Advisory Opinions - Justice Barrett's RICO Revolution

Episode Date: April 8, 2025

Sarah Isgur and David French explain how the tariff power may make its way to the Supreme Court as a “major question” and debate the ethics of arguing in front of your children. The Agenda: —IEEPA, explained —SCOTUS on USAID freeze —Make vaping great again —The most OCD employee —Natural law is real —In defense of legal activism —How to argue in front of your children 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. Welcome to Advisory Opinions. I'm Sarah Iskier. That's David French. David, we've got to do tariffs, emergency docket, vaping, civil Rico. And that's just before we get to the fun stuff, my friend. Oh, there's so much, so much today. All right. Let's start with AIIPA, the International Emergency Economic Powers Act of 1977, the law that was actually intended to rein in presidential power after Watergate. And here we are.

So according to lawfare, the Treasury Department currently maintains more than 30 IEPA-derived sanctions programs. Biden used it against Russia immediately after the invasion of Ukraine. Trump used it against TikTok. Remember when Trump was against TikTok? Yes, I remember that well. Trump is the one who gave me the idea to ban TikTok. I was like, oh, we could do that. Okay. So, AIPA includes the power to, quote, by means of instruction, licenses or otherwise, investigate, regulate or prohibit

any foreign exchange transactions, payments or transfers of credit that involve a foreign country or national, and the import or export of currency or securities. It also authorizes the president to investigate, regulate, prevent or prohibit any acquisition, holding, use, transfer, withdrawal, transportation, importation or exportation of or dealing in any property in which a foreign country or foreign national has an interest. Did you notice a word missing there? Huh, I'm, I'm, I'm searching my mind. I think it's been in the news. Um, yeah. Uh, tariff, tariff. Yes.

Yeah. So this brings us to a major questions doctrine problem. Congress wrote a very specific law. So the law that IEPA was meant to replace was the Trading with the Enemies Act. That was like a World War I-ish law that presidents were abusing, believe it or not. Believe it or not.

In the wake of Watergate. I'm shocked to find gambling in this establishment. And they basically say, you know, have one law that's like, here's what a national emergency is and here's how you declare one. And another one that's like, if there's a national emergency, here are the powers of the president and it lists them all in order to sanction a bad foreign actor before Congress might have time to do so. Right. So you've got a few problems here.

One, go back to the previous tariffs. And by the way, that lawsuit, the National Civil Liberties Alliance one that involves the woman who makes day planners in Florida, that is actually not about these tariffs. That's about the previous tariffs. Think the Canada, Mexico, China tariffs, that like first batch.

Still baffling to me that that's the list. I know, but- China, I got it. Those Canadians. Canucks. So that's what that lawsuit's about. And that lawsuit still has the major questions doctrine problem, right?

Because nowhere in IEPA does it say that the president has a tariff power or a taxing power or a duty, as it says in the Constitution, that's clearly within Article 1, Section 8. But it's a little weaker on two other fronts, David. One, standing. I just have questions about this plaintiff and whether she actually is the one paying tariffs. She says she is. Okay, let's assume she has standing but like, just always put a standing flag down when it comes to a case like this. Two, the purpose is sanctions and at least with those sets of tariffs, the argument was fentanyl that the national emergency was fentanyl and that these were meant to sanction

countries that were allowing fentanyl to cross into the border. Okay. Now again, you still have the major questions doctrine problem. If Congress meant to give the president tariff power, why isn't it in that list? And when it's a major question affecting the economy, we expect Congress to put it in there, right? Whether you consider it a thumb on the scale or a clear statement doctrine,

or as Justice Barrett has said, maybe more of a canon of interpretation, I, in any of those versions of major questions doctrine, they've got a big problem. But David, these sets of tariffs have a much, much bigger problem. Even if you think that Congress in IEPA gave something like a terrifying power

as part of a sanction that you could use, this isn't about a national emergency that they've identified, it's about revenue generation. And there's one thing IEPA definitely doesn't contemplate and it's this is a way to raise revenue. Right, that's exactly right. When I read the complaint, you know, there are a couple of thoughts that I had.

As one, you're going to see a lot of people in America get strange new respect for the OSHA case from the Biden term. This is, of course, the case that the husband of the pod worked on. This was the vaccine mandate case around OSHA, where Supreme Court, using major questions doctrine said, wait a minute, hidden like a little kernel

in the Occupational Safety and Health Act is not a nationwide vaccination power. That's just not there, right? This is for work, this is like hard hats and guards around bandsaws. This is not about national, this is not about a national vaccination power. Very similar analysis applies here, by the way. Very, very similar analysis, but I totally agree with you. If you're going to tee up the perfect test case, the China, Canada, Mexico tariffs are not them, in part because they have that

fentanyl tie. They have that fentanyl explanation. However, you still, I'm not going to say it's not a good case. It's just not the case that would be if they had waited a few days. It's not the case on these tariffs. And, you know, if you go back and you look at even the tariff announcements, etc., what they're really getting at is there is this idea that Donald Trump has that if there's a trade deficit with a country, that they're taking advantage of us, that the existence of the

trade deficit, and when I say trade deficit, I don't mean necessarily, he doesn't like a global trade deficit, but he doesn't even like individual bilateral trade deficits. And so he is taking aim at these bilateral trade deficits. But the question that I have about this is really less on the national emergency declaration leg of this, which is I think the idea that you're going to declare a national emergency declaration leg of this, which is, I think the idea that you're going to declare a national emergency because there's, say, a bilateral trade deficit with Madagascar is hilariously ridiculous. But I don't think the court's going to want to get into, can the legitimacy of the emergency

declaration, because you can resolve this case on the specific powers granted under the emergency declaration itself. And note that, as we said earlier, tariffing is not in there. But I've got a question for you, Sarah. So you impose tariffs. It's going to take time to work this through. The question I have, is this one of these cases where the administration could essentially, by just

the sheer persistence, employing the tariffs, sticking with the tariffs, rattling and adjusting global trade, will the Supreme Court come in and unravel all of that? Or does something get enough momentum all on its own that it becomes, and I'm not talking as a theoretical conception, not as a, okay, can we decide the legal issue here? Yes, they can. How far down the tracks does a train have to get

before it's very hard to judicially call it back? Right, as in, you can say something's unlawful, but what actually will they demand as the remedy? Right, exactly. Yeah, I think that goes to the speed question. Think the vaccine mandate a little bit. Back to that as well. This case for these tariffs,

and I mean this example, not a literal case. I don't think we have a literal case on these tariffs yet, but we will. When we have a literal case on these tariffs yet, but we will. When we have a literal case on these tariffs, I could see it moving very quickly up to the Supreme Court, and I could see the Supreme Court simply granting cert on the merits and treating it like they did. The vaccine mandate case, the TikTok case, and then tariffs will be the next example of that. For the reason you say, David, that if you just treat this

like an emergency docket case, then we're, you know, a year in by the time you hear the merits and all of that, like if the president didn't have the power to do this, or if the president does have the power to do this, that needs to be resolved toot sweet, as they might say. Yeah, absolutely. Absolutely. And the but here's another wild card. Here's another interesting thing, because if there's, you know because there's a lot of policy ideas that, I'm gonna say something that is not that revolutionary, Donald Trump's not a policy wonk. So he's not necessarily wedded to any given policy idea.

