SCOTUS? Oh, empirical SCOTUS is like the new SCOTUS blog is my best explanation of empirical SCOTUS. I mean, it's exactly what it sounds like. It's SCOTUS with numbers. Empirical SCOTUS. And I'm so grateful to them existing and to everything they're doing. And that's why we're talking about this

because it's super interesting what they put together here, because they did a cool chart with all of the Fifth Circuit judges. How often they've been affirmed versus reversed by the Supreme Court and the number of overall cases to fix our Lisa Blatt oversampling problem. It's very cool who they were all appointed by, like lots of charts, very empirical SCOTUS. But I have a theory as to why, it's slightly different than your theory, why the Fifth Circuit is suddenly finding themselves being reversed more often. First of all, you have to remember the Fifth Circuit always got reversed quite a bit on one type of case. always got reversed quite a bit on one type of case.

Habeas, like all of the like death penalty cases and stuff. The Fifth Circuit sort of in Texas in particular. I think Scott, husband of the pod, was the first one to win a habeas case at the Supreme Court from Texas in like 40 years or something. I'm going to get that wrong. Sorry, hon. But it was something impressive and I love you. And you're very, very good at what you do. That's the point. That's the overall point. You're very attractive and good at what you do.

He does not listen to this podcast. So I'm hoping he gets lots of creepy emails from our friends. His eyes are so pretty. So here's my theory. Yeah, I'm just wondering as a guy if I'd want my eyes to be pretty. Oh, they are though. Well, as a guy, I've never rejected a compliment from so pretty. I'll take it.

Okay. I'd take it. I know you're talking about Scott, not me, but I was just thinking, do I? I don't even know what color your eyes are. Yeah. Are they blue? They're blue.

Yes. Cool. Yeah. I like, I mean, that's pretty usually. Not in this case. It's hard to see. Not in this case, but you know, typically. Scott's are like husky blue though.

They're like very- Impressive. Yeah. Yeah. This is getting so awkward for me. It is. It's getting so bad. All of his like male buddies. Uh, please email him. Do it. Okay. So here's my theory that, um, in fact, the theory behind this is now you have a super majority of conservative justices on the court. And so, you know, there's about to be this like march through Georgia type Sherman-esque situation of conservative opinions. And see, there's Dobbs, there's Harvard, there's Bruin. Yep, that is a very good case. Here's my counter narrative to that.

Those are the low-hanging fruit for the conservative legal movement. There has been jurisprudence on overturning Roe. It's like the whole maybe reason for the conservative legal movement. The Second Amendment stuff, very similar. And same with affirmative action, right? Like if you were to talk about the three animating policy sort of case issues for the conservative legal movement, you might actually just pick those three. The administrative state being the next one, like Chevron. But that's a shift because Scalia was a pro-Chevron guy in the 1980s. But if you want

to talk about consistent conservative jurisprudence, definitely affirmative action, definitely guns, definitely abortion. So if they've done the low-hanging fruit, I think what you're about to see is conservatives overplaying their hand and now starting to bring cases that they're going to lose, frankly. And they're far, at least, there's less movement behind them.

The justices that have been appointed to the court have less of a track record on those issues, for instance. And so I wouldn't be surprised if, in fact, you're going to see the Fifth Circuit overturn more often in sort of a more gnaw-doggy way of these sort of movement conservatives who are out there coming up with these cases. Like, for instance, the people who brought the Harvard affirmative action case have now sued West Point to try to get the military academies included. I think they're going to lose that case.

It's a much tougher case. It's a much harder case. And so that would be an example where like, okay, you got the low-hanging fruit. As you move up the tree, you're going to start losing. Well, think about Morvey Harper.

