Advisory Opinions - Judge v. (Unethical) Lawyer

Episode Date: April 22, 2025

Sarah Isgur and David French react to Donald Trump’s latest legal battles and talk to friend of the pod Judge Amul Thapar about his new wellness Substack. \The Agenda: —Birthright citizenship oral argument —Trump's use of Alien Enemies Act blocked —The FAFO bucket —Criminal contempt proceedings against the Trump administration —'An opinion for the ages' —Judges Thapar’s wellness advice Show Notes: —Justice Alito's dissent on Alien Enemies Act —William Baude on the birthright citizenship oral argument 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

You ready? I was born ready. Music Music Music Music Music Music

Music Music Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We've got Emergency Docket and a little health and wellness advice here coming up For Guys Reopinions, I'm Sarah Isger. That's David French. We've got emergency docket and a little health and wellness advice here coming up at the end from an Article 3 judge though. We've got three buckets. Let's start with the first bucket. This is birthright citizenship. If you remember, you

had many judges around the country put on hold the administration's EO ending birthright citizenship under the 14th Amendment. So in this first bucket on birthright citizenship, we had the Supreme Court set oral argument on this. But David, what is this? They did not grant cert as our friend of the pod, Professor Will Bode pointed out. So there is no question presented. However, as we talked about previously on the podcast, the briefing from the Solicitor General's office asking for the Supreme Court to review this was all about the scope of nationwide

relief, the universal injunctions, it should be limited to the parties, it shouldn't stop the government from discussing internally how they will start to implement this, for instance. So we don't actually know what they granted or what they want to talk about, but there will be oral argument on it. We don't know whether they will have additional briefing. We don't know what they'll do about amicus briefs. And this was, I thought, really fun, David, that our dear friend Will Bode wrote about in a little footnote here. We don't actually know how they did this. So I'll read his footnote. Do we know how many votes it takes

to schedule oral argument on a stay application? On one hand, it seems odd for it to be five or more because it only takes four to grant cert. And indeed, couldn't four justices choose to treat the stay application as a cert petition and then grant it? And actually, if they can do that, would they also then be entitled to a, quote, courtesy

fifth on the stay application for at least the duration of oral argument? On the other hand, you could even imagine it being fewer than four, more like calling for a response to a cert petition or a stay application. I do not know the answer, but the answer seems relevant to what the oral argument portends. And David, I've gone through the like really thick Supreme Court practice book with husband of the pod. There is no answer to this. It's a question that has been outstanding. And nobody knows as Nate Bargassi would say, it'll be a fascinating oral argument. It will be May 15th. I suspect that it will be on the scope

of nationwide injunctions. I do not think this will be on the merits and constitutionality of ending birthright citizenship, though you may, I think, hear some incredulity from certain justices as to why we're here at all. Yeah, you know, I thought Professor Bode's post was really interesting and we'll put it into show notes. The way he phrased it was like,

there's not even really a question presented here. What we have is an oral argument scheduled in a case about birthright citizenship that has multiple issues attached to it, including, as you noted, Sarah, the issue that has nothing at all to do with the merits, which is the propriety of a nationwide injunction. So the fact that they've kind of tapped the brakes on this and they're scheduling it for

an oral argument sometime out actually makes me wonder if they might take sort of lick at the whole kit and caboodle, if they might look at whether or not there is proper basis, legal basis for the birthright citizenship order, and also look at the injunction issue. Because you could easily see, as Bode talked about in his piece, another Marbury-esque kind of decision along the lines of Trump v. J.G.G., where maybe you say, yeah, we're curtailing nationwide injunctions. And oh, by the way, birthright citizenship remains. And so you could have sort of one part a little bit given to the Trump administration, but

a big part withheld. You know, they lose on the fundamental merits of it. But that would strike me as a lot going on for a case not on the regular docket. That would be a lot going on. So I'm, I don't envy the, I don't envy the oral argument prep here, Sarah. You've got to be ready for it all. I think that is your scenario and Bode's scenario of the Marbury-esque thing is unlikely because they didn't treat the application for a stay as an application for cert, as in to put it on the merit stock. If they had said, like, we're granting cert on this and scheduling it for oral argument, then I would say we're definitely heading for the Marbury-esque version, although I think mine would still be different. It would be nationwide injunctions, bad, but

also the president acting alone can't do this. I don't think there's any world in which they get to the 14th Amendment side because they don't need to. Even if Congress could pass a statute, we're just not in that world. So why even reach whether Congress could do it? I think it would still only be about the president. That's a good point. But they didn't grant cert. This is just oral argument on the stay application. And the government didn't argue that there shouldn't be a stay on the birthright citizenship

issue. They only argued that it shouldn't be universal and that it was too broad, meaning that the stay itself prevents them from circulating internal memos about how they would implement this, for instance. So they're asking for it to be just with the parties involved or the states even involved and then not implicating internal executive branch decision-making. Because that was the government's argument,

and this is only an argument, an oral argument on the state application, I don't see it being about birthright citizenship at all. I'll be shocked, but David, I've been shocked before. Yeah. I would find it, it would be very interesting if the ruling was in essence, there is a stay

in place, but for the litigants, because the litigants have demonstrated a likelihood of success on the merits, but the universal injunction is lifted. That would be a very interesting kind of outcome, right? And so, especially a very interesting outcome if the court is very distrustful, and we're about to get into your other buckets here really soon, I think. If the court is very distrustful of the administration complying with court rulings or distrustful that the administration will read its decisions in good faith, in other words, that they wouldn't want to in a ruling that upheld a stay on the basis that the likelihood of the success on the merits was low, that they would not

want that read in a way that it empowers the imposition of the executive order in every other area except where there is this explicit court order against it. And so I'm literally right now, Sarah, as we'll get into in this next discussion, I think we're in an environment where the court learned a lesson in response to its most recent rulings. And we might be in a little bit of a new arena of when it comes to this clash between the executive and the judiciary. And just one more second on the fact that we don't know how many justices had to vote

