Advisory Opinions - Is This a Lollapalooza?

Episode Date: December 8, 2022

In an all-star hearing, the Supreme Court considers a melange of legal and philosophical arguments concerning the “independent state legislature” doctrine. But first, David and Sarah revisit 303 Creative and debate the Tough (with a capital T) line between law and morality. Also: Should Judge Cannon be impeached? Out of context: “For the record, Sarah, there are Mean Girls in Dune.” Show Notes: -J. Michael Luttig for The Atlantic against the Independent State Legislature doctrine Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at TNVacation.com. Tennessee sounds perfect. You ready? I don't know about Lollapalooza. I was born ready.

You want to touch the Lollapalooza, yeah. Right, that was a Lollapalooza. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And my goodness, do we have a lot to talk about today? The independent state legislature theory case, Moore v. Harper was argued, and it was what, three hours of argument, Sarah? To the minute. To the minute. Three hours of argument.

And I'll just go ahead and say it. It was a lot better oral argument. One of the best of the term. It was really good. So we're going to talk about that. We're going to talk about when can you impeach a federal judge and should you impeach one for a bad decision? And then we're going to answer maybe some follow on questions about 303 Creative. In fact, let's take these things in reverse order of importance.

First, real fast, Sarah, Judge Cannon, who is the federal district court judge down in South Florida, who granted Trump's request for a special master. Really terrible legal decision, as the Fifth Circuit explained, or I'm sorry, the Eleventh Circuit explained in detail as we discussed last podcast. Let's just go ahead and grant that that was a really bad judicial decision. A lot of people have asked, should she be impeached? Can she be impeached? Let's just go ahead and grant that that was a really bad judicial decision. A lot of people have asked, should she be impeached? Can she be impeached? Sarah, what do you say? Okay, let's start with can she be impeached and what are the standards for that?

Yes, she can be impeached and there are no standards. Judges have life tenure with full pay. But the check on that is that Congress can remove them through the impeachment process. I think we can all sing from that hymnal by memory now. But the articles of impeachment would be drawn up and voted on in the House and then tried in the Senate. Interestingly, in our history,

impeachment has most often been used against judges. So they could impeach her for not liking her hairdo. However, the prudential question, which I think is more what people are getting to, I think is actually a no-brainer the other direction. And I've been very clear. I think that was a bonkers town decision. Just wrong, wrong, all the way wrong.

Yeah. To quote Scrubs, wrong, wrong, wrong, wrong, wrong, wrong, wrong, all the way wrong. Yeah. To quote scrubs, wrong, wrong, wrong, wrong, wrong, wrong, wrong, wrong. You're wrong. Um, but I don't know where you draw the line on a judicial decision that was wrong, which happens every day. That's the whole point of our appellate process. If we thought district judges were always supposed to be right, why would we have circuit court judges?

And a Supreme Court for that matter, we would just always have district judges. And if they got one wrong, we'd impeach them. Now, I think intuitively, that's not a satisfying answer to folks because this is more wrong than most wrong decisions. Okay, I hear you. But if the point of life tenure

and not being able to reduce their pay is to provide that political insulation, you gotta give judges some room to just be wrong and trust that the system, the appellate system, will do its job, which here it did perfectly. There was an injunction. It went up to the Eleventh Circuit. They reversed. I'm sure that the Trump team, actually, I'm not sure about that, but I bet

they'll appeal it to the Supreme Court and the Supreme Court will refuse to hear the appeal, in which case everything works the way it was supposed to. So I think impeaching here would be unwarranted, unwise and a mistake. But yeah, of course you're allowed to. Right. You're allowed to. So there's a list of, I believe, 17 people who've been impeached by the House. And if you go through that list, the ones who've been found guilty or resigned while the trial was pending tend to be district court judges, federal district court judges. But just to give you a sense of the kinds of charges that have resulted in impeachment and resignation or impeachment and removal.

So there's Thomas Porteus Jr. impeached on March 11th, 2010 on charges of accepting bribes and making false statements under penalty of perjury. Samuel Kent, U.S. District Judge for the Southern District of Texas, impeached June 19th, 2009 on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements. Resigned. Was that really all the way back in 2009? 2009. If you had asked me, I would have said it was three years ago. That felt so recent to me. I remember that very, very well. Yeah. 2009, resigned 11 days after the impeachment was handed down. Yeah, they had that one dead to rights. Can keep on going. Al C. Hastings. Now, this is one I remember, and it's 1988. Charges of perjury and conspiring to solicit a bribe,

found guilty, removed from office. In fairness, you were already in your 50s by then or something. So it's probably good that you remember that. That's completely, how dare you? How dare you? So that gives you a sense of it. You can keep going back, impeached on charges of income tax evasion, impeaches on charges of, oh, hell.

It's a lot of corruption. A lot of corruption, a lot of corruption, and not on the basis of handed down horrifically bad decision. Now, if there was evidence of corruption attached to the decision, that's one thing, but nope, bad decision, got corrected on appeal, happens every day. This is something that was just particularly bad and particularly notorious because of who it involved, but the system worked.

Here's my line. Life tenure means life tenure, even for stupid judges. True. True. So that's Judge Cannon and impeachment. Shall we move on to 303 Creative and some follow-up questions? Sure. The comments section was a blaze and it was really fun. And I spent a lot of time in it during this week. So thank you to all of our dispatch members. Some smart stuff in there. There was one hypo in particular though, David, that jumped out at me that just further elucidated for me. Nobody came prepared to this oral argument

or someone should have come up with this hypo who a member of the dispatch came up with in relatively short order after hearing the argument um let me just read the comment it seems like rather than a kkk outfit this is the um scenes from santa hypo from justice jackson that then justice alito borrows so justice jackson's hypo was scenes from santa where they'll take your picture on santa's lap but if you want to have a recreation of It's a Wonderful Life, they'll only do that for white kids because it's historically accurate. And Alito says, OK, but what if a kid shows up in a KKK costume? Does Santa have to take this black Santa have to take a picture with that kid? And it got really weird about, well, that wouldn't be racial discrimination.

