Advisory Opinions - Lady Law and Homeless Encampments

Episode Date: April 23, 2024

Sarah and David discuss oral arguments in Grants Pass v. Johnson, a Supreme Court case addressing the issue of homeless people camping on public property, as well as and the 4th Circuit ruling that blocked West Virginia's law blocking transgender athletes from participating in sports. The Agenda: —SCOTUS hears Grants Pass v. Johnson —Necessity defense and cannibalism —4th Circuit ruling on trans sports ban in West Virginia —SCOTUS rules on Title VII case —Biden expands Title IX ruling —Campus due process and Columbia protesters Show Notes: —Casey Mattox on local governments stopping churches from helping the homeless Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and today we're doing lady law. That's right, we will be talking about the laws that affect ladies. Title IX included, but not limited to. Got some Title VII going on, and it's going to be fun. But before we get to that, David, there was a really interesting Supreme Court argument to kick off this week. It's the Grants Pass argument about whether and how a city can deal with its homelessness problem. So Grants Pass, Oregon has a statute on the books currently enjoined that says that you cannot camp on public

property. And they define camping as anyone sleeping with a blanket, sleeping in your car would count as camping. And this case got to the Supreme Court, although there were so many other cases in the Ninth Circuit that have fed into this case. It was actually, I thought, difficult at oral argument to pull apart this case from the knock-on effects of all of the other cases. But regardless, a lower court enjoined basically all of Grants Pass's laws dealing with homelessness. There's about 100 shelter beds in Grants Pass, but they're private shelter beds and the shelter in question does not allow pets. So David, that's the law in Grant's pass. And it was enjoined very broadly. And remember, there's all these other cases

from the Ninth Circuit that have enjoined all sorts of other things. And now it feels like nobody in the Ninth Circuit knows what they can do about homelessness. Does it matter how many shelter beds are available? Can you ban defecation in public? Can you ban fires in public? And so to break this down, just in the quickest version, you had the lawyer for Grants Pass, arguing, this is a policy question. Policy is trade offs. Policy is tradeoffs. The city and these municipalities and these states have all sorts of things that money needs to go to. Let them have time, place and manner restrictions. You can say that, you know, you can't have your camp stuff up during the day. But overnight, sleeping is a necessity. It is a human function, same as breathing. Therefore, you can't ban someone just from doing a human

function. And then, of course, you had the plaintiffs arguing that, yeah, this is simply cruel and unusual to punish someone for basically the status of being homeless. And they have a previous case, Robinson. It's going to come up a lot in this oral argument. Robinson was a California law that made it illegal to be in the state of California as a drug addict. And what the Supreme Court said, this is way back in the day, right?

The 60s, I believe. They said, no, you can't criminalize a status. You can criminalize someone for using drugs, for possessing drugs, selling drugs, but you can't make it illegal to be in the state while being an addict, regardless of whether they're on drugs or using drugs or anything else. Maybe the last time they had drugs, you know, a la George W. Bush was 50 years ago, but they're still an addict. And so that was, depending on who you ask, the Supreme Court's holding was that it is a violation of the Eighth Amendment to criminalize status or,

the Eighth Amendment to criminalize status or depending on who you ask. No, that had very specifically to do with drug addiction. And it was limited to its holding. It has nothing to do with the Eighth Amendment. The Eighth Amendment doesn't say what you're criminalizing. It's cruel and unusual punishment. It's about the punishment itself, not the criminal law. David, what'd you make of the argument? Wow. It was quite an argument, Sarah, especially the, in the opening that the defense of the grants pass a law, they, the justice Kagan, justice Sotomayor and justice Jackson went in hard on this. And there was even a moment where they were kind of coming in one after another. And I actually heard the attorney for Grants Pass just kind of give a, I don't know if you heard that, but there was an audible given as a lot of the questions were coming in. And you nailed it on the legal analysis is was, are they criminalizing conduct? Or are they criminalizing status? And you heard a lot of the more conservative justices

where they were feeling like, this is all really complicated and is this really our job? To deal with all of the complexities of all of the policy arguments here? Whereas the more progressive justices were saying, look, wait a minute. If you have 100, 200 beds and you're homeless, you're two choices.

One is to leave town and the other one is to be arrested because there's just simply not enough beds. And humans have to sleep. Humans have to sleep somewhere. And if all the towns take the position that you're taking, where do people go? Which is a pretty compelling argument. The problem is where it goes. Humans also have to eat.

So is Justice Alito or was it the chief justice raised? Could you know, you don't have any food. You have no ability to get food. You need food. Is it an Eighth Amendment violation to rob a grocery store? Right. And the government was like,

of course not. Of course you can criminalize robbing grocery stores. He's like, yeah, but same thing, right? You have to eat. And I will just say that I thought this was the worst argument I've ever heard from everyone

across the board for advocates refusing to answer hypothetical questions. I don't know who needs to hear this out there who's doing a Supreme Court argument in the near term, but the effective Supreme Court arguments answer hypotheticals that are bad for them. And they answer them correctly, honestly, and then explain why the other side's answer would be worse or why there's a different hypothetical to ask them. But you don't just keep refusing to answer the hypothetical or give these mealy-mouthed like talking points answers. This isn't cable news, folks. So D minus to everyone who argued in this case, maybe worse, honestly. I really, this is winning my worst argument for the term so far.

And, you know, we always recommend like, oh, hey, listen to this argument for how to do it or read this brief or this opinion for how to be a great writer. You might actually want to listen to this one, how not to do it and why you lose so much credibility when you won't give the answer to the question that everyone knows is bad for you. Just give it. Move on. It's way worse to not answer. Fighting the hypo on the front end is the bad call. Distinguishing the hypo on the back end is the much better approach without question. Without question. So like at one point there was like, would this be, um, you know, would it be an eighth amendment violation to breathe? You know, we ban breathing in our town and the advocate for grants pass, for instance, would say like, well, it might be due process. It's like, no, no, just,

just answer the question. Yes. That would, or no, fine. But like, no, it would not be an eighth amendment violation beat. Let me tell you why, because it would actually, you know, no, it would not be an Eighth Amendment violation. Beat. Let me tell you why. Because it would actually, you know, like, or if you're asking whether that would be unconstitutional, yes. However, we don't just like answer it and then move on. But it turned into these fights. The government had this problem. It just was very frustrating to listen to because we couldn't move on to more interesting parts of the conversation because the advocates were fighting on ground

that they were going to lose. You know, and there's another aspect to this case. And my friend Casey Maddox, friend of the pod, Casey Maddox, made this interesting point on Twitter, which led to a, I read a piece that he wrote about one of the interesting dynamics happening in the background of some of these municipalities is number one, they're saying you can't do any public camping. And then they're also saying to churches who try to open up to allow people to come in, that unless there's proper zoning, for example, for the homeless ministry or, you know, a myriad of other state regulations are

