Advisory Opinions - Justice Kagan’s Supreme Court

Episode Date: July 1, 2025

Sarah Isgur and David French break down the biggest takeaways from the Supreme Court’s latest term using SCOTUSblog’s stat pack as their guide. They also explain the outcomes in the Texas explicit content case and the “pride puppy” case. The Agenda:—OT25 in review—The most influential justice—What makes a case “important”—Free Speech Coalition, Inc. v. Paxton—Explaining tiers of scrutiny—The pride puppy case—Curriculum opt-outs— Mahmoud v. Taylor This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at ⁠burfordcapital.com/ao⁠. 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

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur. That's David French. And I'm feeling a little bit overwhelmed by everything we're going to need to cover in this episode. But look, we're going to do the stat pack for the term.

I'm going to give you an overview of all the cases that were decided on the last day. We're going to dive in to Paxton, the porn case, and Mahmood, the Pride puppy case, and revisit Birthright Citizenship with David. Hopefully we haven't gone three hours to do all of that. All that and more coming up on Advisory Opinions. Alright David, we've got to be efficient, we've got to be succinct. We've got to be thoughtful. We've got to do this. So I want to start with the stat pack. I want to read you a few of the top line statistics from this term and just let's just talk the

term for a few minutes. Okay? 42% of the cases were decided unanimously. That was a little bit of a drop from some of the previous terms. We've hit 44%, 50%. It is going down a little bit. However, if you go down, and by the way, you can get the stat pack on scotusblog.com. Go to the statistics. It should be on the front page right now, but in general, you can go to the statistics page and find that. David, if you look at the stat pack, if you scroll down to page 15, you'll see these pie charts about how the cases came out.

While it is true that the percentage of unanimous cases took a slight dip from our previous terms, took a slight dip from our previous terms. It's actually because of those 7-2 cases. Rather, maybe the better way to think of it is, yeah, there were more divisions this time, but it wasn't necessarily those ideological splits that we were seeing either. 7-2 by definition means that, well, it was Justice Kagan. Justice Kagan was on the other side of a lot of those cases. Let me read you some of these other ones. For 6-3 decisions, 15% of the cases were decided by a 6-3 split. Of course, not all 6-3s are decided equally. In fact, all of the 6-3 decisions were either with Sotomayor, Kagan, and Jackson

on the one side, that was 9% of the overall decisions of the term, or 6% were decided with Thomas Alito and Gorsuch in dissent. All of those six three decisions were sort of the pure 333 model that we've talked about in the past, either with the most liberal three justices in dissent or the most conservative three justices in dissent. But again, over 90% of the cases had at least one liberal justice in the majority. Just to tell you a little bit more, okay, so maybe you're thinking, okay, not just the six threes, let's include the five fours too.

I would love to. If you include all the five four and six three decisions, all three of the court's liberal justices were together in dissent 15% of the cases. Does that make sense? We've added to the 9% now that Justice Barrett joins or the Chief Justice joins. So we're now at 15% of the closely divided cases, 6, 3, or 5, 4, having all three liberal justices dissenting. But here's where it gets really interesting, David. What about cases where you have three or more only conservatives in dissent?

As in all of the liberal justices are in the majority in the 5-4, 6-3 cases, also 15%. So it's exactly divided along, again, what I'm sort of thinking of as those 3-3-3 models where the conservatives are winning or the liberals are winning, 15% across the board. Interestingly, if you look at all the cases with only a conservative in dissent, so this is now going to include the 8-1s, youros, your six threes, and your five fours, but no liberals in descent, 28% of the cases had only a conservative or up to four conservatives in descent. That's kind of a lot. Chief Justice Roberts was in the majority the most frequently this term, 95% of all the cases, 92% in all the non-unanimous cases and 90% in the closely divided cases.

He didn't write a single separate opinion this term, of course, as our Chief Justice and our Chief Institutionalist. You speak in a single voice. You are a court. You're not running your own law firm. Justice Kavanaugh came in second at 92%, followed by Justice Barrett at 89%. Again, those are our three in the middle, our swing voters, however, our high conservative institutionalists, however you want to think of them. Justice Kagan was in the majority 83% of the time this term. She was more likely to be in the majority than Justices Thomas, Gorsuch, and Alito, who actually were only

in the majority 78% of the time. Justice Sotomayor was also in the majority 78% of the time. That just alone is fascinating. You see Justice Kagan really shifting away from Justices Sotomayor and Jackson, and you've got Thomas Gorsuch, Alito, and Sotomayor unlikely to be in the majority. Top alignments, this won't surprise you. Alito and Thomas agreed 97% of the time. Jackson and Sotomayor agreed 94% of the time. Chief Justice and Justice Kavanaugh agreed 91% of the time.

So Sarah, what I was really interested in just briefly was this frequency in the majority in non-unanimous cases. The least frequent person in the majority in non-unanimous cases, no surprise, Justice Jackson. Second least frequent member of the majority, it was by a whisker, by only 1%, was Neil Gorsuch. That surprised me.

He was in the majority in non-unanimous cases, slightly less than Sotomayor was. I know it's very small, but I just found that interesting. Yeah. Overall, again, you're looking at Jackson, Sotomayor, Gorsuch, Thomas, and Alito all together being the least likely to be in the majority. That's not quite 3-3-3 in that sense because Kagan is actually far more likely to be in the majority than any of those folks. Nevertheless, you've got these wings of the court that aren't getting their way a lot of the time. Then, and again, we've talked about influence on the court.

Your most influential judges, meaning they're the ones who get to write those majority opinions and what the court says, yeah, it's the chief and it's Barrett and it's Kavanaugh, but increasingly it's Kagan. I think when you think about what it means to be influential, that ain't nothing. When we're talking about Justice Kagan being in the majority, far more than Jackson and Sotomayor, sure, but also far more than Gorsuch, Alito and Thomas. I feel like this stat pack and maybe I'm just remembering other stat packs, not as well as I should, but this stat pack with that uniformity or near uniformity in outcome or in being in the majority when it comes to the three most conservative and the three most liberal

is the most compelling stat pack for the 3-3-3. It's just you have to realize that you have the three in the middle and the three on the either side of them and they're ending up in the majority roughly the same amount of time, but it's still that same 3-3-3 dynamic that you outlined after Justice Barrett joined the court. I feel like this is the strongest evidence for that in some interesting ways.

Otherwise, it kind of looks like a 3-6 court with the six equally likely to be in the majority, but with very different cases. Let me just provide some evidence for pushback against this narrative. One, if you only look at the five, four, six, three coalitions, so we're calling this the closely divided cases, those numbers get all tossed around. So you now have Jackson and Kagan, the most likely to be in dissent with Sotomayor, Alito, and Thomas also very, very close there.