I mean, he has an ethos, he has sort of a direction. Well, the exception to his sort of not wedded to a particular policy idea is almost, is most contradicted by the tariff policy. The dude loves these things, he loves tariffs. He has been, it's one of the few things he's been consistent on for decades. And part of me wonders if we're in this question of,

okay, is there a circumstance where he would defy the Supreme Court? Would it be this one? Would this be that circumstance, which really goes to the court? The two areas, Sarah, where I'm most worried about a defying of the Supreme Court are the two areas where he's been most adamant and sort of most consistent throughout his ascent to political power, and that's immigration and that is tariffs. So I could imagine a kind of Brown v. Board situation where the Supreme Court rules against tariffs and then the president responds to the ruling by not exactly saying, I'm not going to do it, but by saying to unwind this regime, I need time, I need space, sort of the way he's soft defying

the TikTok ruling, it's not necessarily that he's saying that the TikTok ruling, because the TikTok ruling was not a mandate for a sale. That's right. The TikTok ruling was a clearance for a sale, that the sale, the clearance to allow the mandate for a sale to go in place, it did not mandate a sale, that the sale, the clearance to allow the mandate for a sale to go in place, it did not mandate the sale, that order did not. So he's not defying the Supreme Court right now,

he's defying Congress. And so if you had a ruling from the Supreme Court that says, no, no, no, this is unlawful, I could easily imagine him saying, yes, we will comply with all deliberate speed. And that could be the way this ends up happening. And I feel like if I had to guess on a reasonably foreseeable outcome, that would be the closest I'd come to, like, what I would think of as most likely. By the way, in Stuart Banner's new book, he's a law professor, he's written a really great history of the

Supreme Court called the most powerful court in the world. He has a little section on the gold clause cases, David. This was where every sort of contract in America tied payment to gold, you know, sort of in the alternative. And it went to the Supreme Court and FDR wrote this memo and said, if the Supreme Court does not allow the government to unilaterally ignore gold clauses from now on, we're just going to do it anyway. And the Supreme Court, in fact, did allow the government to unilaterally ignore these clauses in every contract that the government had signed. But, you know, there's been times in history where presidents have prepared to do exactly what you're saying, David, which is just like, I can't do this

right now. We're in a great depression or whatever. So I'll figure it out later, but like for right now, I'm the president. Right. Okay, so speaking of the emergency docket, we had an emergency docket case resolved by the Supreme Court. Remember last time we sort of walked through a few of them

that were pending. I'm sort of amazed that we only have one. This feels like some emergency docket pocket vetoing going on a little bit here at SCOTUS. But we did get one. And the lineup, David, was Barrett, Kavanaugh, Alito, Thomas, Gorsuch, undoing the stay on the administration's.

This is getting to that thing we got into last time, a granting a motion to stay the enforcement of a TRO, yes. This was removing the temporary restraining order against the administration to force them to pay out contracts for work already done and for work that would be done. So it's going gonna sound really similar to that previous case that we had. And then you have the chief, Kagan, Sotomayor, and Jackson on the losing side of that.

The chief didn't write anything, Kagan wrote very short. Then you have Jackson and Sotomayor writing something longer. But David, I mean, the news here is that Barrett flipped sides. Yes, yes, Barrett flipped sides on this. And it's interesting to me, so unlike the first case where there was a lot of sort of coverage and upset and anger moving from the right against Barrett, this seemed to kind of, maybe it's just because the news cycle

is insane right now, but this went through with barely a ripple. And to the extent that it went through with barely a ripple on the merits versus relative to everything else going on, I think it's because the majority here really, this was not can, this was not really, can the administration cancel or not cancel. It was much more more is this the right place and time for this lawsuit on one side and the other side saying in essence they can't cancel.

And so this was not a pro or con argument on the merits at all. The majority, the five, were essentially saying, wait, this belongs in federal court of claims. There is another venue for this, and there's no harm because the states are going to continue with these programs or have the capacity to continue with these programs. So you had on one side basically saying, wrong mechanism, no harm. And then on the other side saying, they can't do this, period, full stop.

And so it wasn't really the kind of the sharp distinction that I think a lot of people are looking for. Yeah, I mean, it kind of sounds to me like Amy Coney Barrett is a process girl living in an outcome world. She just wants the correct process, y'all. Yeah, I'm with you that I don't think this is like the switch in time that save nine

type flip. Although, of course, if you actually go read the history of that, it may be exactly like that, meaning it wasn't a flip for for institutional reasons, as in to help the institution, I'm going to change my vote in these types of cases. I actually think this was a process question. And the idea that like, people sort of browbeat Barrett into flipping sides, I 100% promise you that's not the deal. No. And you know that for sure, because after all of the beating up, it's not like there's all these stories about how great she is.

No. So, yeah. And also if you're gonna list justices who are gonna be susceptible, I don't necessarily know that we have any real justices who are really susceptible to that. No. But if I was gonna list any that might be,

she would not be on that list, is the way I would put it. Yeah. All right, next up, David, there was this vaping case. Now, just to back up for a second, remember, there was a huge question at one point about whether the FDA could even regulate tobacco products. Then Congress gives them the power to regulate tobacco products by the time that happens happens, vaping is already on the market. By the mid 2010s, approximately

2.4 million high school students and 620,000 middle school students reported using an e-cigarette at least once in the last 30 days. By more recent estimates, it's now 3.6 million American middle and high school students used an e-cigarette within the last 30 days. it's now 3.6 million American middle and high school students used an e-cigarette within the last 30 days. That's pretty depressing. Just to run through the mechanism, right when you light a cigarette, you set fire to tobacco leaves and that creates smoke and tar and delivers nicotine in that smoke, among other particulate that is particularly bad for you.

Vaping is actually what it sounds like. You're using electricity to heat this like watery liquid, nicotine, and it turns that into a vapor and you inhale the nicotine. A, you still have a nicotine problem, and B, there's other stuff you're inhaling, like particulate metals potentially, and just some other bad stuff,

but you're not inhaling tar and literal smoke with stuff in it, fair enough. So David, when it comes to vaping, there's a real question of whether, if people are moving from cigarettes to vaping, if you are actually preventing more harm than you're causing? Or are all these kids now starting to vape who clearly were not smoking cigarettes and probably weren't going to start smoking cigarettes? Is that causing more harm than you're preventing with the

adults switching from cigarettes to vaping? And I mean, talk about your public policy issue. I mean, this is why we have a representative government because this is hard. Yeah. And it's a trade-off and someone has to make the decision. So FDA has to approve all these new, you know, vaping mechanisms with their 7,000 flavors that include, I guess, a flavor called dessert, literally, okay?

But yeah, a lot of flavors that kids like. And they asked for all this stuff. They deny 320 applications for 1.2 million products. And guess what? Those companies had a lot of money at stake. They sue and argue that the FDA didn't do it right and that their mechanism for doing this was arbitrary and capricious, a term of art under the APA, that is something like rational basis review, David, both in the sense that it's kind of the same idea, but also in the sense that you never win under rational basis review.

So a lot of people were watching this case to see whether the arbitrary and capricious standard for administrative actions was about to take human growth hormone, steroids, all the things you said. It had already been doing it a bit. I mean, we've been talking about this for a long time as sort of the way in which the Roberts Court

has been bulking up arbitrary and capricious review of administrative decisions, but this was even more. This was, was it gonna hit like Barry Bonds levels of bulking up? And the answer was nine zero. Nope. Nine zero. They gnawed dog this one so hard, there wasn't anyone even disagreeing. Just like, yeah,

the FDA can do this. David, I do think this is a little bit of bad facts make bad law. Totally agree. And to that point, I, can I just read the opening paragraph of our Times story about it? This is bad facts, man. Supreme Court handed a victory to the Food and Drug Administration on Wednesday, tossing out an appeals court decision that had found the agency acted unlawfully and rejecting applications from two manufacturers of flavored liquids used in e-cigarettes with names like Jimmy the Juice Man, Peachy Strawberry,

Signature Series, Mom's Pistachio, and my personal favorite, Suicide Bunny, Mother's Milk and Cookies. Good Lord. So yeah, and then Sarah, isn't all you needed to know is when you saw the person who wrote the majority? I was just going to say this! Yes, yes, who wrote the nine zero opinion? That would be one Samuel Alito. And Samuel Alito does not like your bad facts. He does not like it with the angry cheerleader. He does not like it with bong hits for Jesus.

