Advisory Opinions - Hubris in Legal Movements

Episode Date: June 24, 2025

Sarah Isgur and David French cover two less-exhilarating Supreme Court decisions (faxes, anyone?) and re-visit the Skrmetti decision. It’s four decisions from the district courts, though, that really steal the show. The Agenda:—TikTok ban ticks on—Diamond Alternative Energy v. EPA—McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.—What constitutes gender dysphoria?—Free expression in the spa?—Supreme Court won’t bother with Trump’s call on the National Guard now—New Mexico kidnapping and murder case and the commerce clause—Public schools’ 10 Commandments This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at burfordcapital.com/ao. Learn more about your ad choices. Visit megaphone.fm/adchoices

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and while the Supreme Court gave us six opinions… well, is it overstating things to say they were kinda duds? We'll talk about two of those, standing and fax machines. Then we'll revisit Scrumetti, upholding Tennessee's law banning medical intervention for transgender minors and four circuit cases that really came and saved us there

at the end. Korean spas and the First Amendment, Trump's federalization of the National Guard in California, federalizing crimes involving cars, and a unanimous decision from the Fifth Circuit on Louisiana's law mandating displays of the Ten Commandments in public schools. All this and more coming up on Advisory Opinions. I'm not big on trends, but I am big on clothes that feel good and last. That's why I keep going back to Quince. Their lightweight layers and high-quality staples have become everyday essentials in our house. Quince has all the things you actually want to wear

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has not enforced the ban on TikTok that was passed by both houses of Congress and signed by a president into law. Funny enough, since I started this new segment, Jack Goldsmith over at Executive Functions posted his take on this. I'll just read you the title, David. Trump's continuing illegal refusal to enforce the TikTok ban. This executive branch precedent will have long and bad legs. I don't plan to spend that long on this all the time, but it is worth just a second here, David, to note that I think part of the reason that me and you and Jack Goldsmith and others are really harping on this is because of the precedent it sets. I mean, it's bad all on its own and I wish he'd enforce it sort of on its own merits.

It's true, but by far what I care about is that during the Obama administration and the Biden administration, for that matter, folks on the right complained about presidents not enforcing the law and using their prosecutorial discretion, for instance, not to enforce immigration law or marijuana law is another good example. Trump certainly has taken that prosecutorial discretion for a spin, for instance, on the Foreign Corrupt Practices Act and stuff like that that he's basically said he's just not going to enforce. You haven't really heard David and I complain about that, though again, I don't love the idea of saying prosecutorial discretion means they don't enforce laws at all.

I didn't like it when Obama did it. I don't like it when Trump's doing it. But there are limited resources to enforce all the laws in the land. You are going to have to prioritize some over others. And there's a, it's just a fine line between prioritization and not enforcing or political priorities. Fair enough. That's not what TikTok is. This is simply the same as a democratic administration saying, we don't like the law, so we're not doing the law. This is not an enforcement issue. Yeah. This is my favorite new segment of advisory opinions. I'm glad we're doing this. I'm glad we're talking about this.

There is no defense here. They're not appealing anything. They're not waiting for an additional ruling. Congress has acted. This is one of those rare times when Congress has actually acted and it's done something concrete. Heck, it did something concrete that Trump thought of.

Like this is something that Trump 1.01 had done. This was one of those things that I agreed with Trump on in Trump 1.0. But here we are. Anyway. Okay. So David, just quickly to highlight two of the cases before, I think we should go back and talk a little bit more about Scrumetti this week and some new thoughts of this incredibly long piece from the New York Times that I want to talk about.

But two sort of fun, interesting cases in my view. Both of these decisions were written by Justice Kavanaugh. One was 7-2 and one was 6-3 along those ideological lines, but it's not an ideological case. So the first one is called Diamond Alternative Energy versus EPA. David, this one's just interesting because of sort of the future implications that it has. California has passed many laws basically limiting the number of fossil fuel burning cars that car manufacturers can make or sell in the state. The EPA approved one of those, the 2012 one. Oh yeah, it's 2025 right now. How interesting. The fossil fuel producers are the ones that sued. The question was whether they had the standing to

sue. This was actually more on redressability than even traceability or injury. But David, this one was 7-2. Not surprisingly, given the stats that I just read you, Kagan was in the majority with the other conservative justices. Sotomayor wrote the dissent with Jackson holding the fossil fuel companies have standing to sue for a law that doesn't directly regulate them. It only regulates the car companies, but nevertheless injures them. If the law went away or was enjoined, the court found yes, more cars would be produced that would burn more fossil fuel and therefore it would be redressable.

The courts could do something that would give the fossil fuel company standing. David, this case will have really long legs well outside of the EPA or environmental context because, well, to paraphrase Justice Alito, who's written extensively on this, the court's really been flim-flamming around on standing issues. And so anytime we get a decision on standing, it's important. Yeah, it is important. And then the underlying issue is important because here we're talking about a major, major state regulation that has very large economic effects, has economic effects on the auto industry, it has large effects on consumers. So yeah, this is one that stood out to me as down the line, quite consequential, where

we might, I don't know, in a AO two, three years from now, be having a conversation about this case on the merits, because this is a very, very important economic slash legal issue. Okay. The other case, as I said, was six three along ideological lines, McLaughlin Chiropractic Associates versus McKesson Corp. This is about unwanted, unsolicited faxes. Again, I'm checking the year, it's 2025, okay,

but doctor's offices, it turns out, use fax machines a lot. They're getting a lot of unwanted faxes. Congress passed a law about this. This is sort of about who gets to interpret that law. Think of it as an extension of Loperbright, the end of Chevron. But David, I want to read you the beginning of Justice Kagan's descent. Because, David, this might be the first time this has ever happened. I read the beginning of Justice Kagan's descent and I was like, no, that can't be right.