50% are under in these cases. But now you have Gorsuch who's at 70% right along with Barrett who's at 70% likely to be in the majority in those five, four, and six, three cases. Kavanaugh at 80% and the chief at 90%. What's sort of interesting about that, David, is again, if you look at past terms, it's pretty weird that none of the justices are above 90% for likelihood to be in the majority in those five, four, and six, three cases. As in you don't have a Justice Kennedy here this term, who's the swing vote in the close cases. That is interesting. And I agree, like we can't, 333 is a very general guide.

You're absolutely right that at the edges, it's going to get very messy, especially if you've got 5-4. 5-4 precludes 3-3-3 arrangements just by definition. Yeah, it was never going to be anything more than a general guide, but I think it's quite clear that you have three justices that are what you call conservative high institutionalists. You have three justices who are not quite that, and then three liberal justices. The other thing that, and then three liberal justices. The other thing that's worth, I think, just talking about for a second is the pushback of like, yeah, but what about the big cases?

First of all, I think, and I've talked about this before, I think people are really misidentifying what the quote unquote big cases are because they're only picking them after they know the outcome. When a case that was going to be a big case ends up being decided unanimously or 7-2, all of a sudden it's not a big case anymore. You have to pick your big cases before you know the outcome. That's number one. Number two, again, even if you decide on the back end, oh, the big cases are the five fours and the six threes. A, you're sort of again, you're defining it by its divisiveness, but okay. And here again, you see that it's actually Thomas Alito,

Sotomayor, Kagan and Jackson, all of them are at 50% and under for being in the majority on those quote-unquote big cases or closely divided cases. I think it's really hard because you end up in this circular logic on headlines where the big cases get defined not only by being closely divided, by being ideologically divided. If the only big cases are Birthright Citizenship, Pride Puppy, and Paxton, which were all decided 6-3 along ideological lines, well then, yeah. Your definition is totally circular on what big cases are.

Yeah. I mean, contentious is not a synonym for consequential. Those are not the same word. Similar like when you talk about politics, authenticity is not a synonym for honest. Authentic is not a synonym for honest. Contentious is not a synonym for consequential. So yeah, there are still six, three cases that are quite contentious and quite consequential. I mean, universal injunctions.

We're going to be dedicating big chunks of two podcasts to that in addition to the oral argument podcast. So that was contentious and very consequential. But as much as we're interested in, say, Mott Mood case, the reality is that's not as consequential as many other cases this term that were decided with, you know, either 9-0 or in different alignments. And so, yeah, I think that that's one of our problems is the 6-3 attracts our attention in a way that some of the other cases don't. And it's almost, it's interesting, Sarah, it's almost as if the other cases with a notable

exception of, well, it's, you know, of Trump v Anderson, which was the 14th Amendment Colorado case. It's interesting how when a case does get unanimous or near unanimous, interest in the case starts to dissipate very quickly, but it doesn't mean the case wasn't very, very important. Yeah. And if you, again, reference your stat pack at home, on page 14, we list out exactly which cases were decided with those alignments. The 6-3 and 5-4 that were ideological and the 6-3 and 5- four with only conservatives in dissent.

It's funny because of course there were six cases that were decided purely six, three along ideological lines. Two of them though, David, weren't particularly ideological at all. They just came out that way. Four were, for what that's worth. It was Scrumetti, the gender affirming care, Paxton, the free speech and porn case, although I don't know that I consider that actually to be particularly ideological, though it came out that way and we'll talk about it. Mahmood, fine, the opt out in public schools for books, and Trump v. Casa, the birthright citizenship nationwide injunction case. So even among those six three, I would say it's sort of half and half that were what I would consider purely ideological

and big cases and divisive and decided along those ideological lines. Let's dive into some of these cases. Shall we start with Paxton the porn case? Yes, indeed. Shall we start with Paxton, the porn case? Yes, indeed. Let us start with Paxton, the porn case. It was everything I hoped it would be. My concern on this case was that you would have, after an oral argument, where it was quite clear that the justices, a majority of the justices, had an inclination to uphold the law on the merits. The big concern was, would this be something that the court would say,

wait a minute, it was just the wrong standard of review? We may, in the opinion, express some words that are, could be guidance as it goes down to the Fifth Circuit. But what we're simply going to say is, you decided this on a rational basis review, rational basis review was not correct. Go back and do it again. Here's the proper standard of review. Let's back up real quick for those who need a reminder. This is the Texas law that says that pornography is addictive and has harmful developmental effects on the brain

and leads to risky sexual behavior for minors. The statute applies to any commercial entity that knowingly and intentionally publishes or distributes material on an internet website, more than one-third of which is sexual material harmful to minors. And then it requires those entities to use reasonable age verification methods to verify that an individual attempting to access the material is 18 years of age or older. That's the ball game here is that you're going to have 6-3 with Thomas writing, upholding

that law and saying, yep, it goes into effect as is. We're not sending it back down. Done deal. Texas and other states that have similar laws can require reasonable age verification methods for companies that have sexual material harmful to minors on it? And what he did is essentially, or what the majority did is they said, well, rational basis review was not right because rational basis review would be the review that you would apply to a law that prohibited

this content as to minors, but had no effect at all on access for adults. Because minors have no right of access to pornography, that would be a classic rational basis review case because it doesn't implicate the First Amendment. However, a law that is aimed at minors but has incidental effects on adults, we're not going to look at that with rational basis review. We're also not going to do on strict, review this on a basis of strict scrutiny. This is not aimed at the adult speech.

It has the incidental effect on adults aimed at minors, intermediate review. That means the judge wins, Sarah and Justice Clarence Thomas was never going to rule. Once it got to intermediate scrutiny, this case was an absolute foregone conclusion. I would note that one of the reasons why it was a foregone conclusion is you're just talking about the raw strength of the state interest here combined with really, look, I get it. You're going to flood me with emails. You're going to flood me with messages about VPNs, and you're going to flood me with emails. You're going to flood me with messages about VPNs, and you're going to flood me with messages about what happens when there's data leaks, et cetera, et cetera.

But the burden on adults to provide proof of age, to access content, my goodness, and this is something that happens all the time online, all the time. The idea that that was just going to be too darn much for these guys to be able to access their porn was, I thought, going to be ultimately fantastical in a way that maybe the argument many years ago would not have been so easily dismissed at a stage where technology was much more primitive, age-gating much more difficult, confidentiality much more difficult to secure.

To me, this case was a very clear example of how the Supreme Court was bringing, as it's done before, by the way, and something we've talked about, offline examples and offline approaches to speech can indeed work online and they did here. When we get back, we'll get into the weeds on this case, some of the precedents that were applied, and what I thought was Justice Thomas's very interesting analogy to draft, burning your draft card. We'll be right back. Get to Toronto's main venues like Budweiser Stage and the new Roger Stadium with Go Transit. Thanks to Go Transit's special online e-ticket fares, a $10 one-day weekend pass offers unlimited

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ExpressVPN.com slash advisory. So David, when Justice Thomas writing for the six member majority started walking through why the case came out the way that it did, I thought it was fascinating the language he used. He said, history, tradition and precedent recognize that states have two distinct powers to address obscenity. They may prescribe outright speech that is obscene to the public at large, and they may prevent children from accessing speech that is obscene to children. History, tradition, and precedent? Eh?