But of course, my two, like my First Amendment loves for Justice Alito are the crush video case, the stolen valor case, and the Westboro Baptist case and all three of those. He was like, yeah, no, this doesn't even get First Amendment protection because the facts are so bad. Right.

Well, and then also just, you feel like, I don't know Justice Alito, so I'm projecting here based on opinions and everything. If Justice Roberts is looking across the room and he says, which of you wants to write an opinion setting these kids straight? I feel like Justice Alito is gonna be front of the line

on that one, man. He's the gunner raising his hand. I know, I know. Me, me, me. Okay. So there's not a whole lot else to say about that, but if you're an administrative law dork, as we are and as many of you are, this turned out to be a nothing burger in the sense that like no arbitrary and capricious doesn't get beefed up at all.

The administrative state wins. Again, not just from this court, but nine zero from this court. And this was a fifth circuit case, David. Yeah. And it was a big fifth circuit case. And so as we sort of monitored, which court is getting gnawed dogged by the Supreme Court. This one isn't just like a, well, you know, it was a close call and you got overturned. This was a big gnawed dog from the Supreme Court to the Fifth Circuit, like we used to

see going to the Ninth Circuit, frankly. Yeah, yeah, absolutely. I mean, 9-0 wasn't even close. The other thing that's interesting about this is it really does undermine those folks who said that, for example, Loper-Brite was going to mean the end of the administrative state, the end of expertise, et cetera. What you had in the opinion was a lot of acknowledgement that the FDA has a role here to play to exercise judgment to determine the suitability of these applications.

And so it was very interesting because to me it really illustrated that no, wait, there are still going to be zones where the administrative state is going to exercise the discretion that was explicitly granted to it by Congress. And so, I think this was an interesting opinion on two fronts. One was just the merits of it, the sort of underlying cultural impact of it, I think very interesting. Maybe one of these interesting cases that gets a fraction of the media attention versus the actual overall impact on people's

lives. And so the impact matters. And then the second thing was this really was sort of the premature. People have been writing the obituary of the administrative state maybe perhaps a little bit too prematurely. But my favorite part of this whole case, Sarah, is not in the opinion. It is in the reaction to the opinion. Tony Aboud, the executive director of the Vapor Technology Association, a trade group.

I actually like that name, Vapor Technology Association. It's kind of... Okay. Yeah. Said in his statement that he was deeply disappointed by the ruling. And here's the quote, the future of flavored vaping now lies in President Trump's hands. And we urge him to fulfill his campaign promise

to save flavored vaping. Someone didn't read my New York Times column where I said, stop activists, stop looking to the president to fix all of your problems. Go to Congress. If you want to save vaping, go convince Congress to save vaping. You're not going to because everyone hates vaping and they all have children.

But sure, try your hand over there. All right, David, we normally don't dedicate our podcast to getting one person a job. You know, we've done it for love lives, for sure. And I hope to have updates on that. We do have a AO couple out there that is making their way through the early stages of love. And I think we'll have something to report. And I know they're listening to this, so ha ha. We're all just waiting for you to get engaged

so I can announce it on the podcast. Okay, hurry up. But today, David, this episode is dedicated to the most OCD employee you could possibly want to have. He sounds amazing. If you need someone who is so stubborn, he is like one of those tortoises that someone tried to keep in an apartment that just kept hitting the same part of the door until that tortoise broke through the door. His name is Douglas Horn. David, he was a commercial truck driver. He crashed his truck and injured his back and shoulder. He was still suffering from chronic pain

when he went online and was looking for a natural alternative. He came across Dixie X, a tincture infused with CBD. And CBD is not THC, right? THC is what makes you high. And CBD is not. It's like lavender oil or something. I don't quite get it, but they're very different.

One's a drug, one's not. They both come from hemp plants though, I guess, or marijuana plants or something. I'm not a botanist when it comes to this stuff. Okay, because he knew a positive drug test could cost him his job, he did a lot of research, and Dixie X said it was safe. It said it was CBD rich, non-psychoactive medicine

that is 0% THC. Dixie X said it was, quote, legal to consume both here in the US and in many countries abroad. He did additional research, including to call a customer service representative, who reinforced all those representations. Satisfied, the Dixie H was THC-free. He bought a bottle and gave it a try. A few weeks later, super bummer, Horne's trucking employer selected him for a random drug screening and he tested,

you guessed it, THC positive in his system. He refused to complete a substance abuse program because that would constitute an admission of doing drugs. And so he got fired. Now, first of all, the employer who fired Horn, you're an idiot because of all of the efforts he went through. And then what's going to happen next? You lost what had to be one of your most incredible employees. No question.

Because then, Horn ordered another bottle of Dixie H not to get rid of his woes and anxiety now being unemployed, but he sent it to a third-party lab for testing. This test also came back THC positive. In fact, the lab refused to mail the sample back to him because they thought it would violate federal law to do so. But Horn was not done. He then sues the company that makes Dixie X for civil RICO violations. David, I'm just…Racketeer Influenced and tier influenced and corrupt organizations act, claiming that they had wire fraud. I mean, all the things, right?

Misrepresentations, everything that they did wrong. But we have a problem here. Under the text of Rico, a plaintiff may sue for business or property injuries, but they may not sue for personal injuries. And so here's the actual language that we are going to be dealing with. Quote, person injured in his business or property by reason of a violation of the RICO Act. A person injured in the business of his business or property.

Okay, so it's really gonna turn around personal injury. And what's the difference between injured and harmed? Right. And David, in many ways, this is not an interesting case, but in many ways, it's one of the most interesting cases of the term. So let me tell you the rundown here. We have Kagan Sotomayor in Jackson

saying that Horn can continue his lawsuit under Rico, joined by Gorsuch and Barrett. I know, I loved this lineup, fascinating. Gorsuch and Barrett on the same side, blowing my mind, just literally the opposites on that Y-axis. And this isn't really an X-axis case, not much of one anyway.

Thomas is gonna write a separate descent. And then in descent, I mean, maybe for the only time all term, given how often they're in the majority, you've got Kavanaugh writing the descent with the chief joining him and then Alito. The chief and Kavanaugh usually are upwards of 95% in the majority. So to have them in descent, writing a descent, and Kavanaugh usually are upwards of 95% in the majority.

So to have them in dissent, writing a dissent, all of that, like blowing my mind. So incredibly weird lineup we're seeing here in a five-four case. And David, it raises several things. One, I thought we could start with, when we say something's a good vehicle for Supreme Court review,

that's like a term of art, right? Vehicle. And because Thomas's dissent is actually just about how this case should have been digged, dismissed as improvidently granted, I thought we could spend just a second on what a good vehicle is. That's the first thing that makes this case interesting

is it was definitely a bad vehicle. And when we talk about why they're granting fewer and fewer cases, one of it is that the clerks don't like to recommend cases that turn out not to be good vehicles because then it's embarrassing. And then the justices all kind of like, look at you as the one who like screwed this all up. And this gets to the cert pool that seven of the nine

justices participate in, Gorsuch and Alito, are not in the cert pool. So when you write your cert pool memo as a clerk, meaning the other seven justices each have four clerks, and then a retired judge has a clerk and then shares it with a current one, so there's three retired justices, which means, you know, you could have three more clerks in cert pool,

but who knows? OK, they write pool memos. And the pool memo, when something is definitely not going to get granted, will say at the top, splitless, fact-bound, no error apparent. Splitless meaning no circuit split, fact-bound meaning this is a dispute over the facts of the case, and no error apparent meaning also it kind of looks like the lower court got it right. That's like the three tiered kiss of death. But what if you only have two of those three

or one of those three? So anyway, that's what you're looking for in a case that's gonna get granted. By the way, there's also fun things in these little pool memos. I-L-O in light of. W-R-T with respect to. Revved, reverse.

