Advisory Opinions - Is the ERA part of the Constitution?

Episode Date: December 17, 2021

In today’s episode, Sarah and David discuss the Supreme Court's decision not to enjoin the New York vaccine mandate for health care workers and focus on a very interesting, super-intriguing dissent. Then, they have a conversation with Virginia Solicitor General Michelle Kallen about the Equal Rights Amendment, its ratification by Virginia, and whether the ERA is now part of the Constitution. Finally, with the help of a listener, they finally realize that Sarah's name is a sentence.   Show Notes: -Dr. A v. Hochul -Virginia v. Ferriero Learn more about your ad choices. Visit megaphone.fm/adchoices

And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC Cashback Mastercard? Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The clicker around the room! You guys just about finished?

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this podcast that we are and and i can say that even at the beginning because we've already recorded half of it so i'm going to encourage everyone hang in past the first 20 minutes of this podcast because we've got a great, fascinating, interesting, mind-bending conversation with Virginia Solicitor General Michelle Kalin about the Equal Rights Amendment and originalism that you're not going to want to miss. And I don't feel like I really did it justice by saying it's about Equal Rights Amendment and originalism. But it is, and it's awesome. And you might come out singing a different tune. Yeah, it's very interesting. It's very thought-provoking. Approach it with an open mind, no matter where you stand on the Equal Rights Amendment itself.

But before we get there, Sarah, we've got some Supreme Court, let's say, a dissent from the denial of certiorari or a dissent from a denial of an application for adjunctive relief, to be technically accurate, that is provocative. It will get the people going in multiple different kinds of ways. kinds of ways. And what's at issue here is that New York has issued a regulation requiring healthcare workers to receive a COVID-19 vaccine. If you have a medical reason for an exemption, you get an exemption. If you have a religious exemption or religious justification for your exemption, you do not get it. This went up to the Supreme Court on the emergency docket. get it. This went up to the Supreme Court on the emergency docket. Justice Sotomayor referred it to the court. The court denied the application for injunctive relief with three dissents, with three dissents, Thomas, Gorsuch, and Alito. Boom. Boom. And so before we get into that and get into their dissent from denial, Sarah, do you want to take another one of your 333 victory laps?

Why don't you give your first thoughts on the denial of the application itself, then we can dive into the dissent. Well, first, this is actually really just chapter two. I mean, you could argue it's like chapter 10. It's chapter 10 in the book of pandemic law, but it's chapter two in this very specific book on religious exemptions for vaccine mandates. Remember back in October, a similar application for injunctive relief to the court on the emergency docket from Maine's vaccine mandate. It did not have a religious exemption. And in fact, it was the exact same split. You had Gorsuch, Thomas, and Alito on that one, on dissenting from the denial of the application for injunctive relief. And Alito wrote that one. But remember,

and this is the important part because we don't have this in the New York one, we also had a concurrence in the denial of the application for injunctive relief from Barrett and Kavanaugh. And we talked about this then, but to refresh everyone's memory, because I needed the refresher as well, this is where Barrett and Kavanaugh say, we're sick of this emergency docket stuff. Please stop. And since you won't stop, we have just found a way to stop it because in the factors that they consider on granting injunctive relief, the one that is sort of the most wishy-washy, if you will, is the likelihood of success on the merits. And so you had Justice Barrett saying, we are from now on going to read into that factor, the likelihood of success on the merits, as also whether the court should be taking this on the emergency side to begin with, or whether this is an end run around the cert process. For instance, is this getting us to

weigh in on the merits of something when we in in fact, would not take it under the regular cert, certiorari process? And so Barrett and Kavanaugh just said, no, you can come up on the merit side with certiorari. Maybe we'll take it. Maybe we won't. But we're not doing emergency relief on this. emergency relief on this. So fast forward, we're now in December and you've got the New York one, which look in some ways is worse than the main one. Gorsuch writes the denial on this one, nothing from Barrett and Kavanaugh. But again, I think we can assume that it's the exact same reasoning as the main one because there's a lot of similarities obviously between the two. There's a lot of similarities, obviously, between the two. But here, you have something much closer to Masterpiece Cake Shop, where the officials are showing actual animus to minority religious observers. And remember, that's where Masterpiece Cake Shop gets a little messy. It's not the opinion that perhaps a David French may have wanted on the actual rights at stake. What they said was there was religious animus on its face and they sent it back down. That's why this thing keeps pinging back and forth. It's why we have the case about the website that we've talked about coming out of Colorado, where maybe now you have to create a website, the flowers case. That's why none of those were particularly resolved is because in the end,

the Masterpiece Cake Shop case turned on this animus question. And here you have the governor of New York saying some kind of crazy things. Oh boy. I want to read what she says, so I'm not exaggerating anything. She announced so the original vaccine mandate did have a religious exemption. Then Cuomo resigns and the new governor comes in. She removes the religious exemption. She says it was intentional. And she says, for instance, at one church, all of you. Yes, I know you're vaccinated. You're the smart ones, but you know, there's people out there who aren't listening to God and what God wants.

You know who they are. Here's another quote. How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media. She notes that no sanctioned religious exemption from any organized religion and that organized religions are encouraging the opposite. Quote, everybody from the Pope on down is encouraging people to get vaccinated.

Now, on the one hand, that may not sound like actual animus to a lot of people listening, Now, on the one hand, that may not sound like actual animus to a lot of people listening, but think of it in terms of the person who is a dissenting Catholic or a Catholic with unorthodox beliefs. It shows animus to someone who is not part of the organized religion, for instance, with the Pope. The Pope's telling you it's fine. Therefore you have to believe what the Pope says. Um, or just that the, uh, people aren't listening to God. If you don't believe that, that you should take this vaccine, that is pretty much the definition of religious animus against, um, minority people who hold minority religious views. So I thought Gorsuch made a good case on this. That being said, they are the dissenters. David, this raises the problem of

what you've said in Fulton, right? You want to get rid of Smith. What do you want to replace Smith with? And we're still having this now because we don't have anything to replace Smith with, but Smith is kind of zombified. Here's their effect. Yeah, yeah. There's a couple of things that I think are really interesting here. One is, this goes back to when the governor began to basically cite from authority of other religious organizations or organized religion declaring something to be true. Therefore, we're going to side with organized religion over religious dissenters. That is a no-go. That is a no-go.