Now, I think you could say that he didn't say text history and tradition because the text here of the First Amendment just isn't going to be very helpful. But nevertheless, I took note of that, especially because of where Justice Thomas usually is unprecedented. Like if the precedent's wrong, then what do I care is sort of the Justice Thomas view of precedent. One wonders whether they're coalescing around that language. We've seen it from the likes of Justice Kavanaugh, for instance, in the

past. Let's see if the conservatives can all get an agreement of what the test actually should be called, although shocking if it didn't have the word text in it in the end. David, I want to give this example that Justice Thomas gave, but I also want to make sure we get into some of the precedent that he's talking about because it gets pretty dicey when you start looking at the precedent and trying to distinguish this from other cases and weave your way around them. This is United States v. O'Brien that was decided in 1968. Justice Thomas says this Texas law is analogous to the prohibition against destroying draft cards that this court upheld in United States v. O'Brien.

The prohibition may have had the effect of making it unlawful to protest the draft by burning one's draft card, but the destruction of a draft card is not itself constitutionally protected activity because the card is a government document is not itself constitutionally protected activity because the card is a government document that, among other functions, serves as proof of registration. The prohibition on destroying draft cards thus placed only an incidental burden on First Amendment expression, making it subject to intermediate scrutiny. Here he says, accessing material obscene to minors without verifying one's age is not

constitutionally protected. Any burden this law imposes on protected activity is only incidental and the statute triggers only intermediate scrutiny. So you see this, I mean, it's not a sleight of hand, David, but like what he's saying is for adults, the question is not whether pornography is constitutionally protected. It's whether access to pornography without verifying one's age is constitutionally protected. What? Is that really?

I feel like as we start tacking on, like, what is your right to things? That's going to be a bit tricky. I would have phrased it differently, which is the burning of villains' draft card, the destruction, the prohibition on destroying draft cards was not aimed at the expressive content. And the issue here, I would not have phrased it as a right to obtain something without showing the age. I would say that what the aim of this law,

this law is aimed at something that everyone agrees is not constitutionally protected, which is quite simply access of kids, kids having access to pornography online, not constitutionally protected. This reminds me of the TikTok case because in the TikTok case, the core target of the speech was, or the core target of the case was actually something not constitutionally protected, which was the ability of a company owned or controlled or heavily under the influence of the Chinese

Communist Party having access to American public square. The Chinese Communist Party does not have a First Amendment right of access to the American public square. So the aim here was something that was not constitutionally protected at all. It had the effect by aiming at this not constitutionally protected speech of having an incidental burden on constitutionally protected speech on the part of adults. In that sense, the draft card analogy works for me just because what's the aim in both situations. But to phrase it is, what is the right that we're dealing with here, some sort of right of access to pornography without

showing ID is actually a different question than a right of access to pornography without anything more than an incidental burden. I want to repeat what he said. Accessing material that's obscene to minors. And remember, there's material that can be obscene to minors that is not obscene to adults. Although material that's obscene to adults would also not be protected speech.

That's just a whole separate thing. But okay, so accessing material that's obscene to minors parentheses, but not obscene to adults without verifying one's age is not constitutionally protected. David, don't you feel like you could, I could do that in the religious context. Being able to freely exercise one's religion without having to register your religion with the government

is not constitutionally protected. Like, what? I don't like that phrase. Yeah, how would you feel about it if instead of in the italics, because it says without verifying one's age, is not constitutionally protected. How would you feel about it if it said, because accessing a material obscene to minors without incidental burdens on adult access is not constitutionally protected?

Because I think that the verifying one's age could be more than incidental in certain circumstances, including in the relatively recent past. In fact, they give that example, like for instance, and this is where you get to the, does it pass intermediate scrutiny? Justice Thomas volunteers that for instance, if they required a notarized affidavit, this isn't actually as far as he goes, but some really, really strict way to verify one's age. That like, no, that wouldn't pass intermediate scrutiny. That's too much.

But simply having to upload a copy of your driver's license or a photo ID, yeah, that passes intermediate scrutiny. David, let's talk a little bit about the precedents that involved here because again, there's some weird twisting and turning I think going on. On the one hand you have Ginsburg. This is the girly magazine case that we've talked about before from also 1968 by the way. A bad year for the first amendment in many respects. This guy operated a stationary store and luncheonette. He was convicted of selling girly magazines to a 16 year old boy in violation of York law, which made it unlawful to knowingly sell to a minor under 17 any picture which depicts nudity and which is harmful to minors." And the court upheld that

and the conviction. Okay. So you've got on the one hand, if you're an indepesident type of person, say like, well, if you can do it in person and it doesn't burden adult speech more than is necessary and yada yada, then like why can't you do it online? And if you say that you can't do it online, why can you do it in person? And why has that been okay for 70 years and really forever? We always have thought that's okay. On the other hand, we have the Ashcroft II problem, David. This was the decision about the Child Online Protection Act, which was passed in 1998 after

the Supreme Court struck down the Communications Decency Act in the Reno case in 1997, ah, back when the Supreme Court and Congress were in conversation with one another and when the Supreme Court struck down a law from Congress, Congress just came back and passed another one and tried to make it better. Now, perhaps this is actually part of the problem because they strike down Congress's 1996 law, Communications Decency Act in 1997. In 1998, they passed the Child Online Protection Act and then in 2002, they strike that down

too. Then Congress gives up. Okay, but here's Justice Thomas writing about why COPPA, as the law was called, is different even though it was also about age verification. Here's his explanation. Ashcroft, too, likewise characterized COPPA as a ban. COPPA criminally prohibited posting content that is harmful to minors online for commercial purposes subject to an age verification affirmative defense."

If we were going through a cave, David, this is the part where we have to have our arms all the way in front of us and our shoulders dislocated to squeeze through this cave of precedent precedent because COPPA prohibited access of minors without age verification. But Justice Thomas is saying that this law in Texas isn't a ban. It's just age verification first. COPPA was a ban, but you could have age verification to get around the ban. Texas law, okay, because it's age verification. COPPA, not okay, because it was a ban, but then an age verification to get to the material? Huh?

Again, a much more straight line way to deal with this would be to say, okay, we have Reno and we have Ashcroft, two age verification cases. Now, obviously the statutes were a little bit different. I mean, I feel like that's taking your tattoo though to extremes. Like these statutes were a little bit different. They were not massively different statutes.