Think about Allen v. Milligan. So Morvey Harper had this independent state legislature doctrine that was really activists swinging for the fences. This was like, look, justices, we need to do enact a new, this is a new doctrine. It's called the independent state legislature doctrine. And it, it, this is, this was something that was a departure. If you had talked to me in FedSoc in the early 1990s and talked to me about the independent state legislature doctrine, I would not have the slightest clue what you're talking about. But I could talk about the Second Amendment. I could talk about life. I could talk about... And then also... If you talked to me about the independent state legislative doctrine three years ago, I would have had no idea what you were talking about. Completely.

Right. Yes. And then also, you know, let's not forget that Alan V. Milligan, the Alabama redistricting case, at the heart of it was really a stretch goal to essentially gut the remaining non-preclearance elements of the Voting Rights Act. And what Alan Meevilligan at its heart was doing was upholding prior precedent. It was rejecting an effort to disrupt prior precedent. And a lot of people come back to me when they talk about this on the left and they go, but explain to me Dobbs and Bruin. And they'll even grant me affirmative action because justices have been saying on the court for decades, this is a limited thing. We're not going to allow this to happen forever. But I said, there is no, if you look at

a consequentialist originalist axis, right? One of the ways in which an originalist is also consequentialist is if they're saying, here's an originalist way that I'm going to reach a particular outcome, but I'm not going to go as far as an originalist argument might allow me to go. What was the originalist argument that existed at all for upholding Roe? Like I've never heard an originalist argument for upholding Roe. It would all have to be precedent. So for each one of those other justices, aside from Roberts, who's, I think, the least originalist of the six Republican-nominated justices, all the rest of them, I just don't think there was a case to be made that this was in any

way consistent with originalism. And similarly with Bruin, the startling thing about Bruin was text history and tradition. It was not upholding the right to bear arms. Bruin's not even a very big case compared to Heller or even McDonald. No. Bruin's not that interesting. It's interesting because of text history and tradition, not because of the outcome. Okay. We're going to open this up to questions. I would just like to say before we start those questions, if you'd like to talk about pop culture, I did see both the best and worst movies that I've seen in the last 10 years this week. I have a newborn, so I have to watch a lot of stuff right now. My brain's a little fried. So The Burial is a movie about contracts law. Do not watch that movie. Unfortunately, it somehow has Jamie Foxx and Tommy Lee Jones,

and my expectations were maybe too high, and it did not meet them, even when they kept using the term contracts law. And I should have known. Well, tell them the movie you like. The Covenant is incredible. Guy Ritchie's new film, it's like he made,

he used all of his action film experience to make a movie that mattered and had a message and yet somehow managed to avoid all the culture wars around that message. And it's, I hope it wins best picture. Nothing else is going to come close to it. For me, it is my best picture

and it could have won like every year from now on i'll just keep re-watching it like zero dark 30 is the last movie that's even in the realm for me and what's interesting right is that zero dark 30 is this hyper to me at least pro american movie the covenant is not so it's not that i'm like um amer F yeah, from Team America, though also that movie is in my pantheon. The point of the movie is that we should have done and must do a better job bringing back, or rather bringing Afghan interpreters who helped us in Afghanistan

and how shameful it is that we have not done a better job of that. And to use the sort of action movie genre to tell such an incredible story, I mean, oh, so good. Highly recommend. So yeah, we can talk about anything you want. Well, one last thing on the covenant, anyone here, former military. Okay. So a few of you, you will watch it. And in the first 15 minutes, you'll be completely taken out of it. And not because it's not a wonderful story. You did not roll out of the wire in Afghanistan

in a non-up-armored Humvee for crying out loud. And I couldn't. Look, there were several points of the movie that are not realistic. I know, but I'm like, can't you, don't you even have an up-armored Humvee to like bring onto the set? That was, that would be like rolling out in the middle of a war zone in a Toyota Tacoma.

Like that just doesn't happen. But anyway, okay. But it is a good movie. The story is great. Yeah. All right. Y'all ask questions. We'll repeat the question and answer it.