And then Alito says, how many black kids do you see dress up as the KKK? And actually he didn't say it like that. He said it sarcastically and said, oh yeah, a lot of black kids dress up like the KKK. Anyway, not ideal, but here's the point. Here was the comment. It seems like rather than a KKK outfit, a better hypo might've been a child wearing a shirt

with the N word on it. If black Santa is willing to take a picture with a black child wearing a shirt with the N word on it. If Black Santa is willing to take a picture with a black child wearing that shirt, is he required to take a picture with a white child wearing that shirt? Yes, that is a great hypothetical because it is clearly race-based. A lot of the other hypotheticals that some of the commenters or, you know, frankly, people out there on Twitter, etc., etc., were coming up with weren't actually status based discrimination. maybe at least you want black santa to be able to choose who he takes a picture with and that he may not want his photo taken with the white child with the n-word on their shirt which would have a very different meaning than the black child with the n-word on their shirt so great hypothetical really liked that um david also perfect timing of course did you hear about the restaurant in Virginia?

I have not heard about the restaurant in Virginia. Oh, I can't wait to tell you. So a restaurant in Virginia had customers come in who were going to have their meeting of their group at the restaurant while eating. But the group was a religious group that was a pro-life, anti-gay marriage group. I take it. I'm actually taking the restaurant's word for this on what the group believed. And they declined to serve them and asked them to leave. I mean, perfect timing. So on a couple fronts here, first of all, that restaurant in Virginia has a very similar statute to Colorado. It's worth pointing out that they are not one of the 19 states, at least I don't think, that has the political protection.

So it's the same as Colorado in that they protect for race, religion, sex, sexual orientation, yada, yada, but not for political ideology. So that Virginia restaurant is going to be no better or worse off after 303 Creative because of that conversation about the caterer, David, that this case does not involve a restaurant serving food. That is a pure public accommodation place and there's no speech involved. That would be associational rights and And basically, associational rights are pretty weak, actually, especially compared to speech. And so they would say giving those people food is not speech in any way. So they have no argument for turning away someone based on their

religion. Now, their argument is going to be that they weren't turning them away based on their religion. They were turning them away based on their political beliefs about abortion and about gay marriage. For the same reason that has already been completely settled, that a gay wedding is discrimination on the basis of status, sexual orientation status, even though it is not technically about your sexual orientation. It is so clearly tied to that. I think in this case, if it is a religious organization formed for that purpose that believes things that you don't like, that would be discrimination on the basis of religion, regardless if you can pick out discrete things that you don't like about

their beliefs that you want to call politics. Right. No, I completely agree with that. That is much more the Piggy Park example that I talked about before, where a person said, I have a free exercise of religion, right? Not to serve black customers. And the court called that patently frivolous. And Kristen Wagoner didn't want to get anywhere near that and said, I would not be here for a caterer.

But it's interesting, because I think there was a lot of feeling that, of course, that restaurant should be able to decide who patronizes their store, who sits in it. Other people can see them. What if they were dressed in Klan robes? Shouldn't the restaurant be able to say, like, ugh, we don't allow people

to sit in our restaurant wearing Klan robes? Again, imagine this is one of the 19 states that does protect political belief. It gets a little messy at that point, don't it? It does. And that's why- Because then you can deny people sitting there who are wearing turbans. It's one reason why I really don't like including political belief in public accommodation statutes. Yep. But, and you said something in there in passing that I think is really important to highlight, which is freedom of association rights are not necessarily all that strong compared to

free speech rights. And you're so right. And in fact, really, freedom of association gets strong only when it is truly paired with expression. So freedom of expressive association, such as I'm forming a group like a Republican Party or Democratic Party or a student group that's a student group that's progressive on the environment or conservative on guns.

It's that connection of the expression with the association that renders the association rights so strong. When it's just pure freedom of association. There's a lot of case law that is basically going to tell you that state interests overcoming that freedom of association are going to be easy to find. For example, single-sex civic associations and things like that are not going to have a lot of freedom of association protection to take previous cases.

So yeah, that freedom of association interest when it comes to serving a sandwich is a lot lower than the freedom of association interest when it comes to forming a church or a political organization. They're gonna be treated very differently. And David, there was one thing I was kicking myself that we didn't talk about in the last episode.

We should have talked about the thing that wasn't talked about. A huge elephant was in the room at this argument. You and I have talked about it a lot and neither side wanted to bring it up. It's the social media bill cases. Yeah. it's the social media bill cases yeah you know all of these arguments are about whether someone can host speech on their website that they don't like and neither side wants to talk about how the other side are hypocrites because there are hypocrites too on this hypocrites may be too strong a word inconsistent is maybe just a better word because they actually i think do believe in their positions

but simply don't want to emphasize that part of the belief is actually what it comes down to so remember in those social media bill cases and disclaimer husband of the pod is involved in that case on the side of the social media companies. We're talking about whether the state can force the social media companies to keep up content that these sites would otherwise take down. I mean, it's incredible to me that nobody files that amicus brief in this case or in those cases. And that nobody brings it up at oral argument. I was doing some radio interviews about it. And the radio hosts were like,

wait, isn't this the same as the social media bill cases, but in reverse? And I was like, yes, it is. The conservatives want the social media companies to have to have stuff on their websites that they don't want. But they want to make sure that this woman doesn't have to have stuff on her websites that they don't want, but they want to make sure that this woman doesn't have to have stuff on her website that she doesn't want.

And vice versa, of course, the legal liberals in this argument think that the social media companies should be able to decide what speech they promote and accept on their websites, but not over here in this other case. It just blows my mind, David.

Yeah. Well, you know who sails through this whole thing smelling like a rose, not that I'm biased, but those of us who are consistent defenders of the First Amendment. Way to pat yourself on the back there. I'm going to go ahead and do it. I'm going to, but I'm patting you on the back as well.

It's not hard to harmonize these beliefs. It's not hard to connect them. And in fact, in my Amicus brief that I wrote, I did in fact talk about that there is, that this is a widespread issue on the use of government, the attempted use of government power to overcome free speech, to deliver messages or to protect messages that the government favors.

Yeah, I think there is a through line between the cases. And that's one reason why I do think it'll be interesting to see if Kagan writes anything separately here. Because... I mean, what's fascinating to me is that while the social media cases didn't come up in the 303 argument,

I guarantee you 303 will come up in the social media cases. Now, Florida has filed for cert. Nothing has happened on that yet. The Texas one is not pending at the Supreme Court at this point. Gotcha. Okay. Yeah, that was interesting. And the other thing that when we saw that hypo about a kid, can the Santa, can a black Santa, for example, say, I don't want to take a picture with a white kid who has a t-shirt on with the N-word on it. You know what that reminded me of? It reminded me of your Scott Sarah transgender hypo. Because it was how the identity of the person...