Cueable for questionable, as in waiver is cueable. Because the pool memos have to basically be two pages, David. They have to be really, really short. So there's all these like little short hands that they use to try to get it under two pages. I have a really funny story. Should I tell my really funny story about one such memo that needed to be under two pages that's a little blue?

Oh, yeah, yeah, absolutely. As long as the qualifier is a little blue. Is this a PG-13 story? I don't know, is it? Well, then now you're like, okay, now we have to hear it. All right, if you've got kids in the car, this is not an appropriate story. Fast forward a couple seconds. So in order for this memo to be...

Here was the sentence at issue. And it's not funny. The story is... Okay. He forced her to perform fellatio before murdering her and her kid. It's like a horrible fact. Oh. Right?

But it's not fitting on two pages. And also this person is not sympathetic. So the law clerk in question changed it to force to fillate before killing her and her child, etc. So they're all sitting around and they discuss the memo and the justice in question is like, yeah, no dog, like no way, we're not giving this guy any relief. And he says, uh, uh, but before you leave, I just wanted to point out a grammatical error. Phylate is not a verb. It actually should have said to perform fellatio. This is a, uh, male justice who is no longer on the court for what that's worth. Um, speaking to a male clerk and his other co-clerks, and if you can just imagine the discomfort one might have with your much, much older justice

talking to you about the grammatical issues of to fillate versus to perform fellatio. Oh my goodness. And passing on that bit of wisdom, which by the way, I think is incorrect. I think that fillate is a verb, but I'm sure the comment section will have a field day with that.

Yeah. Settle this for his comment section. Yeah. Anyway, back to vehicles. So David, here's the problem with this vehicle. Well, there's actually several, but here's a big problem with it. It's the personal injury side.

Yeah. How was he injured? Like, it's one thing if you like break your arm and then you get fired from your job because you can't perform your job. injured? Like, it's one thing if you like break your arm, and then you get fired from your job because you can't perform your job. Then it was a personal injury that resulted in a business. Yes. Yeah, it wasn't resulting from a personal injury. He wasn't injured. He didn't even know he was high or

anything else. So this actually seems pretty fact bound. IE was this guy injured? Is this a personal injury? Did he claim it was a personal injury? There's also this weird, as Justice Thomas points out, and this is very, felt very, unjustus Thomas-like for him to like go into estoppel, but I really enjoyed it. So I'm going to read a part of this. Moreover, it's not even clear to me that medical marijuana is even entitled to argue that Horn suffered a personal injury. The rule of judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Medical marijuana initially argued that

Horn had not alleged a cognizable personal injury. The district court agreed and dismissed some of Horn's state law tort claims on that ground. Then, shortly before trial, medical marijuana argued that the remaining Civil Rico claims failed because Horn had based the claim on a personal injury. Horn has made a non-frivolous argument that medical marijuana should be judicially stopped from arguing that he suffered a personal injury. Yeah, this turned out to be a bad vehicle.

Nobody joined Justice Thomas in this, David, but I just want to say, like, I joined Justice Thomas. This is a dig for me. Just, no. Yeah, I, you know, I agreed with the majority on the question. But I got to say, the facts here are just wild. So, for example, as you're noting, here's Justice Thomas, they vigorously contest whether there is even a personal injury. And the weird thing is medical marijuana is saying he suffered the quintessential personal injury.

And Horn is saying, nope, didn't suffer any harm to the person at all. So you do have this really sharp dispute on this underlying really, really important fact. And so, yeah, it is a little bit odd without question. It is a little bit odd. Odd enough to where it made the case more than a little confusing in some ways. Yeah, because nobody was talking about the same stuff. Right. And then they're deciding, there's like a, Barrett writes the majority opinion.

And again, it's Barrett writing for Gorsuch, Kagan, Sotomayor, and Jackson. And she basically has to start with a whole list of stuff they're not deciding. Yeah. Yeah, it's amazing. Including the question presented by the way. Yeah. Yeah, it's amazing. Including the question presented, by the way. Yeah.

But she does have this little part, she's addressing one of Kavanaugh who wrote The Descent. I mean, a Barrett versus Kavanaugh? Whoa, can't get over that one. You know, Kavanaugh's point is like, you just opened up everything into Rico, because if personal injury can now, as long as you suffered an economic harm,

which sort of by definition, that's what happens when you have a personal injury can now, as long as you've suffered an economic harm, which sort of by definition, that's what happens when you have a personal injury, then like what is Rico preventing from coming into the courts anymore? She says, this said, civil Rico has undeniably evolved into something quite different from the original conception of its enactors.

More suits are brought against ordinary businesses than against the archetypical intimidating mobsters. And given this development, medical marijuana is not the first litigant to express concern about the over-federalization of traditional state law claims. But we respond today as we have before. If the breadth of the statute leads

to the undue proliferation of RICO suits, the correction must lie with Congress. Congress, do your job, says Justice Barrett. It's a really good case for that, David, because we've had case after case after case of Rico expanding by the text of Rico. It'd be really easy to rewrite Rico. They flagged all of the language problems for you and all of the text problems. Just rewrite it. And this brings me to my next thing that's interesting about this case, David.

I thought we could go on a little Barrett tangent. Sure, let's do it. We had, you know, last time we talked about Barrett's practicalism and her asking about consequences in that oral argument and the advocate saying, that's not constitutionally relevant. And her saying, yep, and I'd still like to know them. I can answer my question.

Thank you. And we had this email from Charles Hughes Huff. He's an assistant professor of scripture studies at Sacred Heart Seminary and School of Theology. And he had sort of a two-part thing, if you will, David, that are both relevant to Barrett, but also to another previous conversation we had about common good constitutionalism and the use of like,

remember I was making fun of the natural law election code. Yeah. I feel like I should have been a lot more clear in that conversation as making fun of the natural law election code, that natural law is a thing. It's a serious thing. It has a whole academic pedigree

that is real and interesting and fascinating and worth endless conversations about. The common good constitutionalism saying that they're doing natural law does not mean that they are doing natural law. Yes. Yes. I'm so glad you were going back to this because if you, you know, I'm teaching a course right now on the legal philosophies of the American founding. And one of the things you will see is American legal structures were created as by through an appeal to, and as a manifestation of a larger moral framework. You know, when you're talking about,

well, no one would necessarily say Thomas Jefferson was like the world's foremost natural law theorist. This idea that says you are endowed by your creator with certain unalienable rights, among them are life, liberty, and pursuit of happiness. You are appealing to an existing transcendent moral framework. And so natural law, when you're talking about natural law, you're talking about a transcendent moral framework that can and should influence how we shape our laws.

And so, like I take the students through a progression, you have a transcendent moral framework followed by a constitutional codification of the framework, and then also often followed by judicial affirmation of it. And so think about this, the transcendent framework, all men are created equal, we need a new birth of freedom around the civil rights amendments, so you then have the codification of that transcendent moral frame in the 14th Amendment, but you didn't have true judicial affirmation of it maybe until all the way until Brown v. Board. of it maybe until all the way until Brown v. Board. So this is a very serious area of inquiry.

Our critique is not of that inquiry. The critique is of the way in which a particular brand of the right appropriates this very serious moral inquiry in a perhaps one of the most unserious and often incandescently cruel and totalitarian ways. And so this is the... And oddly misogynistic. I don't know why it's misogynistic. They can't explain that part, but it is oddly like there's a whole thing today about how the tariffs will make these

women unemployed and unemployable. Like what is it? What? Huh? Anyway. Yeah. Yeah. So that's been the critique. The critique is not that there aren't transcendent moral frameworks upon which we base our law. The critique is if you got a bunch of will to power Nietzscheans, just, you know, washing it through Aquinas.