often preventing the churches from coming in to help to provide more beds, which is a huge religious liberty issue, by the way, as well. And so there is this interesting dynamic where many of these municipalities are saying, you can't camp, and there's not enough beds, and they're blocking people from providing more beds. And so what's the dynamic there? And so the interesting thing

here, Sarah, is I think this is obviously distinguishable from the drug addiction case, because a person who has a home does not stand up and like a homeless, you know, homeless anonymous group and say, I am a homeless person, and the way someone stands up and says, I'm an addict, and a lot of people will identify as an addict the rest of their life, even if they've been sober for 25 years, that there is a difference between the status of addict

and the status of homelessness, I think that's pretty clear that there is a distinction. At the same time, the question is, again, going back to someone has to sleep, and the interesting aspect of this argument that I thought was fascinating, and I got to see how this plays out in the actual opinion, is there is a lot of discussion of this necessity defense under the law. So the grants pass lawyer who, again, I thought this was, and I say this because this is an experienced lawyer, very experienced. I just was very frustrated by her argument. And I felt like she hurt her team here a little. But some of the questions she was getting, for instance,

a Sotomayor hypothetical, and a lot of them, right? And they were all really bad for her. And I get it. That was the point, though. The point is that the justices that disagree with you are going to give you hard, bad hypotheticals. So this hypothetical is, okay, a town says eating in public causes trash, rodents. It's disgusting. And so you are not allowed to eat in public in our town. We want to keep a nice, clean, little Pleasantville town. It has a real rational reason for doing it. So it passes rational basis review. However, someone who does not have a home, of course, would not have any place to eat. So can a town ban eating in public? And around and around and around we went,

she just wouldn't answer the question. Where we sort of ended up was necessity defense, right? And that's where we ended up on the camping questions and hypotheticals as well, is that like, well, look, yes, you would still get arrested. But if there are really no beds to sleep in, there's no shelter beds, you've, you know, it's not that you've been offered and turned it down, or there's not some bed down the road, whatever else, you would still get arrested for by the way, it's actually a civil penalty. If you've just done it a few times, it becomes a criminal penalty when they keep having to tell you not to do it. But of course, if you're actually homeless, and there are no shelter beds,

you're gonna have to keep doing it. Like they give you a citation. Where are you going to go? There's nowhere to go. That's the whole point. And you still have to sleep. So the argument went something like, well, you would go to court and then you would argue necessity. And necessity defense is like something you learn first day of criminal law in the cannibalism cases. You know, you're like out to sea.

There's no hope of being saved. There's 12 of you and one of you looks kind of tasty after a while. Did you murder the person? No. Necessity defense. You had to eat someone to stay alive. It's not murder. That's a rough example of necessity. So a quick question. You know, in your friend group, Sarah, have you all had the cannibalism conversation? Like if you're stranded, has anyone volunteered to be eaten first? It's sort of an interesting thing, right? Because on the one hand, you'd want the meatiest person

because then you have to kill the fewest number of people. On the other hand, the meatiest person is going to be the hardest to kill and maybe your best chance of survival in other ways, you know, if you're out in the wilderness or something. So you're actually sort of looking at a meaty and you don't want the thinnest, scrawniest person because then you're just gonna have to kill several people.

So it's actually, I think it's a real tough balancing act, if you will. It's a policy question that is best resolved by localities and states. I think you just need to have a pre-adventure agreement amongst the group. Who's getting eaten? You're going, let's say you're trekking

for 14 days in the wilderness and you just, just write all this down ahead of time. We're lost, you know, no prospect of food. Well, then it's contract law. And can you make a contract? Is that a void contract? Probably. Void against public policy. Yeah, I think that might be. Back to necessity. I thought the pushback, so the grants pass lawyer said like, look, they can raise a Yeah, I think that might be. So you're not instructing the police on this. There's not some blanket necessity exception that you're gonna be figuring out on a per person basis. It's up to the homeless person to know their common law defense of necessity.

This all is getting kind of silly. But David, I'm curious how you think this turns out. That is a really good question, Sarah. There's been a few arguments where I don't feel like I have a great feel, to be honest. This one, I do have a better feel. It does seem to me as if,

in spite of the aggression, and I don't use that word in a negative sense, but the aggressive questioning of the three justices of Sotomayor, Kagan and and Jackson was so aggressive that I think it kind of tilted how you listen to the argument, because Grants Pass was on the back foot the whole time. But that's three justices. And there was a lot of silence and maybe just very small observations from the other six, not as much. And so the question that where,

the reason why I was so interested in the necessity defense is I can easily imagine a majority opinion that says, look, this is really hard. We're not going to treat homelessness like drug addiction. Especially we're not going to do it when there is a necessity to defense available. And then there might be some dicta about how a necessity to defense should be quite viable in the face of insufficient beds. That's about where I think it's going to be. I thought that the government lost ground in the questions from Justice Alito about like, what if the shelter

bed is in the next town over? Can you can the police officer move them to the next town over? And he was like, well, if it's like right there, sure. He's like, OK, what if it's 30 miles away? He's like, no, you couldn't do that. Like, how is this a constitutional line that we're drawing? If like there's now we're talking mileage requirements and Needler from the Solicitor General's office said like, well, look, these people are part of a community and they pay taxes and maybe they want to send their kids to school there.

And I'm like, whoa, whoa, whoa. You don't have a constitutional right to live someplace because of the schools? That can't be right. And if there's a shelter bed somewhere else and it's available to you and it's really, really far away, I guess I'm confused on why that's a constitutional issue. I can understand it from a policy standpoint and that a state can say beds, you know, shelter beds must be available in this radius, because we don't want to break up communities or someone having a temporary issue, you know, or they have a kid in school, all of those are great policy considerations that I would take into consideration. But I think what you're going to see is

a big endorsement of the government's point on time, place and manner restrictions. That a neutrally and generally applicable law like no camping does not punish the status of being homeless, even though I think that's a closer call than a lot of people think. Right. I agree. being homeless, even though I think that's a closer call than a lot of people think, right? I agree with you. Because I thought the example of the baby sleeping, taking a nap under a blanket was ridiculous. Obviously, a baby is not camping. Nobody would ever say a baby is camping. They take many naps a day, I will note. But the example, for instance, of, you know, you went out to stargaze at the public park, you were laying on a blanket, you fell asleep. Could you be cited under this law? Well, the answer is yes. Absolutely. Have you ever cited someone under this law?