Imagine the Nuclear Regulatory Commission issues a rule to ensure the safe handling of nuclear material, for example, by prohibiting the shipment of radioactive plutonium by air. And imagine too that a regulated party thinks the rule exceeds the NRC's statutory authority. Must the party challenge the rule right away, before putting plutonium on a plane, by bringing its arguments to a court of appeals? Or can the party send plutonium through the skies without regard to the rule and contest its validity only when, really if, the NRC initiates an enforcement action? Today, the court picks the second option, ship first to litigate later.

The Hobbs Act provides for prompt pre-enforcement judicial review of much agency action, including most of the NRC's rules and orders. But as the majority sees things, the Act does not preclude district courts from declaring a rule or order invalid years after it issued, at the behest of a party who declined to seek judicial review in the first instance. So a regulated party, as in my Plutonium example, can violate an agency's rules, wait for the agency to discover the offense and bring an enforcement action and only then challenge the rule as going beyond statutory authority. And the same is true in private litigation as here for either a plaintiff or a defendant.

But David, what? No, that's actually how the law in general is supposed to work. If you want to challenge the enforcement of a law, the legality of a law, then you do it after it's been enforced against you. And by the way, in this plutonium example, yeah, if you decide not to challenge the viability of the regulation and fly plutonium through the air and you get caught, sure, you can challenge the validity of that regulation and it's gonna be upheld as valid and then you're going to jail.

Like I don't, yeah, that's how things usually work. You can challenge the validity of any law after you've been caught violating it. That's the usual, right? That's the standard way we do things. It's a real departure to say that you have to challenge the validity of a regulation before it's ever been enforced against you, before you even know how it would be enforced against you. In this case, it was a

question between actual faxes where you like dial in the number or like online faxes. Well, yeah, I could see someone not bringing a pre-enforcement challenge because they don't even know that it's going to be enforced on online faxes. Anyway, I thought this was really weird that this fell along ideological lines. I had the same thought, Sarah. I was like, why is this falling around ideological lines? I don't see this at all as one of those cases. And I similarly thought that opening was a little unusual.

I mean, pre-enforcement challenges are common, growing more common, but- But they've been disfavored. Like if you're pro agency power, you actually usually don't want pre-enforcement challenges because you don't want the agency to be sort of glutted in these pre-enforcement challenges. I mean, this certainly is about agency power. And in this case, if you're pro agency power, it turns out that you like the pre-enforcement challenge because this wasn't a pre-enforcement challenge because

this wasn't a pre-enforcement challenge, as in this would throw out this lawsuit because they didn't bring a pre-enforcement challenge. But I actually don't think that the dissent would have been a big win for agency power. It just would have meant a whole lot more challenges to agency regulations on the front end. I just mainly like that this case was about faxes. That at first I was gonna be like, this is the perfect example, Sarah,

of that joke that I just wear out, that the great thing about America is everyone gets their decade in court. But this would be like your 25 years in court. But then I realized, no, apparently faxes still get used, at least in the relatively recent past, if not currently, in some American industries. So I didn't get to use my jokes here, but I said it anyway.

All right. Let's go back to Scrumetti, David. As I said, there were six cases that came out, but if you found those to be a bit of snoozers, just imagine how difficult I would have it to explain the other ones and put them in any sort of fun time context. It was a real day for seven twos though. Of the six that came out, one was unanimous. Four were seven two and not all. Alito and Gorsuch in dissent, Jackson and Sotomayor. Obviously Kagan, Sotomayor and Jackson in that 631. Another Sotomayor and Jackson, another Sotomayor and Jackson. Alito and Gorsuch, that's fun. David, there was a huge piece in the New York Times by reporter Nick Confessori about how

the Scrimetti case came about and whether it was a big strategic error. This was a long piece. We'll put it in the show notes because if you're even remotely interested in the Skrimeti case, this was a heck of a ride to read. But top line David, I guess I'm confused why anyone would have appealed the decision from the Sixth Circuit. This was an opinion written by Judge Sutton. We talked about it when Judge Sutton put out this decision because it was so generously written and reasoned. There was a lot of grace and empathy in it and yet it said quite obviously

this was simply not going to be protected by the Equal Protection Clause in a way that states were going to be allowed to regulate medical decisions over minors that had been unproven, untested, becoming more and more questioned by the international medical community. medical community. And yet, remember, it was the parents of a child who had been undergoing hormone treatment that appealed to the Supreme Court. That's a heck of a dice roll with this Supreme Court and with that lower court decision to say, well, Bostock turned out that way, and we think that they'll see this like Bostock. I mean, to me, that's a failure to talk to any conservative lawyer at all. Yeah, reading this was reading about a tale

of unbelievable hubris, Sarah, just un, and groupthink and hubris. It was remarkable. And you know, I think that what you began to see happening and what was interesting about the story, by the way, we should put this in the show notes, read this story. It's so, so fascinating as sort of a first draft of history, not just of how a case was lost, but how a movement went off the rails. Not only do you take a reach case to the Supreme Court, you do it led by somebody with one of the most radical legal theories you can imagine, who calls the Supreme Court a, quote, vile institution,

who will say things like, a penis isn't a piece of, isn't male genitalia. It's just infrequently, it's not exclusively male. It's just infrequently female. Yeah. Just to unpack that for a second, because like it may take listeners a moment. The point was that you're not born male or born female based on your genitalia. That in fact you're born in whatever gender you later identify with. We can't tell what gender people are born as.