It's the exact same speech. Changes the message. It was brilliant. It's a brilliant hypothetical. Kudos to the commenter. Yeah, very good. And to all of you for grappling with this stuff. Because as I said,

what is interesting about this case to me is not the hypotheticals, actually. It is that either way, there are bad things that we will have to accept as a society. Either you accept Black Santa being forced to take a picture with a kid,

a white kid who has the N-word on their t-shirt, or you accept that there is going to be some amount of discrimination against people because of their race or their sexual orientation or other immutable qualities by people who don't want to do things for them. Now, that's aside from like serving them sandwiches, but make websites, take photos, create cakes, flowers, jewelry, I think. That's not great either. And so that's what's interesting about the law. When you're grappling with two bad outcomes and you've got to look at your first principles and

decide which set of bad outcomes you are more comfortable with, not because one is less bad than the other. I think they're both pretty bad outcomes, but because that's what we have these first principles for. And I think the speech principle pretty bad outcomes. But because that's what we have these first principles for, and I think the speech principle wins out over the discrimination principle. Right. And that's what I was going to say is the Constitution hopefully helps us sort out

these competing interests by placing such an emphasis as it does on the First Amendment and free speech and free exercise of religion. But yeah, one is, as I've talked about this, every time I talk about it, I get into the kinds of hypotheticals that the court got into. But what about this particular bad speech? What about that particular bad speech? And I just consistently cut people off and I will say, every single conceivable kind of bad speech you can imagine,

unless it's obscenity, child pornography, incitement, yeah, it's protected by the First Amendment. And that doesn't mean that we are disabled as people from competing against bad speech or from condemning bad speech or from boycotting businesses that we believe are treating speech in a way that we wouldn't agree with. None of that stops any of that. But the idea that you can say, well, I can spin out a hypothetical of bad speech that will make the hair, the remaining hair on your head stand up to such a degree that you're going to say, no, not that speech. Nope. Try somebody else. I will say, I am really glad this case is getting decided in 2022 and not 1962, or let me be more accurate, 1972. It's a lot easier for for us frankly um than it would have been then and it's why you see

the cases turn out a little differently but you know in the piggy park case for instance is an easy case in some sense but it's also worth mentioning that when you look at school desegregation which i think is the best example of this. Brown v. Board of Education has decided at best, I mean, I'll let you decide when you believe that schools were desegregated in this country or even started to become desegregated in this country. At minimum, it was 10 years after Brown that they even started. And that was the all deliberate speed decision, which is important because it also means that the law is not a leading factor, culture is. And so to your point, David,

that that's part of how the cancel culture conversation becomes so heated because culture is how we decide these things more than we decide them by law. And so if we say as a culture, discrimination is a chief virtue, then you do use that power not to go to businesses that are discriminating, even if it's legally protected discrimination.

Right. And, you know, from the beginning, and I quoted this recently, and yet another one of my French press is about cancel culture. I think there's only been a million. But if you look at it, look at it this way, that the whole system works is based on a version of a social compact where it says the job of the government, not the exclusive job, but a principal job of the government is protecting liberty. And then you turn to the American people and you say, the message is not, see, do whatever you want. The answer is instead, you have been granted a tremendous amount of liberty, exercise it prudently and virtuously. And that's John Adams' statement in his letter to the Massachusetts militia where he talks about our Constitution just isn't capable of addressing, fully addressing and containing human vice. It depends on,

we depend on a virtuous citizenry. And so that's why the cancel culture debate is so complicated. Sometimes saying, no, this is beyond the pale. This is horrible. We're not going to visit this business. Is the system working as intended? But that awesome cultural power, like all forms of cultural power, can be abused. And so the cancel culture conversation is constantly circling around, is that a responsible exercise in the cultural power that we are supposed to have in this system? Or is it an irresponsible exercise or punitive, excessively punitive exercise of that cultural power? And that's the complicated cancel culture conversation in a nutshell. Can I give you my unpopular opinion on another area

where this is a similar tension fight that we're having over culture versus law? You have a life tenure on this podcast, so you will not be impeached for this opinion. Good to know. Yeah, because the point is we don't want everything immoral to be illegal right and i think that is where the abortion conversation really starts grinding in those years is the sense that we want everything immoral to be illegal or we want a declaration that things are moral by forcing them to be illegal and instead of allowing some play within the joints

to borrow a term, that sometimes things are immoral and legal. Well, you've just nailed the conflict that the plurality of Americans feel around abortion. So you've just nailed it because the Notre Dame study that I refer frequently, Trisha Bruce, Notre Dame study, that's the best single study about abortion

to attitudes towards abortion in the United States, found in these interviews of hundreds of people, demographically representative, that my position, the pro-life position, that says that the law should protect unborn life, now with some narrow exceptions, but the law should protect unborn life, is a minority position.

And the much more robust pro-choice position that says that's up to a doctor and a mother up to birth is a minority position. And there's a big, big, big chunk of people in there that want to protect the right at some point. But what was so interesting about the study is they said not one participant, no matter how pro-choice, not one of them referred to abortion as a desirable good. Not one.

Now, they might have referred to the right, but not the act. Sure. But I think also therein lies more of that tension between immorality and legality where abortion is so hard because it's not an on and off switch. There's abortion at day one. There's abortion at week six. There's abortion at week 10. And so you're having to make that same decision every hour and every minute of that pregnancy up to 40 weeks. And you're asking that question over and over again. Is it immoral or is it illegal? Is this one immoral? Is this one illegal?

And that's where the conversation has largely fallen down. But my point is, it's actually a very similar in principle conversation about is culture supposed to do this or is law supposed to do this? Right. And culture, we cannot forget how powerful culture is. Even in the abortion context, the abortion rate fell

for almost 40 years through pro-life and pro-choice presidencies. With pro-life and pro-choice policies, it still fell and fell and fell and fell and fell. And that is the power of culture right there. And so pro-life movement needs to remember the power of culture, even as it rightfully focuses on the justice of laws. It can never forget the power of culture, which in many ways hovers over the law with greater authority ultimately over people's lives. And frankly, the Civil Rights Act of 1964 and 1965 are meaningless without the cultural movements around them. And Brown v. Board of Education proves that. You have to have a civil rights movement as well.

And there's, look, I get it. Those are also the product of the civil rights movement. Of course they are. But the point is that culture is what puts teeth in those. Culture is what actually then enforces them on that legal side. Yeah. Speaking of the majesty of the law, David.