Probably not. No. No, because when the officer's like, hey, wake up, go home, the person's like, oh my God, I'm sorry. I didn't mean to fall asleep. And they go home. So I think you're going to see a win for Grants Pass. I think it's going to be 6-3. But I think you're going to see the necessity defense language, time, place, and manner stuff, and an admonition on criminalizing status. To the extent that you create laws

that are only generally applicable on their face and they're not actually generally applicable, we have a problem. And of course, the record here was not helpful for Grants Pass. You have the mayor saying, our point is to make sure we have no homeless people. And their previous policy was to simply bust people away from Grants Pass. Yeah. Well, and this is also an interesting point or an interesting way in which the federal constitutional argument and focusing on a federal constitution argument can sometimes obscure that there can be state law arguments that can accomplish your purpose, because I could very easily imagine that the plaintiffs in this case, if they lose on this concept or blocking the law

entirely, going back into state court and saying essentially that the state necessity defense is going to have to mean that unless there's sufficient beds, the necessity defense is going to work. And I could easily imagine a state court buying that kind of argument. I think that's right. But the time, place and manner restriction stuff is where the rubber is going to hit the road. For instance, you know, under the necessity defense and there's no beds available, you are going to have to let people sleep in public places.

But you can prohibit them from sleeping in public parks, sidewalks, these specific public parks, or only this one designated place. And that in the mornings, everyone has to leave. That sleeping is only allowed from the hours of 10 p.m. to 6 a.m. And then all stuff has to be moved. So there are no tents, no fires, no, you know, nothing to that effect. There's no, you know, nothing to that effect. But look, if you go into this argument thinking, obviously these cities should be able to do stuff about homelessness,

just consider the alternative that there are county lines and municipalities covering the country. They all make a no camping rule. And literally, you know, you're escaping domestic violence with your two children. So you don't have a home for that night. You're not going to have a home for a few nights. And there's no shelter beds available. And you and your two kids have a choice of whether to stay in the house where the guy was beating the crap out of you, or to camp in your car for a few nights. And it's illegal to be homeless in this country.

What, what is your policy solution to that? What is the law supposed to do about that? I think those are real questions because I think too often we think a homeless person who is refusing a bed because they are addicted to drugs or they have a pet or they have a mental illness that's just preventing them from, you know, doing something in their own interest. But there's a lot of reasons that people are homeless, temporarily homeless, and you've got to come up with something that doesn't criminalize that status and that allows for, again, the human need of sleeping. And so the time, place and manner restrictions are going to be the way to do that. Yeah, I think that's right.

I think that's right, that the time, place and manner restrictions are going to be the way to do it. There's going to be, you know, and the other thing is, so you're going to have the necessity defense that's available at the state level. I could easily imagine state courts interpreting that generously. And then the other thing is, hands off these churches, by the way, that are trying to help. Like, there's another part of this that, okay, it's one thing to sort of say we have a huge homelessness problem

and want to do something about not having so many homeless people in our public spaces. And then saying to churches that are opening their doors and fellowship halls to homeless people, is they know you can't do that because that church is not located in the right place to minister to homeless people. Then it's a lot less of a public order kind of question and a lot more if we just don't want

your kind here kind of question. And that's where it gets, I think, ultimately, you're going to see courts looking askance at that idea. And I think you'll start to see as some of these court challenges wind up their way regarding the way churches have been treated when they try to minister to the homeless. Those court challenges will, many of them will be successful. They will be. But David, part of the question is, let's assume the church says, in order to have a shelter bed here, you have to listen to an hour long sermon on Jesus Christ. And the person's like, no, I'm Jewish. I don't want to. Then did they turn down a shelter bed here. You have to listen to an hour long sermon on Jesus Christ. And the person's like, no, I'm Jewish. I don't want to. Then did they turn down a shelter bed? Then do they still have a necessity defense? I think that's where this does get hard on religious shelters. I also

think, you know, we're talking about Oregon. So we're talking about a person who just wants a blanket. But, you know, and this comes up at the oral argument, let's assume North Dakota has the same thing. Can they ban fires? This is let's assume North Dakota has the same thing. Can they ban fires? This is the problem with the argument on the other side. We're just like, well, fine, let people camp. Well, under that same idea of like human needs, if you don't have a home and you're sleeping outside in North Dakota, then is it a necessity to have a fire? Is it a necessity to be able to eat and therefore you can take food?

Is it, you know, you run through once you say that there is a constitutional protection for human needs, that's a that's a very slippery slope and one that is very sympathetic at the same time. Yeah. Like, are we really OK with people starving on the street? Are we really okay with people dying because they can't sleep? But on the flip side, are we okay with people dying because they're in a homeless camp where there's rampant violence, fires break out? This is a policy problem that these places need to solve, but also their hands are getting

tied by the courts and they're tying their own hands through not wanting religious services and, and, and, and, and. So I think you're going to have six, three, let the States figure it out. Yeah, no, I think that's generally it. And, but yeah, I think that's generally correct. The bottom line is we need more shelter. We need more bed, beds. We need, I mean, this is such a complex issue. We need more shelter. we need more beds. I mean, this is such a complex issue. We need more shelter, we need more beds, and by golly, we need more mental health inpatient treatment for crying out loud. We need more mental health inpatient treatment.

That's just, gosh. There is a- Well, that was also a court problem, right? There's a case that says that you can't involuntarily commit adults, basically. And once that happened, that is how the homelessness crisis in the United States really became what it is today, because previously we were involuntarily committing people. is because, you know, occasionally husbands were involuntarily committing their wives so they could carry on with their secretaries. And, you know, you can imagine how the system might have been abused somewhat. So, oh, yeah, yeah.

I mean, it's we look back at that time period and say, oh, you are a bunch of idiots for rolling back involuntary commitment. But there were reasons there were abuses. But you can't, on the one hand, say that you're a conservative and then also be for government involuntary commitment. That's a little bit hard for me. You know, boy, I mean, the mental health challenges, the decline in mental health inpatient treatment correlates with the rise of the carceral state as well. I didn't say caused, but it correlates. So this is a thorny, thorny, thorny, complicated issue. And here's my transition for how this is all going to be about lady law.

Okay. One, domestic violence victims who often find themselves homeless for some amount of time, and especially with children, are going to be disproportionately women who are going to be affected by this law, whatever the outcome of the case may be. And two, crime disproportionately affects women. And there is rampant crime around these encampments as well, in the encampments and around them. as well in the encampments and around them. So all of the outcome of this case will disproportionately affect women, which takes us to our next case, David.

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It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. The Fourth Circuit just decided a case on transgender participation in sports. West Virginia passed a law that says, in short, only biological girls at the time of their birth can participate in girls'

sports if the sport is based on competitive advantage or ability. Now, it also says that anyone can participate in the boys' team. So a 12-year-old transgender girl, so born male, now identifies as female and has identified as a girl since third grade, I think, has been running track and field. Under this law, this person would be banned from running track and field. This person has been very successful in their track and field career, has always taken puberty blockers, has never gone through puberty. And so the question to the Fourth Circuit was, the 12-year-old sued, obviously, with her parents. And did West Virginia's law banning this person from participating in the girls team, violate the

equal protection clause of the Constitution, and did it violate Title IX, which protects women in girls sports. So, David, first observation here was a two to one decision. Judge Toby Heitens wrote the majority opinion. He is going to be the same judge who wrote the majority opinion, he is going to be the same judge who wrote the Thomas Jefferson high school admissions policy decision upholding that school policy, which I had said I thought was actually a better case for the Supreme Court

than the Harvard case. And the Supreme Court declined to take it, letting that opinion stay, meaning letting Thomas Jefferson's new admissions policy, which is generally applicable, letting that opinion stay, meaning letting Thomas Jefferson's new admissions policy, which is generally applicable, neutral on its face. But the purpose was to prevent so many Asian students from getting into the charter school. He was the author of that opinion.