that is a no-go okay that is a no-go you know i can i can argue all day long and have argued with friends with people you know i have you know had these discussions with friends i've made the case on social media i've made the case in my writing that there is nothing about the theology of uh our you know the denomination i belong to, evangelical Christianity more broadly, that says that you shouldn't take this vaccine. And there's a lot that says that you should. But you know what? If you disagree with me, even if I'm one of the most powerful individuals in the PCA, the Presbyterian Church of America, which I'm not,

but even if I was, or even if there were official doctrines and resolutions of the church backing up what I said, that is irrelevant to whether or not I enjoy constitutional protection for my religious descent. You enjoy constitutional protection for your religious free exercise, even if you're a church of one, even if you're a Catholic and the Pope says you're going to be excommunicated if you believe X or Y, that is irrelevant. That is irrelevant in the eyes of the state. The state is not adjudicating these religious disputes. So when the state says no sanctioned religious exemption from any organized religion and that organized religions are encouraging the opposite. That's not relevant to your constitutional rights except

to the extent that at which it indicates targeting. And that's relevant. The targeting is relevant. The fact that you're a dissenter from your main body of your denomination is not relevant. It's still a free exercise issue. You're still exercising your religious beliefs. So that's number one, and I think that's really important for people to understand. Sitting in the pews of church, you can have a disagreement between parishioners about what your religion dictates. But that disagreement is not adjudicated by courts.

And that disagreement is not adjudicated by governors. That's not what's adjudicated. What's adjudicated is whether either one of the dissenters, either side, comes into court on an equal basis. It's not that if I'm a Catholic complying with the Pope's suggestions that I come in on a superior basis than a Catholic who disagrees with some of the Pope's suggestions. So I think that's really important to outline. But then there's another thing that's interesting here, Sarah. I'm not saying that justices listen to this podcast. I'm also not saying they don't listen to this podcast because there's a very interesting part of this opinion from Gorsuch and Alito that is directly relevant to something we talked about on Monday.

Directly relevant. And that is, under what circumstances could strict scrutiny, could a vaccine mandate survive strict scrutiny? David, you and I, we're having some mind meld here. I have, this is exactly where I wanted to go. You go first and then I'm going to follow up. Yeah. So what I'm going to do is I'm just going to read.

So essentially, because remember if, if you, there are a couple of ways that a, a government restriction on religious free exercise can survive. One is that it's a neutral law under current law, a new, truly a neutral law under current law, truly a neutral law of general applicability,

even under Smith as limited and narrowed and zombified as it exists today. That's where, just to be clear, that's where, for instance, some of the California shutting down churches, but then leaving movie theaters open. That was the debate over that. Was that a neutral law of general applicability when you were treating religions differently than a similarly situated secular activity?

Right. Or here, Gorsuch and Alito and Thomas say that if you are granting medical exemptions, then the law is not neutral and generally applicable. But then even if the law is not neutral and generally applicable. Okay, so that, but then if the law, even if the law is not neutral and generally applicable, it can still be upheld if it satisfies strict scrutiny, furthers a compelling, it's the least restrictive means of furthering a compelling governmental interest. This is interesting.

So here's what I'm gonna read. If the estimated number of those who might seek different exemptions is relevant, it comes only later in the proceedings when we turn to the application of strict scrutiny. This is when my eyes got wide at this point. At that stage, a state might argue, for example, that it has a compelling interest in achieving herd immunity against certain diseases in a population. It might further contend the most narrowly tailored means to achieve that interest is to restrict vaccine exemptions to a particular number divided in a non-discriminatory manner between medical and religious objectors. With sufficient evidence to support claims like

these, the state might prevail. In other words, yeah, there is a way that a vaccine mandate can survive strict scrutiny, and that is if you come to the court with evidence that the number of exemptions would inhibit the adoption of herd immunity. That is what could survive strict scrutiny. Did you actually, did you read that as a real suggestion from the justice? Because I did not. Oh, you did not no i read that as not sarcasm that's not the right word but something akin to sarcasm interesting meaning like yeah you could but like you're never gonna um i don't know what that is i don't it's not sarcasm but so i want to back up a little because I think the medical exemption, most people when they first hear that would be like, yeah, but medical exemption means you can't

take the vaccine or it would threaten your health. That's very different than a religious exemption. And I actually thought that Justice Gorsuch's explanation of why they're not that different was really helpful because, yes, it is different in terms of perhaps the burden on the individual, a, you know, you're violating your moral religious principles, for instance, versus you're going to die. Uh, yep. Those are pretty different burdens to place on the individual, but that's not actually the legal test. The legal test goes to the, uh, what the state is trying to achieve. And in this case, the state's stated objective is that healthcare workers need to be vaccinated to protect the people, the patients. And in that version, it doesn't make any difference why you're not vaccinated.

And I was like, oh, that's a great explanation of why sometimes, at least, you're not going to care about a medical exemption and why that would still then be distinguishing between a secular and religious discrimination, so to speak. I'm quoting him now. Allowing a healthcare worker to remain unvaccinated undermines the state's asserted public health goals equally whether that worker happens to remain unvaccinated for religious reasons or medical ones. To be sure, the state speculates that a religious exemption could undermine the purpose of its vaccine mandate differently from a medical exemption if more people were to seek a religious exemption than a medical one. if more people were to seek a religious exemption than a medical one. Okay, so then he gets into like, okay, sure, but this court's general applicability test doesn't turn on that kind of numbers game. At this point, the only question is whether the challenged law undermines the government's asserted interest in a similar way. Laws operate on individuals,

interests in a similar way. Laws operate on individuals, rights belong to individuals, and the relevant question here involves a one-to-one comparison between the individual seeking a religious exemption and one benefiting from secular exemption. Then he walks through this like, but I mean, sure, you want to show up here and say that you've equally divided the religious and the medical ones and that that's how you've done it. Okay, I'll believe you. But then he says that New York never made any of these arguments. And in fact, says that at this point, again, according to the numbers that I presume the people who want the exemption were using, that 90 to 96 percent of health care workers are currently vaccinated, meaning they're well beyond anyone's estimation of what you would need for herd immunity. Before leaving the subject, Justice Gorsuch writes, one further point bears

mentioning. As I alluded to earlier, if a state could prove that granting or denying religious exemptions would make the difference between achieving a crucial vaccination threshold, it may be that denying exemptions beyond that threshold number could qualify as a narrowly tailored rule necessary to achieve a compelling state interest. Again, though, the problem is that New York does not even seek to advance an argument along these or any similar lines. That is the part that I found compelling about the dissent here. No, I thought the dissent was very compelling on two reasons. you should analyze a religious exemption and a medical exemption sort of together rather than being completely separate entities, so different as to not be relevant to each other.