Maybe. Depending on the question, I suppose. My undergrads have left. They had a class because they still have classes at night, unlike you guys. If the Supreme Court adopts a code of ethics, what should it be? Extreme restrictions on hospitality would be, I think.

So, you know, already there's a lot of, you know, if you've got an actual conflict of interest as it's commonly understood in the judiciary, there's already been, you know, many instances of Supreme Court justices recusing themselves. So I do think that codifying and clarifying conflict of interest procedures, but absolutely anything that involves any kind of financial benefit to... What about dinner at my house? If it involves someone has paid, I would say if you're...

By definition, if there's food at my house, someone paid for it. If I'm at a... I think if I can... I don't raise chickens in McLean. If I'm driving to your house and I'm eating dinner that you've served, I don't think that needs to be disclosed. If you've flown me there on a jet to have dinner... Yeah, okay, but fine. You're picking the easy case. Right. Let's do the harder case. So, McLean has an amazing organic butcher and they have

Wagyu ribeyes. What if I go get really fancy Wagyu ribeyes? I think if you're close enough to a justice where you're invited into your, you can invite, say, you know, let's say Katonji Brown Jackson has heard the nice thing you've said about her and you strike up a friendship and you're texting all the time and you invite her over for what are, what are the, what's the tacos we're about to eat? Torchies. We're going to Torchies Tacos after this. The best queso in America. And you invite her over for takeout Torchies. That's de minimis. But if you are going to Morton's or if you're going to a Michelin starred restaurant. I don't have time to cook, David. And so it's really actually, frankly, sexist of you to expect me to cook anything. I said takeout. I said takeout. Like I've just been completely falsely

accused. I order in from Sushi Nakazawa, a Michelin-starred restaurant in D.C. that is omakase. I think there's a de minimis expense number. So it's $200 or more or $100 or more. Just a... Okay. Yeah. Okay.

So we go mini golfing, Justice Jackson and I. Is it under $100? Like a romantic first date type mini golfing. If it's under $100, the mini golfing, Justice Jackson and I. Is it under $100? Like a romantic first date type mini golfing. If it's under $100, the mini golf's on you. Okay. But if it's more than $100. Okay. Yeah.

Okay. So I think, and this is something that is completely normal within the federal government. So for example, if you're in the military, as some of you guys either are or have been, you know there is training that you are given, especially if you're an officer, on the kinds of gifts you can accept from a foreign country or from a commercial establishment. And it's de minimis.

Okay, wait. So wait, are you saying they're banned or simply disclosed after that? Oh, I'm for banning. Interesting. Banning. Yeah, banning. Yeah, absolutely. I do not want a situation where people, someone who's willing to grit their teeth and endure all of the public criticism, secure in life tenure,

can sort of say, Gulfstream, guys. I don't care what you think. Gulfstream. So I can pay for- Because it's a public confidence issue. I can pay for Justice Jackson's, like, nice Uber.

What's the nice one? The black? Uber XL? No, Uber Black. Uber Black, yeah. Okay, so I can pay for Uber Black from the court to my house, and I can get the nice ribeyes. No, you're already over $100 because it's going to be...

You're saying $100 total? Yes, $100. Not $100 per item. Yeah, $100 total. Yes. Okay, we might have some item. Yeah. 100 total. Yes. Okay. We might have some disagreements on this, but I think you get the point. Bright line. Yes. I think that's nuts.

And then also increase their pay. Nope. Yep. So I'm against, this is like a whole different thing. I think that it is probably a good, no, okay. I'm going to start over. Now I know I'm going to phrase it in a slightly less offensive way. It should be a good thing when someone is at the end of their career going into public service rather than needing a job afterwards. And I've talked about this in the Attorney General framework, like after having worked at the Department of Justice a few times, I now feel pretty strongly that this should be the Attorney General's last job, especially in this modern era where the Attorney General is going to be such a lightning rod in so many things. You don't want them having to think