Yes. Morvey Harper, man. So first of all, one of my students camped out, one of my undergrads. Oh, fantastic. She was number four in line. And I know you obviously weren't in DC last night,

but it was bad weather. It is rainy and cold and windy and miserable. She got there at 6 p.m. the night before the argument and was number four, which means three people got there even before 6 p.m. She slept in trash bags, said it was an absolute blast, both hearing the argument, of course,

but also the waiting in line. She said, you know, you form these relationships and you get to nerd out with fellow nerds. So just more details from the line waiting side of this, if you're curious. So David, do you want to do the same thing? Top level feelings. I felt like for all the reasons that 303 Creative was the worst argument of the term, by the way, lots of people in the comment section were like, oh, I decided to listen

to that oral argument, even though I'm not a lawyer, but I couldn't follow it. No, no, don't do that. That was a terrible oral argument. Every single legal person I saw on Twitter was like, dear God, this is a hot mess. After we recorded David, I started seeing all those and I was like, oh, well, I'm glad we're not alone in that. Yeah. Okay. So as if that's on one side of the spectrum where I thought the legal issues weren't really being teased out, the hypos weren't interesting. Moore v. Harper was at the other end of the list of the spectrum. Now, it is worth saying that one was,

this was pretty wonky. And the legal precedents, they weren't explaining that to you. They expected you to come into this as they did, having read all of the briefs, all of the amici. So in that sense, it might be a little hard to follow.

But in the, people came prepared. This wasn't a Senate hearing. People on all sides of the ideological spectrum were grappling with the issues in front of them. Fantastic oral argument and great advocacy all around,

even on positions that I think maybe got zero votes. Yeah, true. No, I felt the same way about it. I thought that this was, I thought that this was, in many ways, the nerdiness of the issue helped preserve the quality of the argument. Because there wasn't sort of this neat little quick to explain culture war parade of horribles. There was a parade of horribles to be sure here. But this didn't code in the traditional sort of culture war categories. It didn't. It had a lot of layers to it, a lot of historical layers to it.

And I felt like the justices were on their A game. I felt like the advocates were on their A game. This was the kind of argument that, you know, it felt like if you were going to participate in this thing and not embarrass yourself, you had to, you had to do your homework. And this was the A team, by the way. So we had four advocates. I mean, this is the who's who. Elizabeth Prelogger, the solicitor general. Don Verrilli, who argued the Obamacare case with much fame. Neil Katyal, a hugely famous advocate. And David Thompson, which again, asterisk for those who missed last week, I worked at Cooper and Kirk. David Thompson is a partner at Cooper and Kirk and a good friend.

So when it comes to David, I'm never gonna be unbiased, of course. But yeah, just, it was, these were the best of the best, man. Yeah, yeah, you could really tell. You could really tell. So here's my big impression. I think David did very well with a tough position. I think tough is being generous.

David did very well with a tough position and I'll just tough with a capital T, maybe with a capital O. We'll circle back. Yes. Yeah. So he did very well with a tough position. But it was, I'm going to be interested in sort of the concessions that they, what you think about the concessions that they made. Very interested in that. So I thought he did very well with a tough position. I thought Neal Katchell was fantastic. I've always been a big fan of his arguments that I've listened to. that I've listened to. And what really stood out to me was how much he kept going back to our friend, Judge Sutton, which we're going to get into when we talk about more of the details.

But I thought he played a strong hand and he played it well. And overall, I think in the independent state legislature theory, writ large, the big version of it is going down in flames. How much of a small version of it is retained is the open question to me. But sort of this big version is going down in flames.

Some small version of it might survive. What were your big picture thoughts? I think what I loved was that all of the Twitter chicken littles, the sky is falling, democracy is about to end, this conservative Supreme Court is about to gut election law, and now all these partisans will just certify elections for Donald Trump every time. This argument made that a joke, Truly. Anyone who was saying that looks as foolish as they could and like they don't know

what they're talking about, that they hadn't read the briefs, that they weren't aware of the issues that were really at stake in this case. And that made me quite happy, obviously. Because that kind of, that to me is the same thing as this is the most

important election of our lifetime. Stop. Stop raising the stakes on stuff that is simply untrue. It gins people up. It undermines institutions. They lose faith in what's happening for nothing, by the way. Remember when the 2022 midterms were the most important election of our lifetime, despite 2016 and 2020 happening, mind you. And 2018, yeah. And now everyone's like, oh yeah, well, anyway, whatever. Didn't matter that much. Yeah. Okay.

It's been much more, have we incrementally moved beyond Trumpism? Right. Away from this is the most important, you're right, exactly. I am going to go further than you on Neil Katyal and say that as of right now, I am tentatively giving Neil strongest argument of the term. And I want to define that a little bit,

which is, it's a delta question for me. It's the position you came in with versus the argument you made. How much help did you do your side compared to when you walked in? Because if you come in with great briefs and then an argument, you just don't give anything away, even if you were incredibly articulate and brilliant,

I don't know that I can give you best argument because there wasn't any change. And even if you won nine zero, unfortunately you won it on the briefs or you won it because you had a good, a good side. Here, I thought that, and it's what I've been saying all along, David, that I haven't understood why people keep hiring known liberal advocates to then argue very liberal positions in front of a court where that's just not going to be persuasive to five votes. And it doesn't make any sense to me. Man, Neil Katyal took that memo and put it on steroids. He is, I'm not going to call Neil like the most

liberal guy in America or anything, but he's certainly, I think, considered on the left side of the legal ideological spectrum. And he came in and made a conservative argument to conservative justices. He knew who he was targeting. He had all of their previous quotes in previous cases about the sort of majesty of states ready to go in so many of those cases. And more importantly, David, as you said, he could not get Judge Sutton's name out of his mouth fast enough in referencing that book that Judge Sutton, friend of the pod, talked about on our podcast.