But there have been a couple of changes here. One is, one change absolutely is the change in technology. Another change here is the change in technology. Another change here is the change in state interest. Because one of the things that I thought the opinion was quite effective about was describing what is the porn environment? Why would the legislature move here? And there's been a lot of, I feel like, is this a, I saw this online a bit afterwards, like what you might call boomer porn nostalgia, which was, oh, porn kids, what's the big deal?

You know, everybody knew like there was that one house you could go to growing up where the dad had a Playboy stack that you could get at or there was that place out in the fields, a lock box for people stored porn and you could go out into some field near your house and see it. It's always been around. Kids have always seen it. With the absolute ubiquity and depravity of the current pornography environment. It's just apples and oranges. And this idea that in that atmosphere of absolute ubiquity

with all kinds of rises in behavior of destructive sexual behavior that is very much tied to pornography, when you look at all of that and you say, okay, wait a minute, we're in a different factual environment and because the state interest here matters, this different factual environment is enhancing the state interest. So you have a different factual environment and you have a different technological environment. And I think those two things alone move this case out of Reno. But what I would prefer to say is Reno and Ashcroft are either confined to their facts

or overruled that this is the standard now based on the current reality. I agree with you that this was dislocating. I didn't think of that analogy. Dislocating the shoulders to squeeze through the particularly tight when you're spelunking. That's a great analogy. Here's how Justice Thomas kind of explained it. He said, of course, Reno and Ashcroft too do not cease to be presidential simply because technology has changed so dramatically, but respect for past judgments also means respecting their limits.

Okay, well, they're very limited. David, I did think it was worth noting, though, who wrote Ashcroft to? And remember again, Ashcroft to striking down Congress's age limitations on material that's obscene for minors. Who wrote it? That would be Justice Thomas. Now remember that's 2002. Fast forward to 2011, there's another case called Brown versus Entertainment Merchants Association. Brown is going to get very little love in this Paxton decision. Three mentions total, one of which is in the dissent.

The Brown case was where the Supreme Court struck down a 2005 California law banning the sale of violent video games to children without parental supervision. It was 7-2. So to be clear, the dissents are saying that that law should have been good law and that you should be able to prevent children from buying violent video games unless they have their parents' permission. Do you know who wrote the dissent in that case, David? Justice Thomas.

And look, I actually think that you can draw a really clear through line here and it's the parental supervision, which by the way is going to take us to our next case on Mahmoud versus Taylor and the rights of parents, absolutely. It's lovely to have had Justice Thomas on the court so long because you can really start crawling through his First Amendment jurisprudence on narrow issues like First Amendment has applied to children and whether age verifications versus parental supervision and how he sees all of those. David, the dissent, however, in Paxton, in this porn case, less amused is fair to say. And again, it was ideological. It was six,

three, and their argument was basically like, you're spelunking. Um, of course this burdens the speech to adults. I think that the dissent would have put this in strict scrutiny, obviously. And by the way, for those listening along, let me just, let's just do a refresh on those. Okay. So first of all, we have viewpoint versus content based laws. So viewpoint is that you take a position, uh, pornography good content though is it's about pornography. It's about a certain topic.

Both get you into strict scrutiny land. Though viewpoint is particularly bad, content still strict scrutiny. So, content-based laws, those that target speech based on its communicative content, not its viewpoint, are presumptively unconstitutional and may be justified only if they satisfy strict scrutiny, i.e. the law must be the least restrictive means of achieving a compelling state interest. Content-neutral laws are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.

Under that standard, a law will survive review if it advances important government interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." That's why we say intermediate scrutiny is sort of like whatever the judge wants at that point because what do any of those terms mean? And then, of course, not all speech is protected. From 1791 to the present, certain historic and traditional categories of speech, such as obscenity, defamation, fraud, incitement, and speech integral to criminal conduct have

been understood to fall outside the scope of the First Amendment. Such prohibitions are subject only to rational basis review. The minimum constitutional standard, under that standard, a law will be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for its enactment. Okay, so this is kind of the dissent's point, David. It's like, fine, let's use that three tiered system. So this is not speech that is not protected. It may not be protected for minors, but the speech for the adults is protected.

So you're not in rational basis territory. It's not content neutral because it's only about material that is obscene for minors. That's content based. So you're not in traditional intermediate content neutral world. And then content based laws are subject to strict scrutiny. And they're like, see, that's where we are. Like you laid it out and like we're clearly and it's clearly content based, so we're clearly in strict scrutiny. But what Justice Thomas basically says is this is a hybrid. The speech for minors isn't protected and that's the point of the law. And sure, it puts this burden on speech that would be protected for adults, but it's not

banning the speech for adults. That's where he's trying to draw that Ashcroft two distinction. So if the speech isn't protected for minors, so you would be in rational basis review and you're not banning the protected speech for adults, we're basically going to mix the hot water and the cold water together and we're going to end up with lukewarm water and intermediate scrutiny. This David is where I think the dissent is annoyed because there's no question that this decision creates a new category for cases that fall under intermediate scrutiny. This is a new test for intermediate scrutiny. It's not content neutral. It's like the marriage of unprotected speech without a ban on protected speech gets you an intermediate

lukewarm water land. I think that the dissent would have been happy to live in strict scrutiny land, but maybe uphold a law like this, maybe not this exact law, but a similar law under strict scrutiny world. The majority is saying, we will not water down strict scrutiny. We can't have it in strict scrutiny and uphold this law. And so the dissent's like, fine, but then you're just doing sort of an ends means task. Like, you know you want to uphold this law.

You don't want to water down strict scrutiny. So you have to end up in intermediate scrutiny. But like, what if we don't uphold this law? I find it really interesting, A, I find that itself like a somewhat compelling argument, but I find it really interesting that the majority wanted to go so far out of its way to not water down strict scrutiny at a time when David, you've been complaining

that you think the text history and tradition test is meant to replace the tiers of scrutiny. Here they are fighting tooth and nail to keep strict scrutiny strict, going so far as to create a new world of intermediate scrutiny. As I was reading The Descent, I just thought, what if Thomas had said, okay, it's strict scrutiny, but the government interest here is compelling, and we have 20 plus years since Reno and Ashcroft that demonstrate that these alternative means are not effective.

Bada bing, bada boom, strict scrutiny satisfied. Instead- That's what I thought was going to happen. That was my prediction for how the case was going to turn out and I was just wrong. Well, I was wrong. I thought the case would turn out this way in the result. I did not see the intermediate scrutiny coming. But I think you hit the nail on the head.

I think the nail on the head was that they want strict scrutiny. Thomas is thinking it's strict in theory, fatal in fact. And if you have a strict scrutiny test applied and it passes, then you've watered down strict scrutiny. I don't think that that really should have been the equation. I think the equation is you're going to pass strict scrutiny when we agree that there is a compelling governmental interest. We have asked you to pursue alternative means for 20 plus years.