Which was counterintuitive to me. I don't know if it was to you. I was convinced, but it felt counterintuitive. It was counterintuitive to me, actually, until I read the Ninth Circuit dissent that we talked about last podcast, which was, okay, yeah, but if the state interest here isn't just health broadly. That's right. The state interest here is preventing the spread of a particular disease. Well, then it starts to look less like a neutral law of general applicability. So that was pretty compelling. But then what was also compelling to me, because I've always been of the mind

that what were really the real crux of the matter here, Sarah, the real crux, if we're just going to cut through all of the mumbo jumbo, is can a vaccine mandate meet strict scrutiny? And that to me is the really, truly interesting question in all of this. And I think you hit the nail on the head when you said some viruses, for sure, for sure. This virus, I think it's much more contextual. And this is where I think that there's an interesting aspect here where they're sort of forecasting on this virus.

You're going to have to do a lot of work to convince us that a mandate without a religious exemption is going to meet strict scrutiny. And they forecast why that is because they illustrate, because remember, it's compelling governmental interest. The spread of the disease is going to meet that. It's going to meet that. When almost a million people have died in the U spread of the disease is going to meet that. It's going to meet that when almost a million people have died in the U.S. It's going to meet that. Least restrictive means that's where you're going to have problems because New York is

such an outlier. You have many other states with vaccine mandates of different kinds that all contain religious exemptions. You have other kinds of mandates, such as it's really a masking and testing mandate with a vaccination essentially opt out of the masking and testing. So if you have multiple different options, then it's much harder to argue that this is the actual least restrictive means without coming into the court with some really, really compelling evidence that what you have here is a, is a breakdown of, of, of herd immunity to such an extent that it,

that it essentially, um, vitiates the state interest in play. And I, I thought that that was the most interesting part of this. So let's talk about the very last part of the dissent. Yes. Which is fascinating just from a Supreme Court historical perspective, on the one hand. On the other hand, fascinating to get into the mind of Justice Gorsuch, I think. I think this is like the most what makes Justice Gorsuch tick few paragraphs that I've maybe ever read, maybe. Gorsuch tick few paragraphs that I've maybe ever read, maybe. And it involves a case called Minersville School District versus Gobitis and West Virginia State Board of Education versus Barnett. And Justice Gorsuch walks through the Gobitis case. A public school in Minersville,

Pennsylvania, required all students to stand daily and salute the American flag. This was in the shadow of a looming Second World War. Local governments across the country rushed to encourage displays of national unity. But Lillian and William Gobitis would not oblige. As Jehovah's Witnesses, they believed they could not pledge fealty to anything or anyone except God. When they refused to salute, the school expelled them. The court upheld it. The court ruled that the Constitution does not compel exemption from doing what society thinks necessary for the promotion of some great common end. Interestingly, the Gobitas family, William Gobitas is G-O-B-I-T-A-S, which I did not know

because the Supreme Court opinion is G-O-B-I-T-I-S. Justice Gorsuch cites that opinion. 1940 was the year of that case, by the way. In doing so, the court not only erred in the small matter of the children's last name. I just like that to me. Like, there's a reason that Justice Gorsuch wanted that included, right? That the court got the name wrong. And it is small, but it's not small, if you know what I mean. He continues.

It erred in the most fundamental of things. It took the view that the collective was more important than the individual, and that the demands of an impending emergency were more pressing than holding fast to the timeless promises of our Constitution. In the weeks that followed the decision, witnesses across the country suffered hundreds of physical attacks. Eventually, the court changed course and overruled Gobitis in the Barnett case that I mentioned. Justice Gorsuch again. The court finally acknowledged

what had been true all along, that our constitution is intended to prevail over the passions of the moment and that the unalienable rights to record it in its text are not matters to be submitted to vote. They depend on the outcome of no elections. Fast forwarding. Today, our nation faces not a world war, but a pandemic. Like wars, though, pandemics often produce demanding new social rules aimed at

protecting collective interests. And with those rules can come fear and anger at individuals unable to conform for religious reasons. He notes, by the way, that the court has already fallen prey to this. At first, this court permitted states to shutter houses of worship while allowing casinos, movie theaters and other favored businesses to remain open. Falling prey once more to the judicial impulse to stay out of the way in times of crisis. The court allowed states to do all of this, even when religious institutions agreed to follow the same occupancy limits and protective measures considered safe space enough for comparative gatherings in secular spaces. And David, here's the thing that like I will, that sticks with me.

I'm fast forwarding to the very last end of this whole dissent. Cases like this one may serve as cautionary tales for those who follow, but how many more reminders do we need that, quote, the constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis may suggest, end quote. And do you know what case he's citing there? Downs v. Bidwell from 1901. It's one of the insular cases, which we talked about on this pod, but most importantly, he's not quoting the majority.

He's quoting a lone dissenter. I bet you can guess who it is. Yes, indeed. Should we tell them? It is Justice John Marshall Harlan. Yeah. Now, this is such an interesting dissent to me because, and I think it's an incredibly compelling piece of writing, just an incredibly compelling piece of writing, because it is not a piece of writing that says that religious people can do whatever they want, regardless of consequences. scrutiny was so interesting to me because we we sometimes get into this all or nothing view that says well which if you're if you're highly protective of religious liberty you just want anything to go no no no no they're strict scrutiny we often say strict in in theory fatal in fact but there are in there are there are multiple instances in american law of laws that do meet strict scrutiny, including laws that have overcome asserted religious interests. So it's doing a couple of things at once. One, it's saying,

no, New York here is an outlier. New York here was hostile, and New York here did not provide evidence that its preferred legal environment was going to advance its interests. In those circumstances, why shouldn't the courts intervene? And I found that very, very persuasive. And I think it's very interesting that Barrett and Kavanaugh didn't join. We haven't really explored that so much. I find that very interesting that Barrett and Kavanaugh didn't join. It'll be interesting to see

if this comes up on the merits, though. I mean, or rather, it will come up on the merits. Yes, agree. And Barrett and Kavanaugh acknowledged as much. Like, this will go through the regular certiorari process. And when those do, we're happy to look at them with our normal standards for certiorari. I think there's a good chance. All they need is one vote, right? They have the three, obviously,

dissenters. The problem, of course, is in the meantime, the irreparable injury to the people involved here. One, you know, they walk through a couple, but one is an obstetrician, one is a dentist. They've been seeing patients throughout the pandemic, including well before there was a vaccine, including seeing patients who had COVID as the obstetrician was doing, of course, delivering babies. And you couldn't test at the beginning, of course. About that time I was delivering a baby. So, you know, there's a cost to waiting, but the emergency docket was getting so out of hand. I can understand why they're tired of having to address the merits without briefing or oral argument.