to hear this oral argument, because our normal brain stem version of covering oral argument is that it's about a 60 plus percent chance that they're going to flip whatever the decision was below because it takes four justices to take the case in the first place, yada, yada. This is the math that we all know. But here where we don't know how many justices it takes, it might be three, it might be four, and it might be five. That really changes the math of what we think they're going to do, if it's three or if it's five, for instance. Now, I do think on some of these, the last time we saw

this happen, I think was the vaccine mandate case, David, that husband of the pod argued. Yeah. And we didn't know then, by the way but it's these like cases of large national importance. And I think unfortunately, part of the reason we don't know yet, because there's clerks, right? They could tell us in theory when they've left the court is that in these very few cases where this is happening, I think there's only been maybe like three in history, maybe four, it's not three justices

or even five justices. It's a lot more than that. And so they never really test the proposition themselves. I wonder if that's what's gone on here as well. And so we should assume more rather than fewer justices were like, yep, let's just go ahead and hear argument on this. But because it's on the narrow question, I mean, that would lead me more towards your side, David, that maybe they will do the Marbury version of this and get into the merits. And if I were an oral advocate, I'd be a little scared about having to cover so much ground, potentially, in one oral argument. Oh, absolutely.

I mean, you know, as soon as I read that with with Boat, when he states it so clearly, there is no question presented. I had my litigator hat on for a minute and I just thought. Just heaven help the person who's going to be arguing, the people who are going to be arguing this thing because and then just imagine

you're prepping them like the the the moot, the mooting that's going to take place, the questions out of left field. Oh my gosh. Yeah. And also, I do wonder if you are taking it to flip it, which as you said, most of the time there is a reversal. It is very interesting that you leave the stay in place and then give this pretty extended briefing schedule, which does not exactly indicate an urgency to reverse the stay.

This was Will Bode's first footnote. God bless Will Bode that we love his posts so much that we have to cover both footnotes. I'll read footnote one now. I realize that many people are now calling the consideration of applications like this the emergency docket and that this term is supposed to avoid the supposedly negative connotations of the shadow docket. But is there any sense in which these petitions can be fairly called emergencies? There is no administrative stay. The lower court decisions have been in place for over a month and will be in place for another month. And the court's pace of briefing here does not communicate

emergency. Now, worth noting that the person who coined the term shadow docket is Will Bode. So perhaps he's a bit biased in that. But now he hasn't convinced me to go back to shadow docket. But perhaps he has convinced me that we need another term other than emergency docket, even though I think it is helpful as a way of distinguishing it from the merits docket that sort of goes at this very pittipat pace.

Do you have a term, David? I have a suggestion. Okay. Equity docket, Equity docket. And the reason why I say that is there's this whole category of, of its entire category of practice that is when you're practicing an equity, meaning seeking injunctions or appealing from injunctions, et cetera, restraining orders, injunctions, that's all equity, whereas money damages, this is going back to like

early law school stuff, money damages is law, and injunctions are equity, and that is, the equity docket is a little different. You get immediate rights of appeal if you've lost a motion for an injunction when you don't get an immediate right of appeal and in many other circumstances in courts of law. And so there is something unique about the equity practice

that is not always emergency, but it is just different. So I submit that for your consideration, Judge Isger. Love that so much. I think I'm gonna start using it. Now I'll keep explaining equity docket, which some call emergency docket, because I think Bode is right. These aren't emergencies in, you know, that brings up like emergency powers of the president or something like that. And it's not. I don't like shadow docket, because at this point, it's not in the shadows anymore. It's a whole tab on SCOTUS

blog. And they almost are writing every time now. So it's not really in the shadows, though I take Will's point that we don't know how many justices voted any given way. I love Equity Docket. Okay, Equity Docket. We're going to try to make fetch happen here, David. Now we'll take a quick break to hear from our friends at Ethos. 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. I know I do. But what if something happens to you? Life insurance can provide you with the peace of mind that your finances are set for them, but the process can be so complicated. Luckily, Ethos makes securing life insurance and the peace of mind it brings fast and easy. If you've applied for life insurance before, you know how difficult and confusing the process can be. With Ethos, you can get same-day coverage without ever leaving your house. With Ethos, you can get a free quote and customize a

rate that fits your budget. You can get up to $3 million in coverage with some policies as low as $2 a day billed monthly. Lock in your rate today since premiums can go up as you age. Three million families have completed their applications and trusted Ethos to help find the right coverage. They've earned 4.8 out of five stars on TrustPilot with over 2,400 reviews. Protect your family with life insurance from Ethos. Get your free quote today at ethos.com slash AO. That's E-T-H-O-S dot com slash AO.

So let's move on to bucket number two on the equity docket. So bucket number two is also an incredibly unusual thing that the Supreme Court did. Everyone's been saying like, what? Huh? I can't believe this happened. Like anyone who's a Supreme Court watcher would not have guessed this. All right. So this bucket is on the Alien Enemies Act bucket. Remember, these are the is on the Alien Enemies Act bucket. Remember, these are the people accused of being Venezuelan gang members who the administration said were removable under the Alien Enemies Act.

The Supreme Court at first blushed when they get it on their equity docket says, yeah, the DC judge who had this case doesn't have jurisdiction that in fact, this needs to be brought in habeas. We had a whole podcast about that. We called it Marbury-esque, that on the one hand, these guys each individually have to file habeas petitions. And on the other hand, you have to give them due process and it's going to now be in an Article III court. Did you save yourself anything?

Because otherwise, if you were doing it not under the Alien Enemies Act, you could be in an Article II court in the immigration courts. So David, this went then back, various Texas courts, the Southern District of Texas put basically a stay on the whole thing. So then for those being held

in the Northern District of Texas, the administration sent notice that they were being eminently removed. The ACLU filed in three different courts, just a flurry of petitions in a five-hour period or so. A lot of people have been giving the ACLU a lot of credit for this. I'm going to join them. It was just an impressive legal feat, frankly, with a lot of Hail Mary passes going all over the place. And it worked this time. So they filed immediately in the district court and they gave the district judge 45 minutes. And they said, if you can't decide this in 45 minutes, we're going to the Fifth Circuit.