No. So I wanted to read a bit of his email because I thought it was really smart and thought-provoking. Yes. So he says, I'm not saying she's a common good constitutionalist advocate, of course, but natural law theory as practiced by non-fascists

often splits the difference in ethics between deontological absolutism and utilitarian consequentialism. For Thomas and for other neo-Aristotelians, the moral character of an act isn't just about intention or letter, but also about ends, outcomes, and circumstances. That's how you even know what an act is. In ethics and politics, he's serious about institutions, but also about, let's call it, I don't know, practicalism, as all Aristotelians are.

Law begins in custom, ends in justice. Aquinas, like Aristotle, sees law as growth from the soil of culture. Law starts where people are and aims at the telos of justice and the common good. That's why he emphasizes prudence of rulers and subjects. You don't get there by fiat. You get there by formation, deliberation,

and change when needed. It's the same with ethics. How many drinks is too much for temperance? Well, depends on your family, your culture, your tolerance. Start with what your mother says and proceed from there until you're at the proper end. Vermeule instrumentalizes law for regime ends. Start with what your mother says and proceed from there until you're at the proper end. Vermeule instrumentalizes law for regime ends, but Aquinas warns, quote,

a tyrannical law, though not according to reason, has something of the nature of law. It aims to make citizens good, but only relative to that government. That line, good only with respect to that government, is the motto of our moment. I thought that was well put. Yes. And an interesting, I put that in the context of Barrett, because as we think about her practicalism,

don't forget she actually does come from a true natural law tradition. And as David said, whether natural law is sort of antecedent to law itself, as in, you don't really need to consider natural law. Natural law is what informs how we wrote the Constitution, but now we have a written Constitution. So you look at the text and you do some originalism and maybe it might inform originalism because they were thinking of natural law.

Anyway, I don't want to spend a whole like we're not gonna spend a whole episode on natural law at this point. But as you think of Barrett and practicalism, I thought that version of natural law did a really nice job informing what practicalism means and what it could be based on. Yeah, I thought that email was fantastic. I really loved it. And just by the way, I thought that email was fantastic. I really loved it. And just by the way, one of the great things about our listeners

is you guys send us some phenomenal thoughts and observations, just tremendous, including by the way, we got a t-shirt design that might be my favorite thing I've ever seen. I need to have this t-shirt made. Cause remember last time I was joking about obviously that what maybe if you're going to steel man what the Wisconsin Supreme Court did by saying that the Catholic Charities wasn't involved in religious exercise when it was serving

the poor was that they're obviously trying to prevent an entity from using religion to exempt itself from tax when it's really not a religious enterprise. And I was joking about first, you know, if you want to open a tire rotation and balancing business, you can't call it the first church of tire rotation and balancing and get out of taxes. And so somebody made a first church of tire rotation and balancing t-shirt with a logo.

And it is so big. It has wings around the tire and a little halo. And wrenches, sort of like little angels. But it also has a bit of a like death metal vibe to it. It totally does. I rarely do I open an email and just bust out laughing as soon as I see it. I showed my whole family, they lost it.

Like it was so great. Yeah, but that's only two. We got a third grade email about activism in defense of activism. Yes. Yes. Let's go through that. We'll talk about that in a little bit too. Okay. Last thing, David, on this Rico, on Mr. Horn, the most employable unemployed man in America. It was also an interesting case about what it means to be an institutionalist and what this court is doing. So remember, the chief justice joins the court saying, I'm going to be John Marshall. I want to bring the institution together.

I want us to speak with one voice, not just in the sense of unanimity, but also, we don't need to have all these separate opinions. It's the Justice Kagan point, right? Like the world needs to know what I think about this one thing. We're seeing a lot more the world needs to know what I think about this one thing. So Justice Barrett's majority opinion ends on page 19. This is 61 pages of opinion. Yeah. Her. And I just want to point out Justice Jackson's concurrence

here. It's one paragraph. When Congress speaks, courts should listen. Congress has instructed that the RICO Act shall be liberally construed to effectuate its remedial purposes. That instruction applies with particular force to the remedial provisions of RICO at issue in this case,

which creates a private action for those injured by racketeering activities. In rejecting petitioners' attempts to add a textual hurdles, today's decision accords with Congress's liberal construction directive, in my view. That provides one more reason that the decision is right. In many ways, David, this is a classic concurrence. And in many ways, David, it's exactly the anti-institutionalist moment that I think the Chief Justice was trying to prevent. You didn't need to add that point. It's not a bad point, but it's not a particularly important point

at this point. And we're seeing a lot of one-paragraph concurrences, especially from Justice Jackson, of a thing that the majority clearly didn't want to include. So for instance, in that Alito decision on vaping, there was basically a two-paragraph concurrence by Sotomayor. Again, something that the majority opinion writer just declined to include in their majority opinion. So it's like, oh, I'll just put it out as a concurrence. I can just see Justice Kagan now needing like a mouth guard at night to stop her from grinding

her teeth with the, you know, the world needs to know what I think about this one thing type concurrences. Um, so I point this out when you see little concurrences like this, it really is the failure of institutionalism in a lot of ways and the individualization of the court. And the, the, you know, Justice Gorsuch, Justice Jackson are on that leg. Yeah, what concurrences are fine. Writing separately is fine. We don't need to speak as an institution. That's like not a real goal. And that's not our job.

All the way up that Y axis to Kagan and the chief. Kavanaugh basically never writes concurrences either. Anyway, sitting up there being like, no, just shh. So an interesting decision for Mr. Horn on all three, what a vehicle means, Congress do your job, the continued exploration of what is a justice Barrett and the failure of institutionalism with these current justices.

And I just want to meet Mr. Horn. And so the guy is thorough. So he's very thorough and he's very stubborn because the reason he was fired was not actually that THC was in a system. The reason he was fired is that THC was in a system and he refused to go to the drug treatment because he did nothing wrong. He doesn't have a drug problem.

So this guy, I just want to know him. I mean, research, and then when he's right, he's right. He's sent away to a third party lab? Yeah, third party lab. He buys more to send to a third party lab. I know. The guy does not give up. I'm telling you, he's that tortoise hitting the wall.

Now, sometimes having a very, very stubborn employee can be a little frustrating. And by the way, I'm sure Mr. Horn has another job. But nevertheless, Mr. Douglas Horn should be inundated with job offers at this point. If you want somebody who is meticulous, and then when they are right, they are right, and although the forces of hell are right against him, here he stands, this man, this man. Congrats, Douglas Horn.

You won your case. Of course, in this case, winning your case just means you get to continue litigating your case. But I'm rooting for you at this point. Yeah. You won one very narrow sliver of your case, and good luck on the rest. It might end up back at the Supreme Court. I mean, this is all pretty bad for him for winning this case, honestly.

Quick note, David. There's something in the news this week. A DOJ lawyer named Arez Raveni, and I hope I'm pronouncing that right, but apologies if I'm not, was arguing on behalf of the Department of Justice in a hearing about that case of the guy who might have been wrongfully sent to that prison

in El Salvador, David. And here was the exchange with the court. Judge, Mr. Abrego Garcia should not have been removed, right, Mr. Raveni? Yes. Judge, Mr. Abrego Garcia should not have been removed, right? Mr. Ravenny, yes. Judge, can you answer for me then on what authority was he seized? When he was taken off the street, taken out of his car, what authority did those law enforcement officers have to do that? Mr. Ravenny, so your honor, my answer to a lot of these questions is going to be frustrating. I am also frustrated that I have no answers for you on a lot of these questions.

Here's another example, David. Judge, okay, that's fine. And I just want to ask you, though, the very specific question. If there is a final order for removal, what document got this process started? There is no warrant for his arrest by an order of removal. There is no statement of probable cause. There's no charge. There's no report that says that anyone saw Mr.