And yes, there's some briefing. I get it, but not the extensive briefing that you get at the certiorari stage at the merit stage. So I totally understand why Barrett and Kavanaugh want this to go through the regular process. Can I maybe make a stretch? Can I link this to the Texas case? Oh my God. So I was going to do that, but except with Dobbs, but you link it to the Texas case. So here I'm linking this to the Texas case because what we have here, both in Texas and in New York, is really an effort to get to pre-enforcement review or at least very soon after enforcement review to stop a law from going into effect before a case has become fully ripe and mature

and worked its way through the system. And it seems pretty clear that now we've got kind of a majority on the court that's saying there isn't anything really magical about pre-enforcement review. That the reality is there isn't some sort of kind of freestanding ability to get pre-enforcement review, especially at this highest court in the land. At the highest court in the land might be putting the brakes on a lot of this and relying on the lower courts to work it out and leave us for regular order in the regular course of business

seems to be perhaps a little bit of what's going on here, was one thought that I had as I read this. But you were going to link to Dobbs, so link away. Well, this last sentence, right, the Harlan dissent, I'm reading way too much into it. I want to be very clear. This is not real. This is not well-reasoned even. But I'm going to pour all of my own thoughts into the fact that this ends with a Harlan dissent quote. John Marshall Harland. He mentioned him in his confirmation hearings. He's mentioned him in many speeches. Certainly, he read the Peter Kanellos book that we've talked about on this podcast, The Great Dissenter. If you haven't read it, you should, because Justice Gorsuch, I assure you, has read it. But he would have read it months ago. Also, the fact that he's quoting the dissent in an insular case, and there is at least a quasi-challenge to the insular cases. Remember, we had a guest on to discuss that. Gee, I wonder where Justice Gorsuch, how he feels about

the insular cases, considering he's quoting the dissent in those cases. So that's an interesting little nugget. But the parlor games that we're going to play between now and June in terms of who is writing the Dobbs majority opinion are going to be endless. So let's start them now in 2021, because why not? Let me walk you through some of my reasoning here. So the justice who is most senior in the majority gets to assign the opinion. I think it is fair. Well, there's an argument that it will be Roberts, that he will still be in the majority, even if it's for different reasons. And then the other argument is that it will be Thomas, that Roberts is, you know, maybe it's a concurrence or concurring in part, dissenting in part,

whatever, that he will not be the one assigning the majority and that it would be Thomas. incurring in part, dissenting in part, whatever, that he will not be the one assigning the majority and that it would be Thomas. So the question then is, would Thomas assign it to himself? I actually am not at all convinced that he would. And in that case, I don't know. I don't know. This Harlan dissenting quote, it's making me feel kind of like someone's been studying some extra Harlan in their free time, a little extra Plessy. And 100% that Dobbs majority opinion, if it's looking the way that we think it's going to look, is going to be so full of Plessy and Harlan, who better to write it than the guy who knows Harlan best on the court, Justice Gorsuch. Now, I want to also make my case that I think there's an argument that Justice Kavanaugh could get it

because he has been the swing vote for the same reason that some opinions were given to Justice Kennedy, that you want the country to hear from the person who's sort of most in the middle on these things.

But I don't know. Today, I'm feeling Gorsuch. So interesting that you say that because as soon as you said dobbs and and now i knew you were headed towards harlan i had the opposite thought that what if this means that gorsuch is getting his harlan is harlanning up because he's going to be harlanning um that he's going to be dissenting so So I don't know. This is just totally meaningless, fun tea leaf reading. It's not even tea leaf reading.

It's tea leaf throwing them in the air and like blowing on them. Yeah. Yeah. I mean, this is more witch doctor-y than reading chicken entrails. Yeah. Yeah. But it's very interesting. It's very interesting.

And can I do one more little just, can we slice open another chicken for a moment? All right. I promise this is not recreational chicken slicing. We'll eat them later. I think there was a hint, there's a hint that Barrett might be kind of a pro-mandate kind of person in actually in the Dobbs oral argument.

Oh, there kind of was. You're right. Yeah. Yep. Yep. So here's the quote. This was originally, and I wrote a whole Sunday essay sort of based on the response to this quote. This was originally taken as,

this quote is all about adoption, but there was another part to it. So here it begins. Both Roe and Casey emphasize the burdens of parenting and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood would hinder women's access to the workplace and to equal opportunities,

it's also focused on the consequences of parenting and the obligation of motherhood that flows from pregnancy. Why don't the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. Then here's the next part. There is without question, she's referring to pregnancy and carrying a baby to term, an infringement on bodily autonomy, you know, which we have in other contexts like vaccines. Like vaccines. is that Justice Barrett, if people believe that she is inclined to join a majority opinion

over turning Roe-Casey, is going to say, this is an infringement on a bodily autonomy, and the state can override bodily autonomy arguments in the circumstances of pregnancy. And if she's connecting it to vaccines, that has a lot of interesting implications for how she would view the bodily autonomy argument

in a vaccine case. I just thought that was interesting. By the way, there's also an argument, of course, that Justice Barrett will be given the majority opinion because she's a woman, a la Justice O'Connor in Casey. But actually, I think that's one of the weaker arguments because of its sort of obvious nature.

Right, right. Man, we've been slaughtering chickens. A lot of chickens have died today. Hey, David, before we do the ERA, can I do one update from a previous pod? Yeah. So I talked about how judges at this point have to be named something that makes a complete sentence. It's basically a requirement. And I noted that while your name arguably is a sentence, a scandalous one. It is, not arguably. Scandalous sentence. Mine is not, which is a bummer to dash all my hopes and dreams, but we've had a listener email in that, in fact,

grr is a natural byproduct of sugar cane. It is more unrefined than sugar. It is a brown raw mass of sucrose and is commonly made from sugar cane and date palm trees. So not only is my name a full sentence, it's like a better full sentence than anyone else's because I have a verb in mind, like a, you know, and a object of the verb.