You have pursued alternative means in 20 plus years. The problem has only gotten worse. This is the legislature's best idea as to how to accomplish a result that everyone admits, all nine justices admit is compelling. There's a compelling governmental interest. So yeah, I think the outcome, Texas winning was absolutely correct. I do have that question about the intermediate scrutiny versus the strict scrutiny. I feel like as we're talking through it, would it have been better to just say either overrule Ashcroft and say, we're reversing it, they never should have applied street scrutiny to begin with, rather than dislocate the shoulders. Or say, we're upholding the test of Ashcroft, but

the test comes out differently. I feel like either one of those paths would have been preferable. This is why I said that this case, while it's six, three along ideological lines, is not one of your traditional, like, eh, we're just doing culture war here and you knew where everyone was going to be from the get-go. On its face, it's just not that at all. But here's where I think you can start to peel away and maybe get to a little bit of a culture war nougat in the center. The dissent, I think, did want to water down strict scrutiny a little

bit and the majority absolutely did not. Why? Because of all these religious liberty cases that are coming down the pike. So if you think this case isn't about age verification of porn but actually about strict scrutiny in the free exercise and establishment clause context, the 6-3 alignment makes a lot more sense because it's actually just about how we are defining strict scrutiny and what the parameters of overcoming strict scrutiny are. In this case, no dog on overcoming strict scrutiny. In fact, we're so sure we don't want to have another case that meets strict scrutiny, we're

going to create a new test for intermediate scrutiny. Man, Sarah, you're outlining the nine dimensional chess here. This is interesting. No, I think you're right. Strict scrutiny, the majority wanted strict scrutiny to remain basically fatal. The dissent is saying, strict scrutiny doesn't have to be fatal. And Lex explain how. And nobody wants kids accessing porn, to be clear. Like you have a nine zero on nobody thinks kids have a right to access pornography. Nobody thinks it's protected

by the first amendment. So again, like it's just not six three on a whole bunch of like pretty fundamental stuff. Yeah. And I also think just if we're going to get meta and non-legal for a minute, I think we're in the middle of a bit of a culture change on the porn issue and the political salience of it as well. I think that you used to have a pretty clear liberal conservative divide on the morality of pornography. The feminism of pornography, right?

That it's actually, yeah, feminist in some ways. I mean, that was always a split within the feminist movement. There were those who felt that it was very un-feminist because it involved the exploitation of women, but then there were those who were like, no, it's women making money off their sexuality. How dare you say otherwise? Now it feels like there's this broad consensus across American politics and culture that like the house is on fire and we don't know how to put it out.

Yes. And that's anyone with children. Yes. There was this really very poignant essay in the Times that was like basically where have all the men gone? And it was talking about how difficult it was to meet people, how withdrawn a lot of men seemed from relationship. Everyone was pouring into that essay, their political vitriol.

Well, where have the men gone? You've called them toxically masculine. You had a bunch of that and there's some validity to that, but where have all the men gone? Porn. I mean, I think a lot of young men in particular have had their minds shaped by this early childhood exposure to pornography in very deeply destructive and toxic ways. And I think people across the spectrum are recognizing this. Well, now we'll test whether this Texas law or any of these other age verification laws can actually start chipping away at the problem. I'll tell you, David, I'm all for trying. I'm not sure this is going to do much. We have things like VPNs and many workarounds that even young children can figure out pretty quickly.

So we'll see, but good luck. All right. When we come back, we'll talk about Mahmood versus Taylor. But good luck. All right, when we come back, we'll talk about Mahmood versus Taylor. We've been dubbing this the Pride puppy case. This is about religious opt-outs for children's books in public schools. We'll be right back. All right, David, we're back to talk about Mahmood

versus Taylor. Now here's a six, three case that was a real 6-3 case, along ideological lines, for ideological reasons. But of course, on this podcast, we try to explain the law and what each side said, why they were interpreting the laws and the precedents differently. Now, before we start, I think we have to explain the 1972 Yoder case. In this case, the Supreme Court held that Amish children could not be placed under compulsory education past eighth grade. The court ruled that the Amish parents' fundamental right to free exercise of religion outweighed the state's interest in

educating their children. So the question in this case was the Montgomery County Public Schools had woven in various story books about LGBTQ themes. They had had an opt out at one point, then they found the opt out unworkable because too many parents were opting out. And so they got rid of the opt out and in fact told the parents they weren't even going to tell the parents when, how, or, you know,

anything about how these books were being taught. And the question was, could the parents require the school to provide them an opt out as they did for other parts of the curriculum, a religious based opt out based on Yoder, basically. Is this similar to the Amish not wanting their children to be in school at all past eighth grade? Or is this parents trying to control the curriculum of public schools that is left to the political branches and you need to go talk to your school board if you've got a problem? Well, 6-3, the Supreme Court said, this is exactly like Yoder. I'll read just a little bit of their description of Montgomery County because I think it's interesting. With just over 1 million residents, Montgomery County is Maryland's most populous

county. According to a recent survey, it is also the most religiously diverse county in the nation. In addition to hosting a diverse mix of Christian nominations, the county ranks in the top five in the nation in per capita population of Jews, Muslims, Hindu, and Buddhists. That's kind of fun. The county's religious diversity is accompanied by strong cultural diversity as well. The county is home to several notable ethnic communities. For example, the Ethiopian community in Silver Spring is one of the largest in the country. And according to one survey, only 57% of county residents speak English at home. This is about a few books that the school was introducing into their curriculum. David,

we were calling this the Pride Puppy case, but note footnote too that I will read to you. The majority discusses five books currently incorporated in the board's LGBTQ inclusive curriculum. The board had also approved another book, Pride Puppy, but after more than a year of using the book in classroom instruction, the board removed it due to content concerns during the course of this litigation. Pride Puppy tells the story of a young child celebrating Pride Day and losing her dog in the parade. The book, which the board intended for teachers to read to three and four year olds, invites readers to search for items depicted in the books illustrations, including underwear, a drag king and a drag queen.

I had previously, when talking about Pride Puppy, said that it included explicit sex stuff and got some pushback on that. I wanted to make clear that, and we talked about this on previous episodes because I've talked about in the context of drag shows and we had a case about whether drag shows were in fact discriminatory against women basically. When I say sex, I actually mean gender, not just the performance of the act of sex, but sex. As in the biological category. Yes. Those are explicit sex stuff to me, as in you're having to talk to children about what sex is. Why is that person dressed that way that I think is a caricature of women,

not unlike blackface? I understand that I am in the minority on that view and mean no disrespect to people who disagree with me on that, but it is my opinion that it is a caricature of what women look like and are supposed to look like. It is caricatured by, you know, lots and lots of heavy makeup and lots of cleavage, incredibly high heels and sort of tottering around in tight skirts. That to me is, again, not that different than blackface.