I guess it was this year, but at the very beginning of this year. Judge Sutton, chief judge of the Sixth Circuit Court of Appeals. Yes. And he wrote this great book on the laboratories of democracy and the importance of states having that separation in federalism and that they're not just mini executors of federal law, that we want them to do things differently than the feds. And boy, Neil Koyal was citing that book like it was the Bible and he was a

preacher. And so again, that delta of the position he walked in with versus where I thought his side ended up, just incredibly strong. And there were three arguments mostly on that side, Neal Katyal, Don Verrilli, and the Solicitor General's office. And just not a lot of question to me that Katyal did the most help, put the most points on the board, which is unusual because normally

we leave these arguments saying that the Solicitor General's office put the most points on the board. And this is one of those rare cases where that wasn't true. Okay, you ready to dive into some... Oh, wait, I didn't say how I thought it was going to turn out my bottom line up front. Zero votes for the independent state legislature theory. The big one. And the big one, I think you

and I agree, is that the state legislatures get to decide redistricting without regard to the state constitution, that they are only regard to the state constitution, that they are only bound by the federal constitution and by federal courts when it comes to redistricting. Nope, that didn't get any votes that I saw. Right. There could be some interesting concurrences of developing that more or something, but nobody was hopping on that train. that more or something, but nobody was hopping on that train. The weak version, which I don't think is a, the weak version is just the state legislature doctrine, not the independent state legislature doctrine. So as far as the state legislature doctrine, yeah, there's nine votes for that too. That's what the constitution says, that it's up to the state legislatures to draw

those maps. Congress can always weigh in on those. And the question then for the court and what they're going to decide is what role a state Supreme Court has in throwing out those maps. Is it any role or is there something the state Supreme Court could do that is so egregious and so outside what the state constitution or statute says the federal court can step in and say sorry that's not law you were doing you were acting as a de facto legislature and so we're gonna throw out that state court ruling on a state um state question that is what they're grappling with but David, and this is maybe my closer call, North Carolina's state Supreme Court ruling stays in place.

I don't know that there are actually going to be dissents. There might be a couple or there might be concurrences that just throw a lot of shade. Yeah, I read, so I started watching the oral argument a little bit after it started. So I'd already seen some Twitter commentary about it. And the Twitter commentary that I was seeing said that Alito, Thomas, and Gorsuch are all in for the independent state legislature theory. And I was really confused by that as I was listening to the argument because that was not communicated to me at all. Now, maybe I'm way off and maybe they're going to write in favor of it. But to me, you know, when I was, David Thompson wasn't even actually arguing for the independent state legislature doctrine as it was bandied about in the 2020 election contest, which is

the legislature is a complete free agent divorced from all other lawmaking processes. David Thompson was essentially saying, no, if it's a hoop jumping exercise, his view is the independent state or the state legislature includes the governor. And- Who can veto it. Who can veto, right. So that when he talks legislature, he was talking about bicameralism and presentment, which is the fancy way of saying two houses pass a bill and present it to the chief executive for signature.

So he wasn't even going with the full-on independent state legislature doctrine. And his position seemed to be, look, if what we're talking about is, and I believe the phrase he would use was hoop jumping, that House has to pass, Senate has to pass, governor has to sign, all of that is totally fine. But what we can't have a state Supreme Court doing is weighing in on the substance of the regulation passed by both houses of the state legislature and signed by the governor. So there's a procedure substance distinction. The Constitution draws the line in preventing the state court from engaging on the substance.

And that was, to me, the fullness of his theory at this point. And that's where I thought Kochal was really effective in basically saying, wait a minute, there's just no history at all behind the idea that in this particular area, state Supreme Courts have a substantive hands-off on interpreting their own state constitution, that this is not a get-out-of-state constitution provision of the United States Constitution. And he was really strong, I thought, on that point, sort of demonstrating the novelty of the independent state legislature argument. Although, again, not even David Thompson was arguing the full independent state legislature doctrine. It was both. It is the great strength of David Thompson. He's just a brilliant person

who can keep a million things in his mind at once and explain very complicated concepts, not boil them down. Some complicated concepts can't be boiled down. They just got 27 pieces and he's a really good person to do that. The problem is the Supreme Court doesn't tend to like anything that requires 27 pieces. But a fascinating philosophical point that David was trying to get across was the bicameralism and presentment is legislative, as in the part of the governor as the executive's role is a legislative

role. So that doesn't contradict his position or the text of the federal constitution, but rather that is a legislative function that has been given to the governor. Again, in practice, that's not going to matter to a lot of people, but philosophically, I was very interested in that. And he has this, his best case, I think, is this lesser case where, is it Maryland or Delaware? Sorry, one of the little states. They pass a state constitutional amendment that says that they won't follow the 19th Amendment if it's ratified. Super adorable, clever idea, state. And so the state legislature does as such.

And the Supreme Court holds that, no, in fact, the state constitution does not bind the state legislature. Now, the problem with that, of course, is that because it violates substantively the federal constitution as amended by the 19th Amendment. But it's a really interesting case to think about because this is just that other side of the same coin.

What if it doesn't violate it substantively? What if, though, the power that the state legislature is exercising is derived from the federal government so that they are, in a way, acting in a federal capacity when they are drawing redistricting lines and they're acting in a state capacity when they're drawing state redistricting lines? And you could have two different ones. This, of course, is part of Neil Katyal's point about the blast radius, as he called it, of this theory. A very small part of the blast radius

is that you would have to have voters voting separate districts for state and federal offices and maybe two different elections. And again, that's sort of the least of the problems of this theory. And let me just say a couple of things on David's points on the substance versus procedural. Right.

Because I think this gets to where he had to make these arguments, but nobody was coming with him. So as you said, his point was that the veto is a procedural, presentment is procedural. You have to present your bill to the governor for him to veto or not veto it.

That's not a substantive thing. So for instance, a line item veto would be fine, but if the governor somehow just took the bill and rewrote a portion of it and said, now this is law, nope, that would be substantive. That's not simply presentment and veto or not veto. Well, the problem is the Supreme Court really hates substance and procedural distinctions

because they're really hard to decide when something is substantive or procedural. If you just think about it for two seconds, it'll become very clear why that's not a bright line. So David had an answer to that too. This is where I get to the sort of 27 pieces. He's thought through it all. Right, right.

He had answers. But it gets really complicated. He had answers to all of it. And they were satisfying in a sense, except when you step back and it's, you know, it's not a Monet, it's a Jackson Pollock. So his point is, no, no, don't worry about the substance and procedural problems

because this is going to be a formalist test, not a functionalist test. The formalist test is, we're just going to write down right now what all those procedural things are. So it won't be whether they feel procedural in the moment. It will be that in form, they are procedural, not in function.