Sarah is grr. I am unrefined sugar cane, David. So where's my black robe? It's another way of saying sarah is sweet something i've actually never really heard in my entire life that's a that's amazing well thank you listener that's fantastic here come the carrots making their way up field followed by the whole wheat bread over to the two dozen eggs sir do, do you do this every time?

Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots it over the line. What a goal! How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. All right, Sarah, we have a guest.

We have a guest. Please introduce our guest, Michelle. Michelle Kalin is also known as Solicitor General Michelle Kalin of the Commonwealth of Virginia. She is the first female Solicitor General from the state, and that is going to be quite relevant to what we're talking about today. Michelle came out of private practice. She was at Paul Weiss before this. She clerked on the Sixth Circuit. She is a generally awesome person in a variety of ways. One of the ways that some of our listeners might find her awesome is that, David, she didn't go to Harvard Law School. I know. It's weird.

It's going to be a relief, a tremendous relief to our listeners. She went to Vanderbilt Law School, so not that much different, frankly. But still, we like to have diversity on our podcast. So Michelle, thank you for the diversity that you bring. Okay, so today with Solicitor General Kalen, we are talking about amending the Constitution. And there's a reason that Michelle is joining us on this, because there might be no better contemporary expert on what it means to amend the Constitution. Michelle, will you just start from the beginning on the litigation that you are currently involved in? Sure. So Virginia is a plaintiff along with two other states, Illinois and Nevada, seeking to vindicate our ratifications of the Equal Rights Amendment. Just about two years ago, Virginia became the 38th and final state needed to ratify the Equal Rights Amendment. But the archivist of the United States, the person in federal government tasked with certifying and

publishing amendments, has not certified and published the Equal Rights Amendment. So we, along with two other states that recently ratified, sued to vindicate our ratifications. And you've got a few problems, legal problems with this that are worth talking about because I think it's so interesting. One is, is the archivist the right person? And the reason that that's kind of interesting is because, I mean, it's similar in some very broad ways to what's happening with the SB8 litigation down in Texas. You have to find the right person to sue, and that person has to have the ability to fix your problem, so to speak. I thought that was kind of interesting. but perhaps the bigger hurdles, right, is that can states rescind their ratification before the full number of states have ratified?

I think that's a really interesting question, too. So curious if you can give us sort of top level on all of those before we dive into conversation. Sure thing. Top, top level on all of these very complex difficult issues. Yeah, yeah. Just, you know, your, your elevator pitch. Well, I, I, I'd like to actually start by maybe taking a step back to just say what the Equal Rights Amendment says, because it's, it's pretty short and, and pretty clear. It just says equality of rights under the

law should not be denied or abridged by any state or the United States on account of sex. And so the effort to have an equal rights amendment in our constitution started actually back right after the 19th amendment was ratified and women obtained the right to vote. But the movement really got traction in the 1970s when Congress approved this language and then sent it along to states for ratification. And in the proposing clause of the amendment, Congress put in a seven year timeframe. And in that timeframe, 35 states ratified. Congress then extended that timeframe another three years and no additional states ratified. And so then kind of things remained in that state until 2017 when Nevada ratified, the following year,

Illinois ratified, and in 2020, Virginia ratified. And so one of the questions is, one of the issues that Sarah pointed out is what is the impact of this time frame that Congress set in the proposing clause? Unlike for prior amendments where the Congress put a time frame in the actual text of the amendment that was then submitted to the states and then the states voted on, this text was not in the language of the proposed amendment that was sent to the states for ratification under Article 5. And we think that's important in terms of what the impact of that would be on the states. Another issue is whether or not Article 5 even allows Congress altogether to set forth

any parameters on ratification, including a deadline. The most recent constitutional amendment, the 27th Amendment, actually took 203 years to ratify. And so there is a question as to what's a reasonable timeframe for ratification? Is there any sort of timeframe allowed by Article 5? And then on rescissions, there are five states that purported to rescind. Each individual state has a very complex and difficult story as to whether it actually rescinded. One state, for example, that purported to rescind the rescission? And there's actually a very fascinating kind of historical explanation as well as textualist explanation about how state ratification may be in toto and forever the way that ratification of the Constitution itself did not allow for rescissions. So the basic argument is if you wanted a time limit,

the time limit should have been specified in the amendment. And that not putting a time limit in the amendment is outside the scope of Congress's authority. You can't put a time limit on it unless it's in the amendment. And the time limit then is outside the scope of the authority delegated to Congress by Article 5. If you even put a time limit at all, Article 5, if you want to be a real textualist, and I'm curious how you sort of approach the textualist, originalist side of this,

Article 5 don't say nothing about no time limits. Correct. So Article 5 is pretty clear. It says that constitutional amendments shall be valid to all intents and purposes as part of this Constitution when ratified by the legislatures of three-fourths of the several states or by conventions and kind of textual hook in Article 5 that specifically gives Congress additional ability to impose additional constraints on the states beyond what Article 5 specifically says. And Article 5, our view is that there really isn't room for the supremacy clause under Article 5. Article 5 is pretty clear in laying out very equal roles between Congress and the states. It also entirely leaves out the executive branch from the amendment process. And the language of Article 5 grew out of concern by the framers that there would be too much federal control over the amendment process. And so our very textualist approach to Article 5 is that the way to properly preserve the equal role between states and Congress is not to allow Congress to impose all these additional constraints,

and especially not in language that's even outside of what the states ratify. So in the four prior amendments that had deadlines in the text of their amendments, the way that they would work is if a state, if the requisite number of states ratified the amendment after the deadline, the amendment would actually be part of the constitution. But by virtue of a section within that amendment, it would be inoperative. Okay, that is fascinating.

That blew my mind. That's very interesting. So it'd just be words on a page with no force or effect. But the archivist would have to print it according to your legal theory. Correct, which is consistent with the way we amend the Constitution, right? Because the 18th Amendment

is still part of the Constitution. It's just a vestigial part of the Constitution. It is the appendix of the Constitution, the gallbladder, if you will. And remind people the 18th Amendment was... Prohibition! Yes. By the way, I'm watching Boardwalk Empire for the first time. And as I watch it, it is just amazing that actually happened.