It's a caricature of femininity and women and all of that. I don't like it. Okay, but David, this book, we've been calling it The Pride Puppy Case and it's just not The Pride Puppy Case. I'm not going to read all of the books that were in contention here. I'll just read the majority's description of one of the books. Born Ready, the true story of a boy named Penelope tells the story of Penelope, a child who was initially treated as a girl.

The story is told from the perspective of Penelope who at one point says, if they'd all stop and listen, I'd tell them about me. Inside, I'm a boy. When Penelope's mother later assures her that if you feel like a boy, that's okay, Penelope responds, no, mama, I don't feel like a boy. I am a boy. Penelope tells her mother, I love you, mama, but I don't want to be you. I want to be papa. I don't want tomorrow to come because tomorrow I'll look like you. Please help me, mama. Help me to be a boy. Penelope's mother then agrees that she is a boy and Penelope says, for the first time,

my insides don't feel like fire. They feel like warm golden love. Later after the family starts treating Penelope as a boy, Penelope's brother complains that you can't become a boy. You have to be born one. This comment draws a rebuke from Penelope's mother. Not everything needs to make sense. This is about love.

Okay. So, David. from Penelope's mother. Not everything needs to make sense. This is about love." Okay, so David, the majority says that this is just like Yoda. This is absolutely infringing on the parents' ability to religiously train and bring up their children within their religious traditions. Then they sort of dismantle each of the district's arguments. The first, of course, is that they have other opt-outs. In fact, by law in Montgomery County, you must have an opt-out for family life and human sexuality. But the district was saying, well, these aren't part of our sexuality course.

These are just woven in as part of literature and reading. The Supreme Court says, no, you can't decide to use books. You can't get around the state law opt out for human sexuality by just now putting them in English class. You have other opt outs. Clearly, you can do opt outs. Yeah, the district says, but the family life and human sexuality are discreet as in it's really easy to just have kids not go to that class.

The majority says, okay, well again, you can't make it impossible to have an opt-out by simply weaving it into the curriculum and then claiming that the opt-out is too hard. You could make it a discreet class that makes it easy for opt-outs. Otherwise we're providing this blueprint to get around the first amendment. Number three, they said this is unworkable because we already tried it and too many students tried to opt out. And the majority is like, yeah, once again, do you hear yourself? Maybe if you have too many students wanting to opt out, you should be looking

at the curriculum or again, have it as a discrete class or you've actually managed all sorts of other opt outs including big ones. Figure it out. Not our problem, but it cannot be, as Justice Alito who wrote this decision said, a de maximis exception to the First Amendment, that if you have too many religious objectors that all of a sudden there is no religious problem because it's so against too many people's religious exercise. I'll just read the last piece of Justice Alito's majority. It must be emphasized that what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right to direct

the religious upbringing of their children. We express no view on the educational view of the board's proposed curriculum other than to state that it places an unconstitutional burden on the parents' religious exercise if imposed with no opportunity for opt-outs. state that it places an unconstitutional burden on the parents religious exercise of imposed with no opportunity for opt-outs. Providing such an opportunity would give the parents no substantive control over the curriculum itself." So David, within those lines are the limiting principles where the Supreme Court's trying to not be the litigator of every county board of education across the country,

how well do you think they're going to do at not having a million Mahmood versus Taylor's get appealed up there? That's a really good question. It seemed to me that there was sort of a narrower way and a broader way to go through this. And I think they chose the broader way over the narrower way,

and it will spawn a lot more litigation. So the narrower way, I think, would have been, well, you've got all these other opt-outs. This isn't neutrally and generally applicable. This is strict scrutiny. Bada-bing, bada-boom, done. Again, this is where I got it wrong. I said that that's exactly what they do. They have a religious opt-out for depictions of Muhammad, so you can't discriminate in between religions like that denominational

case that we saw for Catholic charities. I thought that was like a really narrow, easy way to do this. But no. I did too. I thought that was, you know, we even said this could be 9-0, kind of the way Fulton versus City of Philadelphia was, because you could see that there was not a neutral and generally applicable law at work. But no, they went with Yoder. I was sitting there reading the opinion going, you know I'm going to bring it up, Sarah, the hot, sexy, and safer case from my law school experience.

Yoder is a case that's been around for a long time. So Yoder is a case that's been around since 1972. And so it's been around forever. That case was on the books when Hot, Sexy and Safer was being decided in the First Circuit. In the First Circuit, I literally went back and reread that opinion.

And they just kind of bat aside Yoder on ways that even at the time didn't strike me as an unfair way of minimizing Yoder because Yoder was, you have to take your kids to public school period. You can't, they have to have this compulsory public schooling. And the Supreme Court was saying, no, you don't have to have compulsory public schooling. This is extending Yoder into public school saying, once you have public schooling, then there are elements of the curriculum within public schooling that can't be compulsory. So that's an extension of Yoder.

And so I never thought that Yoder was something that was going to be utterly so completely controlling here, but it's quite controlling and it's, it's, this was not a minimalist case. Let's just put it that way, Sarah. This was not a minimalist case. Okay. So just for those keeping score at home, we got the outcome of Paxton and Mahmood correct. We got the reasoning wrong and we got the vote count wrong.

So David, in Mahmood versus Taylor, the argument between the majority and the dissent is what like the basics, right? The dissent is saying this is about exposure to ideas that parents and potentially children find uncomfortable or don't agree with. But mere exposure is that's what public school is. We're teaching them things that they don't know, that they don't agree with maybe, that they are uncomfortable with, that their parents don't know. My God, Pluto was a planet when I went to school, David, and now my son is being taught

that it is a dwarf planet at best or just some space junk out there revolving around the sun? In our solar system, again, this is about religious objections. I don't have a religious objection to that, but I'll admit, I don't like it. But like mere exposure of my son to the idea of Pluto not being a planet wouldn't be enough. But David, they're not just exposing him to that. They are telling him that it is fact and that it is like a good thing, right? That that's what Pluto is

and that we only have eight planets. So what the descent is saying is like, yeah, that's what public school is. And if that's a real problem for you, you can homeschool your kid or you can put them in private religious school, like a Pluto religious based education. The majority is like, yeah, I mean for Pluto, that's what it's going to be, but for this

stuff, this narrow category that's about topics that were never traditionally taught in schools, like human sexuality, and this is even more recent they note than human sexuality, and when it's woven in as a, again, not toleration, but a good, then you have to have these religious opt-outs. I mean, it is a fundamental, I think, view of public schools where the six and the three disagree. It's a fundamental difference in what is being taught and whether those things are fact or opinion. The dissent and the majority aren't even

close to each other on this one. Yeah. I have to say that this sentence from Alito did not convince me. It must be emphasized that what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right to direct the religious upbringing of their children. I mean, it feels to me like what this says is it must be emphasized that we are not holding here that you have a right to six eggs, but we are here holding you have a right to half a dozen. Because it feels like these are flip sides of the same thing that you just, instead of

saying, hey, you have to educate my child the way I want you to educate my child, if you walk in you say, you have to educate my child in a way that doesn't conflict with my religious views and values in any way shape or form. Ah, okay. Boy, it's gonna be messy as opposed to a rule that says well if you're gonna grant opt-outs on religious bases you can't discriminate amongst religious perspectives when doing so. That is a... religious bases, you can't discriminate amongst religious perspectives when doing so. And then by the way, Sarah, what you end up with is a political reality on the ground that is going to be actually more conducive to opt-outs than less because parents want

them. Parents want them. And the way that a lot of school boards have dealt with that is by giving the favored political groups opt-outs and the disfavored political groups not. And if the Supreme Court says, yeah, can't do that, then there would be a ripple effect, I think, beneficial change on the ground. But this one, wow. Yeah, it feels broad to me.