You're not born as anything basically, until you're old enough to decide for yourself. Because if you're born with a penis, it is still up to you. You're not born male basically, you're're just born and we don't know the gender until later. That's a pretty radical statement for most Americans. Yeah, very radical. And then to treat it as if it was revealed truth and that any kind of disagreement with this becomes kind of a form of bigotry or hatred is just wild to me.

And I think one of the differences that emerged was if you look at the European experience compared to the American experience, the European experience I would describe as activist influenced, but science driven. So certainly there were activist influences that led members of the European medical community to try certain kinds of treatment regimens, to develop certain kinds of treatment protocols. But then they did the scientific thing, which was evaluate the results, evaluate outcomes, try to determine if this was effective. And what they had begun to see in Europe is this was of dubious effectiveness with long-term very negative side effects. And so Europe began to pull back. You had this big cast review in the United Kingdom.

They began to pull back. That's what it looks like when you've got the science horse pulling the cart. Here in the United States, what's become very clear, and I think what had become very clear by the time this case was being, the Skirmetti case was being argued at the Supreme Court, that a lot of this was exactly backwards in the United States,

so that a lot of people were unfortunately quite fooled when medical, long-standing medical establishments and institutions began universally sort of recommending using their institutional authority to recommend a certain course of action. Your average American didn't know that that was an ideological activist driven process and not a scientific driven process. What the activists were doing is using the scientific institutional authority of the institution that once they had an ideological capture on this issue they tried to then use the sort of long-standing independent reputation of

some of these scientific institutions and medical institutions to lend an air of validity to what was really an ideologically driven process, if all of that makes sense. But the great value and virtue of court is that you get to test claims in an adversarial proceeding. And so then once you began to see that these claims could be tested in an adversarial proceeding,

and no amount of Twitter mobbing or shaming or whatever was going to stop that process, then the cases began to fall apart because they were rooted much more in the activist driven, the activist driven agenda than it was rooted in a sort of long and deliberate and transparent scientific process. But I think the group think part is what really gets me because we see so much of that going

on in our political worlds on both sides. My God, this isn't limited to the left. But in the legal world right now, it can feel like there's these two little bubbles that exist out there on the far left and far right. They hate the other side, the other bubble so much and believe that the other bubble hates them, acts in bad faith, is evil, bigoted, whatever other negative thing you can think. So much so that they're unwilling to talk to people who aren't in that bubble, but disagree with them.

In this case, think how much the ACLU would have benefited if they had people at the ACLU who disagreed with them or who had clerked for a conservative justice. Again, not to tell them that they were wrong on the law, but to tell them why this case was nothing like Bostock and why a conservative justice like Justice Gorsuch could vote one way in Bostock and be nowhere in the realm of gettable for this case. I might suggest listening to this podcast would be a good way because I think we were surprised but not stunned about the outcome of BossDoc. It was like, oh yeah, well, those were hard questions and this was a really reasonable

outcome. But we would have been on the floor agog if this case had come out the other way because they're not similar in the important ways if you speak fluent textualist. You know, I really think the 20 teens were terrible for over the long term. Looking back in history, the 20 teens will be deemed to have been terrible for progressivism. And the reason why I say that is that in the 20 teens, progressivism got married to a particular brand

of like really vicious and angry intolerance that had a run of success by the mid-20 teens, like 2015, 2016, 2017, 2018. It could really fundamentally shut down public debate. It had an ability to shut down public debate. It had an ability to shut down public debate, to have large-scale, get people fired, have institutions like make large-scale changes, but it was always at the tip of the social media, at the point of the like the social media gun. This was not persuasion. It was intimidation. It was threats.

And so that when people began to stand up to it and survive the process or began to stand up to it and finally say no, enough, they had not done the work of winning over hearts and minds. And so people were so sick of it. They were so ready for a change and then that was the playbook that

was left. And, and I, part of me thinks that they were looking at this train of sort of what looked like short-term cultural success through these very vicious bullying tactics and then said, this is the way of the future. This is going to work in court. And it's interesting how two bullying movements, the very far left and the hardcore MAGA right, have been really frustrated in court. They've been super frustrated. And why are they frustrated in court? They can't bully their way to victory.

They have to argue their way to victory. They have to bring evidence. They have to persuade. And so all of these tactics that we're working to cow, you know, to cow legislators or to get companies to jump, you know, jump to their, their agenda after six hours of a social media storm, none of that stuff works in court. And I think that, that the, once again, the longer, slower, deliberative process of court is really helping in many ways cool American dispute.