Abrego Garcia doing anything illegal or criminal. So what is the actual document that gave these officers the authority to start this process? Mr. Ravenny, that is not in the record and the government has not put that into the record. And that's the best I can do, Judge. All right. Well, that's helpful. Thank you, Mr. Ravenny. And so really all I can point to the court is paragraph 11 to 15 of the declaration.

That's the only evidence before you explaining why Immigration and Customs Enforcement picked this plaintiff on that date that he was picked up. One more that I'll read, David. Judge, can we talk about then just very practically, why can't the United States get Mr. Abrego Garcia back? Mr. Ravenny, your honor, I will say for the court's awareness that when this case landed on my desk, the first thing I did was ask my client that very question. I've not received date and answer that I find satisfactory. Okay, well, I again appreciate your candor.

So David, this lawyer was placed on administrative leave. Right. And while they haven't said why he was placed on administrative leave, I think it is fair to guess that it had something to do with those answers to the court that did not feel like they were made with zealous representation of the client's interest in this case, the removal of Mr. Abrego Garcia. And there's been a lot of debate online about whether that's appropriate, because on the one hand, you have Attorney General Pam Bondi saying that civil servants must represent

zealously the interests of this administration. And this goes back to a longstanding beef that Republicans have when they take over the Department of Justice that the civil servant lawyers will delay, slow roll, won't make the best arguments in court. They kind of throw the game, right? They keep missing the three-point shot. They, like, hit the backboard sometimes, but it's definitely not going in.

Yeah, I was definitely watching that University of Houston Duke game, by the way. I couldn't believe my eyes. That was incredible. It's just my jaw. Just, anyway. Yeah, I know. We could talk three hours on the last two minutes of that game.

I will just report from father of the pod, the city of Houston is losing their minds. Father of the pod, also a University of Houston graduate by the way. Oh, fantastic. W of H graduate actually. Oh, fantastic. So, Bondi says civil servants need to zealously advocate.

On the other hand, you know, there was that DOJ lawyer who was put up for the other hand, you know, there was that DOJ lawyer who was put up for the FDA position, who was dinged because she signed her name to a brief involving the Miffa Preston case under the Biden administration, i.e. she did her job. She has represented in the not bad, in the Wall Street Journal and other places that she is a pro-life Trump voting MAGA diehard

who did her job, right? She was a civil servant. She doesn't get to pick the cases. And so, yep, it was her job to sign her name to that. So like, you want lawyers to be zealous advocates except when the other side's in charge? Like, that doesn't work. So David, here's where I come down on this and I wanna get your read.

Yeah, so this is a really interesting question. And it presents a lawyer with a dilemma. So what if you, who have a duty of candor to the court, go to the court and your client is being recalcitrant in a way that is really actually indefensible. It's very hard to walk in front of the court with a duty of candor and sort of say, my client here is XYZ, when you can't, there isn't a great defense for the conduct. And this is not something that's super highly unusual,

by the way. There are many times when a lawyer is hauled before a judge on a discovery dispute. And the reality is, say for example, the client hasn't been able to find documents that it knows exists, or the client has been extremely slow. And there's an interesting choice you have to make there. And the choice is, do I just stand by the client's actions no matter what, thereby diminishing my own credibility to the court, which is going to be necessary for the conduct

of this litigation and to be an effective advocate, or do I speak to the court with candor and get my client to conform with court orders? And there is not a black and white answer here as to the right decision, because believe it or not, sometimes it can be the right decision to say, I'm working with my client or I don't have those answers yet from my client

and I will do my best to get them, your honor. That is a perfectly acceptable response. Now, there's a couple of instances where it shaded maybe kind of close to, my client is just wrong here, but as a general matter, this sort of idea that it is good lawyering to basically try to make a silk purse out of a salzier in every circumstance, I don't agree with that. I do not think that is actually correct. I think there is an actual tactical decision

that you can make that isn't just, I'm fulfilling my duty of candor to the court, but fulfilling your duty to the candor to the court can be, on the long run, actually instrumentally good for your client. Here's my problem, David. Reading the transcript, and I've read you certain portions of it, but there's more.

If this were a private litigant, he would fire his lawyer, I think, in this case. So now we have a different question. Assume that I'm right about that, David, okay? That like, I think you've laid it out really well, but let's assume I'm right that like, this falls on the one side, not the other side. Right. A private client would fire a lawyer who was so unzealous in this case. Now we have a

government problem, right? This isn't a private client. This is a civil servant. Should we have civil servant lawyers at the Department of Justice? And I know that like people have a lot of knee jerk reaction to that. I do as well. But here's the trade-off. On the one hand, you want these people to zealously represent completely opposing sides of arguments every four years to a judge. That they may or may not believe themselves or the client is being recalcitrant, as you said David, but you could give more zealous answers than this, I think.

That's not what's at issue here, Your Honor. The question is this, this, and this. My client believes you don't have jurisdiction over this. So we don't need to answer those questions. Okay, but I want the answers. Your Honor, this is about your jurisdiction. You can keep coming back to that. I agree, maybe on the fifth time the judge has asked,

maybe you need a fallback answer like the one here. But these aren't fifth questions, David. These are first questions. So you're asking these lawyers to flip-flop back and forth on things they may or may not believe. You know, you have the Trump voting MAGA lawyer saying Miffa Preston's okay. You have this lawyer saying something

I don't think he believes in. But here's the trade-off on the other side, David. There's a reason that DOJ lawyers are given so much credibility by the court. That the reason the Solicitor General is referred to as the 10th Justice of the Supreme Court and it's because they maintain consistency, they maintain credibility, and most of all, they maintain candor to the court when there's an option to zealously, you know, the old, if the facts are on your side, argue the facts that the laws on your side are, you the law and if neither bang the table,

sometimes you got to bang the table and DOJ is known for never banging the table. You just concede at that point. You either have the law or the facts or you concede. And in private litigation, you start banging. If you want DOJ lawyers to bang, you've got to get rid of civil service, DOJ lawyers going into court,

but then you're not going to have that credibility. You're not going to have the 10th justice reputation for the Department of Justice. I think that Republicans right now are more than willing to chuck that because they don't really ever get the benefit of that candor and credibility. I'm torn on the question, David, and this, I think, tees it up pretty nicely because I think this was not good advocacy. I just think, I just don't know, Sarah, how you practically do that,

remove civil, sort of essentially have a non-civil service DOJ, because essentially what you- They have thousands and thousands of lawyers coming in every four years. It was nearly impossible. Impossible, like impossible. And then the other- Just to run numbers here for what it's worth,

and these are off the top of my head, so forgive me, they'll be a little wrong. There's about 120,000 employees in the Department of Justice, but a lot of those are BOP, Bureau of Prisons employees, US Marshals, FBI, DEA, ATF. So when we're actually talking lawyers, you're looking closer to, I think it was 10 to 15,000

of litigating lawyers. Now remember, FBI is going to have lawyers who are FBI agents. I don't think it includes those numbers. But still, David, let's take the most conservative number, 10,000 lawyers. Yeah. Yeah. What? How are you going to do that?

Well, you know, this is where, you know, like the- You know, like when the administration leaves, by the way, you've got thousands of pending cases. So those lawyers just put their pens down, and a new lawyer has to walk in a few weeks later and has no idea where the case is. Was there a hearing scheduled? My bad. What? How is this gonna work?

Well, this is where unitary executive theory sometimes runs into what I would call dorm room originalism. Like, dorm room originalism is, like, sort of the ultimate call dorm room originalism. Like dorm room originalism is like sort of the ultimate YOLO originalism. I have a theory of originalism that yields a result that would be so radical that it would utterly sort of upend the government as we understand it. So like an example of that would be, in my view actually,

that all two, in my view actually, that all two, three million, however many of your civil servants are at-will employees at the discretion of the president, and the president could flush two million people out of the executive branch at will and then have the ability to fill those two. At some point, you're just saying this is nuts or what dormirum originalism in this arena yields in essence is it vitiates your own independent oath that each person swears to uphold, defend, and protect the Constitution.