And guys, in a way that might be unworkable love to read the pushback in the comments on this. But I think in both Paxton and McMood, I feel like I agree with the outcome, but in both opinions, there were elements of the opinion that were surprising. All right. Let's touch really quickly on the other three cases because we did have six cases that needed to be resolved on the last day of the term. We also had the Kennedy versus Braidwood management case.

This was on the US Preventative Services Board task force and whether they needed to be appointed by the president and confirmed by the Senate or whether in fact they could be appointed by the Secretary of Health and Human Services, Supreme Court holding 6-3 now non-ideologically with Thomas Alito and Gorsuch in dissent that, yeah, the president doesn't need to appoint this board. No changes to the Affordable Care Act and This board is not principal officers of the United States, but inferior officers that simply provide recommendations. Similar lineup in FCC versus consumer research. This was that fund, David, where the FCC had this outside private group that set the universal fund. The question was like, wait, non-delegation? Can you give away that power, huh? Again, 6-3 with Gorsuch, Alito,

and Thomas in dissent. They said, yeah, that's fine. Kagan writing the majority opinion on that one. We will discuss those cases in more detail because they involve executive power and they're really interesting. And what is this podcast these days, if not an executive power podcast? But not today. Lastly, there was Louisiana versus Calais. And no decision in that one, David. They set it for re-argument. And what new questions presented will we be re-arguing in the fall? We don't know. But there was a dissent from Justice Thomas from the setting for re-argument. And just to remind everyone, this was the Louisiana redistricting case that was the

perfect storm of a hot mess of the problem between section two congress's mandate to take into account the racial makeup of districts and the 14th amendment's promise of equal protection to, you know, not racially gerrymandered districts. So in this case, remember Louisiana has six districts. Initially after, initially after redistricting they had one majority black district so a group sued and said that violated section two of the voting rights act because the state is about one third black so you need a second majority black district to meet with the requirements of section two.

And so a judge said, yes, that's correct. The Fifth Circuit said, yes, that's correct. So then Louisiana didn't even like, I mean, they did appeal to the Supreme Court. The Supreme Court didn't take the case. They drew a second black district. Okay. So now the first group should be really happy. And they are at least enough. Now a different group sues of what they describe themselves as non-African-American Louisiana voters. And they say, aha, but now you violated the Equal Protection Clause of the 14th Amendment. This is a racial gerrymander because clearly the main thing you took into account was race because the whole point was that you needed a second black district, which is now this monstrosity that stretches 250 miles over the state just so you could get enough black people

between two major cities that were 250 miles apart to make a second majority black district. So which is it? Is it section two under statute or the 14th amendment? Again, they punted, CT's mad about it. He said, we should have decided the case this term. These are the only cases argued this term in which our court's jurisdiction is mandatory. Congress says, the Supreme Court must hear these cases, that an act of Congress requires that we decide these cases should have prompted us to resolve them expeditiously. These cases also warrant immediate resolution because, due to our Janus-like

election law jurisprudence, states do not know how to draw maps that survive both Constitutional and Voting Rights Act review. Well, ain't that the truth? Here's one more Justice Thomas quote, "...these cases put the court to a choice. It may permit patent racial gerrymandering under the auspices of Section 2 compliance, or it may admit that, as the court to a choice. It may permit patent racial gerrymandering under the auspices of Section 2 compliance, or it may admit that, as the court has construed the statute, a violation of Section 2 is insufficient to justify a race-based remedy. That decision should be straightforward. Nevertheless, the court demurs."

So right, what Justice Thomas is saying is like, this is, you know, Students for Fair Admission versus Harvard. Unless you are remedying a specific de jure past discrimination, then no, we're not doing race-based sorting of humans, whether it's for admissions or redistricting. And David, I think, you know, in our past case in Milligan about Alabama, you had talked about it being specific to remedy past race-based de jure discrimination. I think Justice Thomas's point is, then you've got to point to exactly what it was, exactly why this district line fixes that,

not just wave your hands around and say, Jim Crow. Right. Yeah, I agree that I like the Janice-like reference there. I'm very much in agreement. It is very interesting with the idea that there has to be greater clarity. It's just difficult, particularly in the states of the Deep South, to separate out the partisan gerrymander from the racial gerrymander because as we demonstrated in the Alabama case, and Roberts was very eloquent about this in the Alabama case, they're

one in the same. I mean, they're one in the same. But the interesting thing in particular about the Deep South is that the politics, the political affiliation will change, but the racial division remains. As the white voters grew more Republican, the black voters were remaining Democratic. The reality is that this partisan and the racial gerrymander are much more a one-to-one match in the Deep South than they were in, say, New York or California or other places. And I think that that's where it's a very, it's just a unique situation because it's almost as if the current jurisprudence is, we got rid of the pre-clearance obligations that existed because of historical discrimination.

But what the Alabama case seems to say is, we're gonna have a heightened degree of interest in a pre-clearance jurisdiction in our post-clearance, in our post, in our review, you know, post enactment. And so that Jim Crow legacy still really matters. It's just very difficult to articulate in a precise way how to make it matter. All right, David, we have to revisit Trump v. Casa, the birthright citizenship case,

to give you a refresher on where I am now 72 hours later. I don't think this is going to change much because I can't come up with a case that you can't bring as an administrative procedure case for our executive power purposes at least. Now there's like some interesting stuff on maybe state-based laws like voter ID or something where like maybe this sort of like universal relief question would come in because there's no APA at the state level but like set that aside. You're always gonna have an APA option not to mention of course in this specific case they could still issue a

nationwide injunction simply to provide complete relief to New Jersey. I'm not sure the case matters very much, except in this academic theoretical sense, which I'm all in favor of actually. I think they're right on that point. Second, the more I'm looking at the majority and the concurrences, and remember we have the concurrence by Kavanaugh and we have the concurrence by Thomas and Alito, I think the chief assigning this to Barrett was to try to get to six votes because I think there were only four votes for quite a few things.