It has an effect, a cooling effect. It has an effect of making us pause to look at real evidence, and that can change debates. Part of the problem for them though is that the way that they maintain discipline in their own bubble is rejecting incrementalism from those just on the other side of their bubble. When you look at whether to appeal this case, which was so bad on the facts, a case that only limited hormone and surgical procedures for minors, that they were like, yeah, let's take this case because this is the least incremental case you could possibly bring. Could they have found a state law to challenge that, for instance, didn't have the age distinction

and so it was banning surgical procedures for adults. That would have been an interesting incremental approach. The bathroom laws, now they actually did appeal one of those and it was rejected by the court, for instance. But if you want to make large scale social change and you look at the history of how that works, particularly in courts, almost always, there are exceptions, almost always, it's done incrementally. You take where the culture is and then one step further and try to bring that case. You don't take a long jump, walk another mile and bring that case and dare the court to come out the other way because if they don't they're bigots and and transphobes

like no they're just not gonna follow you there. Yeah yeah that was the interest another interesting thing that the rejection of incrementalism the big swings and a lot of this is was retning Obergefell, not just retconning Bostock, but retconning Obergefell as this big, big, big sweeping win when it was actually the product of about a 20-year development in the case law. Well, and David, think about your statement about Gorsuch voting against the bullies. He tries to figure out who the bully is and votes against them. And remember he was a Kennedy clerk

and look, not all Kennedy clerks ascribe to their bosses general MO, but the bullying thing might be a place where it is. And after decades of the right rejecting civil unions and truly trying to sort of have these more bigoted laws against gay marriage, they looked like the bullies. And to boss doc, who looked like the bullies? The people trying to fire someone who were doing fine jobs because of what they were

wearing at work. You look like the bully if you're trying to fire someone for that. Who are the bullies here? The people trying to bully parents by telling them that you either get a live daughter or a dead son. Yeah. I mean, some of the documents unearthed

in the Alabama litigation would shock you. I mean, just the level of recklessness involved here and the level of intolerance. Intolerance towards disagreement Just the level of recklessness involved here and the level of intolerance. Intolerance towards disagreement and recklessness towards treatment of children, stunning. And look, I know there are parents out there, including some parents of trans kids

who are probably listening to this podcast right now. We've gotten emails from parents of trans kids who listen. I can't imagine the difficulty of the decisions that you've had to make, of the challenges that you've gone through, but one of the things that makes me maddest about this whole thing is the way in which activists hijacked trusted institutions. And then when parents turned to trusted institutions with the full belief that these institutions were taking positions after rigorous, rigorous, rigorous scientific inquiry

rather than after vicious, vicious, vicious ideological hectoring that they have been in many ways victimized as much as anyone by the atmosphere and the climate of the last 10 years, that, that in fact, institutions that they had been taught to trust proved not to be trustworthy. And I think that's one of the elements of this litigation, both Tennessee, I mean, Alabama, the Alabama litigation and all of that Alabama discovery, it absolutely played a role, I think, in all of this.

And, and it's just this demonstration and MAGA is going to learn this. MAGA is going to learn this. That bullying people in a free society, especially bullying people into submission produces short-term gains and very long-term defeats. And I think that that's one of the things that I, you know, look, it's one thing to say trans Americans should enjoy all the same rights as every other American. It's one thing to say that a transgender American who's performing excellently on the job should not be fired simply because they're transgender. It's another thing to say there's no such thing as biological sex and

that you're bigot if you think so. Or that it's another thing entirely to say that dramatic permanent medical intervention should occur with children without sufficient scientific inquiry as to the efficacy of that treatment. I mean, these are very different things and that maximalism was foolish. When we come back we'll take some questions on Scrimmety from listeners. How can you get even more of everything

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Time for some questions from listeners, David. First, I'm not a liar. And by the way, I think he meant lawyer. But it seems to me there are a lot of medical treatments that have adverse effects for minors. But I would imagine that in most cases, there's not legislation to enforce the scientific consensus on the medical research. If that's true, then is there any relevance to the idea that the legislature has chosen to create a statute for this medical treatment but not for others? David, I think this is a great question. This idea that there's going to be all sorts of medical treatment for minors like on acne, for instance, which is going to be some you know, some's more

medically proven, some is less. The fact that they took the time to pass legislation on this issue is that by itself could be used as evidence of animus, you know, against transgender individuals that the court found, you know, there was, this was not discrimination on the basis of transgender status. I think absolutely it can be used as evidence of that, but it is only of course one piece of circumstantial evidence. This is not in and of itself proof of animus, but absolutely. If you had a great example of a medical treatment that would have the kinds of profound long-term

consequences of, for instance, having to take lifelong medication if you start engaging in this treatment with sort of all over the place or just scant evidence on its efficacy in the short term and scant evidence on its effects in the long term and one was affected transgender minors and one just affected other minors? Absolutely. That would be great evidence of animus. I think part of the issue is I never heard the other side bring up an example of that because I'm guessing there's not one. There's like tattoos, but those are banned for minors. Then as I mentioned, there's like acne treatments

where you use certain medications for off-label use, but there's not gonna be a whole lot of long-term consequences for that. At worst, you might get a rash. Right, I mean, I think the tattoo example really is a salient example here because here you have a, in Tennessee, for example, you just can't get a tattoo when you're under 18.

You just can't. And there would be a stronger interest and juvenile interest in having a tattoo because at least there is a first amendment expressive argument there. You could have an argument that there's this, I'm putting messages on there. I'm using my body as art, et cetera.

There might even, there might be a first amendment kind of issue hovering around out there. But the bottom line is permanent change. Having minors having permanent change. That is going to increase legislative. It's going to increase the sort of the state interest in legislating and regulating a procedure where people who are under 18 under the age of the state interest in legislating and regulating a procedure where people who are under 18, under the age of majority agree or, you know, consent to something that will have lifelong consequences. And that's a classic area of state regulation.