And you have at one point, Justice Barrett saying something that I think everyone was thinking, but her delivering it was just delightful, saying, as a former civil procedure professor, I can tell you that line is very hard to teach to my students, implying that perhaps lower court judges may, or her students may become judges regardless. Not a good sign of where Barrett was now on the flip side clearly alito gorsuch and thomas weren't happy with what the north carolina

supreme court did right and interestingly neither was the chief justice i I thought Roberts felt a lot more strongly that the North Carolina Supreme Court did something pretty dumb here. And he asked more questions in this argument that we've seen him talk in a lot of other arguments. And he was concerned with the, whether the state Supreme Court had come up with a judicially manageable standard, simply saying that you have to have free and fair elections, then that's the only words in the state constitution.

And then saying, you have to have free and fair elections. So this map won't do. We think it's too partisan. Is that a judicially manageable standard? Right. And so then if you're counting at home, you've got Kavanaugh left holding things a little closer to the vest but you know his questions to David Thompson were things like this seems to go further than Bush v. Gore

what's your best case on that those are generally not the questions that you want it doesn't mean you've lost the person, but they're not on your team, certainly. And I felt like where they ended on David Thompson's argument was where the rest, all three other people

who are going to stand up and argue in this three hours, they're never really going to talk about the independent state legislature theory in any of its forms again. It's all going to talk about the independent state legislature theory in any of its forms again it's all going to turn on whether the u.s supreme court has a role in saying whether a state supreme court has gone so far outside of its bounds and whether that standard should be an egregious departure or a lack of a judicially manageable standard how deferential it is and whether that same standard applies to the constitution, the state constitution, as it would to a state statute. Interestingly, Verrilli and Katyal differed on that constitution

versus statute question, and they offered Prelogger the opportunity to be a tie-breaking vote. That was a nice punchline at the end of the very end of the three hours. And she says, I love getting to vote. And I think it was Kagan who was like, no, no, you're only getting to vote on that side. 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.

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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. Terms and conditions apply. Yeah, there was some good humor in the argument.

There was a lot. And something, again, that according to Twitter was about the end of the republic, everyone in the room seemed to be enjoying themselves and enjoying being around colleagues who were smart and grappling with this, not Senate judiciary hearing style hypos,

but every justice was engaging with every advocate in a pretty sincere way. Speaking of those humor moments though, Justice Gorsuch does not know what Lollapalooza is. Even though it's like core his age demographic. I don't understand. I was not getting his Lollapalooza comment and I'm glad you brought that up. I can read that. Yes. Yes. And lastly, and most importantly, the dog never barked. The Federalist Papers have three different Federalist Papers on everything. He's been talking about the elections clause.

Not a person said anything like that. They were trying to create this strange animal. This isn't looking like into a crowd and trying to pick out your friends. This is like looking into the Lollapalooza crowd and picking out everyone who speaks 15 languages. Okay, Set aside. I don't know why he went with Lollapalooza there. And I'm, I kind of get what he was trying to get at, but frankly, he didn't articulate it super well. His point is, uh, there's a lot of Federalist papers and, um, simply trying to read in what you want into

these three Federalist papers is they're, they can't do the work you want them to do. And then it was the most Gen X reference ever with Lollapalooza. But then Justice Gorsuch keeps referring to it as a Lollapalooza. Yeah. As in like the Article A. Yeah. Like, well, if we're going to a Lollapalooza and you're like, nope, nope, that's, uh, sir. No, that's not right. He goes,

I don't know about Lollapalooza. You want to touch the Lollapalooza? Yeah. Nope. That was a Lollapalooza. His kids are going to have a field day with that one. Sorry, Justice Gorsuch.

Your clerks really let you down there. Actually, no, you did. You were in your 20s for this. No excuses. Did you ever go to any of those? Lilith Fair, Lollapalooza? Lilith Fair was not my scene, Sarah. This might come as some surprise to you, but...

It would be now. Lilith Fair? No. No, no, no, no, no. Gosh. I mean, you're talking about the last holdout on hair band America. I mean, come on. All right. Fair enough.

Austin city limits is one of the best music festivals. I've been to jazz fest. I've been to a ton of Dave Matthews shows. So I'm, I never got to go to Lollapalooza or Lilith Fair because obviously my parents weren't going to let me do that. Not in Houston and by myself, but you know, a girl can dream. Okay. By the way, for other humor points, when Katyal starts going through the seriatim questions after sort of the main argument, they still go through each justice in order.

So Justice Thomas is up first and the Chief Justice says, anything additional, Justice Thomas? Or anything to add, Justice Thomas? And Justice Thomas says, no, actually, but I've been waiting 30 years to ask this guy a question. So he just goes ahead and starts asking him questions. Because if you remember, Justice Thomas, not a big question asker in his pre-COVID years. Yeah, he never asked questions. And so that was a complete callback to old school Justice Thomas. And really, it's one of those things where something is 50 times funnier when it's generally kind of funny,

but then in a tense situation, when something lands as kind of funny in a tense situation, everyone just has like this cathartic laugh. And that's the way that was. It was really... And Justice Thomas's laugh is so incredible and infectious. It is this deep, booming, huh, huh, huh. It's like what you think Santa Claus laughs sounds like. Yeah, absolutely. Or should sound like. Absolutely. No, I'm with

you, Sarah. The only real discomfort that I saw from the justices was at this notion that, wait a minute, can a state Supreme Court do anything at all in connection with its scope of judicial review? I did not see any real sentiment for the idea that the state Supreme Court would have no role of substantive judicial review of legislative past and gubernatorially signed or passed over a veto state legislation. It was, do we give them all of the discretion

or is there something that we're going to claw back, which is a really far cry from the independent state legislature doctrine. Well, and this was even Justice Alito during the Thompson portion of the argument said, but what about questions of law that state courts have to grapple with? You know, a lawsuit's been filed about this, and now they have to determine what the state legislature meant when it said regular business hours, for instance, would be a good example of something that the state legislature does pursuant to the elections clause. Polls will be open during regular business hours. But now there's a question, is 6 p.m. a regular business hour? And that question goes to the state Supreme Court. They're now not allowed to interpret that, but the state legislature doesn't have to do anything more. So what happens to that? Obviously,

that's a nonsense outcome. Now, David Thompson's answer to that is, um, our theory does not relate to statutes. Uh, oh. Um, and then he says also there might be some non-delegation doctrine theory there. Katyal gets up and Alito asks sort of a reverse version and says, okay, the court strikes down a map as just unfair and says the essence of the constitution implies fairness. And we don't think this map is fair. And, you know, would that be okay? And Katyal says, yes, there are other restraints and other types of popular accountability. And it's not simply that the state courts don't then have any say. And then Alito says, but,

and this is sort of what we talked about in our run-up, David, you don't know ahead of time who the bad actor is going to be. So you have elected judges in some of these states and they could just decide that they want a map that's going to help their team more than that team. And it may be what they even run on, for instance. And so right now, there's this assumption that, oh, maybe the state legislature would be the bad actor every time.