You have Justice Kavanaugh saying, we're open for business, and Justices Alito and Thomas saying, no, we're not. I think the chief is secretly with Kavanaugh, which is why I say it's four. So I think you have Justice Barrett as not only one of the swing influential majority leaning votes on the court, but also clearly someone that the chief trusted to be able to get to six votes

and write it in a narrow and institutionalist way to minimize a plurality opinion here. David, what were your thoughts? Very similar to yours. I would say that one thing that I was just struck by in a lot of the breathless commentary was I felt like had they really read it carefully?

And number two, it just reminded me of a phenomenon that is just omnipresent in Supreme Court discourse, which is there's a small core of people, well, not so small anymore, thanks to advisory opinions and our vast listenership, but there's, relative to the 330 or so million Americans, there's a small core of people who really do follow the development of these issues over time. And then there's a much larger group of people who parachute into the issue only when the Supreme Court decides it. And so you can really see that bifurcation of that response after this case was decided

because a lot of people, right and left, were saying, wait a minute, this universal injunction issue has been an issue from both sides. There was people pulled out this Kagan clip from a couple of years ago where she was talking about- Oh, I've got it right here, David. May I read it? Yeah, please read it. This is Justice Kagan, September 14th, 2022. This is now in the wake of the eviction moratorium, the vaccine mandate,

student loan, debt forgiveness. It just can't be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years it takes to go through the normal process. But then David, the question is, why couldn't they get Kagan on board? Yeah. Yeah. It's a great question. And part of me wonders if what you had here was because of the sheer volume of the Trump executive orders and the significance of some of them, like birthright citizenship is a very significant executive order were it to be upheld, which it will not be, but were it to be upheld, it would be very, very significant. It would be quite significant for it to be in place even temporarily.

I think that the combination of the shotgun blast and the gravity of some of these decisions may have altered Kagan's perspective on the desirability of universal injunctions, but putting, I think it is the, the barred opinion takes the wiser approach, which is, let's just put aside completely the volume and the gravity of the Trump, of the Trump executive orders. What's the role of the judiciary here? And the fact that the political branches of government may be broken right now and may not be lawmaking in the way that the Constitution is designed, we're not going to inject steroids into our branch of government because injecting steroids or removing hormones from a particular

branch of government is part of the whole problem. Somebody's got to step in here and say what the roles are and abide by those roles. You can't have a situation in which the president is aggressively grabbing more power, the legislature is retreating, and then the Supreme Court says, well, if the legislature is retreating, we have to bulk up. No, we have to bulk up. No, we have to perform our role. And I thought that that was very compelling and actually

quite in line with arguments that have been made for 10 years now on a bipartisan basis regarding universal injunctions. This was a near perfect opinion to me, David, because it cabined the role of the judiciary within its lawful bounds, uh, statutorily, and will still allow the birthright citizenship order to be stopped on a nationwide basis. Because you can have a class action. I actually don't think that's a great way to do it. Wouldn't suggest it.

You can have the states argue that they need nationwide relief in order to provide complete relief to their citizens. I'm still out on this special solicitude for states to represent just all their residents, but I'm state standing curious at least. But you've got the administrative procedure set aside language. So the second Trump issues any guidance to anyone in his government to enforce this executive order, you just sue that person under the APA and the court has the authority from Congress to set aside anything, any action that that executive officer

could take. Like, that's the ballgame. Now this was the part that's really interesting to me that they left out that I think they didn't have five votes for, which is the Article 3 part of this. Did Congress violate Article 3 when it provided that set-aside language to district judges to set aside the actions of an executive official across the country in any applications because Article 3 doesn't provide judges that kind of wave your hands equitable relief? I think Congress is okay here.

I think Article 3 does include that because it doesn't explicitly exclude it. I actually think in the sort of text history and tradition sense that court's equitable powers were quite broad. Certainly if allowed by Congress, you would have to find that somewhere they were explicitly not allowed. It's sort of a reverse text history and tradition. Like you have to prove the negative and I don't think there's proof of that out there. So like again, David, at the end of the day, I think this is just right as a matter of

law. I think it doesn't actually change much. And it's a good warning that like everyone needs to remember their proper roles. If we expect the executive to stay within the bounds of the Constitution and the laws, then we should expect the courts to stay within the bounds of the Constitution and the laws. No imperial presidency, no imperial judiciary. But of course, that still leaves the president with a huge amount of powers, as we've talked about, both within his branch and within his commander in chief powers, and it leaves huge amounts of powers within the judiciary, both again, their Article 3 powers and also their additional powers granted by Congress in the Administrative Procedure Act.

So everyone should chill. Be cool, Bunny. Be cool. Totally agree people should chill. I mean, I totally agree. I mean, I cannot say this enough. On a bipartisan basis, thoughtful American legal scholars and legal thinkers have realized that the way in which we've been doing universal injunctions is just not workable. That you cannot have a situation where whenever you pass a law or promulgate a regulation, you can immediately

stampede into the favorable jurisdiction and get whatever sort of ruling you're hoping for or have a high probability of getting whatever ruling you're hoping for. And look, I mean, that Administrative Procedure Act language is very, very broad, but it's interesting to me that Kavanaugh in particular really zoomed in on that. And so, yeah, it's, part of me wonders how significant this case will ultimately be because, yeah, you can file a class action, which is harder. You can file an APA case and sort of test the reasoning of the Kavanaugh concurrence. You can also get relief, and as the case progresses, the scope of the relief can expand.

And so what we're not talking about here is carte blanche for the executive branch. That's just not what we're talking about. What we are talking about is limiting carte blanche for the judicial branch of government. It still possesses immense power, just immense. Here, I'm going to read from Kavanaugh. In cases under the Administrative Procedure Act, plaintiffs may ask a court to preliminarily set aside a new agency rule. That's a broad, as you notice, Sarah, that's a broad category. You can bring a lot of cases under the APA.

You know, something we'll have to save for another day is, and just listeners, I know you're screaming into your podcast, no, do another hour on it now. But the difference between B2 and B3 class certifications, David, that's going to be a deep dive we're going to probably have to do as various class actions get filed around the country because they're very different and some of them are helpful and some of them are not. But not today. No B3 versus B2 today. By the way, when I told Devin Dwyer that he and I were going to have to like dig into that together at some point, he basically ran out of the room screaming.

Well, I was on the verge of it if you were going to make us do that right now. All right, David, we have more exciting podcasts to come this week. Next episode will be our Dispatch Law, SCOTUS blog, Extended Universe. We'll have you, the other David, David Latt, Zach Shimtob and Amy Howe from SCOTUS blog all joining us as we walk through questions from the term. I will be asking everyone, you know, like, what's your favorite? What's your least favorite? What's your biggest surprise? That type stuff with our extended universe on the next episode. So hopefully we'll get to some of those cases that we didn't get to do the deepest dives on. We'll get new perspectives on the cases that we

have and, uh, God help us, but we might already be doing term previews. Who knows? God help us, but we might already be doing term previews. Who knows? On the next episode of Advisory Opinions.