The Fifth Circuit then said, well, actually, the Fifth Circuit hadn't responded yet. And they also filed at the Supreme Court, basically saying, help us. You made this ruling, and we don't think they're going to abide by it, help. So what we got just after midnight was an order from the Supreme Court. Now, let me be clear. People have been saying this was 7-2 because the order says basically, you can't remove anyone. Just hold on a second. Nobody can be removed. Under the Alien Enemies Act. Under the Alien Enemies Act. And then it says Thomas and Alito dissenting with a statement to come from Alito.

We then get that statement 24 hours later. But that doesn't mean the other seven all agree to it. I think that's a good bet. It's a fair assumption. But maybe they didn't note their dissent. Maybe they didn't want to join Alito's statement. Who knows? That is the problem with the shadow docket part of this is that actually, it's more like

a per curiam opinion in which we can make assumptions that every other justice joined, but it is only that, only an assumption. Okay. David, you have the justices stay removal under the Alien Enemies Act. You then have Alito's statement in which he basically says, this is not regular order. Why are we not doing regular order? There was no reason to do this. We maybe didn't even have jurisdiction because what is this, an original jurisdiction case

in front of the Supreme Court? If not, then you have to be able to point to some statute that Congress gave the Supreme Court jurisdiction. The Constitution only gives original jurisdiction and then such jurisdiction as provided by Congress. The Supreme Court cited the All Ritz Act, Alito's kind of side-eyeing that possibility. If you only gave the district judge 45 minutes,

the Fifth Circuit that actually did decide it, but after the Supreme Court did, basically said, we don't have jurisdiction because that was not sufficient time for the district court to decide. Of course, the district court said it no longer had jurisdiction because it had been appealed to the Fifth Circuit and the Supreme Court.

If you're not following this, don't worry because basically this was chaos this weekend. David, top line thoughts. Yeah, boy, there's so much here, Sarah. I think the first thing you have to understand is there is no way this happens like this if the Trump administration had responded to the court's orders in good faith. There's just no way this happens because the evidence, you had two things happening at once.

One was after the Supreme Court issues this order with no dissents saying the judge rightly ordered that, and this is in the Abrego Garcia case, that they rightly ordered that the administration should facilitate his return and then said in that order that you need to be ready to articulate the steps you're taking to the district court. Well, when you say steps that you're taking, that isn't just implying something affirmative, it's stating something affirmative. And then the way the administration has responded

by essentially trolling the district court. And there are a lot of people who are very angry at the Supreme Court right now, because you will read the Alito dissent, and it does note a series of ways in which this is outside of regular order. But there are a lot of people who are angry at the Supreme Court right now

because it's outside of regular order. But here's one thing that I would say. If you play games with federal court rulings, when you play games with federal court rulings, and when you're playing games in a way that is obviously in bad faith, just obviously in bad faith, you should be prepared for the federal courts to exercise their equitable jurisdiction over you in a maximal way. So there's a couple of ways that this happens. One is the All Writs Act. And this is something that, you know, here's the quote from the All Writs Act. It's very short.

It says there's two provisions. A, the Supreme Court and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. And B, an alternative writ or rule, NISI, N-I-S-I, may be issued by a justice or a judge of a court which has jurisdiction. So this is essentially saying you get a lot of broad power here. This is established by Congress. Now Alito is saying, wait, did we actually have jurisdiction? That's the Alito question. Then there's also something else here that we almost never talk about, Sarah, and I don't know that we've talked about it much at all on this

podcast. And this is something that is called inherent equitable authority. So just as the president under article one has an inherent executive authority. So it says the executive power is vested in a president. So there's, we've talked about unitary executive theory that there is something that is just inherent executive authority. Similarly, just courts have a sort of inherent judicial authority.

And here's a quote from the Supreme Court, courts of justice are universally acknowledged to be vested by their very creation with power to impose silence, respect, and decorum in their presence and submission to their lawful mandates. These powers are governed not by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. This is a very ambiguous thing, Sarah,

and you'll find law review articles, we can put one in the show notes, that talk about sort of how ambiguous it is. But as a young litigator, one of the things you're taught is don't play games with a court. If you think you can play games with the court, you can do this little tiny procedural hook or this tiny procedural hook to just block the court from effectuating its rulings, watch out. Watch out. And what I would say, like, if you're a young litigator and you're looking at sort of this litigation style that the administration is pursuing right now, and you think, oh, interesting, let me emulate that, I double dog dare you. I dare you to try this kind of litigation style.

I dare you to try this kind of litigation style. See what happens. And so I think that what you saw here, Sarah, in very blunt terms was the Supreme Court of the United States saying, we don't trust you, and so therefore we are issuing an order in the most unambiguous of terms. This was not a Marbury. The Trump v. JGG that we talked about last week, where I thought you put it very well when you explained that it was Marbury-esque

because it gave the administration something at the same time it preserved due process. There's nothing Marbury about this. This was blunt, straight ahead, we do not trust you. And so therefore we're issuing an order that is completely unambiguous. So hard to say whether this bucket is better referred to as the FAFO bucket. You know, if it was Marbury before, now it's FAFO. For parents listening to this podcast, I would

say have your kids tell you what that means. But also depending on your kids age, that might be an inappropriate request. There's also the Kendrick Lamar, we don't trust you. Could go either way on what this bucket should be called. David, I think I don't want to ever attribute five dimensional chess to people because what I've learned as a political operative is that a lot of people think they're playing five dimensional chess. And really, there's no such thing as five dimensional chess because that's not how chess works. However, I think it is fair to say that the chief justice here is probably playing chess.

