Advisory Opinions - Lobotomizing the DOJ

Episode Date: July 18, 2024

Sarah and David answer listener emails, covering everything from judicial federalism, to the Supreme Court’s upcoming tech term, to potential SCOTUS reforms. The Agenda: —Constitutionality of the special counsel —The Nixon precedent —Independent judgment of lower courts —Predictability and the rule of law —The Texas pornography case: children’s rights or adult’s rights? —Injunctions as extraordinary relief —Biden’s proposed SCOTUS reforms —The grossness of ethics violations Show Notes: —Atul Gawande’s The Checklist Manifesto —United States v. Nixon —Advisory Opinions episode on NetChoice v. Moody —Texas’ H.B. 1181 —Ginsberg v. New York —The “Angry Cheerleader” case —Judge Bibas’ Third Circuit opinion on assault weapons —Federalist Papers No. 83 —The Dispatch’s Project 2025 Fact-Check —Presumed Innocent Learn more about your ad choices. