Advisory Opinions - Is Trump Going to War Against the Rule of Law?

Episode Date: March 18, 2025

In this less-than-cheerful episode, Sarah Isgur and David French discuss threats to the judiciary external and internal, exploring the Trump administration’s legal maneuvers against law firms and drawing parallels to historical events like the Alien and Sedition Acts. The Agenda: —SCOTUS Update: All B cases —A judge’s gamesmanship on birthright citizenship —Leave Justice Amy Coney Barrett’s sister alone —Paul, Weiss and Trump’s threats to the rule of law —Venezuelans are being deported —Defying TROs —Integralism rears its ugly head Show Notes: —Chief Justice John Roberts early tenure interview in The Atlantic —Sarah’s op-ed for the New York Times Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

The truth is, no one does it alone. And why would you want to? We all need someone to make us believe. Hashtag, you got this. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And David, this might be one of our grimmer podcasts that we've ever done.

Our lineup today is not happy, friendly, fun time. No, it's not. In fact, when you put the lineup in Slack, Adam said, this is grim. So we're going to do a little SCOTUS updating. We're going to talk about threats to the judiciary, internal and external. We're going to talk about the takeover of the Harvard Federalist Society chapter by common good constitutionalists. And then look at the very end, we kind of have some fun update on the SCOTUS lottery for seating and how that's going. So stay to the end if you want to smile a little, I guess.

All right, David, let's start at the top. SCOTUS update next week. We have another round of oral arguments. This will be the second to last oral argument sitting of this term. Some cases that we'll be looking at, racial gerrymandering, non-delegation doctrine, reverse free exercise, where the charities in question

want to be considered religious institutions to get a special tax exempt status because they're religious. I don't know what you want to call those, like B cases? Yeah, we don't have a huge number of A cases that we're waiting on for this term. And that's pretty normal. We normally have a hot term and then followed by a cold term. It's not that they try to do that necessarily.

It's just sort of the way it tends to work out. And this is definitely the cold term. You know, it's interesting. Two years ago, this would be a volcanically hot term based on the TransCare case in Tennessee alone. That would be, I mean, people would already be lining up outside the court to talk, you know, to protest that. But it is remarkable how the political salience of that issue has changed to the point where

very few people are talking about it or even appear to be anticipating it. And that was sort of the grade A hot case of the term. Well, and we kept noting that this was a cold term. And but it was going to be in an election year, right? And you want those cold terms to line up in election years because of the potential for an emergency docket case related to the election. So we're all holding our breath, doesn't happen. Now I would say I'm still holding my breath for emergency docket stuff. Whether it ends up really the hottest ones come this term,

they might actually make it till next term, maybe. I kind of doubt it. I bet that we're really looking at over the summer for some of these bigger emergency docket cases. But we never really considered the emergency docket for the purposes of cold term, hot term. Maybe we should start. Okay. Speaking of the emergency docket, we also got the filing from the government on the birthright citizenship appeal. This came from Sarah Harris was the only one who signed it. She's the acting Solicitor General. Solicitor General nominee John Sowers had his hearing, but he hasn't actually been confirmed yet.

Unusual to see only one name on a brief from the Department of Justice. Now this, remember, is going up in that emergency docket form in the preliminary injunction. I'll just read this one paragraph because they are actually not talking about birthright citizenship at any point in this filing. They're not defending it. This isn't on the merits. This is on the universal injunction aspect of it, which I think is very smart. Universal injunctions have reached epidemic proportions since the start of the current administration. Courts have graduated from universal preliminary injunctions to universal temporary restraining orders, from universal equitable relief to universal monetary remedies, and from governing the whole nation to governing the whole world.

District courts have issued more universal injunctions and TROs during February 2025 alone than through the first three years of the Biden administration. That sharp rise in universal injunctions stops the executive branch from performing its constitutional functions before any courts fully examine the merits of those actions and threatens to swamp this court's emergency docket. The court should stay the district court's preliminary injunctions except as to the individual plaintiffs and the identified members of the organizational plaintiffs. And if the court concludes that states are proper litigants as to the individuals who are born or reside in those states, at a minimum, the court should stay the injunctions to the extent they prohibit agencies from developing and issuing public guidance regarding the future implementations of the order.

So David, this is a very modest request from the Solicitor General's Office. They're not litigating whether birthright citizenship is protected by the 14th Amendment, whether you're supposed to look to history, text and tradition, whether the president alone would have the power to do this or whether Congress would need to weigh in on it. None of that is in this.

This is all about the scope of relief that, I mean, look, I find this pretty persuasive in a lot of ways, even though you know what I think about the birthright citizenship order in general. But, I mean, I'll just take that one sentence again. Courts have graduated from universal preliminary injunctions to universal temporary restraining orders. Here's what that means. Preliminary injunctions are immediately appealable. Temporary restraining orders generally are not. So when these district courts are claiming something as a TRO instead of a preliminary injunction,

they're often doing it so that it's not appealable. Now, what you're gonna see from the administration, and we'll talk about one of these later, is that they're appealing them anyway and saying, you can't just label something not appealable if in fact it is a preliminary injunction ish type order She's right about that. Then the next one is from universal equitable relief equitable relief is when a court uses its equitable powers You know says don't do X you must do X

Says from universal equitable relief to universal monetary relief, obviously referring to the USAID, where the judge somehow used a temporary restraining order to say that the government had to pay out $2 billion. That's of course the order that got all that attention because Justice Barrett and Chief Justice Roberts joined with the Kagan Sotomayor Jackson group to basically tell the district court to try again, but did not tell the district court they couldn't do that. Kind of told them they could as long as he defined it better. Didn't say that he couldn't.

I don't know. Somewhere in between. We'll see. Yeah. And then her last one is from governing the whole nation to governing the whole world. We'll get to some of those immigration orders here in a little bit as well. I don't know, David, what's your take? Did you find this persuasive?

Oh, I'm... There are two things happening at once here. I'm absolutely opposed to the administration's position on birthright citizenship, and I don't like universal injunctions. We've talked about this for years on this podcast. We have read penetrating circuit court opinions that are taking on universal injunctions. We have talked about this for a very long time. So on the one hand, I think the birthright citizenship order is blatantly unconstitutional. On the other hand, I don't like universal injunctions from district courts. And so, and I think that universal injunctions,

there has been a need for a very long time to pare down this injunction authority that district courts have taken upon themselves. And so, yeah, I do think there is a need for clarification on the scope of a district court's jurisdiction to enjoin administrative acts. So it's funny though, Sarah, because we'll get to this in a minute,

some of the administration's best arguments are process arguments. And just put a pin in that. Let's just put a pin in that, okay? So some of their best arguments are process arguments, and we'll put a pin in that for later, after the break. But the other thing I just want to point out is when she says there's been more injunctions entered against us in X amount of time.

In the month of February than the first three years of the Biden administration. But you also have to recognize that there was an intentional shock and awe effort. I know. To pour these things into the public square. So a bit chicken and egg on that one. A little chicken and egg there. But nevertheless, it's a hell of a stat. Very much like to see the Supreme Court do two things, uphold birthright citizenship,

as currently understood, and to narrow the scope of universal injunctions. I'd like both of those things. Also, can I just have like a moment of like personal privilege? There is no such thing as a universal temporary restraining order. That is definitely not a thing. So if you're going to do a TRO, it is for one specific person in a very limited amount of time for a very specific act. That's not what these judges are doing. And I don't want to have a universal statement. But generally speaking, David,

if I see a district judge enter a temporary restraining order against the administration, I'm probably not going to agree with what that judge was doing is my guess. It is now at least a sign that that judge is acting, I think extra judicially isn't the right word, inappropriately. It feels to me like it's gamesmanship. Great, yes. That's a better term maybe. But the TRO is like a giveaway to me. Yeah, it's almost like the judge is engaged

in a litigation tactic. Yeah, yes it is. Yeah, yeah. So that's how, so yeah, I'm with you. And again, we'll just mag us best legal arguments right now are process arguments. And and we'll get to that. So I want to read two tweets that we're then going to disagree with, even though on some of on a little nugget of the substance here, we're going to agree. First, I'll read from Newt Gingrich. Those upset by the emerging dictatorship of district court justices, behaving

as though they were president, should read the Judiciary Act of 1802. Jefferson and his party completely revised the court system and abolished a series of federalist judges they deemed illegitimate, a warning to the current out-of-control judiciary. Just a note, if you remember to do the history lesson, Adams, on his way out the door, has the Midnight Judges Act with the Federalists in Congress, and they create all sorts of new judgeships, and they fill almost all of them. Though remember, they forget to deliver some of the commissions, including to one poor Mr. Marbury, who then is never going to get his commission.

When Jefferson comes in, not only does he not deliver Marbury's commission, which is the sort of moment that we get most excited about, but he also gets the now Democratic Republicans to pass the Judiciary Act of 1802 and uncreates a bunch of those judgeships. And this case goes to the Supreme Court of like, wait a second, the Constitution says life tenure. If you get rid of the judgeships, aren't you in effect getting around the impeachment power by just firing them? And the Supreme Court in another martial jiu-jitsu move that's probably more important than Marbury versus Madison in a lot of ways. It just doesn't have some of the fun language. The Supreme Court's like,

um, yeah, that's pretty weird. We definitely wouldn't want to get rid of that specific judge's seat as a way of getting around the impeachment power. But since you seem to be getting rid of a bunch of them at once, It does say that, you know, it is up to Congress to create those lower court seats as they see fit. So yeah, I guess that's okay. So David, hasn't really happened a lot since 1802. Obviously we've created a lot, but we've never used it politically to get rid of,

like for instance, the ninth circuit. Yeah, right, exactly. According to precedent, you kinda could. Congress could get rid of the Ninth Circuit because they don't like the Ninth Circuit. That is something that is an aspect of our constitution that we've not really thought about very much at all because we've never had occasion to think about it.

And all of the arguments about the judiciary, it has been who gets to a point whom and shall we confirm them. It is in essence treated as if the current version of the Article III judiciary was set in stone at the time of the Constitution, when the reality is the current Article III judiciary in its composition is both a matter of constitutional law

and a matter of a political norm. Yeah. I mean, you don't have to have circuit courts at all. In fact, for a hundred years or so, we didn't have what we would think of now as like district courts or trial courts, circuit courts are the middle managers that hear the appeals automatically. If you appeal to appellate court, a circuit court, they have to hear your case. They don't have to hear oral argument, but they do have to give you some decision

and then appeal to the Supreme Court where they get to decide whether to hear your case or not. And that's largely up to them, barring some very narrow exceptions. That is recent, depending if you're David's age, it's recent. And if you're my age, it's been a while. But about halfway through our country's... Time has passed the same for both of us, Sarah. But it's about halfway through our country's history that we create the current framework. It's really like 1920, 1925 that we're talking about here. So David, do you consider Newt Gingrich's, not his tweet alone, I mean the idea, a threat to the judiciary?

Yes. I don't take it as seriously as a threat to the judiciary as I take, for example, the possibility of defying court orders that we'll also get into. We'll get to that. After the break. So I don't take that threat as seriously as I take the defying court orders threat. But I do think that what you're beginning to see is a all fronts attack on the judiciary. And I know we're going to get to this. This includes sort of the increasing atmosphere of threat around Amy Coney Barrett and MAGA turning on Amy Coney Barrett.

So you're going sort of like, you're seeing a combination of like old school MAGA intimidation, like school board folks have faced and election workers. So you're seeing some of that. You're also seeing a very direct and blunt and immediate, we may or we may not agree with or comply with the court decision. And then you also have sort of this sort of Damocles,

maybe hovering of, well, nice little judiciary you have there would be a shame if something happened to it. I look at that as maybe the most remote of the threats, but far more immediate are the two that I mentioned at the start, which are we're just not gonna comply with the court order, or we're gonna threaten and intimidate you and make your life miserable if you don't rule the way that we want you to rule. I think

those are much too much more immediate concerns. I agree. I also think that if you try to get rid of a single district court seat, the Supreme Court would not uphold that. They would say, no, you're just trying to end run around the impeachment power. I think, however, if Congress They would say, no, you're just trying to end run around the impeachment power. I think, however, if Congress disbanded the DC Circuit or the Ninth Circuit and said from now on, the Supreme Court is required to hear all cases directly from the district courts that involve invalidation of a federal order or statute or regulation, I absolutely think the Supreme Court would uphold that. I think they would have to.

I agree with that. They wouldn't like it. I do not think that they could do something like, we're going to dissolve the DC Circuit and we're going to replace it with, we're just going to call it the DC Court of Appeals. We're going to appoint all brand new judges to the new DC Court of Appeals. No. No, no, no. No, not happening. The DMV Circuit Court.als. No, no, no, no, no, no, not happen. The DMV Circuit Court.

Yeah, yeah, exactly. Yeah, no, absolutely not that. However, to new idea, I think they could reconstitute all the circuit courts. Right now, remember, there's 11 numbered circuits and the DC Circuit and the Federal Court of Appeals, what's that one called? Federal Circuit. Federal Circuit, thank you. Because the federal court of claims and then... Yes, Federal Circuit. Anyway, they could say like, you know what, instead of just breaking up the Ninth Circuit,

we have to rethink this whole thing. And so yeah, we're moving around all the circuits and that's going to involve getting rid of some of these spots. Like I think they could probably do that too. But no, the Supreme Court's not going to uphold doing a fake version. But if you want to do a real version, Newt Gingrich is right. There is precedent for it. Though I agree with you, the point isn't to actually redo this. It's to threaten the judiciary. And that brings us to the next tweet. This is from a writer at The Federalist. tweet. This is from a writer at The Federalist. John Roberts and Amy Coney Barrett had better wake up from their stupid little dream world and end this lawless nonsense from their precious co-credentialists in robes forthwith. Or they can watch their lawyer friends turn the judiciary

into a joke which no president or Congress will listen to ever again. These cowardly morons don't seem to understand that all their power and authority is little more than a figment of the political imagination. Once the desire to believe in the judicial tooth fairy is gone, it is gone forever and nothing will bring it back. Wiser men with far stronger backbones understood this for centuries.

They knew their power as an institution was entirely one of perception. Given the institution's lack of any real power to enforce its rulings against the two far more powerful branches of the federal government. The Supreme Court controls no army and no bank account. Its police can barely keep people out of its own building or away from the homes of its members. How on earth will it enforce rulings without the force of money or arms?

The simple truth is it cannot. And its smarter members, until recently at least, understood the court's unique challenge, how to enforce rulings against two institutions, despite any real power to do so. Those with brains and no fear of their own shadows knew this was only possible if the politicians and the people believed the courts had the necessary credibility and reputation to produce long-term deference to its decisions. We are rapidly approaching the point where that is no longer the case. And if Justices Tweedledum and Tweedledee insist on closing their eyes and

sticking their fingers in their ears and the belief that if they can't see or hear or the consequences of their own idiocy and cowardice, then there won't be any. Then their only precious legacy will be the destruction of the very institution they're allegedly so desperate to save. Okay, David. So first, when I say that this is like Federalist 76 by Alexander Hamilton, but put into tweet form, I mean that on the substance, if you will. We have long talked about the court being a counter-majoritarian institution, by which we mean that we wouldn't need the court if we could simply leave everything to a majority vote. So the only time the court is doing its job is when it's stopping the

majority from something. And I also think it's important to note that it is there really only to stop bear majorities and fleeting majorities. Because if you have an overwhelming majority, you amend the Constitution. And if you have a long sustaining majority, then you appoint justices to the Supreme Court and enough of them over time that it changes the makeup of the court and the ideas about the law, see E.G. Brown v. Board of Education versus Plessy.

All of that that he is describing in his own idiotic and snarky and unhelpful way is accurate. Well, here's what's fascinating to me. So I went and looked and I thought, well, he must've been really mad about the Supreme Court order reversing. He must've been furious about the Supreme Court reversing Joe Biden's student loan forgiveness.

Must've been just livid over that. He must've been furious that the Supreme Court reversed Joe Biden's OSHA vaccine mandate. Didn't see any notice of any kind of anger at the Supreme Court over those things. So what we're dealing with here really is a person who is seeing rulings from judges that he doesn't like and then sort of acting on an idea that it's illegitimate because of gestures into emptiness, some kind of legal theory that he has adopted and believes to be true, at least for the moment, and it's inconsistent with his preferred legal theory, and so therefore it becomes an illegitimate ruling.

And you're seeing this kind of argumentation really mounting in the MAGA sphere, and it goes something like this. You hear about a wild action from the administration. Then in will come some MAGA figure online, usually on X now, sometimes in a hit on Fox or whatever. And they'll say, actually, this isn't a wild thing from the administration at all.

Actually this is very legally sound under XYZ legal theory that you may have never heard of until three seconds before that appearance. And then all of a sudden, because partisans are gonna partisan, that's what they do, they say, well, the court has justified this ironclad legal theory that I learned about three seconds ago, the court is illegitimate. And that you just see this again and again and again and again.

And we saw it in the election contest, we saw it a sum to some degree in the early Trump's first term, not as much though. You saw a lot more building in the Biden era. There are a series of MAGA legal theories, whether they're the independent state legislature doctrine, for example, or various legal theories around the Voting Rights Act,

or legal theories around, you name it, that are kind of part of the MAGA extended legal universe. And they've just essentially said, well, this is right. Like their version of executive, unitary executive. Well, this is just right. And anything that the courts say contrary to that is illegitimate because this is so plainly correct. And that's just not how we enter into a court system.

I think he misunderstands the bare majority, fleeting majority aspect. They think they have an overwhelming majority and they think therefore the court should defer to them. It's like, no, no, no. If you have the overwhelming majority, you then get to amend the constitution. You don't have that, do you? So you don't have, you have a bare majority. And you think it's not fleeting because he won in 2016 and now he's won now.

And like, no, no, no. Two terms is not, that's not a long-term majority. And even so, he may be able to appoint more justices to the court, we'll see. And that is how you change that aspect. Here's the fundamental thing. I agree with him on the long-term legitimacy problems

for the court that has been the case for 250 years. Well, 230, whatever. I don't know. I can't do math, but since the actual ratification in 1789. He's right about that. He's right about courts should be very careful not to spend that political capital, that political legitimacy that they have built up over that 230 some year period. He's dead wrong about how you do that though. I mean, let me, so wiser men with far stronger backbones understood this for centuries, that the way to do it,

yada yada, is that the other branches need to believe that you'll have long-term deference? No, no, no, no, no, no, no, no, no, no, no, no, no, no. That's not how you build legitimacy. We know how you build legitimacy because this is the whole theory for the conservative legal movement. The courts build legitimacy,

they build up that political capital by only saying what the law is, not what the law should be. Now, I'm going to agree with this dude in the smallest sense that I do think, as we said, David, and the TRO is a giveaway for me. If you're issuing a TRO, it is a presumption. You can disprove my presumption with good arguments and good decisions. If you're issuing a TRO, I'm not sure

you are saying what the law is because you're issuing a TRO instead of a preliminary injunction in this litigation maneuver as you described it to shield yourself from appellate review. When the courts say what the law is and not what the law should be, that's how they're putting more little legitimacy coins into it. David, I found this old interview from 2007. It was actually Chief Justice Roberts becomes Chief Justice for the OT05 term, October term 2005 to 2006. He does this interview. It's published in January 2007.

So he does the interview at the beginning of his second term as Chief Justice. And remember, he's only the 17th Chief Justice. We've had 45 presidents, but only 17 Chief Justices, some of whom like served for a hot second, several are under four years. And then you have the big boys, if you will, Chief Justice Roberts will soon hit his 20th bench aversary here in September. And he will then be the fourth longest serving Chief Justice ever on the US Supreme Court. Anyway, he says in this early interview in his tenure that he looks back on the history of the court and he says, the majority of the chief justices have failed.

And he's reflecting in this interview with Jeff Rosen, the president of the National Constitution Center in the Atlantic, we'll put it in the show notes because it's fascinating little time capsule. He's reflecting on why they failed as chief justices, right? They were trying to be law professors. They were trying to be the boss of their colleagues, but they've only got one vote. And he's like, I want to be John Marshall. And it's like, isn't that a little bit arrogant? So you want to be John Marshall? And he's like, look, if you want to be a cyclist, you try to emulate Lance Armstrong. Remember this is 2007. That's a great quote. But also in that he talks about the legitimacy

issue and building up that legitimacy bank. And he actually says, for the last few decades, the court has been spending down on that bank. That's 2007, David. I feel like the court's been spending down on that bank for some time. And it's why you see, I think, a political movement on both sides feeling so comfortable attacking the court. And that makes me sad. Yeah. And I, you know, it's interesting about the question about spending down on that. Because you have to sometimes, by the way. Yeah, you do. That's a counter-majoritarian institution.

That's the point. You have to spend down. Yeah. So, you know, for example, arguably one of the decisions that was one of the most spending downest decisions was Dobbs, right? Dobbs was a decision that hammered a lot of people's views of the court. But was it the right decision? I mean, that's the key question there.

And really over the long term, I think if you look at US history and you look back at where has the court spent down it's spent down in the sort of that sense of causing anger, when has it spent it wisely and when is it sort of, it's interesting to me in some ways the court's credibility is actually hurt when it hasn't spent. So for example. I totally agree.

I totally agree. Dred Scott was within the culture. Plessy V. Ferguson was within the culture. And- Korematsu, within the culture. Yeah, totally. When they're deferring and or trying to solve a political problem. And one of the case where they probably spent down the most political capital that the Supreme Court has ever spent down is not Dobbs.

It's Brown. And nobody follows it for 10 years. And they're like, with all deliberate speed. And then in Cooper v. Aaron, they're like, no, you can't delay it. You must do it now. And was it 10 years later in the 1960s, after Brown v. Board, 1.2% of black children in the South went to a school that had any white children at it. Yeah.

You know, and I'm so glad you raised that because it shows that you make the right decision even when enforcement is in doubt. That's right. The Supreme Court's ability to order US Marshals, et cetera, whoever, to open up hundreds, I mean, sorry, thousands and thousands of schools across the South was limited to non-existent.

And so the question is, if you know that there is massive resistance, which was the phrase used during the, the, you know, civil rights era of where the, you know, populist southern governors were engaged. Impeach Earl Warren, segregation now, segregation tomorrow, segregation forever was an actual political slogan. Exactly, exactly. And so they, not only did they spin down capital politically, they did so in a way that was through an order that was defied. And yet, and yet what would be, what would we be talking about with the Supreme Court if they realized in 54, they weren't going to get immediate compliance and then watered

this thing down and then just made it something other than what it was, we really are getting to the core of what a court is supposed to be here. It's as if Marbury, the real beef, every time I read one of these things, the real beef is going back to Marbury versus Madison. But it's a very selective beef. And the other thing that I'd say about this, notice how this person used the term coward

to describe essentially people who disagree with him on this position. This is another MAGA argument tactic. There's a lot of manliness mentioned, backbone, the real men, these cowards. Totally, totally. So the MAGA argument technique is, here is a legal philosophy you never heard of

until three seconds ago. It is so plainly correct that if anybody disagrees with it, their word is lawless. And it's also so plainly correct that the only explanation for you not falling in line behind me is your own cowardice. But how often have we encountered this, especially in that online riot over the last 10 years?

I am right, I am so plainly right, that the only explanation for why you are not with me is you just want to yield to the elites, you're a grifter, you're a coward. You know, it's a great little closed universe you've created there where you're so right that anybody against you is obviously either defective in some way or cowardly in some way. And David, this is why I highlighted that question slash statement from Justice Kavanaugh

at oral argument in the last sitting, because it goes to this question of does the court care if they know that their order might be ignored or are they supposed to do it anyway? And this is Kavanaugh, remember, in a case about DNA testing involving Texas prosecutor, it's like so far afield from what we're talking about. And yet, like, Justice Kavanaugh doesn't live under a rock. He knows what's being said in the world. I just don't think this is more something to react to. I don't see how we can say something's not redressable

just because the prosecutor is going to say, I'm not going to comply with a court order. You know, if President Nixon said, I'm not going to come turn over the tapes no matter what, you wouldn't say, oh, I guess we don't have standing to hear the executive privilege case. I mean, it just doesn't work. I don't think to say a recalcitrant defendant can defeat redressability in that way. I assume you agree with that.

As you can imagine, the not government advocate in that case, my reaction is I could not agree with you more, Justice Kavanaugh. And he says, yeah, maybe not like that though. So I think the court is- You can imagine the fist pump. Yeah. But I think this court is very aware. I think they are mentally probably preparing themselves for the possibility that they're

going to issue an order that might get ignored and having to decide between that, like what happens to the court once an order is ignored? Because look, that Federalist dude is also right. Once you start ignoring the Supreme Court orders, I don't think you put that toothpaste back in the tube. We're like flippant a little bit, or glib I guess, in ignoring that threat. And that the Supreme Court should just blithely like,

well, if you ignore it, you ignore it. Oh well, this is like Brown and Brown's great. Like it will be a thunderclap. Well, I mean, the 10 years of ignoring Brown were horrible. I mean, you know, of ignoring Brown were horrible. And then the pain and the massive resistance and all of that, that was a nightmarish period when you start to look at that massive resistance. So we do have precedent for the way in which

a massive resistance does create real harm in the American Republic. There's no question about that. And I do think that the court should, court and courts, plural, should be smart about what they draft and what they write. So that, number one, do not create unnecessary wiggle room. Number two, do not engage in gamesmanship or what looks like litigation tactics.

Number three, this is not the time to stretch your authority, guys. And I use that in a gender neutral fashion, y'all, I'm sorry. This is not the time to stretch your authority, y'all. This is a very, very difficult moment in American history. And it's gonna require both courage and wisdom in how you confront the moment.

That's asking a lot right now, David. Asking an awful lot. Just from all of us, frankly. It's asking an awful lot, it really is. And now we'll take a quick break to hear from our friends at Ethos Life Insurance. When you're a parent, you think a lot about your kid's future and how you can make sure you're setting them up for success. But what if something happens to you?

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Lock in your rate today and give yourself and your family peace of mind. Term life policies start as low as $10 a month. Get your free quote at ethos.com slash AO. That's E-T-H-O-S dot com slash AO. Okay, more threats to the judiciary. We talked last week about the specific turning from the far right on justice, Amy Coney Barrett. We talked about all the reasons

we thought that was happening. In the intervening week, David, someone sent this email. "'I've constructed a pipe bomb, "'which I recently placed in Amy Coney Barrett's "'sisters mailbox at her home. "'The device's detonation will be triggered "'as soon as the mailbox is next opened. "'Free Palestine.'"

as soon as the mailbox is next opened. Free Palestine. I think it goes without saying this is bad. It has an effect on the judiciary, not the one you think. It doesn't cowl them or make them wanna vote for your side. It affects them in terms of making them more isolated and less engaged with the world, which I don't think is a good thing for the judiciary. And it makes good people less willing to take this job,

especially people who have young children. You have to think like, is my personal ambition worth putting my children at risk themselves or worth risking that they won't grow up with a mother or a father because of the job that I'm taking? And I say this that I'm taking. And I say this because I'm talking to people who are either on potential short lists or

are thinking about taking a circuit, judgeship, et cetera. And these are the questions they're asking themselves. Can I do this to my family when, including my siblings who aren't even like living in my household. So it has an effect of making good people not do this job. You're exactly right, Sarah, because there's another factor involved. If you're talking about people who are extremely talented individuals who have the opportunity to become a federal judge, guess what?

They can do a bunch of stuff. Yeah, make a ton of money for their family, take sweet European vacations or whatever. Or they can serve their country, something that a lot of them want to do, but not if their children are going to be, you know, not if you constantly have to worry about your children being kidnapped. Well, and I'm so glad we're talking about this because one thing I've been trying to communicate to people for years is that otherwise inexplicable actions from public figures become explicable when you remember the atmosphere of threat that many of them operate under.

And so, you know, it's been said many times. I mean, Pete Meyer said this in the impeachment battle in 2020. He said that there were Republican colleagues who wanted to vote for impeachment, but were afraid for their families' lives and did not. This is something that is a very real phenomenon. And it's a moment that, as we've talked about, we use this word, it's a moment that calls for courage, but at the same time, it is very difficult

to sustain a sensible democratic republic when the very act of being a public figure is a courageous act. That is a hard thing to sustain. It is a very hard thing to sustain virtue and courage at the same time, day after day, year after year, just to walk into the job, just to do the job with integrity.

And that is one of the things that makes me very worried. Now a lot of the folks that we know in the judiciary, we've been very fortunate to have a large number of judicial guests. And the people we know in the judiciary have a lot of confidence in their integrity. I have a lot of confidence in their courage. But that has to be replicated hundreds of times across the length and breadth of the American judiciary in an atmosphere of escalating threat and intimidation. And I will tell you, it is that atmosphere of threat and intimidation that actually sometimes

worries me more than the legal maneuvering, the defiance, et cetera, because it's rooted in that threat and intimidation is coming. Yes, it's inspired by the people at the top, but it's coming from the grassroots. It's coming from Americans out there in this country who are so activated and so angry that they're willing to threaten or intimidate people who disagree with them.

And that existence of that population is what really worries me going forward. Sort of incredible also because one of the main grievances that we hear from the right that comes up is that the left slash the media did not respond forcefully enough to the threat on justice, the attempt on Justice Kavanaugh's life and his family. But for a phone call that that guy makes to his sister, we may be living in a very different country right now. It is one of the most sobering historical moments I can think of, of late.

It came so close. It's right up there with the attempt on now President Trump's life, then candidate Trump's life in Pennsylvania, in terms of political violence intended to change the direction of the country. Congressional baseball shooting as well. I mean, yeah. And yet they blame that on the left's rhetoric.

And again, I actually, you're not going to hear me disagree very much with that. I agree. No, I agree with that. I agree that people didn't react strongly enough to it, including in the media. I agree that it came from this escalating rhetoric on the left about we've got to do something about this out of control court. Look what they did in Dobbs.

And people felt like they needed to take it into their own hands, potentially. What do you think you're doing now with Justice Barrett? Now, interestingly, with the free Palestine thing at the end of that email, I have no reason to think this person is on the right or that they have any clue what's going on at the end of that email. I have no reason to think this person is on the right or that they have any clue what's going on at the court. The court has not had any Gaza related litigation. Note that. But set aside that threat to her sister. What

do you think you're doing when you're talking about how Justice Barrett is the problem? She's what's preventing President Trump from having his administration, you know, upheld and all of that. Like, I don't know, man, like you're getting pretty close to where the left was about reaping the whirlwind. Yeah, you know, I, the left has the aspect, the far left has been violent and threatening for a very long time in this period. We saw that in the riots in 2020. Absolutely. We saw that in the congressional baseball shooting. We saw that in the attempt on Kavanaugh's life. The assassination attempt with Trump still seems mysterious as to the

individual who was shot and, you know, the one who shot at him and was killed. The motivation there is mysterious, but obviously, politically motivated assassination attempt. And I think, you know, we can talk about that. And MAGA gets an enormous amount of, rightfully, gets an enormous amount of energy by opposing that intimidation. If you're going to hear someone who's like on the grassroots around where I live talking about political violence and intimidation

Even the most MAGA people are gonna immediately say this is what the left does and they're gonna have an Tifa They're gonna have Kavanaugh. They're gonna have the baseball shooting. They're gonna have all of these actual legitimate examples, but are gonna be in total denial about what MAGA does. And this is horseshoe theory. And now the left, by the way, is like, this rhetoric against Justice Barrett is unacceptable. And it's like, where have you been? Exactly. What?

I mean, neither side wants to acknowledge their own problem. No, no. And everybody races to the most extreme rhetoric imaginable. Because that's the way you get noticed. That's the way you raise small dollars. That's the way you get clicks. That's the way you get engagement. I mean, you know my whole rant on campaign finance reform and small dollar donors ruining America. Can we talk about what I think, I want to talk about what I think is genuinely the serious, most serious threat facing the rule of

law that has come from the Trump administration. And then I want to talk about the ones I'm less worked up about. I want to start with the serious ones. And that is, we talked about the order against Perkins Cooey, a law firm here in Washington, DC. They represent a lot of political clients. They do a lot of election law work. Mark Elias used to be a lawyer at that firm. He was by far the number one left-wing democratic partisan litigator in election law cases.

He's since left the firm. But they issued this order, not only stripping them of security clearances, but barring people who've worked at Perkins Couey from working in the government, barring people who currently work at Perkins Couey from entering government buildings, federal buildings it says actually, that's important here, because there's a question of whether in fact courthouses are federal buildings because they are owned and run by GSA. I wanted to read some of what Chad Mizel, the chief of staff at the Department of Justice, who argued at a hearing about this on Wednesday, what his defense was. And I should do a disclaimer here. I know Chad Mizel. I worked with Chad

Mizel when I was at the Department of Justice. I find Chad and his wife, Kat Mizel, who's a judge currently in Florida, to be wonderful, smart, lovely people for what that's worth. The President of the United States is authorized under the Constitution to find that there are certain individuals or certain companies that are not trustworthy with the nation's secrets. The order is entitled, Addressing Risk from Perkins-Cooey. It opens with dishonest and dangerous activity of the law firms, Perkins Cooey LLP.

It invokes national security in the interest of the United States half a dozen times. I also will say, David, that I've talked to a number of my friends who are in the administration, administration adjacent, sort of very smart lawyer types who have worked in executive branch jobs in the past or currently. How about that? They think the Perkins-Cooey order has some merit to it. And it doesn't mean that I don't think I'm right about it in the sense that like, I think the Perkins-Cooey is unconstitutional. I think it is wrong. I think it undermines the rule of law. But hearing sort of universally from these folks, including people whose moral compass I trust more than

my own, frankly, they're arguing that Perkins-Cooey role during the Hillary Clinton campaign of sort of laundering the sealed dossier through privilege, because law firms of course have privilege with their clients. They weren't acting as lawyers, they were acting as political operatives. Then they took that document and tried to and succeeded in getting the FBI to start an investigation based on that document. There's some factual, the investigation actually started before the Steele dossier, but no question the Steele dossier was, it wasn't part of the predication, but it was part of the investigation. And that in terms of helping a foreign power, yada yada, like

having foreign policy implications was a threat to national security. Which foreign power were they helping? I don't know. Don't worry about it. Yeah, okay. Okay. But this is what I often say to people. I still think I'm right, but you've made me less confident that I'm right. If that makes sense, you've lowered my confidence level. So here we are sitting here on like Friday,

and I'm like, really contemplating this. The Wall Street Journal Board comes out against it, all of that. Williams and Connolly takes up the defense of Perkins Cooey and good on them. While the rest of big law is silent, David, and not only silent, they're turning away matters, paying matters because they think it might be adverse to this administration and they don't want

to get on the wrong side. They don't want to be on the list. Then President Trump gives a speech at the Great Hall for the Department of Justice, something that is unusual but not unheard of of presidents to do. You listening, if you're old like David or me in this case, will remember the DOJ Great Hall itself was a bit of controversy in the early aughts when John Ashcroft paid lots of money to buy drapery to cover the bare breasts of the 30-foot female statues that are in the Great Hall.

What no one remembers is that it was for a sex trafficking press conference. And there was a real discussion of whether nipples were appropriate at such a press conference. But that was a huge controversy during the Bush administration. And everyone was making fun of John Ashcroft for being a prude. Anyway, that's the Great Hall, if you're looking for pictures. The boobs are still there. He gives the speech, he at various points has referenced that there could be up to 15 law firms on this list. And he talks about this one lawyer in particular at that DOJ speech, Mark Pomerantz,

who was part of the Manhattan district attorney, the Alvin Bragg team that prosecuted President Trump in a case that you and I thought was pretty BS, David, and pretty politically motivated and not a lot of legal merit to it. Well, fast forward to 9 p.m. on Friday night, and there's a new law firm that has been targeted, Paul Weiss, disclaimer from you and I both, David. We have

done a live at Paul Weiss now for three years running to do our Supreme Court roundup with Ken and Shanmugan, who's the managing partner of Paul Weiss's DC office. So please keep that in mind. We have absolute biases toward Paul Weiss being a good law firm. It says, this is the order from the president, my administration has already taken action to address some of the significant risks and egregious conduct associated with law firms. And I have determined that similar action is necessary to end government sponsorship of harmful activity by an additional law firm, Paul Weiss. In 2021, Paul Weiss partner and former leading prosecutor in the office of Special Counsel Robert Mueller brought a pro bono suit against individuals alleged to have participated in

the events that occurred at or near the United States Capitol on January 6, 2021, on behalf of the District of Columbia Attorney General. In 2022, Paul Weiss hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney's Office solely to manufacture a prosecution against me and who, according to his coworkers, unethically led witnesses in ways designed to implicate me. After being unable to convince even Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this

unwarranted prosecution. Additionally, Paul Weiss discriminates against its own employees on the basis of race and other categories prohibited by civil rights laws. Paul Weiss, along with nearly every other large influential or industry-leading law firm, makes decisions around, quote, targets based on race and sex. My administration is committed to ending such unlawful discrimination perpetuated in the name of diversity, equity, and inclusion policies, et cetera, et cetera. And then it has the same thing. It's the security clearances. No one can come work in the government. You're not allowed in federal buildings, all of that stuff. For what it's worth, David, the Mark Pomerantz relationship with Paul Weiss is a little weird. He hasn't been a

partner at Paul Weiss since 2012. He then converted to the title of counsel, which can mean it's, of counsel is maybe the biggest range of any title at a law firm. It can mean you're actually very involved in the law firm. It can also mean that you're almost emeritus, that you sort of like maybe visit the office once a month.

He keeps that basically on and off through going to DOJ during the Biden administration. He does go to Alvin Bragg's office. He comes back for like a hot second, a few months, I guess, in 2022 with that of council title and leaves again. I don't actually know where he is now, but the point is he's not at Paul Weiss and neither is Mark Elias at Perkins Cui. And the reason that I mentioned that whole Perkins Cui thing is because this so wildly undermines any argument that the Perkins Cui order actually was about national security. When in fact, all of this is just about a lawyer did something to Trump that he didn't

like when he was a private effing citizen. It is the scariest thing that this administration has done by a mile to me, David. It shows that they are ticking through their retribution list. They're starting with law firms. That's fine. The silence from big law is incredible after this Paul Weiss order in particular because there's more law firms on the list. You're already on the list, you idiots.

So start standing up because it's gonna be too late. And you know who's after the law firms? The individuals, because the first thing they wanna do is prevent the individuals from being able to get law firms to represent them. That's the point, you idiots. And look, on this, it's time, there are elements of the Trump administration

that are blazingly incompetent. There's just no question about that. But I do think that people overestimate the Trump team's incompetence constantly, and they overestimate it in this very particular way. Look, I have written about Trump's incompetence. I've written a lot about the larger MAGA world's incompetence. I have written a lot about like sort of the larger MAGA worlds and competence, but there's a big carve out to that.

They're very politically shrewd. They know why they won. They know how they won. They know what wins for them. And here's one of the things that they have learned is that if you can pick the right target to begin with, then almost everything else that follows gets subsumed into the analysis of the first target. So for example, when the administration went to cut USAID, there is a reason why they led

with this bogus tens of millions of dollars in condoms to Gaza story, because they wanted to fix in people's mind that this is what USAID does. It just does a bunch of woke stuff, LGBT stuff, and that's what it is. In the meantime, they're gutting PEPFAR, and it hasn't really been fully restored. They're gutting other things that are not condoms to Gaza, which was a bogus story, very bogus.

But once they get something categorized, and I think going after Perkins-Cooey, Sarah, they're going after a law firm that for a lot of MAGA people who are deep into sort of the MAGA extended universe, they know and loathe that institution, loathe it. And so you're going after a hated target. And then when Paul Weiss gets pulled in, they're kind of just pulled into that whole thing as well.

Even though, look, I agree with you, the Perkins-Cooey, that's wrong, bad, unconstitutional. Paul Weiss, wronger, badder, unconstitutionaler. Exactly so. This is the pattern. And note, by the way, we've skimmed over the January 6th part of this, right? A lawyer at that law firm, pro bono, meaning they didn't get paid for it. So they, you know, when you take on pro bono cases, that's how you sort of know what the lawyer actually believes, if you will. That's why we look to pro bono cases in law firms. Brought a pro bono cases. That's how you sort of know what the lawyer actually believes, if you will. That's why we look to pro bono cases in law firms. Brought a pro bono lawsuit against

individuals alleged to have participated in the events that occurred at or near the United States Capitol on January 6th on behalf of the District of Columbia Attorney General. It was the Rico case, David, civil, corrupt organization, like the thing you bring against mafia folks. Why would that be a threat to national security? I don't even understand the theory behind that one. I don't know how you're gonna stand up in court and argue what now the January 6th thing was a, not just pardonable because they were overly targeted and we need to move past it as a country.

I actually am sympathetic to that argument for what it's worth, David. I wouldn't have done it and I certainly wouldn't have done for the people who had been convicted of seditious conspiracy who had their sentences commuted. But look, there's always an argument that we turn the page, whether this was a good example of it or not. But the idea that it's now an unalloyed good, and that in fact anyone who disagreed that it was good is going to have their law firm targeted for being a national security. I don't even understand the theory for that one. There is no theory for that.

I mean, this is his vengeance without question. And wants to make sure that certain law firms, and I think we're going to hear from more of them, I think he'll go through 15, maybe more. You know. At that hearing with Chad Meisel defending this order, the judge asked, okay, Williams and Connolly is here representing Perkins Cooey. By the way, law firms are representing law firms. I know, it's turtles all the way down. But Williams and Connolly is, I think I don't exaggerate here, the most prestigious law firm in the country. They're a boutique by most definitions of that term because they only have the one office in DC. They don't

accept lateral partners. You're either born into Williams Connolly or you're not. They are SEAL Team 6 if you get arrested. They're beyond SEAL Team 6. So Williams and Connolly is in there representing Perkins-Cooey and the judge says to Chad Meisel, would you be able to use such an order against Williams and Connolly? Could you just put out that order next week? And he basically somewhere between doesn't answer the question and says, yeah, it's up to the president to decide what's a national security risk and what's not. Look, I think the Supreme Court does and should give enormous deference to presidents to define

the national security of the United States. But they're not going to rubber stamp. It's not even a fig leaf. There is no leaf here. It's just not defensible under national security grounds for the Paul Weiss order in particular, because it has nothing to do with the nation's security. Unless you argue that anytime you criticize the president, it hurts our national security

because foreign powers can see dissent and criticism. But that of course has no logical limit whatsoever. We can just get rid of the First Amendment under those grounds because then all dissent is punishable. So yeah, David, I feel pretty strongly about this one. Yeah, feel really strongly about this one as well. And again, going back to this sort of politically shrewd analysis,

he's also, this is the kind of thing that, where you really do need the counter majoritarian presence of the courts, because the American public, let's just face it, is not going to be out in the streets for Paul Weiss. That's right, this is the Nazis marching in Skokie. I'm not defending the Nazis. I'm not defending their message, but you're damn right

I'm gonna be out there marching for their right to do this because that's how I know I have my right to do it. And is anything more clear than in this case, you defend Perkins Cooey because I'm literally on the retribution list also. Absolutely. I mean, absolutely. I was thinking about you over the weekend, Sarah, because the Paul Weiss thing, there's no... The Perkins-Cooey, like you said,

there are smart people that text you or send you messages that if you really squint and you look at it sideways through a mirror in a prism or whatever, you can see that there was something that Perkins Coie did that might have been outside the norms of law firm representation. Is there something to be done about that? Maybe not this, not this order. But with Paul Weiss, there's no way to look at this other than this really direct, extremely blunt. And I was thinking about this over the weekend. You know, if you're

on that Cash Patel list, there is no way that you should be sitting there going, oh, that was all just rhetoric and puffery. You know what, David? A few notes. One, one of the thoughts on this was like, someone else can do it. You know, like we don't need to be out there defending Perkins Cooey. Someone else like Williams and Connolly can do this. They're incredibly able. So like let them do it. And first of all, and we don't need to get into my entire history, some of which is like pretty, not something I share on the podcast. But like, my life has been a little bit defined by not

letting other people do it. Like, instead of asking why me, I kind of, I guess, have always asked why not me? Like, I'm in a really good position to stand up on this. And this was my op-ed in the New York Times, right? Like, I will get great legal services from people who are willing to defend me. And I know good lawyers and I have the money to defend myself and I have the public ability to get noticed if I'm targeted. All of those things make me the person who should be standing up for Perkins Cooey, who

I loathe, by the way. I've been on the other side of Perkins Cooey so many freaking times. I don't like these people. And I'll name some other law firms I don't like. Have I told you about Arnold Porter, who I'm 100% sure is on this list, by the way? Arnold Porter, when I was interviewing for them as a 2L, they took me for the interview, for the purpose of berating me for being a member of the Federalist Society and asked me how I could possibly interview with their law firm when I belong to a racist, sexist organization. And I was like, why are you wasting my time and yours? I find this to be really unproductive that you think as a partner at this law firm that it's worth berating a 23 year old?

What's wrong with you? And I walked out. So anyway, that's all to say. And I will be defending Arnold and Porter when they're almost certainly next on this list. Latham and Watkins is going to be on this list. I mean, we can go through the major law firms that I think are in this 15. There's also the DEI part of these orders. And that came third. Number one, January 6th. Number two, the Alvin Bragg prosecution. Number three, DEI. Both for Perkins Cooey. That's where we first saw it. And then also in this Paul Weiss thing. And look, I am the first person to say, I do think

these law firms have been breaking the law. Many of them in the country by doing race-based hiring, race-based promotions, race-based work assignments, all of that, that I think have been unlawful. And I'm against it. But you don't get to then, it sort of goes to what you were saying about the pardons, right? You don't get to just assume that they did something wrong and issue an EO punishing them for this thing that you say they did with no evidence that they did so. And by the way, the Equal Employment Opportunity Commission sent long investigatory letters to many law firms around

Washington, D.C. this week, including Perkins Cooey, Latham Watkins, Freshfields, Kirkland and Ellis, Wilmer Hale. Right. Not, by the way, Paul Weiss and not Covington and Burling. Other notable firms missing, by the way, Gibson Dunn, Jones Day. And David, this is actually how it should be done. As long as you have some predicate to believe that these specific law firms, as opposed to those specific law firms, have been violating the law,

you can send this investigatory letter asking them to answer these questions about their hiring practices and their DEI-esque policies. Then, based on the findings of that investigation, you can do something about it. You can have DOJ open a civil rights investigation or any number of civil enforcement actions. And then maybe if you get that finding, then you can issue an EO about not doing government business with them.

They've done this in the exact wrong order, which is why these orders will be thrown out. Even if you don't like DEI and even if you think these law firms have been violating the law. You go get that evidence first. Yeah, I mean we got a little bit of the queen of hearts from Alice in Wonderland here. Sentence first, verdict afterwards. I'm very, very willing to believe that Perkins-Cooey or any number of these other firms have engaged in race-based hiring and promotion and retention practices that are unlawful. That would not surprise me at all. You don't just declare it by executive order.

That's not how this works. And that reminds me of the $400 million revocation of a cancellation of grants and funding for Columbia University. I'm very, very open to the idea that Columbia utterly, utterly crapped all over its Title VI obligations in 2023 and 2024. I mean, there's abundant evidence, right? However, the statute has a process. First, you have to establish

that voluntary compliance is not a pro, it was not effective. And then after a hearing with record evidence, then you can remove and terminate the grants and contracts. But you don't go straight to the sentence. Go get DOJ civil rights to do the investigation, issue a report, finding that, and then use that to revoke anything you want.

But Sarah, you're just talking about process now. And while process is an aspect of justice in the tradition, but it isn't the whole of justice nor is it an end into itself. Due process, like all other law, is only properly law when it is rationally ordered to the common good. Hey, wait a second. You know that word, that phrase triggers me. If people haven't figured this out, this is not me talking. That sounds like Professor Adrienne Vermeule of Harvard Law School. It is indeed Professor Adrienne Vermeule of Harvard Law School. And this is the point where

I'm getting to about the irony that some of the Trump administration's best arguments right now are process arguments. And this is Adrian Vermeule kind of dumping on process unless process is rationally ordered to the common good. Well, yes, process is good when it helps me. Process is bad when it helps you. This is common good constitutionalism.

Speech is good when I like it. Speech is bad when I don't like it. Bingo. We're gonna come back to Adrian from you'll this is gonna be a long podcast folks. I'm now realizing that buckle up, buckle up going and we're not stuffing where now we're in and it ain't over. Well, and then there's Trump's thoughts on pardons and auto pins, Sarah. Oh yeah, let's spend a second on that. Yes, let's do that. Okay, here we go.

Here's the actual truth social post. The pardons, and that's in scare quotes, that Sleepy Joe Biden gave to the unselect committee of political thugs and many others are hereby declared void, vacant and have no further force or effect. All those words are all caps by the way, because they were, because of the fact that they were done by auto pen. In other words, Joe Biden did not sign them, but more importantly, he did not know anything about them.

The necessary pardoning documents were not explained to or approved by Biden. He knew nothing about them when the people that did may have committed a crime. Therefore, those on the unselect committee who destroyed and deleted all evidence obtained during their two year witch hunt of me and many other innocent people should understand that they are subject to investigation

at the highest level. The fact is they were probably responsible for the documents that were signed on their behalf without the knowledge or consent of the worst president in the history of our country, crooked Joe Biden. There's so much there, David. Look, let's, let's start with just the legal, let's start with the end, if you will, will these pardons get undone? No, absolutely not. There are so many reasons. There's like layer upon layer. I think if they went to

even investigate, let alone try to bring charges against Liz Cheney or Adam Kinzinger, the lawyers in question would have a show cause order at their feet within moments. Show cause order, by the way, means that the judge is saying, tell me why I shouldn't sanction you for this because it's so obviously frivolous. So you have the pardon and we'll discuss why this doesn't really make much of a difference. Two, you have the speech and debate clause. They were bulletproof as far as I'm concerned from prosecution from the get. By the way, Jack Smith has absolute prosecutorial immunity as well. Okay. But his points are twofold, David. One, that Biden was not aware of issuing these pardons. He was not mentally competent to do so. Two, that because they did it with an auto pen, they're not valid pardons.

because they did it with an auto pen, they're not valid pardons. And look, we do have some case law about this. There's an Office of Legal Counsel opinion from 2005, this is the Bush administration. It's 30 pages and it walks you through almost all of the issues that we would be talking about here. This was in the context of the president using auto pen to sign bills into law. But for our purposes, it's the same thing. The history pre-constitution is kind of amazing about proxies. There's also a 2011 law review article about this from Syracuse that talks about this very long pre-American history on proxy signatures and stuff.

So the answer for that is, yeah, proxies have always been fine. Think about kings having someone else affix their seal to a proclamation. It wasn't the king himself pushing down on the wax. And that was always fine. Basically, you needed to be present or in some way have authorized the proxy. But think about Woodrow Wilson, which they talk about in this lot of you article, which almost seems more appropriate, if you will. But there was a secretary of state who was too ill to sign various things. And in all of those cases, proxy signed on their behalf. Now, David, I think you would agree, if they could show somehow that Joe Biden didn't authorize

these pardons at all, and they use the auto pen without his knowledge, well then the pardons aren't valid, but not because of the auto pen. Right. Nothing to do with the auto pen. Everything to do with this isn't an actual act of the president. But once again, by an administration, you couldn't actually do this right. You couldn't literally dot your I's and cross your T's with a real effing pen from the actual person, the only person in the world with the authority to do this.

Now, in theory, you are going to need something from the president to say, yeah, of course I did those. I knew I did them. Because it was his last day in office, this also gets just a little bit trickier because of that. You know, if he were in office, he could, while in office retroactively, but still currently do that. He will have to show though that at the time he had authorized those pardons.

I don't think that's going to be that hard. There's going to be something in writing an email, a letter from him saying, please pardon the following people and like actually work out the, you know, the actual language and do the auto pen. That's all fine. That being said, David, I don't love the auto pen. I'll tell you. Yeah, I don't love the auto pen, but I don't think there's any really viable argument that the auto pen, an I don't think there's any really viable argument that an auto pen nullifies the pardon.

And we have an OLC opinion. So the OLC opinion, I mean, it's just really blunt. It says, reading the constitutional text, in light of this established legal understanding, we conclude that the president need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article 1, Section 7. Again, this is talking about bills, but as you said, applies to pardons. So I just don't think there's a legal argument here on the auto pen that's viable at all. I mean, even one that this is borderline Rule 11 stuff to talk about like your show cause

argument. Yeah. Well, it's a delegation question. That's what the OLC opinion really gets to. The president can delegate all sorts of his Article 2 powers, including the signing. Now, he has to delegate it as in he has to want to sign the bill into law, but he can delegate the actual signing. And if anything, the question for the bill is stronger, a stronger question,

at least, because it says the word sign in the Constitution. In the pardon power, it just says the president may pardon people. It doesn't say anything about signing the pardon. Well, and the part about mental competence, I don't think, Sarah, and tell me what you think about this. I don't think you can just sort of say, I believe that the president was mentally incompetent, and therefore that this is void. And then the president then Biden would have to produce evidence of his competence. No, no, no, no. If you're going to say the president was mentally incompetent, you would have to establish the mental incompetence.

Correct. It's on you to bring the first, think of it as a burden shifting test. The first burden falls on the person trying to argue that the pardons are not valid because they are facially valid. So you would have to somehow show that they're not actually valid despite being facially valid. Yeah, yeah, exactly. And you can't do it by saying, court, please invalidate this because Biden's mentally incompetent. What's your evidence? Did you watch the first debate?

No, that's not going to get it done. That's not going to get it done. Right. You would need some, you know, an email from staff, for instance, like a leaker or a whistleblower, let's say, saying Biden doesn't know this, but we're going to sign all these ACLU pardons. Let's just get it done. That sort of thing would count. And that would then shift the burden, I think, to Biden to show that he in fact did intend to issue these pardons. But you have to have something pretty big to come overcome facial validity when it comes to anything like this.

Yeah. I mean, you would need like an email that says, the big guy doesn't even know where he is today. Perfect time for a pardon. Yeah. Pardon party. Fire up the auto pin, Bob. Yeah, no, it's, that truth social post, spoiler alert, the pardons are not voided.

We've got to do the alien and sedition acts from the 1790s as you might remember. The sedition acts are the ones that get all the fame because we talk about like how mean it was for John Adams to arrest James Callender, the sort of Steve Bannon of his day, because James Callender had been hired by Thomas Jefferson to attack George Washington, John Adams. If you remember the whole calling John Adams a hermaphroditic figure, that's basically

just calling him a hermaphrodite. We don't use hermaphroditic enough though, David, I feel. That's all James Callender. So they get the Sedition, the Alien and Sedition Acts passed, and they use that to arrest James Callender. He goes on trial with Samuel Chase, the Supreme Court Justice presiding over that criminal trial. Remember how I talked about how trials were very differently ordered back in the day? And that then eventually, when Jefferson comes into office, leads to the impeachment of Samuel Chase. It all goes back to the Sedition Acts. But we talk about the First Amendment and text history and tradition.

How are the Sedition Acts supposed to fit in there? Are they an example of the exact opposite of the First Amendment or is this an example of what the founders thought of the First Amendment? But that's not what we're talking about today, David. Because when we say alien and Sedition Acts, it's not one act. It's many, many acts. The Alien Acts, the Enemy Alien Act and the Alien Friend Act are both part of the Alien and Sedition Acts. And this had to do with foreign nationals in the United States who President Adams thought were a threat to or just unhelpful to the national security of the United States. Well, well, well, here we are.

President Trump is invoking the Alien Enemies Act of 1798 to remove people who are suspected of being Venezuelan gang members, who are Venezuelan nationals here in the United States who could be here legally or illegally, as long as they're not permanent green card holders, the order said. This led to a temporary restraining order issued by a judge. At the hearing, the judge basically says, and if these planes are in the air, you turn around, then the order itself is issued in which, the order itself restrains the government from deporting anyone affected by this order. At the point that the order was sent and issued,

the planes were over international waters heading to El Salvador. The planes landed in El Salvador. Salvador had offered to house these people in jails there that the United States will pay for. And David, a huge discussion over whether this was it, right? Finally, the administration has ignored a court order. Following shortly on the heels of that, a doctor was actually coming back from Lebanon through Logan Airport in Boston. She was detained.

Her lawyer made it to the airport with a court order to withhold her removal from the country, to pause her removal from the country, and they removed her anyway. Again, OMG, see, they're ignoring orders. I want you and I to talk about this, David, because to me, these are not clean examples of the court ignoring orders,

but they're not perfectly not ignoring orders either. Right, I mean, this is one of those cases where there's a lot of smoke around it, but you can't exactly see the roaring fire, because the real question was, and this gets super niche, which is why I'm not pulling the fire alarm right now that says they've done this, like they've crossed the Rubicon, because an order was entered while planes were in the air.

The question is, number one, once the planes were out over international waters, what's the jurisdictional issue there? What's the logistical issue of calling back planes, fuel, et cetera? That also wasn't in the order. The order itself did not have the turn the planes around part. That was only verbally. That gets messy. The haste in which the administration sort of declared

the use of the Aliens Enemies Act and then puts people on a plane and starts sending them out like instantaneously, there's a lot of issues there as well. And can I just toot our own podcast horn for a moment? Where have you heard an extensive discussion of the Alien Enemies Act before? This podcast, this podcast.

And what you'll know from that is really the big key question isn't whether or not this is an invasion within the meaning of international law, what an invasion is, whether the founders, this was what the original public meaning was, this was an invasion. Because if you're going to address the issue on its merits, the administration is almost certainly going to lose. There's three

times that the act has been invoked for war of 1812, World War I, World War II. What do those things have in common? They're declared wars against nation states, right? And this is invoking wartime powers against a criminal gang. Now, I think there are circumstances, we talked about this last time, where a criminal gang could become so powerful that it is essentially functionally a military in the way that, for example, Al-Qaeda was at its height. But the idea that this is designed to address the Alien Enemies Act was designed to address this I think is fantastical. But the big question is, is it justiciable? In other words, regardless of whether you think there's an actual invasion, is this in that category of cases in the

national security realm where the Supreme Court just doesn't intervene and doesn't, the Supreme Court, for example, wouldn't enjoin, doesn't enjoin, say, for example, the Trump administration's attack on the Houthis over the weekend because that wasn't a declared war. You won't see that, for an example. So the question really is, is this justiciable? In the administration's position,

sorry, the administration's position is that it's not justiciable, but that's not been fully settled by the Supreme Court. So while this is being settled, it has to work its way through the legal system. And they've come perilously close, perilously close to just short circuit in defying it. But I don't, I'm not yanking that, that fire alarm quite yet. Yeah. I mean, this to me is actually an equal, at least example of the administration doing something to try to skirt judicial review,

which is not itself a constitutional crisis, though it can be evidence of one. And a judge, I think acting unwisely. I think the idea of like verbally giving an order to turn the planes around, but then not putting it in the order is unwise. I think issuing an order that appears to apply retroactively is unwise. You should issue the order for future members of this class and not try to do retroactive stuff. I just think that was

unwise. You're setting yourself up to be ignored because they can't not ignore it. The plane's already gone. You can't order a plane to turn around. They're out of fuel. There's an impossibility defense to all of this. That being said on the jurisdictional question, I do think that's hard. When we have state action, American government officials acting like at Guantanamo Bay, that is American action happening on foreign soil. The courts have had to weigh in on that several times in the jurisdictional aspects of that,

including Bagram Air Force Base. We've done versions of this. So there's law on that, but it's complicated. And the judge didn't deal with any of that because he didn't know the planes were in the air. Because this whole thing was, I think, done too precipitously by the judge. And I blame the judge for that, not actually the government.

And on the Boston one, which is a little bit cleaner in some respects, right, the lawyer gets the TRO. And that, by the way, is the proper use of a TRO in this case, getting a TRO to keep your client off that plane before anything is litigated on any merits issue is actually what a temporary restraining order is for. So runs from the courthouse back over to the airport with the TRO hands it to CBP according to the lawyer. CBP kind of like doesn't know what to do with it is like sitting there trying to figure out what it's about. In the meantime, the

plane takes off with her client on it back. I believe the plane landed in Paris. That looks far more like ignoring a court order, except you don't have the intent issue here, at least not proven. The fact that there's government bureaucracy that drops the ball on a court order is technically ignoring a court order. You can get hauled in for contempt. I suspect CBP will have to answer for this. But that's not ignoring a court order in the way we talk about it.

That's not a constitutional crisis, ignoring a court order in the way we talk about it. That's not a constitutional crisis ignoring a court order. That actually happens not infrequently, I am sorry to say. Yeah. Yeah. Now, there's some interesting developments, I believe, involving this exact same person that she might have gone to Lebanon to attend the funeral of Hezbollah leader Hassan Nasrallah. Mropro. attend the funeral of Hezbollah leader Hassan Nasrallah? Rupro! Yeah, so whether or not we feel sorry for her is then also a separate question.

But I will say even if she did attend, that doesn't trump the TRO, but it would certainly, the fact that she would be attended would certainly be an issue. Because again, if she's here on a visa, not a green card holder. would certainly be an issue. Because again, if she's here on a visa, not a green card holder. She was on an H-1B work visa. So not a green card holder, something more akin to a student visa

that is very easily revocable. Yeah, yeah, exactly. And so we'll have to see how this all plays out, but you don't defy a TRO to do this. But the question is, was it intentionally? But I'm not sure they did. Right, exactly. Yeah.

Like you hand it to the CBP person outside of security because you can't get through security and that person's like, I don't know what to say. It happens. Okay, David, we have one last topic to get to. And it's last for a reason. This is the Harvard Federalist Society elections. This is a student group at Harvard. It is the oldest, tied of course, oldest, Federalist

Society chapter in the country. Chicago and Yale also started in 1982. It is the largest Federalist Society chapter in the country. And certainly it credentials many a conservative, including you and I. I was the president of the Harvard Federalist Society. I have lots of interest in this. They had their yearly elections last week to elect their board.

And dated on the morning before the election, I was inundated with emails from students calling election shenanigans. And I will tell you, a lot of the election shenanigans, I don't care about, right? Student groups always have these problems. It matters a whole lot to them, and they're not run with state action, and so it's pretty hard to run a perfect election at all times. There was some issue here. Basically, they amended the Federalist Society chapter constitution so that you had to attend, I believe, eight substantive events and three social events. And they sent out a list to potential voters and you had to check which events you'd gone

to and everyone turned in their things. And then they went back through the list and de-qualified social events that had been included on the checklist, but then weren't gonna actually count of whether you were a voter. But look, then I heard there was like some cure timeline. I mean, whatever, I don't know. And I don't really care that much. Here's what I do care about,

which was the purpose of all of this, including the election sort of the process of all of this, including the election sort of the process, if you will, David, there was a 30 plus page notice and comment election code. This is the most law student thing ever. The most law student thing ever. Election code, as well as an administrative opinion issued because one of the students brought a quote unquote, like administrative law case to the election commission. All of

these things did not exist when I was there, by the way. And in this 30 page election code that included notice and comment, one of the students' comments was the reference to natural laws inappropriate in an election code for the Federalist Society student group. And I want to read to you some of the answer. We disagree. While some organizations improperly characterize the natural law as antiquated and parochial belief, it is anything but. The natural law is only the guidepost of interpretation, one required by, I don't know, there's some acronym here that I don't even know what that stands for, and generally accepted in parliamentary process.

Indeed, the House of Representatives, before electing a speaker and adopting new rules, each Congress operates under general parliamentary law rather than published or adopted rules. This general law discerned from common practice is based in the operation of tradition and the natural law. Such law solves rather than complicates undetermination. And that may mean in some circumstances

reference to quote, the law written in the hearts of men which iniquity itself effaces not, quoting Thomas Aquinas, the law does not predominate but rather acts as a backstop where written rules run out. First, as to what the natural law is, the fundamental precept of natural law is practical reason. In terms of human law, Aquinas tells us that law is reason for the common good made by him who has care of the community and promulgated.

Aquinas offers a simple proof to justify this conception of law as premised in reason. That is, if something is contingent, it is reasoned, and human action is contingent. Since the law is human action, it therefore follows that the law is reasoned. Applied to law, reason governs how a polity ought to be governed, namely, for conformity to perfection and happiness, i.e., the image of God. Such an explanation may sound academic, but it avoids the golden calf of process worship. That is, it requires the interpreter

to justify his belief in the common good, what most law students call policy. Process is not inherently valuable. Instead, it is the outcome that the process creates that justify the law. The idea of requiring one to ground a legal interpretation in reality, that reason is inherent to law, is not unique to a specific religion.

Virtually every global culture, religion, and legal system assumes such a worldview. In the words of Professor Vermeule, the common good condemns the abuse of official power for private purpose like nepotism or percolation. It underwrites equitable and public regarding interpretation of semantic and legal meaning, and it helps to prevent a kind of pointless

and fetishistic legal formalism that benefits few and harms all. Wait, wait, hold on. If it benefits few, it can't harm all. I don't know. Nor is the common good irrelevant to our context today. One related to parliamentary law. Indeed, such a rule merely reflects the power presiding officer already has

under Robert's rules of order. Ah, that was it. R-O-N-R meant Roberts, R-R-O-R, whatever. Anyway, so David, that was a lot of words that probably don't sound like they mean much. So let me summarize. Speech, I like good. Speech, I don't like bad.

Me get to decide that. When other team in charge, they know get to decide. Process for me, not for thee. Speech for me, not for thee. I mean, this is, and there's one thing that I think is really that I've discovered in a lot of these because this goes all the way back to some of the anti David French ism stuff in 2019, which got me really much more familiar with the integralism, common good approach, etc cetera. And at all times, it just boils back down to what I think is right as a natural law. It just boils back down to that. Including how this election is being run, which I find, like, this is the most absurd context.

We will run this election using natural law, i.e., we won't follow the process when we think the outcome won't be for the common good in an election. And the other thing that's interesting, and look, I'm not going to cast dispersions on everybody. I have met an integralist or two who's a lovely person. I had a student in a class not long ago

who was integralist and just phenomenal person, but just as a human being, just a delightful person to talk to, to get to know. But an awful lot of these common good constitutionalists are also among some of the most nasty, dishonest and unethical people that you'll encounter in public life. And I wonder where all that fits in. Where does cruelty fit into natural law? Where does dishonesty fit into natural law?

Oh, we're getting there, David. Okay, please keep going, yes. Okay, so for those who may know, you can say it with me. The Federalist Society has three and only three principles. One, the state exists to preserve freedom. Two, the separation of powers is central to our constitution. And three, it is emphatically the province and duty of the judiciary to say what the

law is, not what the law should be. But David, we now have these splinter groups starting on these campuses to flank the Fed Sock from the right. The one at Harvard, I believe, is called the Joseph Story Society. I'm also told it is, I mean, I don't know whether this is true for what it's worth. I'm told it's basically all male and they have one female member to prevent arousing suspicions based on it being an all male thing. These are the common good splinter groups. Again, common good as defined by them and correct outcomes defined by them are more

important than the process. They believe that saying what the law should be is exactly the role of judges. Like they literally don't believe in that third one. And as far as the state exists to preserve freedom, turned on its head, they actually say that individual freedom does not exist if it does not enhance the general welfare. Again, a term defined by them. And I'll read to you from the portion about this. It's in a footnote. This demonstrates an inadequate conception of the theory of freedom. Common good constitutionalism understands freedom in its fullest sense. In the words of Professor Vermeule,

natural liberty rationally ordered to the well-being of the political community, to the general welfare or common good, rather than justified on individualistic grounds. Indeed, this is how the founders also conceived of freedom. That was also in that election code, David, for what it's worth. So there are no individual freedoms unless they are group enhancing in their individual application as well. So it's not just like, well, freedom of speech is good for the group and therefore we always honor freedom of speech. It's no individual determinations of whether you get freedom of speech or whether that speech is good for the general welfare. You know, there's this whole argument, mainly online right now, mainly on X, about the woke right.

And this phrase, the woke right is emerging. And this is that. Okay, if you're talking about like, if you've ever seen what is the woke right, when you hear the word common good, just think social justice. So if you're talking about sort of far left judicial philosophies, when I was learning critical theory,

for example, a lot of the emphasis on individual liberty, individual liberty was de-emphasized, group well-being was emphasized, et cetera, sound familiar, a lot of this is just the flip side of sort of a social justice, identitarian, oriented, critical theory, kind of left-wing judicial ideology coded and rinsed through Thomas Aquinas on the right.

It's very similar. So if you hear the words common good, think social justice, because those are very, very, very nearly identical concepts coming from at the end of the horseshoe, two different wings. And so when you hear a lot of this, what you're talking about, think of it as again, it's like critical theory for the right, social justice for the right. That's what this is. So interestingly, David, the election was held, as you might suspect, given that they were in charge of the election process, the common good constitutionalist candidate, as I understand it, won the election.