That opinion has stood. He is going to hold in this that basically, yeah, it's a violation of Title IX and is at least a fact question under the Equal Protection Clause that has to be sent back down. When folks are looking at potential Supreme Court picks for the next opening, you've got to be looking at Judge Heitens, law professor, solicitor general for the state of Virginia. And for whatever reason, he's getting a whole lot of these cases that are going to put him on anyone's radar as being one of the savviest liberal judges on the bench today. Yes, very savvy. And this opinion, Sarah, is very interesting and savvy because we've been dealing with

a lot of cases where the question is, how big or small do you go in your request for relief? So we talked previously about a case involving transgender treatments, et cetera, where in that case, the individual plaintiffs were not subject to the state's recently, we talked about a case where the individual plaintiffs are being allowed to continue on with their treatment, but they were challenging and total, sort of the totality of the law. And the Supreme Court didn't hear that case. It talked, you had multiple justices, we talked about this recently,

questioning sort of this attempt to use injunctions broadly. Here we have in this BJP case, it's the exact opposite situation where here the judge really is talking about the application of the West Virginia law to this specific plaintiff. And it's very clear that, you know, the word that the specific Title IX, the ruling for her is very specific. It's specific to this plaintiff's case, right? So then the, why is that now? Because then the judge goes back and says this athlete went on puberty blockers has never been through puberty. And so then in male puberty. And so then that makes this case different from cases where the athlete went through male puberty. the ultimate conclusion here really does seem to be an individualized determination based on really has the person had that testosterone surge or not. And that's really the rule of this case

at the end, which is so crazy to me for anyone who has raised a boy. My boy is three and a half. He hasn't gone through puberty. He's very different than girls. They're just different. He's already different. And so on the eco-protection question, the resolution was that this will be sent down for, as you said, a fact-specific question of whether,

even without going through puberty, boys nevertheless possess a competitive advantage when it comes to sports over girls with or without puberty. The answer to that seems obviously yes to me, but okay. But then on Title IX, it was just like, nope, Title IX protects on gender identity, and I'll just read a section of this, of the majority's opinion. The defendants also insist that the act does not discriminate based on gender identity because it treats all biological males, that is cisgender boys and transgender girls, the same. But that is just another way of saying the act treats transgender girls different from cisgender

girls, which is literally the definition of gender identity discrimination. Okay, so the whole thing is circular, like either way, like it just depends on whether you think that transgender girls are girls or boys, because the answer to that question determines whether you think Title IX applies at all. And just reading from David Ladd's take on this case, by the way, as he continued, if a law that treats transgender girls differently from cisgender girls engages in illegal gender identity discrimination under the Title IX analysis that came after, as the majority held here, how can any limitation be placed on the participation of transgender athletes in girls' or women's sports? girls' or women's sports. As Judge Stephen Adjie wrote in Dissent, the majority's reasoning has far-reaching implications under Title IX and turns Title IX on its head by reversing the monumental work Title IX has done to promote girls' sports from inception. And I'll read a bit of what Ed Whalen said about it as well. Let's consider the logical consequences of the majority's illogic. If Title IX requires that

boys who identify as female be allowed to join girls' sports team, then it must also require that boys who identify as male be allowed to join those same teams. After all, to apply the majority's rhetoric correctly, treating boys who identify as female differently from boys who identify as male is literally the definition of gender identity discrimination. So the very theory on which the majority has ruled for BPJ, the minor in this case, would outlaw the sex separation in sports that BPJ wants to avail

himself of, as Ed Whalen wrote. And it would transmogrify Title IX from the champion of women and girls sports into their exterminator. He also had one other point, David, that I thought was just worth mentioning. Given the savvy that Heidens and Harris, the two in the majority, possess about how the Supreme Court operates, I have to suspect that they remanded on the question of the Equal Protection

Clause in order to try to prevent the Supreme Court from reviewing their ruling. As a general matter, the court is less disposed to review so-called interlocutory, non-final rulings. Hines and Harris could thus obtain two or three more years to entrench it as circuit precedent, and a liberal media would depict a denial of certiorari as implicit approval of their rulings. I don't know that I agree that that was the purpose, but I do agree that it may well be the effect because this case looks like the perfect vehicle for the Supreme Court to finally take a transgender case. They have thus far declined to take the bathroom cases and other. I don't. The bathroom cases to me are very different than the sports cases. And this was a really well teed up sports case.

But the fact that only half of it got decided may well prevent review in this case. Well, you know, here's the here's an. So it says we also do not hold that Title nine requires schools to allow every transgender girl to play on girls teams, regardless of whether they've gone through puberty and experienced elevated levels of circulating testosterone. So what what's happening here is he's obviously saying Title IX protects transgender athletes, but not every transgender athlete. If there's puberty and elevated levels

of circulating testosterone, then that's a whole different deal. But it goes again back to this statement that you made earlier. Isn't that presuming a lot, you know, objection presuming facts not in evidence as if it is the puberty that creates the sex distinction? That's right. And that's a problematic assertion. I mean, as everyone who's had boys and girls knows, I mean, as everyone who's had boys and girls knows,

it's a very problematic assertion. And so that issue here where you're saying, well, it's just about circulating testosterone, not so sure about that. And look, the reason why Title IX has used sex, And again, of course it was passed before we really knew what gender, you know, we really had fleshed out this whole gender identity category.

But the reason why Title IX drills down on sex is because it is the sex distinction. It is the physical sex distinction that makes all the difference in the world on sporting outcomes. It is not the gender identity distinction that makes the world on sporting outcomes. It is not the gender identity distinction that makes the difference in sporting outcomes. It is the biological sex distinction

that makes the difference in sporting outcomes. And the reality is, Sarah, we've always kind of de facto had a system where we call them boys teams and girls teams. But if a girl was good enough, if a girl could kick field goal from 45 yards, they'd probably put her on the team to kick field goal from 45 yards.