It is. It is actually happened. It is. It is kind of, you know, started at Evansdale, Illinois, the home of the Northwestern Wildcats. OK, so you went on the liberal side politically. And what I found interesting was that according to your arguments, Article 5 has two things, right? It has the proposal and the ratification. two things, right? It has the proposal and the ratification. But according to the district judge, there's this magical third thing that happens for amendments. There's the proposal, there's the mode of ratification, and then ratification. The district judge's argument was that in fact, because there's multiple ways for an amendment to become ratified, right?

It's the legislature, but three-fourths of the states or the Constitutional Convention of the states, that by choosing one of those routes, there is this middle step to a constitutional amendment, the mode of ratification. And that within that, the emanations and penumbras of that mode, if you will, is the idea that Congress, on top of picking the mode of ratification, can also set a deadline. I will say that I found that kind of unpersuasive because the mode, you don't have to select a mode of ratification because if either one happens, it is ratified. There's nothing like, oh, and then Congress must raise its hand and say which way this is going to be ratified when it proposes it, for instance. So there is really no three-step process, at least on the Article 5 I'm looking at. three-step process, at least on the Article 5 I'm looking at.

I don't disagree. But, okay, but here's where I'm deeply concerned about your argument, in part because I think you might be right, and I find it deeply concerning that you might be right. I find the inability of states to rescind ratification, that kind of hurts my tummy. Tell me why it's okay that it's like the Constitution, like you said, once you say yes, you can never take it back. Sure. I get that feeling. And I think once you, though, dig into the language and the history, it kind of serves like a little Tums over there. So the first thing is that nothing in Article 5 talks about rescissions or withdrawals. So you've got a pure, you know, textual absence of that. And generally in the, you know,

when we're looking at the Constitution, absence in and of itself is important. But the other thing is we've never had a historical statutory mechanism to accept rescissions. And so it used to be the secretary of state that accepted ratifications. Now it's the archivist. And there's a whole process of how the official accepting the ratifications accepts the ratifications, but there's never been a process to allow for accepting rescissions. So there's kind of a statutory historical issue there. But the key thing is that there is historical evidence showing that states cannot rescind, and that's borne out by a number of prior amendments. So, for example, with the 14th Amendment, both Ohio and New Jersey attempted to rescind their ratifications, and that rescission was not respected. With the 15th Amendment, New York was included as one of the ratifying states in the Secretary of State's declaration, even though New York had attempted to rescind.

even though New York had attempted to rescind. And when you say attempted to rescind, you mean like they actually, the legislature that ratified, you know, in the same method that they ratified it, they also rescinded it? So I think each state is different as to how that happens with each historical piece of it.

Not necessarily, but the states, at least in each of these cases, claimed that they rescinded and the rescissions were not recognized. And those states were counted in the list of states ratifying the amendment. A similar thing happened with the 19th Amendment with Tennessee. So I think we've got a strong historical basis that rescissions were not, were never really permitted. And that's also consistent with the framers' view on how ratification should happen, that we don't want the amendment process to ping pong back and forth and become a political hot potato such that states make their ratifications contingent on what everyone else does, the process is difficult

enough to do. I mean, we've only had one constitutional amendment in the last 50 or so years. And the framers really viewed the constitution as something that we very much could and should be able to amend. And so the idea of making it so difficult by virtue of allowing states to rescind and ratify and rescind and ratify makes the process much more difficult than the framers have ever envisioned. And with the 18th Amendment, your argument would be that's exactly the process, right? You pass an amendment, it turns out you don't like it, pass another amendment rescinding that amendment, it stays there as the constitutional gallbladder.

amendment, it stays there as the constitutional gallbladder. Exactly. So is your just sort of being a bit more philosophical for a moment, would you like to see the Constitution made easier to amend? I think the proper interpretation of Article 5 is that the constitutional amendment process needs to be meaningful and it needs to be possible. But Justice Scalia, this was the number one. I mean, this is how you and I got started on this conversation back now a couple of months ago when we met. But when Justice Scalia was asked, what is the change you would like to see made to the Constitution? What's like an amendment? He said he would like to see the amendment process made easier. And by the numbers that he cited, in fact, it only takes 2% of the US population to block a constitutional amendment. His argument being that while we want it to be difficult to amend and sort of the Berkey and minimalist tradition of our constitutional order, we don't need it to be a 98% agreement

throughout the United States. So after you finish your ERA fight, can you join the Article V amending fight? I would definitely be interested in seeing where the fight stands. I mean, we might need a constitutional amendment to amend the way that the amendment process works. But that's why we need you on our side, because you're now the expert on ratification. I want an amendment to amend the amending article of the Constitution. That sounds fun.

David, this is so interesting to me because I went into this whole thing. I mean, you and I have talked about the ERA when we talked about Mrs. America. I don't support the ERA. I don't feel that strongly about it, to be honest. It's not like it's keeping me up at night. But all in all, I would not vote for the ERA. I think, you know, when I first saw this, like Congress set a seven year deadline. They extended it, although that got caught up in litigation. The extension's kind of messy, I acknowledge. But regardless, nobody even tried during the extension. States rescinded it. To me, this was a really shut case. And I got to say, between reading Virginia's briefs and reading the district court opinion that agreed with my

initial thought, sometimes reading the side that opinion that agreed with my initial thought, sometimes reading the side that agrees with you, you realize that your own arguments were not as good as you thought they were. I don't know. The text is pretty clear. I think the thing that I have a hard time with about... The thing that I think is most compelling about Michelle's argument is the prior amendments containing deadlines within the amendment. So if you're that's easy enough to include, right, that's easy enough to include within the text of the amendment. It's not like that's something that Congress couldn't have thought of at the moment. And so why was the deadline not in the original amendment is a really interesting question because, of course, as you read Article 5, what you then have to do is you then have to imply something from the text.

You have to imply that, well, Congress gets to choose not just which method, but then regulate the manner in which the method is carried out. That's an implication from the text. And it's not even a necessary implication from the text. That's the problem, is that Michelle's argument is at least plausible. And if it's plausible and there's nothing in the text, then woof. It'd be one thing if there had to be some method and we're just picking which method, but that's not the case. But then you get to that really fascinating question of who do you sue?