But that's not necessarily going to be the case. So Alito's asking, at some point, doesn't this simply transfer from the legislature to the partisan elected judges? And Kyle's answer to that is there's checks like the amendment process, Congress could supplant anything that the state Supreme Court decides. And of course, Alito's response is, yeah, but Congress could also supplant

what the state legislature does. So that check exists on both parts, parties. But I thought that was a really good colloquy that Alito had with both sides, again, showing, I thought that was a really good colloquy that Alito had with both sides, again, showing, I thought, what a good, expansive argument this was. And then, of course, the Chief Justice going back to this idea

that this wasn't a judicially manageable standard. You have to draw a map that comports with free and fair elections, and this ain't it. Okay, how's the legislature supposed to fair elections and this ain't it okay what's how's the legislature supposed to take that and do anything with it um and katyal in one of the nice juditsu moments that he has quotes the chief back to the chief he quoted alito or no he quoted thomas back to thomas at one point as well um but here he quotes back to the chief that rucho case

that we talked about where they upheld or rather said that the u.s federal constitution does not bar partisan gerrymandering um and he said sir you know what you were afraid of was that everything was going to end up here at the supreme court it was going to be seen as political if you follow his theory that same result that you feared from rucho would happen here. Smart. And then he's quoting Sutton throughout, why you leave this to the states. But David, I did have two, well,

first of all, two thoughts, two questions on just small things, on word choices, really. One, Justice Gorsuch kept using the word melange throughout the argument. Okay. Have you been hearing him use the word melange all term? I don't feel like I've heard him say that, but all of a sudden,

he at least said it twice in this argument. Interesting. The main use of the term melange that I'm familiar with is in the novel Dune, which- So that's so weird. I did not know that, but Scott made that joke to me and I didn't get it.

He was like, maybe he's been reading Dune. I was like, I'll definitely laugh along with my wonderful husband's joke and make him feel loved. I did not get that joke. And everyone listening to this, you know that my husband doesn't listen to this pod. Do not email him and tell him that I just laughed at his joke that I didn't understand.

That would be a breach of our relationship. Listener to me to host relationship. Don't do it. No, don't do it. And I'm going to know if you did. Yeah, you'll know. But it's the spice melange. It is the spice. It is the spice.

It is the most important substance in the universe, Sarah. So Justice Gorsuch may not know Lollapalooza, but he knows Arrakis. So good on him. The other thing is, do you say something is going to wreck havoc or wreak havoc? Wreak havoc. What do you say?

I think I say wreak havoc. Yeah. I think I do. Anyway, the Solicitor General used that phrase, but now I'm forgetting which one she actually used. I wrote down wreck or wreak. I think she said wreck and I was like, isn't it wreak? But now I don't want to accuse her of saying wreck

when I can't actually remember. I just remember hearing it and thinking, that's not the one I say, I don't think. Yeah, well, we will be told which one it is and with universally kind emails and comments, if the Belknap controversy is any... Speaking of the

Belknap controversy, I'm looking at the list of 17 people impeached by the House. Yeah. And there's Belknap. And there he is. There he's sitting right there. Well, two other points that were raised in the argument. One, I thought Don Borrelli did a nice job in raising a thoughtful point,

which is that these state Supreme Courts are allowed to have their own methods of interpretation that aren't yours. And this goes to the Sutton overall philosophy, I would say. But right, like the Supreme Court can say, we're an originalist textualist court. We care about history and tradition. And the state Supreme Court can be like,

yeah, we're not. And that's not really up to the US Supreme Court to correct a state Supreme Court, not just on substance, but on, you know, to reject their methods. So when they say that a free and fair election bans partisan gerrymandering, you would have to say that that's so law-free, if you will, provides no manageable standard

that no reasonable interpretive method could get there. Not just that originalism obviously wouldn't get there, textualism wouldn't get there. But that no method of interpretation could lead to that outcome. And then on the pre-logger argument, the part that I found most interesting and helpful in hers, and this is, it's obvious, but she phrased it in a helpful way. She said, when legislative power is vested, it is presumed to fall under those other checks. Right. And think about it in the same as Article 1 vests the legislative power in Congress. There's no independent Congress doctrine. Right. Because it is within that constitutional structure. Now, David Thompson's rebuttal to that would be that, yes, at the federal level, that is true because it's all within the same document.

It vested in the same document, vests the legislative power that also vests the judicial power in the Supreme Court. Here, that document is what's vesting the power in the state legislature. And then you have a different document, the state constitution, that is putting those checks on it, Justice Jackson coming in and saying, yeah, but how do we even know what a state legislature is if not for the state constitution? So clearly that federal constitution

is referencing and incorporating at least parts of the state constitution or else there's no such thing as a state legislature. Yeah, you know, the way I, and I thought General Prelogger's comment was distilled things very well because- She's not a general. Solicitor General?

Yeah, she's not a general. Don't call her a general. Well, okay. What's the, so did you use, what term did you use for Attorney General for General Sessions, for general sessions, for attorney general? Sir, boss, or Mr. Attorney General. Okay. When I was being sassy. Okay. Ms. Jackson, if you're nasty. So I'm with you. I'm with you. I am actually quite with you

on this. Don't call them a general, but isn't that the conventional manners of Washington? Call them general? Yes, and it's wrong. And you can't change if you don't change with your own heart and your own self first, David. I'm with you. You change the world one at a time. I'm with you.

I'm here to preach the gospel to you. Say the full thing. Say solicitor general prelogger if you want. Okay, I'm with you on this. I'm glad we're on the same page because I've always been uncomfortable with that. I hate it. I don't like Leader McConnell.