Okay, David, here's the next question from Simon and this one. This one's great. By the way, Simon, not a lawyer. Just want to note this. He says he's a logic enthusiast and you're gonna see that at work. What do we do with sex-based diagnoses? Currently, only transgender people can be diagnosed with gender dysphoria. However, there are some who argue that cisgender people can suffer from this as well. For example, say a woman has very small breasts, basically a flat chest. She goes to the surgeon and asks for a boob job so she can feel more comfortable in her body. This is currently considered cosmetic, but is this not just a woman suffering from gender dysphoria? Or take the facial hair example from The Descents. David argues that the teen girl with facial hair has a different diagnosis, and therefore it's

not sex-based discrimination. However, facial hair is not medically dangerous. The teen girl could continue on living her life safely. The only reason it is pathologized is because it is incongruous with societal perceptions of gender. In other words, it's gender dysphoria under another name. And the only reason for this difference is because one sex, females, is eligible for the diagnosis while the other, males, are not.

Therefore, the majority ruling seems to me to be fruit from the poisonous tree in a way. There is a sex-based discrimination for who has access to a diagnosis. And then once the groups are sorted based on that discrimination, the majority says, okay, now we can say everyone in group A loses access, but it's not because of their sex. It's because of the sex-based diagnosis. David, more than any argument that was made by the appellants in this case, I found that incredibly persuasive because remember when we talked about this idea in The Descent that a parent calls in and says, my child has unwanted facial hair.

In one of those, the child can get treatment and the other one they can't. It's all about the next question that the doctor asked, what sex is your child? And I said, well, of course, that is a medical diagnosis distinction because in one of those, it's hirsutism and in the other one, it's gender dysphoria. But I actually think this is a great way to ask this question. Hirsutism is only called that because we don't expect women, generally, to grow facial hair. And so we've given it a name, but it's not dangerous. And it's unexpected because most women don't, and they don't want it because it's not what most women have. But it sure could fall under

gender dysphoria like the breast implant example. So David, I want you to answer his question, Simon's question, but I want to give you a slightly narrower question. If a young girl, if a minor walked in in Tennessee and asked for breast implants with the consent of her parents, do you believe that that should also be banned under this statute? I think it should be banned, but not under this statute. Okay, yeah. That's a separate issue. You just don't think minors should get breast implants. That's fine.

But you don't think the legislature banned breast implants for those born female, but they did ban breast implants for those born male. I think it's a very interesting email, but it suffers from a conceptual flaw in that I think it's misdefining gender dysphoria. So gender dysphoria, you don't have gender dysphoria if like you're a man who decides that he wants to grow a beard because he wants to look, maybe he believes that looks more ruggedly masculine and that he looked less ruggedly masculine before he had the beard or the guy who's decided to move

from like peach colored polos into, I don't know, flannel lumberjack shirts because that's gonna look more, that's not like the desire to emphasize your femininity or masculinity is not gender dysphoria or to minimize your femininity or masculinity. It's not gender dysphoria. Gender dysphoria really is,

I'm not a man or a woman, I'm not the biological sex that I was, I'm actually this other sex. And the sign of that is the dramatic discomfort that I have in my current body. But you don't see the similarity of, I have enormous anxiety and discomfort in my current body because my breasts are too small?

No, I see a similarity, but this is a difference in kind, not in degree. So I want to be more feminine is a very different thing from I want to be not my sex. And that is, so what we're talking about is a medical condition where a woman believes that they are not actually truly intended to be a woman. They're supposed to be in the opposite sex. It's not, now I do think that there are people who would say, well, wait a minute, David, you're screwing this all up

because there's just no gender binary at all. It's all just a spectrum, right? But that's granting an argument that's objection, presuming facts are not yet in evidence. This is an ideological argument, I think, that gender is just this giant spectrum that has maybe some scientific backing to some degree. But when we're talking about gender dysphoria, we're not talking about, I'm a man, I want to be more or less masculine, or I'm a man, I want to be more or less masculine, or I'm a woman and I want to be more or less feminine, either tomboy or Instagram influencer.

We're talking about I'm a woman and I want to be a man. That's a big difference. Tomboy to Instagram influencer is a really good way to talk about the feminine spectrum. My childhood was firmly on the tomboy side. I'll just say that. Okay. By the way, we got a couple of questions from listeners that I was conflating gender dysphoria with being transgender. I just wanted to reiterate, my point was a legal one, that if we conflated the two, would that have made a difference in how David was approaching the question? While it is true that everyone diagnosed with gender dysphoria is transgender, not everyone who's transgender has gender dysphoria.

Just making that square rectangle point, if you will, David. All right, time to move for our exciting Circuit Court cases. We've got four of them, but a quick word from our sponsors. Whether it's a family member, friend, or furry companion joining your summer road trip, enjoy the peace of mind that comes with Volvo's legendary safety.