And essentially what it says is one person is sworn an oath, that's the president. And then we are all trafficking on the president's interpretation of his oath. I just don't think that's what we're talking about here in a constitutional republic, but it is absolutely sort of the underlying theory. But I do agree with you, Sarah, that there is a line of non-zealous representation that you cross that and it is, it would be caused to put someone on leave. All right.

Let's go to activists. All right, David, I mentioned that email we got in defense of activists. And David, it was a great email from Kirby West at the Institute of Justice, one of the most prevalent, well-known, long-running activist litigation organizations in the country, who we basically spent a good chunk of an episode insulting their type of litigation at the Supreme Court. Two things, quick. Institute for Justice. Sorry.

What did I say? Institute of Justice? Institute of Justice, yeah. I hate prepositions. The other thing is, as we have said, IJ is kind of like our spirit animal group. So this is a perfect institution and individual to respond to us. So yeah.

So here's how it started. I write to add to the loud and extremely defensive chorus of, hey, we're not so bad that I'm sure you're getting from other public interest impact litigators after the latest episode. After an initial matter, I totally agree with you that activists can be extremely ineffective when they get caught too far in the weeds

of their areas of specialty. I think we've all heard those arguments and cringed at obvious misses, though I would argue that is also true, perhaps equally true, in cases by more generalist advocates as well. I think the most relevant distinction for oral advocates in the Supreme Court is fantastic advocates, fine advocates, and not-so-great advocates. And I think you see folks from all of those categories litigating for the government, against the government, from big firms, from small firms,

in for-profit and in non-profit work. At a certain point, the category of exceptional advocates is just pretty small. There just aren't going to be a ton of Paul Clement, Lisa Blatz, and Elizabeth Preloggers anywhere, even in the prestigious circles in which those folks operate. If you can get one of them to take your case, then sure, that's going to most likely be the right option. But you generally can't. It's easier to point to

activists who fall down on the job because they tend to have sexier cases that people pay attention to, but you hear a lot of meh arguments from generalists in more boring cases too. David, I think we crossed streams. Okay, so we had two elements here. One was activists at the Supreme Court. And then the other element was the effect of activism on our body politic. And so dealing with, number one, activists at the Supreme Court, there's no question that a lot of activist organizations have been super successful at the Supreme Court.

No question at all. And in fact, one of the reasons why many activist groups have been super successful at the Supreme Court is by golly, they know their subject, man. I would argue the reason they're successful though, David, is gonna be a really frustrating one. They're great at finding really good vehicles. That is very true as well. The best at finding good vehicles, cause they care a lot.

They are the Douglas Horn of finding vehicles on their issues. Exactly. Is that gonna be our shorthand for hyper competence from this point forward? Yeah, it is actually. But the problem is, so you find this baby, you birth the baby, you get it all the way through the toddler years

and the teething and the late night fevers, all through elementary school to high school. And then when your baby is ready to walk down the aisle, what I'm suggesting is that someone else give away the bride. Sometimes, yeah. That sucks. What I'm suggesting sucks. That when it gets to the fun, sexy part of the oral argument, you shouldn't be the one to do it.

Yeah. That's... And that actually echoes countless conversations that we had when I was in these groups. So I spent time at FIRE, countless conversations that we had when I was in these groups. So I spent time at FIRE and I was at Alliance Defending Freedom, I was at American Center for Law and Justice, and the knockdown dragouts we would sometimes have over is that, do we take this on cert? Is this the good vehicle?

There are many cases in which we said, not this one, whatever happens at circuit courts, this might not be the best vehicle. So we did have a lot of fights over that. We also had a lot of discussions over now that we are in front of the, about to go to the Supreme Court, who is the best advocate, which is a whole different conversation than is this the best vehicle? Who is the best advocate?

And that requires, honestly, that requires a lot of self-awareness, humility, to sort of say, okay, I've shepherded this case for three years. Am I going to hand over the baton to a Paul Clement, say, or carry it across the finish line myself? And I think that is a case-by-case determination, quite frankly. I think that is, I don't think there's one specific complete answer to that. But I think his point is right. Like literally, like he's naming three advocates,

Paul Clement, Lisa Blatt, and Elizabeth Prelogger. I could add in, I don't know, six more that are famous. You know, your Noel Francisca's, your Cannon Shammigams, your Scott Keller's. Scott Keller, yes, absolutely. But the point is... I've heard of him. I've heard of him. The point is, there's not a ton.

And yet there's a ton of generalists out there. And the generalists often are pretty mediocre. As many, and I mean mediocre in like the best sense, I guess. Like they're not terrible. They're mediocre. Yeah. in like the best sense, I guess. Like they're not terrible. They're mediocre. And a lot of the impact litigation oral advocates are mediocre in that, you know,

yeah, they're not in the very top tier, but they're not in the bottom tier by any means. And so the difference, like the reason isn't because they're generalists or because they're activists. The difference is that most people will be mediocre. I think the point that I wanted to make was just because you win your case, which, you know, if you find the right baby

and you raise it right, they might find a really good husband at the end. But it doesn't mean you should be the one to walk them down the aisle. It doesn't mean, like, just because they do literally get married at the end, the wedding could have been better. You could have had a more stable foundation upon which to get married.

The analogy is falling apart. I know that. But you see my point that like, you know, you win the case and then you feel vindicated, but like, you could have won it more broadly. You could have won it with a different decision. It just, it can feel really shaky sometimes. And I think it's because they're not having that conversation at the end, David, that everyone should be having as totally frustrating

as it would be, again, to like, then not walk your daughter down the aisle. That's kind of insane sounding. Yeah, no, so I think that that one category, okay, which is a narrow question, who is best to argue a case generally? Now, again, this very specifics of the case are going to impact that question, but that's one question, who to argue the case. My point was a broader cultural point.

And let me put it this way. I think that if you're talking to somebody, our listeners on the left and our listeners on the right really have kind of two different experiences with activist groups. Here's the way I would put it in kind of shorthand. The groups on the left have helped wreck the party of the Democratic Party. And the party, meaning sort of the Trump party, has helped wreck the groups on the right.

Oh yeah, I think that's true. Yeah, so if you talk to people who are doing that sort of post-mortem on the left, like if you've listened to like my colleague Ezra Klein talk about it, they'll use this shorthand phrase, the groups. And what they mean are these various activist organizations who basically for a long period of time in Democratic Party politics, were kind of united in sort of saying, okay, you've got to endorse our issue or we're out on you. And all of the groups began to put forward all of these litmus tests.

And then they would agree with each other. So, for example, let's suppose somebody was very strong on abortion rights, but weak on Palestine. Well, that's where you get some of this weird intersectionality people would say, Palestine is a matter of reproductive freedom. No, it's not. That's just a way of two different groups on the left sort of hanging together in consolidation, right?

And so you began to get this litmus test. And this is what you saw a lot of Trump's ads against Kamala Harris, where in 2020 season, 2019-2020, you began to have all of these litmus tests. And the Democratic candidates sort of had to genuflect before all of the whole laundry list of what the groups were putting out there. On the right, it's different. the Democratic candidates sort of had to genuflect before all of the whole laundry list of what the groups were putting out there. On the right, it's different. On the right, you used to have

something approximating that world. It could be like, if you were wrong on economic freedom, or for your wrong on free speech, or et cetera, the groups really had this influence where they could bring you to heel. Now, when Trump became sort of Lord Prince of the conservative movement, totally changed it. The groups came to heal.