Meaning, his first move was, I will treat you, despite what you're saying publicly, as the presumption of regularity, which is something that is given to the government. It is a canon, if you will, a presumption of regularity for many governments, state government, federal government. So they gave them that presumption of regularity. Then they defied that presumption of regularity. So now they've lost the presumption of regularity, and now they're going to be treated that way without that presumption of regularity. And once lost, I don't know whether they'll get it back. I don't know whether it's only this bucket, this immigration bucket, let's say, where

they've lost the presumption of regularity or whether the court will treat them without that presumption in all buckets moving forward. It is a big, big problem for the federal government not to get the presumption of regularity because of this. You're seeing the results of it, but it means in every case, they don't take you at your word. And for all the things the executive branch does and all of the work that the Solicitor General's office has, that presumption of regularity does a lot of work for them and papers over a lot of the cracks, if you will, that would otherwise show.

So if you're a libertarian out there, I think you're like pumping your fist in the air and cheering because you never thought the government should get the presumption of regularity. Here we are. Right. I think that Professor Goldsmith wrote about this as well, that you have, of course, the executive branch in a collision course with the judiciary. But as we said, David, that collision hasn't happened and it's still pretty far off in the distance.

I'm not saying we can't see where the two roads meet down the road, but we've got some runways still. The collision between the role of the Solicitor General as traditionally understood and the norms of the Office of the Solicitor General and the executive branch, that collision is here now. It's like tomorrow, basically, because traditionally, the office of the Solicitor General does have a separate role. As Professor Goldsmith pointed out, it is the only office that Congress by statute has said needs to be filled by someone learned in the law. Not true of the attorney general, for instance. And so with that has just come a lot of independence. I'm not sure I love that word because that makes it sound like they do not respond to the policy priorities of the president or

the executive branch. That's not true. But that they are basically there to help determine the legal strategy of the branch of government, not just the president, and protect those prerogatives and to do so while maintaining the consistency of the office. This was also a fun fact that I didn't even think about, even though I technically knew the fact, that the Solicitor General is the only executive branch officer to have a second office.

So the vice president, of course, has an office right off the Senate chamber because the vice president is also the president of the Senate. The Solicitor General has a second office at the Supreme Court, a beautiful wood paneled thing. It's exactly what you're picturing, by the way, whatever, you know, mahogany, bookshelf, leather bound book, anchorman version you're thinking of. Yes, that is what it looks like. So they have this foot in two worlds, really. They're called the 10th Justice, colloquially. That's going to be gone here in about a week, David. That's where I see that collision, a week or less where the SG is going to have to decide, and I think he has decided which one is going to be more important. But again, it's one of those like

once lost, I'm not even sure you know all of the consequences of tearing down that fence of Chesterton's. Yeah, I'm with you, Sarah. I think the collision between, I would, the way I put it is the collision between the Supreme Court and the court's perception of the credibility of the administration is already here. That you don't issue that ruling in a situation where you trust the credibility of the administration. And I got to say, ever since that ruling was issued, the administration and its allies have done nothing to help themselves. The Stephen Miller tweet sprees,

and the way in which the decision of the court is being mischaracterized, this was not a prohibition against deportation. So I mean, I think this is something that the way in which that sort of larger Trump world is casting this to the public is just so fundamentally deceptive. This was not the administration's perfectly free to deport, to continue deportations at scale, at large scale.

I mean, Obama deported millions, Bush deported millions, Biden deported millions. I mean, you can do it. What is being blocked is deportations under this alien enemies act. That's it. And they've put it as if they're Trump, the court is blocking the agenda that Trump was voted in to enact. And that is not the case at all. The administration can continue to deport people. It can continue its border security measures. It can push through Congress some version, like go back to the Lankford bill that they torpedoed that was going to really help streamline the asylum process,

which is a key bottleneck. I mean, there's so many things that you could do, but they've triggered this crisis. And this is so, this is absolutely the pattern of this administration. They take something that is possible for them to do. So for example, if a university has violated Title VI by permitting anti-Semitic harassment on campus, there is a procedure and a mechanism for inflicting punishment for that, okay? Go through the procedure.

Don't just sort of say, I've decided you violated Title VI and now watch the consequences flow. That's not the way the law works. If you want to ramp up deportations and you think there are bottlenecks due to lack of resources, there's a way of dealing with this and that's securing more resources from the Congress that you control, by the way.

I mean, we can just do that element by element by element. It is there are things that they want to do, such as increase the pace of deportations. I think Americans are behind that. Absolutely, Americans are behind that. But then to pursue it in a way that is A, lawless, and then B, when called about the, called over the, that called out on the lawlessness by the Article III courts, then doubling down, you're doing immense damage here without effectuating the cause

that you claim to be advancing. I mean, it seems as if the cause actually is confrontation more than it is anything else. All right, let's move to bucket three. We're back down in some sense to the district courts in this bucket. The first bucket very quickly is Judge Boasberg who had the Alien Enemies Act case.

And remember, this is the judge where the planes take off and he says, you turn the planes around, but it's an oral order and not a written order and all of that chaos around the Alien Enemies Act question in those first three planes that took off. While he no longer has jurisdiction over the Alien Enemies Act part of it, because remember the Supreme Court said he doesn't have jurisdiction over that. You have to file in habeas for that. He still has jurisdiction, David, or at least might still have jurisdiction over the contempt proceedings against those lawyers. And he has said that he is considering whether to

move forward with criminal contempt proceedings against the government. Unheard of, David. I mean, not literally unheard of, but just incredibly unusual. The DC Circuit did stay that. It was two judges, one judge dissenting. Right now, it's just an administrative stay as they consider whether he should be able to move forward with potential criminal contempt. So we'll leave that for now and come back when it's not just an administrative stay from the DC Circuit. Because remember, administrative stays just like, I don't hold on, give us a sec to read all this. We'll be back to you shortly. So I bet for our next episode, we'll have more on that.