Oh yeah, the archivist problem. That's the archivist problem. Does the archivist have that magical ability to copy the text of the ERA and paste it into the text of the Constitution and then hit send and then therefore it is there? That's what's so fascinating about this entire thing. Yeah, Michelle, talk about the archivist. This poor guy, you've dragged him into court. I don't even know if it's a he right now. What did he do to you, Michelle? I mean, come on. You're so mean.

number of states for us, given the number of states we have, that's 38 states. And he refused to perform his ministerial duty of certifying and publishing the Equal Rights Amendment by statute. And so the relief that we're seeking is asking him to perform his ministerial duty. And he had publicly said that he will not certify and publish the Equal Rights Amendment without a court order telling him to do so. So could the Biden White House simply replace the National Archivist and then that person publish the Equal Rights Amendment and then the lawsuit gets flipped with states, potentially the ones that rescinded, I would imagine, suing to say that the archivist has incorrectly performed their ministerial duty?

That is certainly a possible set of events that could occur. That's fascinating. Okay, so I'm going to just go ahead and betray massive ignorance about the archivist. I'm just going to lay my cards on the table. I know nothing about the archivist. I don't know if the archivist is a civil servant or if the archivist is a political appointee. Is archivist a political appointee? I think so. He was, this archivist was originally appointed during the Obama administration and he's stayed over since then. And don't forget the archivist, by the way, is part of the whole executive privilege fight that the January 6th commission is having because the archivist is also the keeper of a former president's papers. So, I mean, you know, this person is getting dragged into court on the regular. And by this person, of course, we just mean the Department of Justice. The archivist

is happily sitting at his desk. Michelle has not affected his life really one way or the other. That is, the whole archivist issue is just absolutely fascinating to me because in the absence of an official to sue, what you could potentially have is a constitutional violation without a remedy. Well, and this was the other side's argument that this was in fact a political question. Political question doctrine, right? Some things don't have a remedy. But I'm not sure this is one of them or should be one of them. Yeah, this is actually fascinating. This is absolutely fascinating. There are some folks who, you know, and actually DOJ raised the political question issue in the litigation, you know, raised it on behalf raised the political question issue in the litigation, you know, raised it on behalf of the archivist. But it's interesting that the archivist publicly said that he will not certify and publish without a court order. And then in litigation turned around and said, this is a political question. There can be no such thing as a court order.

There are a number of academics that think that the, you know, that Congress should ultimately make the call. And so, you know, here, OLC, actually also the Office of Legal Counsel weighed in and that's the executive branch kind of weighing in on this issue are the federal courts and, you know, any other referee is either injecting an entity, an improper entity into the Article 5 process and upending the kind of careful balance that the framers struck there. But it is an interesting issue there. And the district court dismissed the case for lack of jurisdiction. So the key issue that we have on appeal right now is, is there jurisdiction to hear this case? And that's the archivist question. And so it's two, so the district court, you know, had two holdings, right? First that we lack standing and then whether or not this deadline is binding on the states.

binding on the states. So let's move on from the subject of the lawsuit itself to the subject of TV show we all watched, Mrs. America. And this is the one, longtime advisory opinions listeners will remember this. This is starring Cate Blanchett as Phyllis Schlafly. And it focused on the ERA, the fight over the Equal Rights Amendment in the 1970s and sort of the rise of Phyllis Schlafly, Bella Abzug and Gloria Steinem. Or also it was it really flipped back and forth between the conservative critics of the ERA and the Eagle Forum and the and the advocates for the ERA on the left. And it showed some of the excerpts from the old debates. A couple of things from that that were really interesting. Well, one is how vitriolic they were. I mean, these debates were off the rails angry. So it's hardly new that we scream at each other. We just do it instead of in university lecture halls on Twitter where everyone can see.

But here's my question, Michelle. You're an advocate for the ERA. How are you answering some of Phyllis Schlafly's arguments that you heard that were actually based on some of the actual transcripts of the old debates about things like the military draft and bathrooms and things like that. So as an advocate of the ERA, plant yourself in Mrs. America. How would you do the debate better? Well, I would hope that I'm not in a place where I'm debating and in those sorts of forums. I'm a litigator, so I'd love to be in court, but that's a very regulated debate process.

But, you know, I think a lot of the rhetoric that's used about the ERA and what it would do and what it wouldn't do is just conjecture. I mean, right now, the language just basically talks about equality and the ultimate source of authority about what those words are going to mean are going to be the courts and potentially the United States Supreme Court. And so I think the most relevant question is, all these parade of horribles that people will say will happen, the real question is, you know, will the Supreme Court hold that that's what the Equal Rights Amendment requires? And I think that's just along the lines of conjecture. I mean, some of the things that they said that would be the end of the world have already happened, you know, women in the military, and that hasn't been the end of the world. I actually spent three years of elementary school

in Israel where women are routinely part of the military and it's a perfectly functioning country in that way. And that hasn't been the end of the world there. And so, you know, we're engaging in bathrooms conversations now anyways, without the Equal Rights Amendment. And so, you know, I think that a lot of those parade of horribles have kind of come and gone. And I think to the extent that the Equal Rights Amendment is something, let's say the court interprets it to be coextensive with our current understanding of the 14th Amendment, for example, I think there might be kind of a question to the extent stare decisis is not as robust as it used to be. Maybe there's a question as to what extent the, you know, Justice Ginsburg's legacy and the interpretation of the 14th Amendment remains the law of the land,

but let's say it does and the Equal Rights Amendment is interpreted to essentially be coextensive with that. I think it's an important symbol. I mean, we're the only industrialized country that does not have an express and equal rights amendment in our constitution. And I'd like to think that when my son and daughter open up the constitution and read it, you know, they can see sex equality as a value that we have in this country along the lines of other industrialized countries around the world. Can I tell you my problem, which is, and this goes to my hobby horse about amending Article 5. And by the way, I have a proposed amendment. My proposed amendment is that the proposed amendment simply has to pass Congress through the normal legislative process,

just both houses by a majority. And then you have the super majority of ratification. That I don't want to change. I do think the states, we need to have a super majority of states ratify. But let's try making the proposal process easier because the idea of getting a super majority in Congress seems laughable and unnecessary. Congress is hardly the arbiter of what we need in this country since they have totally rejected doing their jobs as of the last 20 years or so. So and here's the result of that. The ERA didn't get ratified in the 70s. So we didn't have an ERA. And what has been the result?