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or go to volvocars.ca for full details. No frills, delivers. Get groceries delivered to your door from No Frills with PC Express. Shop online and get $15 in PC optimum points on your first five orders. Shop now at nofrills.ca. And we're back with our four exciting Circuit Court cases. David, do we start with the Korean Spas? Yeah, let's start with the Korean spas? Yeah, let's start with the Korean spa because I found this very interesting. This was a decision out of the ninth circuit, judges McCowen and Gould and majority,

Judge Lee and Descent. This was about the State of Washington's Human Rights Commission that initiated an enforcement action pursuant to Washington's law against discrimination against a Korean spa for its policy of granting entry to only biological women and excluding men. So they had a rule actually that if you are transgender and you're post-operative, meaning you have had your genitalia removed, you can come into the spa. But because the spa is very intimate, it's open to girls as young as 13 years old, it

includes very intimate massages, there's lots of nudity around, that basically no penises in the spa. So the Washington Human Rights Commission initiated enforcement action. The spa sued arguing that this was against their First Amendment rights and they lost David. Okay I'm gonna be I'm very curious about this the strategy here and and and let me explain why. So here you have a case where you have... One of your best arguments is that if you don't exclude pre-operative transgender women, then you might have a situation where women and girls are exposed to male genitalia without their consent.

That is ordinarily a situation that we might call sexual harassment or indecent exposure. And the idea that can we as a business establishment protect women and girls from unwanted exposure to male genitalia seems to be the kind of question that would really be very best articulated in an anti-harassment context. But they chose a First Amendment context. And I feel like what they did here was made their weakest case. And they lost their weakest case. That's exactly right. Yeah. On the one hand, it's hard to read the majority and disagree on first amendment grounds, but it's hard to read the dissent and not agree on lots of other different grounds. Yes, exactly. So this is a first amendment case. Why was this

in many ways strategically, and I would love to get input from the plaintiff side in this case as to why they chose this route. I'm always open to the idea that I'm just completely missing something. But the problem here is that for a very long time in this country, a First Amendment challenge to a non-discrimination statute, when it comes to the provision of services, these First Amendment challenges fail. I mean, if you go back to Newman versus Piggy Park where you had a First Amendment, in that case free exercise challenge to a barbecue restaurant, challenged nondiscrimination rules requiring that they

serve black customers on religious liberty grounds. The Supreme Court just called that argument patently frivolous. Called it patently frivolous. The First Amendment challenge to the non-discrimination regime itself, it's very difficult to make and it only applicable in very narrow circumstances like 303 Creative or Masterpiece Cake Shop say where the action you're engaged in is expressive itself, designing a website, creating a cake, or let's say in different contexts, painting a portrait. Because remember in those cases they were saying they would be happy to serve customers who were homosexual or transgender. They just didn't want to use their voice for that

message that they might have. But customer-wise, they were happy to do this. Here you have them saying, no, no, no, we don't want the customers in here. But there's no expressiveness to your point, David. Yeah, exactly. So in this context, it was surprising to me that they went the First Amendment route. And you could tell it seemed almost puzzling

to the majority because they were saying, well, there's other avenues here. So it's a very interesting and puzzling case to me. Judge Ken Lee, who was the sole dissenter in this case, was actually born in South Korea. Neither of his parents spoke English and went so far to ensure that he learned English. They did not allow him to attend a Korean church because they wanted him to learn English

outside the home. I do think this was an interesting descent by Judge Lee and yes, full disclosure, I know Judge Lee quite well. He is the type of guy who, this was back in his single days, he's married with these beautiful daughters now, where you're walking down the sidewalk and your heel gets like stuck in a grate. Ken Lee is the first one to jut his arm out and help pry you and your heel out of that metro subway grate.

So he is a gentleman of the first order. I just wanted to read a little bit from the start of his dissent because David, it goes to both points, right? The absurdity of the enforcement challenge here in my view. And also you'll notice he doesn't mention the first amendment. Korean spas are not like spas at the Four Seasons or Ritz-Carlton with their soothing ambient music and lavender aroma in private lounges. Steeped in centuries-old tradition, Korean spas require their patrons to be fully naked as they sit in communal saunas and undergo deep-tissue scrubbing of their entire bodies in an open area filled with other unclothed patrons. Given this intimate environment, Korean spas separate patrons, as well as employees, by

their sex. The state of Washington, however, threatened prosecution against Olympus Spa, a female-only Korean spa, because it denied entry to preoperative transgender female, i.e. a biological male who identifies as female but has not undergone sex reassignment surgery. Now, under EDIC from the state, women, and even girls as young as 13 years old, must be nude alongside patrons with exposed male genitalia

as they receive treatment, and female spa employees must provide full-body massages to naked preoperative transgender women with intact male sexual organs. Olympus Spa, an immigrant-founded business run by a Korean family, deserves better. The spa's owner pleaded with the Washington Human Rights Commission that they wanted to provide privacy to women and girls, some of whom had complained years ago about seeing a naked person with male genitalia there. They also begged the government not to force them to violate their Christian beliefs in modesty between men and women. Those pleas fell on deaf ears. One would think that the Washington Human Rights Commission would be sympathetic to the SPAs' owners, members of a racial minority group

who want to share their cultural heritage and provide a safe space for women and girls. Instead, it threatened prosecution for defying the state's contorted reading of its anti-discrimination law." He goes on to talk about why he doesn't think the law applies here because the law itself only talks about sexual orientation, but the law separately defines sexual orientation to include gender identity, which is a little weird, I will admit. He also talks about sort of the animus that the Human Rights Commission itself showed to the spa. For instance, they asked for any evidence that a person had actually tried to visit

the spa. They basically said, it's too late now to show you any of that evidence. We're not going to, which was also a little bit weird. They don't actually have a complainant in this case and the spa never remembers turning someone away. But David, none of those are First Amendment grounds. Yeah. Yeah. I mean, it's a very interesting and strange case. Yeah, the idea that a state government can compel an employer, an employer who by the way has federal government obligations of preventing harassment to expose women and girls to male genitalia against their consent. No.