David, the other one in this bucket comes from judge who has the Abrego Garcia case. This is the El Salvador guy who lives in Maryland with his wife and children, gets sent to El Salvador despite the protective order saying he can be deported but not to El Salvador. So she also ordered two weeks of expedited discovery into the Trump administration's intransigence. This is the whole facilitate his return. The administration says that means don't prevent him from being able to cross the border. The judge says, and of course,

Albrego Garcia's counsel says no. Facilitate means you need to take affirmative steps. The judiciary is not going to spell out what those steps have to be. That's up to you. That's the space that is due to the executive branch. But the Supreme Court said facilitate his return and that certainly doesn't just mean

passively not blocking him. So she wants two weeks of expedited discovery. The government then moved to the Fourth Circuit to ask for that to be stayed. You have Judge J Harvey Wilkinson, one of the most famous conservative judges out there who sits on the Fourth Circuit. And as David Latt described this, NFW. Again, you might want to ask your kids about that legal term of art, but I'll read you what- In or MFW? In.

Oh, M-O. F-W. No, no F way. I'll let you fill it in. Okay. All right. So I'm going to read from part of his decision here. While we fully respect the executive's robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court's recent decision. It is difficult in some cases to get to the very heart of the matter, but in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons

without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it had rid itself of custody that there is nothing that can be done. This should be shocking not only to judges but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order.

Moreover, the government has conceded that Abrego Garcia was wrongly or mistakenly deported. Why then should it not make what was wrong, right? So David, yeah, I think NFW is a good way to describe this decision from Judge Wilkinson. I think there were those who maybe made a little too much of the Judge Wilkinson opinion in my view. They were like, this was an opinion written for the ages. It's seven pages. I think it actually gets to the heart of it pretty well. Maybe he is a member of MS-13. Maybe that's even more likely than not that he's a member of MS-13. That's at least where I am, David. But it doesn't matter. You still get due process. And if an order says you can't be removed to El Salvador, you challenge that order.

Or if you accidentally send them to El Salvador, you need to facilitate his return and then challenge the order. And this gets a little tricky, David, on the legality. They can deport him somewhere else. I don't know if at this point there's a headline at least about working out a prisoner swap with Venezuela, whether they would take Abrego Garcia. Would that moot the case or would that be in violation of the Supreme Court's order to facilitate his return? The Supreme Court doesn't say or get him to a different country that wouldn't violate the original order. So any normal lawyer would facilitate his return here, then deport him to Venezuela. But technically, I'm not quite sure whether it would moot the case if he were then in Venezuela.

Yeah, I doubt it would moot it when it says facilitate his return. But you know, one thing I want to go back to something I said earlier, this opinion is not an opinion for the ages. It's actually something that's quite normal when you see judges interacting with unethical lawyers. So when you see judges... Now, I'm not saying these lawyers here are unethical or an unethical client. In other words, you've got lawyers representing an intransigent recalcitrant client who will not comply with court orders. I have seen in my day, judges give almighty smackdowns to people who they believe to be evasive, people who believe that they're trying to engage in gamesmanship against the court, pull a fast one over the court.

You will see judges absolutely unleash. And this is an example of what it looks like when a judge absolutely unleashes. And I think it's very interesting, it's jolting to people. Here's what's interesting, Sarah, this shows the difference between the culture of politics in this country and the culture of the judicial branch in this country.

They are very used in politics to just saying to a Republican member of Congress or Republican senator jump and the Republican member of Congress or senator says, how high? Almost immediately. And with very few exceptions, very few exceptions. So they're used to this. I'm going to go at you aggressively. I'm not going to do what you want me to do. I'm not going to do what you asked me to do. I'm not going to do what you asked me to do.

I'm going to tell you what you must do." And that has worked politically for MAGA for going on 10 years now, especially in the Republican Party. There is a very different culture and ethos in the judicial branch, and that I'm going to go right at you and try to intimidate you, or I'm gonna go right at you and defy you is not something that works in law the way it has so obviously worked in politics. Now that does not mean that the court,

that the Trump administration is somehow gonna be forced to comply with these court rulings. It's just that the administration is doing all the wrong things if it wants to win in court. All the wrong things. And what worked for them to win in politics is absolutely working against them as they take on these people who have life tenure, who are quite accomplished, have a lot of

professional pride and a lot of professional self-respect, and they belong to a separate branch of government. This is where you're actually seeing Madisonian vision working. This is where you're actually seeing people who have that phrase, ambition checks ambition. These judges are not surrendering their judicial authority in the face of mean tweets or defiance. And I think that that is so far, we'll see if that holds, that is so far one of the healthiest developments that we have seen in this, you know, in the last 100 days. Thus finishes our discussion of the three buckets

in the equity docket. Okay, David, that was a lot. My brain feels a little fatigued. Also, I am in Houston without my standing desk. And we've been here for four days. I have eaten at Lupe Tortilla. I've had beef fajitas for three of those days, David. And for my Texans listening, you know Lupe Tortilla beef fajitas are worth everything. Now, yes, there's original ninfas, there's el tiempo, but Lupe Tortilla is like Bucky's. They're everywhere, they're quick,

they're convenient and so delicious. But David, I'm concerned that our next guest may not approve of my beef fajita and margarita only diet. But Sarah, I'd be confused by that, Sarah, because I thought Mexican food was just really good for you. Like that's what I've always been taught. Like the beef fajita, you can eat that with a clean conscience.

And then you obviously need liquid refreshment. What's he want you to do? Like eat a fajita with nothing to drink? So I think you're fine. I think you're totally fine. I'm so glad I can correct you at this moment that fajitas are not Mexican food. Fajitas were invented by Ninfa Lorenzo

in Houston, Texas, circa the early 1970s. They are a pure Tex-Mex creation. And Mexican food actually, you know, it's hard to make generalizations about any ethnicities food, but by and large, Mexican food isn't bad for you. Tex-Mex, however, enchiladas, fajitas, yeah, that Tex-Mex is bad for you in the best, best way. But David, we got to get our guests in here.