So in many ways, you might say that there's one team that's open to everyone and then one team to preserve the ability for girls to participate in sports that is open only to girls in sports that is open only to girls. And that is literally the West Virginia law. Anyone can be on the quote unquote boys team. And then there is a separate girls team that only biological females can be on. So can I explain why I think the bathroom stuff is so different? And the two cases, well, three, I guess. One, they declined to take the grim case

which was also from the fourth circuit that was a bathroom case two they declined to take uh washington state's conversion therapy um law that to me is actually not about transgender stuff at all like it just sort of like that other um injunctive release case that we talked about david we're like yeah okay it's like sort of about transgender stuff but it's it was really about injunctions and nationwide injunctions yeah um and then they just declined to take this on the shadow docket so they left in place the injunction allowing bpj to participate on the cross-country team okay the bathroom thing is always so interesting to me because sort of like under Bostock, that girls wear skirts is cultural only. There is nothing inherently biological about girls wearing skirts and boys wearing pants. Similarly, sort of, bathroom privacy is a relatively modern invention. Even in the 1300s, people would just do

all of their stuff in public because there weren't rooms in homes in the way we think of them today. So like you'd sleep in one giant room together. So in order to, you know, for instance, make more kids, you were doing all of those things around other people all the time. So the idea that there is a biological necessity to privacy beyond stalls and stuff like that, I think that is messy. The same way that the gender distinctions in Bostock, like, well, you're required to dress like a girl at my employment. What? That is gender discrimination. Girls shouldn't have to dress like anything. Even the colors pink and blue. That's only like 150, 200 years old. It used to be the opposite. Boys were red. Girls were blue. Sort of like Republicans and Democrats. Actually, it's all arbitrary. Your average male French aristocrat looked like a drag queen back in the day. It's so true. Yeah.

Okay. But when we get to sports, now we're talking biological differences and the arm wrestling that we're doing is over whether they're really biological differences, not really. And it's hard to know because we can't run the alternative of how talented an athlete would this person be,

but for being born born whatever they were. So, you know, I can't make the girls track and field team, but that's because I'm not very good at running. It has nothing to do with what drugs I took. And on the reverse, the person who, you know, would be an amazing track and field athlete, if they were born female, we'll never know that because they weren't born female, they were born male. And so that's why I think these cases get,

the sports cases get so hard because Title IX is there to protect women's sports. But we're not agreeing on what makes a woman, what defines that. Yeah. Well, and that's why I think you have to go back to why is it a sex distinction? What is the purpose of the sex distinction in sports? Which, you know, one of the reasons why there's strict scrutiny when you're talking about race distinctions,

but intermediate scrutiny when you're talking about sex distinctions is there are times when sex distinctions are far more relevant than race distinctions. For example, in something like this, if you had a separate black and white league when it comes to football or basketball, that would be an obvious Title VI equal protection violation. But when it comes to separate leagues based on sex, and it really does go to what is the relevant issue here? Is it sex or gender identity? And it's got to be sex. It has to be sex when you're talking about athletic

performance. And now, but here's an interesting thing, Sarah, when I'm looking at the facts of this case, BJP was put on puberty blockers very early. And as the science and the research is developing here, I'm wondering if we're going to see fewer and fewer cases like this. Because already over in Europe, which pioneered the use of puberty blockers early in people's lives, they're saying, whoa, they are slamming on the brakes. The Dispatch has a report by Jesse Singel about this thing called the CAS report, which I think is a very welcome addition to the debate that is saying a lot of the transgender treatment regimens are not based on rigorous science, that ideological extremism has inhibited

the ability to do the right kind of studies and has inhibited debate on the issue. And so therefore, but at the same time, there's just the evidence to support the sort of, here's the treatment, puberty blockers move in quickly to block puberty when somebody is a young kid. I wonder how long that's going to last, Sarah. I think that, you know, once you have that tipping point in Europe and it becomes very, it becomes much more difficult to argue that denying children puberty blockers is just nothing but transphobic, transphobic irrationality when places like the Netherlands or Great Britain or Scandinavia are hardly havens for like anti-woke right-wing extremism. And they're saying the science just isn't there to support this.

And you're really seeing, I think, a shift in the debate on this as more information comes in, which is how debate should go. When more information comes in, things should shift. And so I actually do wonder how long a case like PJP's, how many more cases like BJP's will we have over time as the scientific consensus begins to move on this issue. Let me just read one thing from the dissent before we move on to more lady law. Title IX provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving federal financial assistance.

To prevail on a Title IX claim, a plaintiff must show that, and this is, I'll just read section or the first element here. She was excluded from participation in an education program or activity, denied the benefits of this education, or otherwise subjected to discrimination because of her sex. And as the dissent goes on to say, BJP's Title IX claim fails under the first prong. Under Title IX, discrimination means treating an individual worse

than others who are similarly situated. The similarly situated analysis is the same under Title IX as it is under the Equal Protection Clause. Thus, for the same reason BJP did not meet the similarly situated element of the Equal Protection Claim, BJP cannot meet this element of the Title IX claim. Biological sex is material to sports. Yet the majority again ignores this fact and without discussion concludes that BJP, a biological boy, is similarly situated to biological girls for the purposes of sports teams. As discussed, because there is evidence that biological boys, particularly BPJ, have an advantage over biological girls before puberty, the majority could not have supported its similarly situated decision with a finding

that BPJ has no competitive advantage over biological girls. So once again, the majority must have concluded that the fact that BPJ persistently identified as a girl is sufficient to permit a finding that BPJ is similarly situated to biological girls, ignoring biology and competitive advantage altogether. So he continues,

the majority's determination that transgender girls are similarly situated to biological girls, regardless of any potential advantage, and therefore that separating sports teams by biological sex is discrimination against transgender girls, has far-reaching implications under Title IX. In short, it means that states cannot exclude transgender girls from biological girls' sports, even when the transgender girls have gone through puberty. It is even clearer that they have a significant physiological advantage over biological girls and allowing transgender girls, regardless of any advantage as participants in biological girls sports, turns Title IX on its head and reverses the monumental work. work. The point being either title nine is based on biological sex, in which case they're not similarly situated, or it's based on gender identity, in which case it doesn't matter whether there's a competitive difference because gender identity means that you're being

discriminated against. And I think that is, it simplifies it a lot. It oversimplifies it maybe a little. But at the end of the day, that's the difference between the bathrooms and the sports. Yeah, I mean, the reason for separate boys and girls teams is sex, not gender identity, period. I mean, it's the reason for the difference in performance is sex and not gender identity, period. And so gender identity should be irrelevant to the analysis in sports because the foundation of the sex distinction in sports teams is sex, not gender identity. It's, you know, at some point you feel like you're kind of taking crazy pills here.

I do. Because the reality is the sex distinctions are what make the separate sports teams necessary. If it was just, it was not the case that pre-Title IX that it was like, well, you know, we have a basketball team and we just prohibit the women from trying out for it. And now here's what we're going to do.