about whether they can support their family and having to think about the decisions they're making and rationalizing why they should come out a certain way that'll help them after they leave the Department of Justice just in general. And I kind of think that about members of Congress and judges and justices that maybe we should stop having 30-year-olds ascend to the bench if, you know, they can't, like, raise their family. We should pay enough money so you're not, like, going into debt to be a judge. But, like, yeah, you don't need to be a judge for life or you don't need to be a judge at the beginning of your career, basically. And increasing their pay, the amount you would need to increase their pay to be

competitive with their law firm friends is just something we're not going to do. We're not going to pay these guys $5 million a year. No, I agree with that. I agree with that. But if you look at the compensation of members of Congress and judges, so for example, a district judge is making a first year associate's salary. That's too low. Now, again, I'm saying this, listeners, with the full understanding that they're still making significantly higher than the median salary. So this is an unpopular position to take when you're talking about people who are making 2, 3x the median family income. I mean, for me, I'm an only child remembers this is literally a statement against interest. Everything my dad makes eventually comes to me if he doesn't spend it. Right. Like, I guess he could give it away to

charity. But if we're in a situation where people who are beginning this career, beginning this career are going to make the same income as somebody who is at the absolute pinnacle. What you're doing is you're creating an awful lot of inherent temptations for people. And my point is you can't get anywhere close because the temptation comes from the discrepancy. It comes from the delta that their friends who stayed partners at the law firm that they were just at are living X lifestyle and they're living X divided by 27 lifestyle. Right. Increasing their salary a little bit doesn't change that delta in any meaningful way. I mean, I would want to increase it to X, like 500 for members of Congress and senators as well. And then say and then bring down the hammer on outside income. So insider trading,

bring down the hammer on outside income. So insider trading, no. But they do it. They do it. You laugh, but they do it. How many of these people have made so much money in the stock market? And so when I say insider trading, I'm not literally meaning the federal crime of insider trading. No, I'm talking about... Just to be clear, I'm willing to keep their salaries where they are and also ban insider trading. Just to work out my ethical line. Okay, that was imprecise. No, no, I'm actually, I'm using your definition of insider trading.

Yes, the congressional insider trading that they do. Yeah, we should keep their salaries the same and still ban them using their information that they gleaned through being a member of Congress to make stock trading decisions before the rest of us can. What about book deals? Which is the definition of insider trading. What about book deals while you're a public figure?

Yes, that's fine with me. Okay. Okay. Sorry, we went off on a tangent on that question. That was a great question. Okay. Sorry, too good a question. Next question that we'll spend 20 minutes answering.

Okay. So first of all, he said very good things about Torchy's Tacos and noted that while they have a Republican and Democrat, and they used to have an independent, they've gotten rid of the independent. Also worth noting that I used to live next to the OG trailer for Torchy's in Austin. And it just, now that they're within a two and a half hour radius of my home, I just keep hoping that they'll infect further north. It's so good. Okay. But the question is, as we think about that Y-axis, is it really like a Y, Z, etc. axis where there's consequentialism, institutionalism, and other isms, or is it all the same axis? I use the words more or less interchangeably.

You know, I started using consequentialist more just because I saw Alito use it in the Wall Street Journal. So I thought, well, if he's seeing it like that, but when I say each one of those three things, I mean essentially the same thing, which is you are moving away from a strict look at the text, for example, and you start to think about effect and effect in a broad sense. So one of the... I've described it as like the four corners versus what's outside the four corners. Like we talk about that law school, right? The four corners of the brief. And so it's interesting because I don't think they're the same at all, right? The idea of whether lower courts will be able to easily understand and follow a decision should be totally different than the effects of that decision. But nevertheless, it's meaningful

to me that the three justices, Roberts, Kavanaugh, and Barrett, who seem highest on the y-axis, Roberts, Kavanaugh, and Barrett, who seem highest on the y-axis, are kind of highest no matter which version you're picking. The institutionalism, the consequentialism, the ease with which lower courts can follow it. So to me, that means they are all similar enough that you're charting the same. I think a great example is the Fulton case, the city of Philadelphia v. Fulton, where you had the reach goal of the litigants was get rid of Employment Division v. Smith, which I fully endorse. Get rid of Employment Division v. Smith. Well, consistent with originalism, you would rule for Catholic charities in that circumstance. But do you, consistent with the religion, originalism, also have to get rid of Smith?