So Judge Amul Thapar of the Sixth Circuit started a health and wellness sub stack. It is now public. We'll put it in the show notes. And I've just been having the biggest treat reading it. And it's actually really great. So I wanted to bring him in to talk about it. Judge Thapar, thank you for coming to the pod. Judge, you've been on the podcast before. You've talked about bourbon. But today, you're talking about sort of the opposite of bourbon, I might argue. You are here to talk about your new substack, maybe the only judge with a substack out there. And it's a health substack. Please explain why you've done this. One of the things that happened is a couple of years ago,

you know, like many people that reached their 50s, you have kind of a rude awakening that you can't do all the things you could do before. And your body starts to break down, you start to have pain where you never had pain before, and you do what every American pretty much does. You go to the doctor, you say, how do I solve this? And the one solution for pain that we all know is pain meds. And spending my career

fighting against opiates and pain meds in the sense of as a prosecutor and then seeing the ramifications of what it did to Eastern Kentucky and other areas of the country, I wasn't going to go on pain meds. So I started to figure out that was there an alternative path, and I quickly learned there was. I was taking ibuprofen every time I wanted to play golf because I couldn't play golf without it. I couldn't go to the gym basically without ibuprofen,

was going to a chiropractor weekly if not more than once a week to get my back fixed and decided I would start researching it and started reading books and I love reading. So in my spare time, instead of reading history or fiction, I was reading health books. And I went down a path that I never thought I'd go down where I discovered all sorts of things I was doing wrong

and revamped my diet, exercise routine, sleep routine. And with those three things, the pain went away. I can lift without any problems now. I have a little bit of shoulder arthritis, but I deal with it and I've figured out how to deal with it. My back pain's completely gone. I haven't gone to the chiropractor in over a year and a half. I love my chiropractor so I just want to stop by and see him and tell him, I'm doing all right, but it's nice

not to need him. And what I realized in talking to my law clerks, as I often do, we eat lunch together every day and have many conversations, try not to talk about law. So since this is my new passion, I critique their lunches and talk about what their workout routine is. I figured out that, you know, what we all know is America's unhealthy and lawyers and judges are unhealthier than most of America. And that's a real problem.

And my hope is, you know, if I don't make everyone an originalist, I'd like to make everyone healthy, I guess. I've got two goals now. So, Judge, I'm fascinated by this because, you know, I'm like you, I'm north of 50. I've experienced the phenomenon that I used to laugh at when I would hear like my dad say this when he turned north of 50. Like he said, I injured myself sleeping last night and I don't know how that happened. That happened to me recently and I say, oh, now I know this is something that's real. But if you're north of 50 or if you're very, very, very busy, like lawyers are, you know, going to the web for fitness influencing is just seems like an exercise in futility

because you've got all of these people out there who rip to shreds, who tell you, here is the solution that will make your life, you know, that is gonna make you healthy. And it turns out it's like a four to five hour workout routine, two times a week. I mean, two times a day, totally unrealistic dietary expectations

that a normal human being cannot possibly accommodate. And so you just kind of check out. So it seems to me that offering something that is a way of life or a here is what worked for me from the standpoint of where you are with an extraordinarily demanding job at the same time How have you been able to harmonize like placing that kind of priority While you're doing all that you're doing because that is the number one thing that a lawyer will tell me

If they're wanting to to like double down on fitness is where how do I find remotely find the time to do this? Yeah, and that's a fantastic point. And that's why I started the sub stack is because, and maybe I've gone a little overboard. I tend to go overboard with everything, I guess, and I want to reel it in a little. Eventually, I want to get all the info out there and then kind of tell people here are simple things to do,

but there are easy things you can do. I think there's many points I wanna make, but first and foremost is when you go out there and someone says this is the magic pill, it's never the magic pill. It'll never do everything. There is no magic to this. Everyone's different.

So my diet may work for me, it may not work for you. And you've got to test and try. But here's some simple things lawyers should think about and everyone should think about. What the studies show is doing resistance exercise two times a week is a game changer, okay? Now let's break that down. That's two times 50 minutes a week.

Now, there's another study that recently came out that talked about exercise snacks or 15 minutes a day. So if you take two 50 minute sessions and break them out and do it every day for 15 minutes, you get probably what they're saying is a higher quality as a result. 15 minutes of resistance training a day. What can that be? Well, I'll give lawyers a simple one which is get up from your desk every 30 minutes and do like David does, 20 push-ups or do 20 air squats. Do something. I know your lawyers are gonna say, well, I'm in a suit, I'm gonna sweat.

Okay, walk around. When you're talking to someone, go walk. You know, this 10,000 steps, I wrote about this on the Substack. It was made up by a Japanese pedometer company to get people to buy their product. What the science has shown is actually 8,000 to 12,000 steps a day makes a difference.

You know what the average American walks in a day? 3,400 steps. Whoa, okay. Yeah, all you gotta do is buy, what I did is I got a Fitbit because I didn't want it to connect to my phone. And you can connect it, but I don't like it connected to my phone.

It distracts me. And then I just keep track of my steps. It holds me accountable. It's pretty simple. I try to get between track of my steps. It holds me accountable. It's pretty simple. I try to get between 8,000 and 12,000 a day. There's a simple recipe. Okay, lawyers say I'm too busy. I got to sit at my computer.

Well, you talk to people. Don't write emails anymore. Get up, walk to their office, have a conversation. That walk, take the steps instead of the elevator. There's simple things you can do to get your exercise. And there's no way you can tell me you don't have 15 minutes in the day where you're looking at social media, you're looking at something. Here's a good one for them.

They can listen to your podcast and workout. Perfect. There you go. Perfect. Love it. Every time they listen to your podcast, they'll get healthier. Okay. So I have used a standing desk since through law school and since law school, except for my clerkship where that was not allowed. I even... It was very embarrassing,

actually, but I moved a standing desk into my Department of Justice office, which involved literally getting government permission to do such a thing. I love it. standing desk into my Department of Justice office, which involved like, literally like getting government permission to do such a thing. I love it. What are your thoughts on the benefits of sitting versus standing and then standing versus the walking desk, which is I have never done the walking desk. I'm no expert. I wish I could show you behind me. So behind me over here, I've got a standing desk. Behind that on the other side of the wall, I bought a walking desk.