We're going to allow the women to try out for the one basketball team and now everyone's treated the same, et cetera. Well, no, that would mean that unless your name is Caitlin Clark or Angel Reese or whatever, you're not making a team. And so there was the creation of separate teams and the protection of the creation of separate teams

because of that very reason. And so, yeah, I think the case was, as you very well state, very cleverly decided, relatively narrow, about a plaintiff with unique circumstances having started the puberty blocker so early. And so this wasn't a situation

like the Connecticut case we've talked about where the transgender athletes won state titles. Here, this was a person who was finishing in the top 10 or 15. There are different facts here. But at the end of the day, it's just missing what Title IX is about. Okay, next up on Lady Law, we had a Supreme Court decision. Muldrow v. City of St. Louis. It was unanimous, written by Justice Elena Kagan.

This was a woman who argued that she was on sort of the super cool undercover police team and then she got moved to the boring uniform squad to do, you know, just things like murder and armed robberies and stuff. Her pay stayed the same, but she said that she was moved because of her gender

that she was being discriminated against. So the question was under Title VII, which is employment discrimination based on protected classes like sex, how much harm do you have to show? Is having the same type of pay, for instance, enough of an injury? And unanimously, the court was like, yeah, it doesn't have to be pay or title. Of course, it can be hours, maybe prestige, maybe who knows other things. And so this was resolving a circuit split. But there were some interesting little Easter eggs in this opinion and in some of the concurrences. So I'll just read you what Title VII says. Title VII makes it unlawful for an employer to, quote, fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such

individual's sex. So first up, David, you may notice that there was the term otherwise in there. Oh, Sarah. I was waiting for you to say that. waiting for you to say that. So per our conversation about the January 6th obstruction charge, otherwise, this one says to fail to refuse to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual. So does it need to be like a failure or refusal to hire or discharge any individual. Like that's pretty serious. That's a big employment type of discrimination, not hiring them or firing them.

Right. Um, so is otherwise has to be that serious or it says otherwise or otherwise to discriminate against any individual with respect to his compensation terms, conditions, or privileges of employment because of such individual sex. So, uh So what the Supreme Court said is like, no, no, it could be a pretty low bar here. This, however, on the conservative side is being seen as, wait, that seems to mean to me that all this DEI stuff is about to go out the window as a violation of

Title VII every time you say, like, well, look, we didn't fire the associate, but we have to have a female associate on the team. So we didn't put the male associate on this team for this prestigious case. That can now be a Title VII violation, which before, in certain circuits, it wouldn't have been. I also appreciated in Brett Kavanaugh's concurrence that he was basically like, I think the bar is anything, anytime you discriminate on the basis of sex or the other protected classes, that's a violation of Title VII. Duh! I'm going to be so fascinated, Sarah, to read how the Fisher case handles this case. So the Fisher case was argued, and the timing here is wild, because the Fisher case, this is the one, the January 6th case with the otherwise language, that was argued on 4-16. This was issued on 4-17.

Yep. And by the way, the otherwise language here, similar to the otherwise language in the 1512 case, section 18 USC, section 1512, regarding obstructing an official proceeding, the otherwise language here was used to really broaden the scope. Like this really broad broaden the scope.

Like this really broadened the scope. So if you say it's fail or refuse to hire or to discharge, that's no job. And then otherwise discriminate means, well, any other form of discrimination, that's a big expansion of the scope. And so I'll be very interested to say, because 1512 also, the otherwise language, otherwise obstruct was a big expansion of the scope. Here they said, yep, that otherwise language expands the statute. It's gonna be very interesting to see what they say with Fisher.

But it seems to me to be a straightforward textual application here. Otherwise to discriminate. What is discriminate? I mean, so this seems to be plainly accurately or plainly properly decided with some pretty plain, interesting parallels to the Fisher case. So I'm super fascinated to see how they deal with Fisher after this one. to see how they deal with Fisher after this one. Okay, what about my DEI example? They put a female associate on the legal team because the client demands diversity

in who represents them in court. Can the male associate now sue under Title VII? They didn't lose their job. They get paid the exact same amount as they were ever gonna get paid, but they're not on this very cool case that they otherwise would have been on. Ooh, that's a good one. That's a good, I mean, I think it's happening every single day in these law firms. And in fairness to the law firms, they're acceding to client demands. Clients now

send over their expectation for the diversity numbers on the teams being put on their cases. I think it's blatantly unlawful. But I'm curious what you think. I mean, I think you're right. I think it's unlawful and it's going to be a proof problem. Right. So, you know, unless an employer does something really dumb, like say, in writing, hey, guys, I see we've got four men on this team. We need four women too. So please send me the names, you know, unless you have something like that. Oh, I think you're going to find that in a lot of these. I bet you will. I bet you will too. But after there's been a number of employers that have been faced liability,

then you're going to begin to have a proof problem if there's no evidence whatsoever in the record of explicit gender discrimination or race discrimination case assignments, and then you're going to be left with arguing, well, I'm just as good or better an attorney as them, then the courts are not going to want to deal with that at all. What they will deal with, it seems to, after Muldrow, is when you do have that evidence that is, hey, yeah, you're both, you know, third year associates being paid the same amount of money and you're receiving, you're on the same place in the partner track, but somebody gets to serve on the Trump trial team and somebody doesn't

because of race or gender. And it's explicit. I think they're toast. I think they're toast. But I also think that judges will not want to be case assignment, function as case assignment partners. And so I think they're going to probably have a pretty high threshold of proof to make that kind of decision. But yeah, I'm with you, Sarah. If it's explicit that you're doing the composition of your trial team for DEI purposes, yikes. But here's a question, though. Let me ask you this. You're defending, say, a Harvey Weinstein character. And Harvey says, I need a female advocate to advocate for me in front of a jury because I need a woman to make the case for me. Yeah. He can hire a female advocate, but he is not, you know, under Title VII because he is not an employer of the size required. He hires Gibson Dunn. That's not how that works. You don't hire Gibson Dunn. You hire a specific attorney to represent you now if he said from there and i want all the associates working on this case to be female then gibson dunn has a problem and they

need to tell their client that that would be unlawful but it's okay like there's lots of reasons you may pick a specific attorney to represent you and it's okay if you hire that attorney you not being a corporation by the, but you being an individual in this case, to, you know, prefer one attorney over another, even for protected, otherwise protected class reasons. Interestingly, and this goes to how these cases get to the court in the first place. Remember, this is on summary judgment, where we assume that all the facts that this police officer alleges are true in order to decide whether there's even a legal dispute here. So they said like, oh, well, you're only alleging that you were transferred to this other unit. So therefore, there's no legal

dispute because even if everything you said was true, it wouldn't be a violation of the law. So your case is dismissed. That's what we say when we say assume all the facts are true. But the reason that there was this substantial harm, significant harm test to begin with, is because there are so many Title VII cases. Everyone who gets fired or doesn't like their new hours or doesn't like the team that they got moved to is like, it's because of my race or my gender or like any protected class that they can come up with. And the courts get kind of inundated. And so they kick a lot of them on summary judgment, the vast, vast majority of them. And by lowering this

standard, you're going to have a lot more of these employment discrimination cases now make it to trial, which puts a whole lot of pressure on the companies to settle these cases rather than go to trial because it's cheaper to settle them. So from a practical how the law works in the real world, this opinion may read as totally correct on the law, but it's actually going to have a pretty big impact on companies that are going to have to pay out sort of nuisance claims or think twice about ever transferring someone or this is this is a transfer case, that's what we would call this, transferring them to any other team if they are not a white, straight male, basically. And I just, I find that to be the flip side of the DEI side. On the one hand, you can have all these DEI cases flooded now. And on the other hand,

it's just going to be a whole flood of a lot of other cases and it's going to affect how companies act to their employees now that there's really not. I mean, Brett Kavanaugh and his concurrence basically says, the language says what it says.