Now, not all of them, not all of them, I could give you a shorthand of some groups, and IJ among them, quite frankly, who've really kept to their principles. They have kept to their core mission. But I could also tell you groups that have not. And one of the things that you will have, you'll notice, for example, is what was the reaction when Trump changed the Republican Party platform to be effectively

a pro-choice platform, crossing a red line that in the pre-Trump area, no other candidate could cross without ultimate wrath. I mean, wrath like you cannot believe. And Trump just walks right over it and says, what you gonna do? And the answer is a whole lot of nothing. And so you have this kind of reverse dynamic on both sides and that's one of the things that I'm talking about. And then the other thing that I'm talking about,

and again, as I said in my initial discussion of it, we gotta have activists. We have to, because you cannot have a world where everybody's expert in everything, where everybody has the same commitment or has perfect gradation commitments on all issues according to their importance. We have to have activists.

It's an honorable way to engage in the American body politic, but it has its pitfalls and temptations. And one of them is to start to see the world through the prism of your activist mindset so that if somebody is not on board with you, with your particular area, there's a strong temptation often to just sort of write that person off or to presume that they don't care about what you're doing or presume that there's something wrong with them. And you begin to litmus test people and organizations based on your specific issue. And also, as I said, it also means you are often interacting with the most extreme and committed people on the other side.

And it's going to give you a twisted view of sort of the way American politics works. So activism is indispensable. It comes with various kinds of temptations that if you indulge them, get really bad. And this is an ends justifies the means kind of ethos, et cetera. But yeah, if you're going to talk about activism in the current moment, I think that's roughly the dynamic. The groups wrecked the Democratic Party in some ways, and the Trump Republican Party has wrecked the conservative groups in some ways.

All right, but Kirby from IJ, I disagree on one point that you made. He takes specific beef with a case called Cully that was about civil asset forfeiture that made it to the Supreme Court. It was litigated by Skadden Supreme Court appellate practice. And basically he's like, these were generalists. And when they got, they litigated the case as a generalist case, they didn't like get super in the weeds of civil asset forfeiture as IJ is very capable of doing. And so when it got to oral argument, and they asked the advocate a super in the weeds question

about civil asset forfeiture, he didn't know the answer. And I guess Gorsuch for what it's worth was pretty annoyed by that quote, and asking the questions I do today, I do not profess a comprehensive list, let alone any firm answers, nor does the way the parties have chosen to litigate this case give cause to supply them. Kirby thinks this is a bad thing, right? Get in the weeds of civil asset forfeiture, show them the problem,

be able to answer every single possible question about how civil asset forfeiture works in the real world. Kirby, if I could have both, I would obviously take both. But if I have to pick between someone who doesn't know it six feet down and someone who's going to litigate the case by generalists for generalists, if you will, I think I'm still going to take the generalist option. Because you're trying to convince people who don't already know everything about civil asset forfeiture. In this case, you're right. Justice Gorsuch already did.

So you didn't need to talk to him. That's the whole point. It's fine. Of course, it's just mad. He's in some ways not a generalist when it comes to civil asset forfeiture. You needed to talk to the other justices, not just the one that you already had in the back. So Kirby and I remain not at odds, but perhaps not in full agreement. All right, David, last email that we got was about parents fighting in front of their children. And David, I think it's important to discuss priors here about fighting in front of your children because I was having this conversation with my mom pod.

And- I love that term, mom pod. It starts during COVID when you had pods and like, we still get together for dinner once a month, no kids, mom pod. Okay, the mom pod discussion went something like this. How do you fight in front of your kids? And I was like, we don't.

But I mean, we don't just not fight in front of our kids. We don't fight. And I'm doing it, honestly, I was approaching in a pretty arrogant patting myself on the back kind of way. We're soulmates. So we don't disagree on anything ever. And it is true. All of our fights, David, I mean,

I think we've had three involve Scott not providing me food. Like he didn't bring Torchis Queso back from his trip to Texas. Fair. I thought we had an agreement on that. Yep. Pretty outrageous. He went out one night with the boys.

I was very clear that I was very hungry. He didn't tell me he was at my favorite pizza place. He did not even bring back pizza. That really set me off. Fair. But those aren't even disagreement. Those are fights and they were all about food because if you don't feed me, I get angry.

But David, as my friends were talking about this, I started to realize that I was in the wrong here and that not modeling good disagreement behavior and importantly, good after disagreement behavior, I think could be really detrimental to my kids. So we got this email and she has some rules for fighting in front of your kids and I want to get your read on these. First, the parent should already know how to fight fair. Stay on topic, no personal insults, no in-law insults, try to avoid the words always and never. Second, whatever rules you impose on

your children about fighting, you should follow. Third, if you fight, your kids should also hear you apologize and reconcile or agree to disagree over the topic. Fourth, some topics, depending on kids age, should happen behind closed doors. You know, lying, affairs, crimes. Those topics are way too volatile to discuss in front of kids while emotions are raw. Lastly, your kids should see you argue and then laugh at yourselves in a way that relieves the tension. So David, should you feel free to make a difference between disagreeing and fighting, which I do think are different to me, and then should you do either or both in front of your children? This is a great topic. I think disagreeing in front of your children in a healthy way is a very healthy thing. Absolutely.

Should we renovate the backyard or should we renovate the basement? One of you wants one, one of you wants the other. That's a disagreement. Where are we putting resources? Or it could even be something like there was something that happened in the family that hurt people's feelings or made people upset and you talk it out, right? And you just talk it out. Now I totally am of agreement that, well, there's two kinds of fights that I think are way out of bounds.

One is a fighting over an adult topic, and we can imagine what those are. We already talked about fileting on this podcast. I feel like, yeah. Right, right. But it would be what I would call not necessarily existential threats, but threats that would, or things, not threats, not threats as in physical threats, but dangers to like if you've got a massive financial meltdown occurring.

Things that are scary. Things that are scary. Are we gonna, are mommy and daddy gonna still be together? Is the, are our finances melting down? Am I about to get fired? Like these kinds of things, there are things where kids look to the parents for cues. And my parents were tremendous about even in real adversity,

maintaining an absolute, real sense everything's gonna be all right, you know? And so, and then the other thing is like anything, if you cannot disagree without losing your temper, work on that before you're going to get into these kinds of things. Because the whole point of, in my view, disagreeing openly is it's not just a matter

of resolving disputes, which is obviously very important. It's also a matter of demonstrating, demonstrating and living out particular set of values that you want your kids to then exhibit hopefully in their own relationships. And so, yeah, I think I agree with that. I think once you draw these bright lines about things that are scary and your own ability

or inability to control your own temper, once you control for those things, then I think that modeling how to disagree is actually really, really important. Okay, so one of the moms in the mom pod, this is the disagreement with her husband. Do they get the third row car? They're having another baby.

They're having their fourth baby. You get the third row car or do you get the minivan? That's an easy answer. This is a classic disagreement. When you have another kid, many of my friends have had this fight and one parent's on one side. And really it all comes down to not wanting the minivan.

One parent does not see themselves as a minivan type of person. Yep. And the other one's like, but it's convenient. Well, you know how we resolved that one in our family? I knew, I knew that Nancy was not a minivan person, and she was in a state of false consciousness when she was arguing for a minivan.

So all I had to do was say, just test drive. Just test drive, and we'll find out. And she drives the Honda Odyssey, and she comes out. And no disrespect. This is just Nancy's. I'm matching Nancy to vehicle. And she walks out and she says, no, we're not doing that. And so, you know, and it reminds me of White Lotus. So test drive the monastery. All right, David. Yep.

So, White Lotus completed. We were going to talk about it, but I do feel like giving people two more days before we do spoilers. So you get two more days to watch it. We'll do White Lotus at the next episode. All right? Deal, David? Yes.

Absolutely. Deal.