All of these fights, the parade of horribles, so to speak, ended up in the courts anyway. And the courts have, by and large, read into the Constitution an ERA since the ERA's non-ratification. That is a problem for the rule of law in general, that in 1965, they weren't reading in the ERA. But as society changed, as maybe just the fight over the ERA opened people's eyes, the Constitution has now changed to include a implicit ERA. No, we would have been far better off with the ERA in the text of the Constitution and simply interpreting that than we would with implicit ERA-dom. We should have amended the 14th Amendment. We should have, I mean, any number of these things where we can all agree on the rules that we're playing by. And the only way that's going to happen is by making the amending process a little easier.

Otherwise, Congress will keep not doing their job because that's just what it is. And all of this ends up in the courts who are being forced to say that they're doing textualism and originalism when, look, I just think the history will show you, as these things have changed over time, that that cannot be the case. So that is my ERA beef, that I think what you're saying is exactly true, maybe even more so than you want to acknowledge, which is the ERA beef that I think what you're saying is exactly true. Maybe, maybe even more so than you want to acknowledge, which is the ERA at this point would maybe not be the gallbladder, but like, I don't know, maybe like kidneys, like you don't really need both of them. The 14th amendment and

the ERA. Yeah. They're helpful. Don't get me wrong. Like they'll that second kidney does something redundancy. Yeah. There's some redundancy. Yeah, there's some redundancy. That's a problem at this point to me. I think that that's where the language of the ERA is important. Our understanding of what equality of rights being denied or abridged, what that actually means. I mean, I think that there's room for interpretation and understanding there. And, you know, it depends what kind of, how you want to interpret the constitution, right? So there would be kind of a question if someone's an originalist, what that language meant at the time of the ratification. And then there are others that think that those terms, you know, folks should look at what the meaning of the terms are later on. And so I think that's

that boils down to a dispute over how to interpret the Constitution. But the flexibility in that language and just that higher level values in the Equal Rights Amendment, I think that that's that's important and meaningful to our understanding of what equality means, especially vis-a-vis, you know, sex is, is pretty important. And, you know, how are you equal if you're, if you're going to be, you know, or might be pregnant or could be pregnant or nursing or any other kind of manner of difference. So I, I, I do think I'm hopeful and optimistic that, that it means more than, than kind of just more than nothing.

Can I tell you my theory about why it would be more than nothing? I think it would elevate sex to a suspect classification. It would move gender or sex-based analyses or analyses of gender or sex-based regulations from intermediate scrutiny to strict scrutiny, probably at the very least. I think that would probably be the concrete result of that, which would be a material change. I mean, that would be a material legal change on a case-by-case basis. Intermediate scrutiny, by the way, for those who haven't listened in the last month or so, being what David and I call whatever the judge wants scrutiny.

Yes, yes. That's the shorthand, whatever the judge wants. And I do think that would be the concrete change because under current jurisprudence, 14th Amendment, strict scrutiny applies to things like race, national origin, regulations that implicate, say, race, national origin. And that's when you have strict, you have strict in theory, fatal in fact.

In other words, it's very, very, very hard to enact a racially discriminatory law or regulation. It's less hard to enact it. Unless it's in college admissions. For now. For now. So yeah, we shall see. We shall see.

I'm making, Michelle's making a grimace. Sorry, Michelle. I do think also the difference, the difference in strict scrutiny and intermediate scrutiny is important to think about. People say strict scrutiny is, you know, strict in theory, but fatal in fact. But I do think that, you know, this might be a place where different treatment may be appropriate, recognizing kind of physical differences. And so I don't think that strict scrutiny to apply to sex-based discrimination means that we're never going to have any kind of, you know, discrimination based on sex. It doesn't mean that it's necessarily fatal to the way restrooms are and kind of all this other parade of horribles. I think the immediate impact is that we're no longer going to be able to kind of maintain this kind of romantic paternalism that we have about sex-based differences, and they'd have to actually be scrutinized in a way that's meaningful.

And I'm an advocate of the Equal Rights Amendment. scrutiny, you know, from the get-go, intermediate scrutiny was kind of a compromise. And frankly, there are some, you know, Supreme Court case law suggesting that the court was kind of waiting for the ERA to come through to then apply strict scrutiny. And so I'm a fan of strict scrutiny, and I think sex should be right up there along with the other suspect classifications on that same level. Well, then let's end on a wonderful point of agreement. Although actually, I found myself agreeing with you a lot in this conversation. I think intermediate scrutiny is stupid. And so in every ability that we have to move something from intermediate scrutiny to either strict or rational basis, I'm for it by any means necessary, pretty much because intermediate scrutiny is the stupidest of the

scrutinies. And if it can go extinct, all the better for law. I'm starting, I'm going to add intermediate scrutiny to my list of constitutional trigger phrases, along with co-equal branches of government. No. And Smith. And Smith. And that's triggering for you. Just the word Smith. Just the word Smith. Triggering. Yes. All right. Solicitor General Kalen, thank you so, so much. This was, I mean, where else do you get to have a historical conversation about all of the amendments to the Constitution in such a modern frame? You are heading up to the appellate court soon. This will move from a district court to a circuit court and we'll be following it.

Thank you for joining us. Thanks so much for having me. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day.

It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Okay. That was fascinating. Really, really enjoyed the conversation. We don't really have time. We've been going for a while today. We've made up for the time on having a shorter than normal pod last time. That's right. But look, David, I came out of this thinking I don't understand how an originalist or textualist could feel differently, actually. I understand being against the ERA, obviously. I understand being frustrated because Congress intended there to be a deadline.

But there's just nothing in Article 5 that backs up their argument in this at all. And so, boy, I'll be very interested to see if they can get cert granted because I'm not sure how someone like Gorsuch can approach this any other way. So here's my challenge to listeners. We have legal scholars as listeners. We have tons of practicing lawyers. Poke holes in our argument in the comment section. Let's hear it. I want to see it because I thought it was pretty darn compelling.

And so, yeah, really, really looking forward to seeing what you guys have to say. And then there's already stuff we have backlogged for next time. The legal developments are happening fast and furious. Fifth Circuit upheld the Remain in Mexico policy. Might be worth a little bit of discussion on that. Ron DeSantis has proposed a law to try to stop wokeness, not just in K through 12, but in private corporations and colleges. That's going to require a look because what Florida does, Texas might do, many other states might do.

So we'll have to keep an eye on that. New York saying that they're going to do a similar gun law to the California one. That's the answer to Texas. Yep. Here we go. Yeah. So a lot to talk about even rolling around Monday and who knows what will pop up before then. So please tune in on Monday. Please rate us on Apple Podcasts.

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