It doesn't talk about significant harm. Yeah. And he says, I disagree with the court's new some harm requirement. No court has adopted a some harm requirement and no party or amicus advocated that requirement to this court. More to the point, the text of Title VII does not require a separate showing of some harm. The discrimination is harm. The only question then is whether the relevant employment action changes the compensation terms, conditions,

or privileges of employment. A transfer does so. Therefore, as the D.C. Circuit explained, a transfer on the basis of race, color, religion, sex, or national origin is actionable under Title VII. All of that said, the court's new some harm requirement appears to be a relatively low bar. Importantly, the court emphasizes that some harm is less than significant harm, serious harm, or substantial harm. Therefore, anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some additional harm,

whether in money, time, satisfaction, schedule, convenience, commuting costs, or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like. So even though I respectfully disagree with the court's new some harm requirement, I expect the court's approach and my preferred approach will land in the same place and lead to the same result in 99 out of 100 discriminatory transfer cases, if not in all 100, says the swing

justice. Yeah, you know, here's the basic bottom line reality as the law is colliding with modern DEI. The law is going to steamroll if it continues to be interpreted as it currently is. The law is going to steamroll modern DEI. It's gonna steamroll it on the race discrimination grounds and employment. It's gonna steamroll it on free speech grounds

when it comes to college campuses. It's going to steamroll it on free speech grounds when it comes to college campuses. It's going to steamroll it perhaps on due process. I'm less confident about that because we'll get to that in just one second. But there is a, the modern DEI framework, which is fundamentally illiberal. Like that, this is something I wrote about at the Times. The problem with the modern DEI framework

is not a problem with diversity, a good value, equity, fairness is a good value. It's not a problem with inclusion. Inclusion is a good value. It's a problem with using illiberal means to try to accomplish those aims. And when you talk about modern DEI, it's very hard to separate modern DEI from those

illiberal means. Well, the court's about to do it for them. Now, this just gets you past summary judgment. You still got to prove it at trial. So you still have an evidence problem. And this police officer, it looks like, has a real evidence problem, as was pointed out in the current occurrences by Thomas and Alito, that maybe actually this transfer didn't really affect her at all, or she didn't plead it right, etc. But it won't really matter for a lot of these companies, because once you get to the trial stage, that's where the money starts running out the door to defend the case. And that's where, like, all the DEI policies are going to go away suddenly, because if you're going to get sued and it's going to get to trial, it's going to cost you money whether you win or lose. So, all right, David, next up on Lady Law, the Biden administration has new Title IX

guidance. Enlighten us. Yeah, so this is going back to, by the way, Sarah, this is another example of Congress do your job, because what we have between Obama and Trump and Biden is the same statute, the same statute, Title IX, and three fundamentally different interpretations what Title IX requires colleges and universities to do in the event of sexual assault allegations. So a little bit of history. President Obama had a dear colleague letter going back to, I believe, 2011 that really changed. And the change was already, the colleges were already moving in this direction, but really, really instigated and propelled a change in adjudication of sexual assault in higher education.

Now, this is not involving civil lawsuits or criminal prosecutions. This is involving campus adjudication of claims of sexual assault. And Obama wanted a preponderance of the evidence standard. It was very loose guidance, but allowed for quite summary proceedings without opportunities to cross-examine with single adjudicator model where you have one person doing the investigation and the adjudication. Defendants or accused students were not always allowed full access to evidence, not always allowed attorneys.

And what happened, the result was kind of a due process apocalypse. And hundreds of lawsuits, hundreds with a giant patchwork of decisions across the country. In comes the Trump administration and DeVos with the Department of Education. And she puts in an awful lot

of additional due process protection. So again, same statute. Now after DeVos, all of a sudden you have lots of different procedures, higher burdens of proof, opportunities to confront witnesses, opportunities to look at the evidence, no single investigator model, narrower definition of sexual harassment. Then we come to Biden and we go back to something like the Trump, I mean, the Obama rule, but not exactly. It's sort of between Trump and Obama, but closer to Obama than Trump. So once again, you have a single investigator model that is permitted. You have a broader definition of sexual harassment. You don't necessarily have the right to see all of the evidence against you. You don't necessarily have the right to see all of the evidence against you.

You don't necessarily have a right to cross-examination. And Sarah, this is going to be another litigation explosion because we have a lot of circuit decisions out there regarding what kind of processes do. We have not had a final Supreme Court determination on this. I expect that we'll see one eventually. But the bottom line is that the Biden administration has pulled back from the Trump administration's due process protections. These are due process protections that I had supported, that the ACLU had supported to a large degree, not all of it, but to a large degree.

And now it's going back. And we can put some statements from FIRE in there, from a good write-up in Reason about it. But it is a definite rollback of due process. And it is a very interesting question, Sarah, about what process should be due constitutionally, because as a general matter, campus discipline and the processes on campus discipline are generally kind of up to the campus. But this is different because this is a government

mandated disciplinary process. You have to, You have to prosecute sexual assault or harassment allegations on campus. So does that mean that there's going to be a higher due process requirement because this is a government-mandated process? Whereas if I cheat on a test and I'm tossed off campus in a pretty summary proceeding, courts aren't super excited about trying to say, hey, you're entitled to the full panoply of protections you typically get when you have a civil lawsuit. So we are actually in kind of a due process question mark when it comes to the state of the law here, because there's not been any final determination. And we have hundreds of cases, hundreds of cases around the country,

and they don't all come out the same way. Sorry, I'm just stuck on the moment that we had as a society where the left had the believe all women slogan. And now in 2024, when it's Jews, it's like, lol, nevermind. Right. Yeah. Yeah. Don't believe a word.

Don't believe a word you see on the video I just recorded about protesters in Columbia. Yeah. I mean, we're recording this as protesters and I'll use that term a little differently here. Protesters at Yale and Columbia have prevented Jewish students from reaching certain parts of campus. Colombia have prevented Jewish students from reaching certain parts of campus. They perform human chains to keep the Jews out, which is just stunning. Now, both schools seem to be trying to do something about this. Colombia has now sent a letter to the NYPD asking them for help. Colombia has also been saying that these are not necessarily students, and a lot of them are not. There was someone holding up a sign in front of students who were holding Israeli flags,

some of whom I think were Jewish. I'm not sure if all of them were. And the homemade sign said, you know, Hamas, next target. But like, who is that person? This school is in New York City. We don't know. And that's what Columbia is saying.