So this is now the largest Federalist Society chapter in the country being run by common good constitutionalists. Interestingly, I'm told the next day, a group of underclassmen, if you will, at the law school, considered threatened to whatever term you want to use filing a Title IX complaint against a fellow student, because within the Federalist Society, there's an officer who is responsible for creating events for women, marketing events for women, to encourage women to join the Federalist Society.

And they argued that was a Title IX violation, even though, of course, men are welcome at those events. It is not exclusively for women. They're marketed toward women. As the Women's Law Journal at Harvard Law School and many, many other organizations are as well. And for those lawyers listening who are like, wait a second, you can't file a Title IX violation against a student. Oh, that would also be correct. You have to file it against the school. And it would actually be the Harvard Federalist Society having the mess slash the

school itself. But what if common good dictates that you can file against a student? So true, though. Then we're good, right? And look, what I understand from these students, which is interesting, David, and I think this gets to your point about why they seem mean, and I'm not referring to any specific student here. I don't know these students.

I don't even know their names. Okay? So from what I understand from a few different sources, these common good boys are young. Most went straight through from undergrad to college. They're immature. They're not performing well in law school, many at the bottom of their class in terms of grades. They're struggling to get circuit clerkships, and they're very, very single. And history is littered with the stories of young men who are frustrated and can't get chicks. They're called Jacobins. We've, we've seen this play out before.

And I guess, I mean, I, I tweeted this, but they misunderstand Fedsock's strength. They think they've taken over the power structure, right? So now they are powerful. Fedsock's strength came from its size and diversity of thought. When you shrink it down to only those people who agree with you on outcomes, you stripped it of its only source of power. And the metaphor I used, which is, you know, a little much, but I love it. The Vikings can be resentful that we didn't let them into our club. They can even burn down the club, but they still won't be in the club.

They'll just be standing over its ashes, still sad and confused and angry and without clerkships and without girlfriends. That's how that works. I don't know, seizing control of the Federalist Society, based on my experience, Sarah, is just like turned you into a magnet for the opposite sex. The chicks love a Fed Soc president.

That's my experience. Absolutely. But this gets us to the admissions convo, David, that we've had as well. You've talked about how admissions officers were looking for activists and then they're shocked when students come in and disrupt. The school aren't curious to learn about the other side, aren't engaging with their fellow students. Here's what's interesting about that. And I've gotten some pushback that I find really, really persuasive, which is they already get that feedback naturally

from the system, right? The admissions office doesn't live in a bubble. Like there's then the like student life people, whether an undergrad or a law school or anything else, that are coming back and being like, look, this person's a real problem on campus. You should think about how they got through the admissions system and stop that next time. But when it comes to this, David, here's my question to you. Does this represent diversity of thought that admissions offices, same as we want them to admit conservative students and liberal students and progressive students and sort of students from You know who aren't political at all and grew up on farms and all the types of diversity. Is this a type of diversity that we may not agree with, but that should nevertheless be sought out now that is becoming a force on its own? Okay, so that's a really good question. Do you want to have a law school environment

that is where your applicants are communicating to you their preexisting political and legal commitments, and then you're trying to make sort of a salad with the right mix of legal and political preexisting commitments. Is that a valid way of building a class? I would say no, okay, because I think the moment that you're emphasizing commitments and convictions

in your selection process is the moment you're starting to go astray. One of the things that was really interesting to me about the whole encampment wave was that it was not a wave across all of higher education. It was not. So what you were seeing when the encampments disrupted these elite campuses,

you are not seeing an expression of Gen Z at college. That was not what you were seeing. What you were seeing was an expression of specifically curated communities in certain elite universities, and that was the result of the curated community. And so how do they curate these communities? They curate these communities differently than they do,

say, if you're applying to many of the big state schools, for example, or other kinds of institutions of higher education. It's just a known thing that they're curating for conviction more than curiosity. Now, it's not the case that those two things, conviction and curiosity. Now, it's not the case that those two things, conviction and curiosity, are incompatible with each other. But the question really is,

because some of the most curious people I know are also people of conviction, but when you're a young student, what is the dominant aspect of your approach to the education and what is subordinate? And as a student, your dominant aspect of your approach to education should be is subordinate. And as a student, your dominant aspect of your approach to education should be one of curiosity.

You've not figured it all out. You're not going to a college or a law school as a simple VOTEC school for your preexisting ideas and activism. You're learning a lot. And hopefully a lot of your ideas and activism will perhaps shift and morph the more that you learn. The sort of idea that at age 18, I have a fully formed political

worldview or at age 22 or 23 or 24, whenever you're applying to law school, and then to tell admissions committees to then control for the diversity that exists from the preexisting political convictions at 18 and 22. I think that's just the wrong approach. I much prefer an approach that is very heavy on asking students, how do you engage with people who disagree with you? How do you approach encountering different ideas? Because the presumption is you're coming in

with certain convictions. The question is, do you have sufficient curiosity to be the kind of student we need at the school? Interesting to me, David, about this is one, judges are no longer gonna be able to rely on the Federalist Society credential to tell them what the beliefs of that student are when it comes to those three beliefs

of the Federalist Society. The state exists to preserve freedom, separation of governmental powers is central to our constitution, it is emphatically the province and the duty of the judiciary to say what the law is, not what the law should be. But frankly, they should have been interviewing students if they cared about those things beforehand. I hope they were. I hope they weren't just relying on membership in the Federalist Society. Second David, I think, yes, they did have to change the election rules to limit who

could vote. And then of course, change that election rules to limit who could vote. And then of course, change that again to further limit who could vote. But it is nevertheless meaningful to me that the common good folks were able to win this election and they deserve a hearing out, if you will. So I do wish the incoming president the best of luck. I hope he keeps it a big tent society where diverging viewpoints are listened to and valued and speakers are brought in. I believe he will. And it is okay for the person at the head of the Federalist Society to have one of those beliefs and not the others, right? Sort of by definition, if you're having conservatives

and libertarians and common good conservatives and all of that and MAGA Republicans in one tent, then yeah, the presidency is going to have to switch between those different groups. I have no problem with that, even if I personally don't agree with it. But they have so far embarrassed themselves by looking like immature little boys with like the election code citing Thomas Aquinas and stuff and issuing administrative opinions like they're pretending to be judges or something. So knock that off, act like a student group and act like a good one because you inherited this from decades of people who came before you who made it what it is to hand it off to you.

And we do that with joy and trust. So good luck. And maybe the Fed Soc is right for a little competition. You know, last year, was it last year we talked about the Society for the Rule of Law that was created? Flanking from the left. And if you're going to have an integralist Fed Soc, there might be a need for a classical liberal society for the rule of law. So, I don't think it should be viewed as the conservative group is Fed Soc,

and whoever controls Fed Soc controls conservatism on campus. No, no, no, we live in a much freer country than that. So, if you want to seize the institution and turn it towards integralism and common good constitutionalism, you have the ability to do that, but you also cannot control the consequences if you choose to do that. Right. The other side gets to have living constitutionalism too.

I mean, this is living constitutionalism. That's what I don't understand. Like, this is literally why the Federalist Society was created to stand athwart living constitutionalism. And now 40 years later, it's like, but what if we do living constitutionalism for the right? It's like, you think you're geniuses? You think you just came up with this? These folks are still alive.

Ed Meese is still walking around out there. Anyway. These folks are still alive. Ed Meese is still walking around out there. Anyway, David, this podcast is our longest ever in AO history. Longer than Dobbs, the post Dobbs. Longer than the Dobbs one. So some notes for the next episode. One, we've got a ton of circuit cases to go through. Some on Bonks, lots of 11 circuit. There's lots of feelings on the 11 circuit right now, David, it seems like, and they wrote them all out for us.

So we'll be going through those, the night circuit, the four circuit. I think there might even be a six circuit in there. We'll see. I'll go through the SCOTUS lottery system for seats on the next episode. Someone was on the ground, David. They did it.

They got in through the lottery system. So I have their play-by-play of how it worked and whether they liked it. Before we go, I do have one correction. On the last episode, I said that there had been no justices who'd worked for the legislative branch and the vast majority had worked in the executive branch and perhaps this should illuminate something. I wasn't just a little wrong. I was double wrong. So first of all, Justice Clarence Thomas famously worked for Senator Jack Danforth. He worked for him mostly when he was attorney general in Missouri, but he did come when

he became Senator Jack Danforth and worked for him in the US Senate, working on energy policy as a legislative assistant from 1979 to the beginning of 1981 when he became chairman of the Equal Employment Opportunity Commission. But also little known or less known, Justice Elena Kagan in 1993 was actually a special counsel to the Senate Judiciary Committee when she worked on the confirmation hearing for Ruth Bader Ginsburg. So I don't know if that really counts

as working in the legislative branch, but she did literally work in the legislative branch. My apologies. So two quick things before we end. One, interesting, I'm seeing that it might be the case that Trump had signed the pardons of all the J-6ers with auto-pins. Of course.

So interesting. And the other thing is I would love to put a pin in maybe this discussion. Can't remember if I've said this before, but my son has been applying this cycle for law school. And he keeps telling me Reddit is saying this is a crazy cycle that tons and tons of people are applying. And then the Wall Street Journal covered this over the weekend.

And the number of people applying to law school now, right now, Sarah, is unbelievable. Unbelievable. So it might be interesting to have a conversation. applying to law school now, right now, Sarah, is unbelievable, unbelievable. So it might be interesting to have a conversation. Why, why? And I've got more on this admissions stuff that I have been like percolating on that I would love to talk to you about as well. So let's put a pin in that whole

law school admissions conversation. Maybe we can do a little bit more on the biggest question that plagues AO, that divides our country, should you go to law school. Oh, yeah. That's one argument I've been decisively winning. You're not winning. I mean, you are winning, but you're not winning. Clearly you're winning, according to Wall Street Journal's numbers on this. Nobody is listening to me. All right. Talk to y you all in a couple days.