Like I don't like that additional honorific. But anyway, I don't, I'm not a huge fan of honorifics in our Republican form of government. But anyway, so I'm with you. Okay. But Solicitor General Prelogger, to use her full formal title, I thought distilled it really, really well. And it just gets very hard to argue that those short provisions of the Constitution were intended to lift state legislative process from judicial review. Like that was the intention of the framers of the constitution to lift this

from judicial review. That seems to me to be the heavy, heavy lift. And if it's subject to judicial review, then it's subject to judicial review according to the relevant law. And the relevant law is going to include state constitutions. And so that's where it's just, it's such a heavy lift to say those words, especially divorced of any kind of real evidence from the historical record that says that we clearly intended this to exempt the legislatures from any form of meaningful judicial review. That's where you just got such a heavy lift. And David, you talked about the concessions that David Thompson and his team made and what I thought of them. So obviously the first concession was the gubernatorial veto

would still stand under the strongest form of their argument. And the chief even says, I don't know why you made that concession. Now, I don't think he was saying because I would have been with you, but for the concession at all, but rather saying, doesn't this undermine your entire argument? Because at the point we're suddenly including the governor, why can't we include the state Supreme Court? I do think he, again, had a good answer to that, which is no, no, no. This one piece of the governor's powers is in fact a legislative power. And most of the legislative powers are given to the legislature. But this one legislative power is actually given to the executive branch. So it's not a concession in that sense, but that was a tough, the chief

justice maybe wasn't buying that one. But the other concession that they made that came up repeatedly and that the other side, I mean, Katyal just battered him with it, was that they conceded that this was a fair reading of the law, a fair interpretation of the law of the state constitution by the state Supreme Court, that free and fair elections barred partisan gerrymandering. They were like, fine.

Now, they conceded that because they wanted to tee up the independent state legislature argument, meaning they can do whatever they want. They don't have the power to do this. Let's even say they're right. They don't have the power. Now, the problem is you've now now if you're sitting there and you're david thompson listened to three hours of argument and that's not going to happen fetch is not a word the justices are going to adopt for you um i'm going to go more mean girls than dune i suppose

so you know you get these three minutes or so of rebuttal time you reserve time from your argument for rebuttal which used to be meaningful when there were actually time constraints but nevertheless this was one of the more important rebuttals i will say in any oral argument normally they just get up and are like i want to address this and i felt like this wasn't clear and this time dave was like i just want to be clear we only conceded that that was a reasonable interpretation of the state constitution when we were arguing points, you know, our arguments one and two, maybe three. However, if you reject those, we'll fall back on our argument number four, which is that this was not a judicially manageable standard and they were acting, it was an egregious departure from any reasonable interpretation of the law, in which case we don't concede that it was a fair reading of the state constitution.

I was like, that is an important thing to say in your rebuttal. Yeah, yeah, absolutely, absolutely. And I just want you to know, for the record, Sarah, there are mean girls in Dune. They're called the Bene Gesserit Order. And- They do sound mean. They can be.

Some of them can be quite good but oh my gosh do not as we learned from mean girls the movie some of the plastics could be good in fact all of the plastics turned out to be pretty good yeah i've forgotten everything about the movie but i can tell you what you need to know about the benny jessaret order my favorite uh the ending to mean girls where the the dumb one or whatever, like they each find their new clicks, right? And so the dumb one is now giving the weather report and she's holding her boobs and massaging them

because she said her boobs could always predict the weather. And then she's like, well, not so much predict as what the weather currently is. So she's out in a rainstorm massaging her boobs and saying, there's a 38% chance it's already raining. I hadn't forgotten all that. Well, but David, I didn't get to tell you

the most important thing I learned today. And what is that? Gum expires. You did not know that gum expires. I did not. And I put some gum in my mouth and it wasn't crunchy. So Carly and I had a thing on the 2016 campaign. We don't know how to explain the difference between the gum that we like and the gum that we don't like, except to refer to the gum we like as crunchy gum, you know, the kind that has the coating and it crunches when you bite into it. Yeah. So we like crunchy gum. So I only buy crunchy gum. Um, and so I bit into my crunchy gum and it was not crunchy at all. I will say, which I'm not sure that means it's expired. Um,

and then the taste hit me. That was. That was not the right taste of gum. And so then I started looking on the package to see if they included an expiration date. I don't know how long, you know, from when I bought it to when the expiration date was because presumably gum doesn't expire very quickly. I think there's a chance this was Carly's Crunchy Gum

because the expiration date was 2018. Wow. This gum was not good, David. I will say, and this has been the subject of conversation in Dispatch Slack, that expiration dates are generally a scam. They are. Yeah. Totally. I have actually someone I went to law school with. She is a food law professor. And what she writes about a lot is these regulations and their inconsistencies on best use, best used by, expired by, and all of that. And it's, it is so not derived from what you hope it is. Yeah. So it's a scam, but there are still limits. There are. There are still limits. but there are still limits.

There are. There are still limits. I did find, I was at my parents' house. I forget, did I mention this to you? I think I found, I think I did, that I found ibuprofen that had expired quite shortly after I had left high school. I'm pretty skeptical of medicinal expiration dates, but that I would not take.

Actually, no, it was NyQuil and I did take it and it was useless or Sudafed. It was Sudafed and I took it. Yeah. Oh, that's funny. It was Sudafed. I took it. It did nothing. Now then I looked it up and I looked at the sort of half-life of Sudafed and it looks like it should have worked. So I don't know why I didn't, I don't know if it was the expiration date, but it expired 20 years ago. That's okay. I'm going to pay attention. I didn't have a choice. I was sick. It was late. And I was like, F it, worth a shot. I'm going to, I'm going to pay attention to 20 year past expiration dates. I don't know where the line is, but I know it's well short of 20 years. So on that note, on that note, and I'm glad,

I'm glad for the correction on general that's you're welcome david i feel like you've liberated and i'm glad to learn about spice melange the spice melange yeah it's the it's the foundation of the conflict feels like that's not really the correct usage of melange in a sentence but sure it's all i can think of though i can't even remember the alternative i even read it in my notes. All of a sudden you'll just see like, Gorsuch, Melange, question mark. And then a second time,

Gorsuch, Melange, exclamation point. No doubt referring to Arrakis. No doubt. All right. Well, thank you all for listening. We're going to be back next week and we're going to have an immigration day because there's some consequential stuff

going on in immigration. Judicially, might even spare a minute to talk about this immigration compromise that was reached that, I don't know, Sarah, probably dead on arrival. The Tillis Cinema immigration compromise. Anyway.

They say it's not. They say it's not. So we'll check in on that as well. So we're going to have an immigration day on Monday. So you're not going to want to miss that. Nobody wants to miss immigration day. It's actually Tuesday for them. It's Monday for us.

Monday for us. Sorry. Immigration day, Tuesday. Don't miss it. Please rate us. Please subscribe. And please check out thedispatch.com and we'll be back Tuesday.

We'll be back Tuesday.