Like, these aren't necessarily students that we can punish through our academic due process that we have. If they're just random citizens, it doesn't matter if we expel them or suspend them. Like, that's not an option. They can block pretty open campus. It's an urban campus, you know, Yale would be easier in New Haven. You know, the interesting question to me, Sarah, is why did they let them put the 10th city back up? The whole the whole thing, David, it's so upsetting to me i don't understand how anyone thinks they're the good guys when you're screaming about the jews and like when a kid who's wearing a star of david necklace is walking towards you and you start yelling

there's a zionist coming form a human chain to block the person, take a step forward, take a step forward, push them, push them. Like, yeah, what? How do you go to bed at night and go? Yep, I fought one for the good guys today. Huh? It's so confusing to me. Oh, it's, it's, it's insane. It's evil. So anyway, sorry, I got us off on a tangent. My point anyway, go ahead. Campus due process is a thing that is going to come up in so many different contexts. It's amazing to me that these schools don't want to work harder to get it right, depending on whether it's a group that they like or dislike, or a type of student they like or dislike. Pretty much due process is there because

it's, wait for it, a process, right? Like, we want pretty robust due process, because it's going to apply to everyone and you don't know who it'll apply to next. That's the whole point of having a process. And this gets to my overall thing that I've said on this podcast many times. I mean, I'm not about to do the man for all seasons thing. Just know that I could have and I didn't and I saved you. But like the process exists for the situations that are hard. So you don't make exceptions to the process when it gets hard. You don't need the process when it's easy.

You need the process when it gets hard. So when it comes to sexual assault allegations, those are hard. When it comes to how to deal with students who are making sure that Jews not only feel unwelcome on this campus, are maybe assaulted, but in fact, literally cannot walk through their campus, that's pretty easy. So you should probably have the process in place for that too. Yeah. Yeah. The Title IX regs are a mess. They will continue to be a mess until either the Supreme Court straightens out the mess, which is a kind of a ridiculous way to do things, because as you said, Sarah, the Supreme Court decides issues. It doesn't decide statutes. It does. It decides issues. And so they'll get this in kind of a

piecemeal way. You know, they might sit they might get, you know, one or two important issues that rise up. They're not going to be adjudicating the whole freaking system. And so this is exhibit 9,783 of broad, vague statutes create problems. And, you know, a statute should not mean one thing for one president and another thing for another president and then a third thing for a third president. I mean, I think that that's just nonsense. It's madness that the same law means such substantially different things depending on who's president of the United States.

And with that, another advisory opinions in the books. But don't worry, we're about to head into even more exciting oral arguments to come. And who knows, decisions will be popping out. Like, you know, when you put the microwave popcorn bag, and like, it's pretty slow at popping at first, and then all of a sudden, you reach the real top of the bell curve of all the popping. And then if you wait too long, they burn. My metaphor runs out at the point that the kernels start burning. But we are about to reach a lot of popping. Popcorn, pop, pop, pop, pop, pop. Also, I remember before microwavable popcorn and I feel really old about that. Like my son will never know

what it was like to make popcorn on a stovetop. Oh, I remember that so well. That was my whole childhood. Yeah, that's true. There was microwavable popcorn when I was under voting age. We invented popcorn when I was younger. Like that's it didn't exist early. Maze was first discovered under David French's tenure on the planet. We would just eat the popcorn before it was popped. And then someone discovered that it actually will explode.

It'd be better. Yeah, microwavable popcorn is one of those things that make me feel old. Weird. I don't know why. I'll tell you one thing that made me feel old is Lila walked out of, we have sort of as a decoration, you know, those old rotary phones with the cord and everything. We have them used as bookends on one of our bookshelves.

And Lila, my granddaughter, walks out holding one in the air like, what is this? Okay, but you weren't using rotary phones in your childhood. Yes. No, you're not that old. Of course I am. We did not have a touch phone in my house growing up. Really? Yeah.

Well, also because I think my parents just got the cheapest phones because you used to lease them from Bell. You didn't actually buy your phone. You leased them from, yeah. So they just leased the cheap phone. So I spent my whole childhood with it. I mean, I did that. And then talking to like my high school girlfriend,

I stretched the cord all the way out. Okay, the cord stretching is definitely like a universal for decades. But rotary phone. Yeah, no, my whole childhood. Yeah, I went to my grandmother's house. She had a rotary phone through my childhood. But like, my house didn't. I graduated from high school. The first touchstone phone I had was the phone in my childhood, but like my house didn't. I graduated from high school. The first touchstone phone I had was the phone in my college dorm. That's not normal. You're not actually that old. You're not rotary phone old. You may have had a rotary phone, I believe you, but that's not because that's what was out there. That's because you or your parents chose strangely. More common than you might think in the 70s.

Wow. Yeah. Okay. Yeah. It's the 70s, Sarah. I'm talking about like in 1979, I was 10 years old. So in the 70s, it would not be unusual at all to have a rotary phone. I mean, I think about this all the time, like how you raised a baby before microwaves, like you'd have to heat the bottle in boiling water.

But then it's like, so I start with, oh, my God, it must have been so hard to have a baby without Amazon or Walmart deliveries to your door. Like, oh, my, I forgot diapers. Two hours later, there's diapers. Great. Then microwave is before that. And then before that, I'm like, wait, like, my parents didn't have fridges growing up. You had the icebox. Like, how did people keep humans alive? I didn't have a microwave in my house. Okay. Also, like, that's, that is the same. Like, I also started life without a microwave. Yeah. But like raising babies without a microwave. It was virtually impossible.

Impossible. For all of human history. Let alone diapers. I don't know. My mom brain, there's good parts and bad parts to mom brain stuff. But man, when Nate was born, every time I would turn on the water faucet and see clean water coming out, I would get overwhelmed. And you cannot have the level of empathy where everything makes you empathetic or you just cease to function as a person. You cannot walk through the world like that. And that was actually very hard. I just want all my rotary phone childhood listeners to give us a shout out in the comments. Oh my God. If they're still alive. Mostly passed on, David. No, no. It's much more recent than you think.

All right, well, that'll do it for today. And David, we're going to postpone our next episode by 48 hours so that we can talk about the Trump immunity oral argument. There's other cool oral arguments. We'll get in a few words on those too. Any opinions that might come out. And I don't know, this feels opinion

season is on us, David. It's like, it's like microwavable popcorn, you know, at first there's pop, pop, pop, pop, pop, pop, pop, pop, pop. And like you hit that bell curve of my metaphor falls apart when you get to the burning at the end, where if you leave it too long, it burns. But right now we are entering into the quick pop. Okay, but that was a really weird way of saying our next episode will be delayed. So it will come out Friday. We'll talk to you guys next time. you