But because of, I know, because of the way this was brought, I just don't see a cert petition being very effective. I think they need to start over, bring a different lawsuit. Say, I concur. Very, but again, please somebody write me an email and tell me why I'm wrong. All right. Next up, another Ninth Circuit case. David, we don't need to spend a lot of time on this one, but this is that Ninth Circuit panel that issued its permanent stay, if you will, on the Judge Breyer opinion, which enjoined the president's deployment or federalization of the National Guard in California.

Remember, we talked about the problem with Judge Breyer's opinion. Here, let me just read a paragraph from the unanimous decision from the Ninth Circuit panel. Defendants have made the required strong showing that they are likely to succeed on the merits of their appeal. We disagree with defendants' primary argument that the president's decision to federalize members of the California National Guard is completely insulated from judicial review. Nonetheless, we are persuaded that under long-standing precedent interpreting the statutory predecessor to this statute, our review of that decision must be highly deferential. Affording the President that deference, we conclude that it is likely that the President

lawfully exercised his statutory authority, which authorizes federalization of the National Guard when, quote, the President is unable, with with the regular forces to execute the laws of the United States, end quote. Additionally, the secretary of defense's transmittal of the order to the adjutant general of the California National Guard, who is authorized under California law to issue all orders in the name of the governor, likely satisfied the statute's procedural requirement that federalization orders can be issued through the governor. And even if there were a procedural violation, that would not justify the scope of relief provided by the district court's temporary restraining order. Our conclusion

that it is likely that the president's order federalizing members of the California National Guard was authorized also resolves the 10th Amendment claim because the parties agree that the 10th Amendment claim turns on the statutory claim. So David, yeah, this is, that's the ball game there. The Supreme Court's not gonna touch this now. I think to, even if the Supreme Court decides to touch it, that's how they'll decide it. I mean, I think that as we discussed

when we first brought this up, the idea that this was not justiciable, that this was just in a political question, flew in the face of the language of the statute, especially as compared with other statutes that very explicitly place deployment entirely in the president's discretion, like in the Instruction Act, for example. So they said, look, no, we get to decide, but we're going to have deference to the president's decision, not unlimited deference, but there will be deference. And as I said, I had the event at University of Chicago last week,

a really great event. This is where the students settled the issue. It's equity docket from now on. But I said, when there's violence, the court is going to defer. When there's violence, just bank on it. When there's actual violence directed at federal officials, the court is going to defer. If there was a deployment and federalization

in the absence of violence, then you might see the court lock in at that point. But when there is violence and there has been violence, I mean, it's just hard to think of what's the judicial test going to be. Four Waymo cars burning, but if it's nine Waymo cars burning, or if it's two square blocks of unrest, but if it's three, I mean, you start to get into the questions the court really isn't equipped to handle. you start to get into the questions the court really isn't equipped to handle. And so I thought this was sound. If we don't like the outcome, this is Congress needs to change the statute. Sound and exactly what I would have expected.

Yeah. And coming from two people who weren't thrilled with the federalization of the National Guard, by the way. We wouldn't have made that decision if we had been president, but we think it is legally acceptable to do so. All right, David, let's move to the 10th Circuit. This is a fun one. I'm going to put fun in quotes here because it's not fun. It involves the horrible murder of a young woman, but nevertheless. the horrible murder of a young woman, but nevertheless. This was written by Judge Timkovich. Judge Timkovich is a very famous judge on the 10th Circuit. He used to have this off-year term where your clerkship would actually start in January. Now, I don't know why he started it, but it is a famous clerkship for those who work on

campaigns because you can actually finish the campaign that you're on in a Senate or a presidential campaign in November, and then start your clerkship in January. So such luminaries like Katie Beiber, who was the general counsel on the Romney campaign, and Patrick Bumate, who's now on the Ninth Circuit, both are Timkovvic alums. All right, I'll read from the beginning of his opinion.

Then Senator Joseph Biden once remarked that, quote, "'We federalize everything that walks, talks and moves.' In this case, the government seeks to add everything that drives to the list. The two defendants here are alleged to have kidnapped and brutally murdered a woman in Edie County, New Mexico. Instead of state kidnapping charges, they were charged with the federal crime of kidnapping resulting in death.

But kidnapping is normally a state crime for a reason. Federal crimes require some sort of jurisdictional hook to sort the prohibited activity into one of the government's enumerated and limited powers, such as its power over interstate commerce. Well, here David, the prosecutors tried to argue that crimes involving cars use instruments of interstate commerce, in this case a Jeep. And so therefore, a kidnapping involving a car is a federal crime because the car could be involved in interstate commerce, even though the kidnapping involved nothing near a border. It's very sad, but they drove her not too far away from a motel and brutally murdered her, shooting her 21 times, stabbing her.

It's presumed based on some of this evidence. They sexually assaulted her beforehand. It's presumed based on some of this evidence, they sexually assaulted her beforehand. I get why you'd want to bring federal charges. I really, really do. But if a car turns everything into a federal crime, we've just eviscerated any limits on federal criminal law and the commerce clause. Judge Timkovich and his panel here unanimously hold that no, a car by itself is not an instrument of interstate commerce and that in order to have that federal hook, there does have to be commerce at the end of the rainbow, not just something that can be used to go between two states.