And so Kavanaugh and Barrett had this joint opinion where they were basically like, you haven't shown me what's better yet, right? You haven't given me that better alternative to Smith, which to me is a classic kind of consequentialist slash Burkean minimalism. Yeah. Whatever you want to say, it's not pure originalism, whereas the sort of the version of like the best example I can think of is sort of more pure textualism slash originalism would have been Gorsuch saying, you know what, Oklahoma, you have screwed over

Native Americans for a long time. And so guess what? You lose your state. Like, well, not really. I'm slightly exaggerating, but we're going to change jurisdiction and we're going to change legal doctrines involving a massive part of your state and deal. You know, you figure this out from here. And that's a, so I think those are two cases that show those differences in approach. By the way, throughout law school, I would hear other Federalist Society students throw around the term Burkean minimalism. And I swear to you, for all three years, I didn't know what they were talking about. And I never bothered to look it up. So for those who are like, what is that? Do not think you are undereducated in any way, or maybe do, I don't know, but you're in the same boat as I was in. So basically just, you know, anti-revolutionary. We're against the French Revolution. Do smaller revolutions, little revolutions at a time. Oh, Edmund Burke. Yes. What a treat. So the question was, if abortion affirmative action

and guns were the motivating factors, animating principles of the conservative legal movement that motivated voters. And we, of course, know that voters on the right were more likely to be motivated by Supreme Court vacancies and just judicial arguments writ large than on the left. What are the topics that will motivate those voters moving forward if those victories have already been won, or will they? So here's my theory on this. So my theory on this is that with abortion affirmative action and gun rights, you had an outcome and method marriage that you're not necessarily going to have with other issues. So the method of the conservative legal movement, with other issues. So the method of the conservative legal movement, originalism, textualism, was extremely tension is that, is it a method oriented or is it an outcome oriented movement ultimately? And so is what it means, you know, that the little spiel at the start, it's about not telling what the, you know, what is it? You've said it a million times.

It is emphatically the province of the judiciary to say what the law is, not what the law should be, the third pillar of the Federalist Society. If that stays the animating principle of the conservative legal movement, you will begin to see increasing breaches and widening gaps with the political right. And, you know, gosh, I hate to go back to this ridiculous subject, but the drag queen issue is like an example of this because the method, sort of the approach to the First Amendment was sort of a bedrock aspect of conservative jurisprudence. a circumstance where parts of the political right were saying the outcome of that approach is yielding bad results. And we want to, we need to have a new approach to get rid of this particular kind of speech. And that's just one example, or some of the examples you've seen out of Florida, say with the Stop Woke Act, for example, which, you know, for a long time, the method of analysis regarding, say, the First Amendment and the

academic freedom, et cetera. Net choice. Net choice. They were hyped up on 303 Creative, a person having the right to have on their website what they want or don't want for their business, except if your business is large enough. Right, right, exactly. But which conflicts, you know, think about Hobby Lobby. Hobby Lobby is a big business. It's a multi-billion dollar business, and it was held to have religious liberty rights. And the right applauded that. But again, you had a method outcome marriage. You like religious liberty, and they like the way in which Hobby Lobby was exercising

its religious liberty. This is where I think you're going to see some tension is if you are continuing to advocate for an original understanding of the Constitution and a robust understanding of the Bill of Rights and the Civil War amendments, that is going to collide with a more statist right. And I think that's going to be the tension that you'll see going forward. And the political result of that would be that they cancel each other out. And so the right will no longer have that benefit or disproportionate competitive advantage on judicial openings, I think. All right. One more. Yeah. Why do we think the court has not and does not seem interested in addressing nationwide injunctions? That's a great question.