So I've got them all. I mean, I'm not an expert on anything I'm talking about today, right? Law, I'm somewhat of an expert. People can debate that. But this stuff, I'm learning just alongside you. But what I would say and what I've learned is variation is good. In other words, just standing is not great. Just sitting is terrible. That's the worst. And a walking guest is the best of all in the sense of if you got up and what your excuse to me is, I'm too busy, I can't work out. I can't even walk down the hall because I don't wanna interrupt another lawyer. They're billing hours too, I get it. A walking desk.

Here's the thing in our profession is one thing people can't say is I don't have the money. They have enough money to get a walking desk. Walking desks aren't that expensive. You can get a walking desk. Okay, get on the walking desk. Oh, I get't that expensive. You can get a walking desk. Okay, get on the walking desk. Oh, I get motion sickness. Go really slow. You're still moving. And movement, you know, we, if you think about our ancestors, everyone, everyone says, Oh, my mom and dad,

they ate terrible. And they're still alive. And they're doing great. Here's the thing. They weren't eating all the chemicals we're eating. They were eating whole foods most of the time. Yeah, they cooked liver and stuff. That's actually turned out to be good for you. And they moved a lot more than we did. We weren't, you know what is happening now? I don't know, there's some study about the neck because we're looking down all the time at our phone, right?

And so it's completely different today. And so there's just there's simple solutions lawyers can employ. Instead of going to the snack room and eating chips, bring a bag of nuts. Just simple things you can change. And what I say for everyone out there saying, I can't do all this stuff is 80-20. Live by the motto of 80% of the time, do everything in your power to do what's right, what you know is right, get your diet right, your exercise right, your sleep right, and 20% of the time, don't worry about it. Because

don't add stress of worrying about it. When you go out with your friends, enjoy yourself. Judge, I feel like I need to make a motion to the court to approve my workout routine, which although you just kind of did, you talked about two things, resistance and motion. So I read a piece years and years ago that I hope it was right because it has guided me ever since. And that was, if there's only one exercise you can do, you're on the road, you don't have a lot of time, you don't have a gym membership, et cetera. If there's only one exercise you can do, make it the pushup.

And that has been kind of like my guiding principle when I'm traveling, when I'm busy, and I can't be out and get in the gym very much, I just do a lot of pushups. I feel like it's been really good for me. Kind of ever since I started doing that years ago, I feel just healthier overall. So I'm making a motion to the court,

submitting this pushup heavy emphasis and seeking a ruling. So what I would say, David, which you'll know intuitively is pushups works a certain part of, burpees would be better, right? Push-ups works a certain part of your body, which is the upper body. The lower body perhaps is, especially by men, is the most forgotten part of our body and probably the most important.

And so what I would add to that is you're on the road, you don't have time to go to the gym, you're doing all these things, you have 15 minutes to do a workout, to five minutes of push-ups, five minutes of air squats, and five minutes of an ab routine sit-ups. So you're working your core, you're getting your legs, and you're getting your upper body. That'll give you if it's a base level, if that's what you're going to do, I would add those two things. I'd prefer you do more. I think there's four or five exercises you could probably do to get your full body. But having said that, I'd rather have you do burpees and push-ups, but push-ups are great. People have bad knees, whatever. But you can do air squats and some sit-ups, crunches, whatever, and get a lot more of

your body involved. And the great thing about push-ups, the great thing about any exercise is 50% of Americans today are either diabetic or pre-diabetic. Building muscle helps combat that. Foot movement helps combat that. Movement after a meal helps combat that and So I think there's a lot you can do I talk about a lot of this on the sub stack and there's a lot of things you can do but what I do want to do is go back to simple for people that are busy and

Do these things but don't forget you can't exercise your way out of a bad diet So you can't go do a hundred push-ups and then need a bag of M&Ms and think you're fine. You've got to get your diet right first. And there's easy things. Just eat. What I do is... And everyone's got to choose their own thing. I eat anything our ancestors could hunt or gather. In other words, anything they could catch, any kind of vegetable, any fruit. And so I kind of stick with the core whole, whole non processed foods. 60 to 75% of Americans diet is processed food today. That's a real problem. And it's causing inflammation our bodies, which is causing

all sorts of disease and pain. Okay, y'all are making turning 50 sound horrible. Just to be clear, y'all are not good advertisements for aging. We both feel great, Sarah. That's the good feel good. Yeah, we have combated 50 and turned it back to the new 40. Yeah, y'all sound like you're trying to recruit me for a cult that sucks. Like the recruiting is not going well But nevertheless, I will join the cult regardless

Against my will at some point far far away from now judge. I've been reading the sub stack. It actually is fun I can hear your voice and Just something about it cracks me up I'll I'll also tell you I I've talked to your clerks about the sub stack too Like we basically have a Substack about your Substack as a text chain. That's excellent. Yeah, so that's a whole separate thing, but. Saying I'm nuts, and I'm sure my clerks are saying I'm nuts.

They're the ones who encouraged me to do the Substack in the first place. It was just for them originally. Yeah, I mean, I think you can hear the tone in which they told you to do that. They wanted everyone else to be able to talk to them about their judge, you know, I mean, I think you can hear the tone in which they told you to do that. You know, they wanted everyone else to be able to talk to them about their judge, you know what I mean? So I want to talk about two posts in particular. One, there's the turmeric post where you include recipes and you're into turmeric shots and turmeric drinks. And that does, I just want you to know, make

you sound... Indians love turmeric. Yeah. It does make you sound a little crazy when there's multiple recipes for your turmeric drinks. But then there's the sauna post. For all the stuff about how we need to be doing burpees and no sugar and all of this, telling people that they need to go to the sauna seven days a week because some studies said like the more the better. That sounds like something people could really get behind. But I did have this moment in it where I like actually laughed out loud because the studies that you cited only studied men. And you have this line where you