Horrible, horrible, horrible case that was plainly correctly decided is the way I would put that. But I mean, this matters because we've talked about the over-federalization of criminal law. A lot of that is driven by Congress, to be clear. Like, and twice in the 90s, the Supreme Court struck down two laws that Congress passed with

pretty dubious federal hooks, the Violence Against Women Act, part of it, and a Guns in School Zone Act. They also said that's not interstate commerce to bring a gun to a school zone. I'm sorry. I think we thought in the 90s that would be like, we were headed towards the end of the commerce clause, and then it just totally fizzled out and nothing came of it. And we've never heard from it since. But then there's these little tiny moments where you're like, oh, right.

Well, at least we're keeping things where they are. You saw that in the Obamacare case back in 2012 where the Chief Justice upheld the Affordable Care Act, but not under Commerce Clause powers as Congress had intended. He upheld it as a taxing power. Here, nope, we're not including cars as federal hooks. So we have really just kept the Commerce Clause where it is. You may go here, but no further from 1998 Commerce Clause. No, yeah, you're right. The Commerce Clause has one of the very few circumstances

where something has gone from zombie to like alive. You know, this is like the movie Warm Bodies. Did you ever see that, Sarah? No, I definitely did not. Oh, oh, Sarah, Warm Bodies, the only zombie rom-com ever created. And the premise is some zombies can come back to life. No, it's great.

It's funny, it's sweet. Yeah, we tried to show it to Naomi when she was too young to see it. Cause in the first part, one of the zombies is like literally eating a brain. And she was like, what are you making me watch? So it's like, maybe that was a little too, too soon, but yeah. Well, this is one of those things that's still on the old conservative legal rights wish list is go attack the commerce clause, take down

Wichard v. Filburn. But I don't see a lot of appetite for it on any side, on the litigant side, on the judicial side. Again, if you try to go further than things are, you'll get slapped down. But I don't see a lot of changes coming. And it is what gives the federal government, I mean, just huge swaths of its current power right now is citing the Commerce Clause. Yeah. When I say signs of life, I mean that the Commerce Clause actually as a restrictive provision of the Constitution, there's some signs of life there. And in other words, that it's just not continuing to decay. Maybe put it that way.

All right, last up, this is a Fifth Circuit case, David, that we've been waiting for now for quite some time about the law in Louisiana requiring public schools to permanently display the 10 commandments in every classroom. This was a three zero decision by a panel of the Fifth Circuit. And I'm sure all of you out there listening

think you know how it turned out, but you are wrong. This was a three zero panel from the Fifth Circuit striking down the Louisiana law as violating the establishment clause, but it matters who was on that panel. This is a panel by judges Dennis, Haynes, and Ramirez, and it was written by Judge Ramirez. This is, if you're just shaking up a bunch of lottery balls and pulling three out, this is an unusual three to pull out in the Fifth Circuit.

I think this case is going to go on bonk, David. So we don't have to spend too much time on the panel opinion is my guess, except to say we know three votes for the on bonk court. Yeah, I mean, I think this is a case where, as this three judge panel, I think Stone v. Cram, which is the Kentucky 10 Commandments case from 1980, is controlling.

I don't think that if you're a three judge panel, whether you're all nominated by Trump or all nominated by Obama, you three judge panel in the Fifth Circuit can't overturn Stone v. Graham. And so I think this is a case where if this is going to be interesting to see if the Fifth Circuit takes it en banc, if for no other reason to see if you might have some dissents or concurrences, et cetera, that say, okay, Stone v. Graham controls, but it's bad law, or we'd urge the court to reverse Stone v. Graham. I'm not sure we're going to see the Supreme Court take this to reverse Stone v. Graham, Sarah.

I'm not so sure about that. But I think that this is interesting from a political standpoint, not that interesting from a legal standpoint, because Louisiana just challenged Supreme Court precedent. And it will have to be up to the Supreme Court in my view to decide whether to uphold or reverse that precedent. Yeah. And that's an interesting point because I say that the en banc court will take it. But as you say, David, if there's binding Supreme Court precedent, they are far less likely to take it. If you remember back in the pre-Dobbs era, that was a Fifth Circuit case and you had

the judges on the Fifth Circuit say, we are under binding precedent from Planned Parenthood versus Casey. We think it was wrongly decided for all of these reasons. But nevertheless, like we have bosses and so we're not, it's up to the Supreme Court to overturn Planned Parenthood, not us. You could see the en banc court doing something to that effect here, but they would still then be upholding the panel's decision, which might mean they may not take this en banc at all, but I think they will. Yeah.

Yeah. I mean, it's one of those cases that's important enough sort of in the public square that you may see that en banc decision, but I would be very interested to see how an en banc court would get around the Kentucky case if it wanted to uphold this law. All right. So David, we have three potential hand down days left for the term, Thursday, Friday, and Monday. And again, we're expecting that porn case, the opt out for parents in elementary school, and the birthright citizenship decision all before Monday, June 30th at this point.

They're on track to get there for sure. We've gone through all the unanimous cases. We're now at the seven twos. It feels like we might have some six threes left in us, maybe some five fours coming down the pike certainly. David, we did have Justice Alito sit down for that hour interview with the Hoover Institute. So I don't know if at the next hand down we get a bunch of boring ones, we'll cover that instead. And we'll do an emergency pod when we get birthright citizenship,

if that does not already fall on a podcast day. So that's our guarantee to you listeners. But if it falls on a podcast day, like Bully for Us, right? Exactly. Exactly. We'll see you next time on Advisory Opinions.