So there's always a few theories to start with when the Supreme Court's not doing something. And the first one is always that the justices are not confident in the way that it will come out. And so you don't have four votes for cert. And I think one of the really interesting things about this Supreme Court, when we talked about this briefly before, it also cuts against this empirical SCOTUS. You have the 6-3 supermajority of conservatives, and they're about to like, you know, Sherman march through the legal precedents. Then why aren't they taking more cases? They're taking fewer cases.

If you are about to just overturn everything and have your conservative Shangri-La built upon your, you know, foundation of Justice Alito and Thomas, you would be taking every case you could find and just racking them up, right? We're seeing the exact opposite in the cert grants, which means that you don't even have four justices voting to take cert on a whole bunch of cases. It's very possible that nationwide injunctions have fallen prey to that dynamic. But if you're not totally sure how Kavanaugh and the chief are going to vote,

you just don't want to do it. And that the change in dynamic between a five-four court where you had one swing justice and now the multivariable of having two swing justices, maybe three, and it throws the whole court into chaos where there's different alignments now happening. There's just not a lot of certainty of feeling the way that perhaps there was more so when the swing vote was Justice O'Connor or Justice Kennedy. That's at least one version. I also think, to your point about counter tensions

within the conservative movement, husband of the pod, for instance, wrote an op-ed in the Wall Street Journal saying nationwide injunctions were a good thing. And then you have a lot of conservatives saying nationwide injunctions are a bad thing. So, and maybe this is all the same point, it's splitting conservatives over how you fix forum shopping, because that's really the problem. Yeah, we see it as the nationwide injunction problem that a single judge can stop usually an administration policy throughout the

nation. So like you can lose 300 times, but if you win once you get, you know, the whole bowl of fruit. But, you know, that's a forum shopping problem that you can go to any judge, 400 of them potentially, to find that one judge. And that's why you have the Ninth Circuit and the Fifth Circuit problem, I would argue. So there's not an obvious solution through a judicial opinion to fix that either that conservatives would like. Because they do want to have nationwide injunctions sometimes. Yeah, I mean, nationwide injunctions are like budget deficits. You are either offended by them or not, depending on who's running the place. And so I think that's a, you know, there is real split in the conservative legal movement about

this because it's going to that method versus outcome dynamic where there is not really a resolution there. And so I do think that that's a big factor. But the reality is, if you're going to de-emphasize the emergency docket, and there are justices who seem less interested in the emergency docket than two, three, four years ago, then you're moving towards a situation where you're going to at some point have to clarify on the nationwide injunction. Because if you have the nationwide injunction and a robust emergency docket, you can get those nationwide injunctions adjudicated relatively quickly. If you have nationwide injunctions and the Supreme Court starts to really frown on the emergency docket, then you can have these nationwide injunctions that can persist for a really long time while a case winds up through normal cert process. So I think if you're going

to have less emergency docket, that's more reason to address nationwide injunctions. But we've had two cases now of what I consider step zero of nationwide injunctions, which is administrations strategically either settling or not appealing in order to get sort of the injunction that they want to stand. And they've did both of those. I think you'll get one of those first because that's a lot easier to deal with in some ways than nationwide injunction. Because of course, another problem with nationwide injunctions is what, does everyone have to sue all the time? Like, well, no, that's not how we sort of think of our legal cases. So I think you'll get step zero first. They've taken two, they've digged two, third time's the

charm. I think we'll have this start moving pretty soon. I would say two terms from now, we'll start seeing Justice Gorsuch like steam coming out of his ears if they haven't done something. Someone's voting for cert over there. Yeah. Thank you, University of Virginia, for having advisory opinions here. We are so thrilled to be going to Torchy's tonight, but also you've been fun. Thank you, guys. Bye.