say I pointed that out. I know. And you say, I don't know why they didn't study women. And of course, I go fad because yes, we do. And the next book you need to read is invisible data, the world of data bias against women, particularly in medical studies. But nevertheless, for men listening to this podcast, the sauna stuff was actually pretty interesting. Wait, but you did see that I referenced a women's health article that also referenced studies that pointed out it benefits women too. They're just not the long-term studies that the Finnish did who have been using saunas longer than most of us regularly. And they

did it of men. And so, but I do think it's fair that when you look at a lot of the studies, especially the historical studies, they are of men. That's, that's a very fair point. Yeah, they treat women as a man. What are the historical studies saying? Yeah, that's right. But I think sauna use can benefit everyone. I do get that that is a time crunch. You have to go somewhere often. People don't have saunas. But I think if you can find it in four times a week, 10 to 20 minutes a day, I guess, again,

that is time away from billing or doing whatever you're doing. But I think it's important. And if you do a workout, cut your workout by 20 minutes and add the sauna at the end. It really helps. It even helps with hypertrophy and it combats a bunch of diseases, including cardiovascular and other disease, reduces the risk of all-cause mortality. I think the statistic, you can check the sub stack, which is footnoted, but I think it is reduces the risk of all-cause mortality against people that don't use the sauna by 40%.

So the statistics are really, really good for use of a sauna. And turmeric too has some great properties and qualities that I think you can use. And people asked for recipes. I had a recipe on there on the protein post and people liked it. And so I added some more to the turmeric one. I may add some more down the road if people continue to want them.

Wait, am I pronouncing this word wrong this whole time? What? Turmeric. Donna? Oh, no, you're probably right. I pronounce it the way my mom pronounces it, so. Say it again. I say tumeric, but you say tumeric and you're, you know.

I prefer tumeric. I'm gonna resolve this by saying tumeric sounds far more appetizing than tumeric, which sounds like you cut a growth off somebody and you're eating it. You all are probably right, I'll go with that. Don't tell my mom. All right, Judge, what can we look forward to? What are you just aching to write about

in the next few weeks and months as you're writing this sub stack? I wanna write about exercise snacks and maybe 15 minutes a day instead of the long workouts. I think to David's point, I want to really think about what busy people can do to incorporate this in their lives. I want to write about how you can... People often complain that certain foods are more expensive, whether it's grass-fed, grass-finished meat or organic

food. And I want to make the point if it's supported by the data, which I don't know yet, that you can either put the money in your food or put the money in your medical care. That's your options. And I'd rather get better food on the front end and feel good rather than eat the... Whatever you want, however you want to describe the bad food and then have to go to see a doctor and take some pills that have side effects and go down that route. Those are your two routes. And to me, the former is the better route but everyone gets to choose for themselves. What about the bourbon?

Yeah, you know, everyone's right. I said 80-20. So the 20% can be the bourbon. And Sarah, to your point, as someone who's got little kids, one other tip I have that I want to write about at some point is get a lightweight vest and wear it around when you're dealing with your kids and you're getting your workout. Oh, interesting. Wait, I'm picking up 20. You're saying wear the vest so I have weight on? Whatever you're cleaning. No, I'm not talking about when you're picking up your kids.

I'm talking about the rest of the time. When you're cleaning in the kitchen, when you're doing other things, put a lightweight weighted vest, one that you can easily grapple with, but that adds weight. And you're getting a workout. You're bending down, you're doing that. I get it.

That's what the baby's for. When you're picking up your kid. Yeah. That's what the baby's for. That's what you're picking up your kid. Yeah. That's its own lightweighted vest. Not light anymore. I'm trying to give you something so you don't say, because your excuse is, I don't have time. And I'm saying, okay, just take the time to put a lightweighted vest on.

No, my excuse isn't I don't have time. My excuse is I have two children. I am working out. My workout just looks different than yours. It's a lot of bending over, picking up, doing this, moving there, tickling that, fixing this. Fair point. There's a reason that moms always seem healthier than everyone else and much more sleep deprived.

Judge, we have not said the name of your substack yet. Arts Health Corner. It's my law clerks often often call me Art, A-R-T, my initials, and so I did that, Arts Health Corner. Yeah, but they don't call you Art. They call you A-R-T, to be clear. They do call me A-R-T, yes.

It's not Arts. It's A-R-T's Health Corner. Okay, A-R-T's Health Corner, but when it reads, it reads art, right? So how are you gonna do it? Should I have done A hyphen R hyphen T? No, I think as long as it's all caps, ART, it's fine. I just wanna make sure you know

that your law clerks don't call you art. Yes, yes, and I'm happy about that. I like ART better. All right, Judge the Par, thank you so much for joining Advisory Opinions. We're grateful for your expertise both on and off the bench. And I literally am going to leave this podcast and go get a shot of Tumeric. Tumeric. I'm gonna go do the same.

So David, what are you gonna change about your lifestyle starting today? Well, I'm going to consider my motion to validate my workout regimen to be granted in part and denied in part. And so like any good respectful attorney, I'm going to conform to the part, you know, I'm going to obey the judge. So I do definitely need to add in the sit ups and the squats. I have a friend, Sarah, who has an alarm set every 90 minutes or so. When it goes off, he does like 20 squats. He says that has changed his sense of well-being and health and everything.

But yeah, I'm going to take the judges order seriously. So I love this. This was great. I think I mean, as a mom, everyone knows that you're kind of like shagging food where you can. But I need to I need to take the sugar stuff more seriously. Husband of the pod is so good about not eating sugar. But basically, if sugar is around me, I eat it and I can do I can do better. I don't need it. I don't even like it. He's right. The second you eat it, you regret it. So mine, I think, is going to be more diet focused. I'm going to go get that turmeric shot. And

that recipe he has looks really easy and doable. So I'm going to try to focus on that side. I like it. I like it. We've got a lot of oral arguments coming up this week. So next, Advisory Opinions, we'll be covering some of those and God only knows what else coming out of the equity docket. So tune in next time for Advisory Opinions. Thanks for watching!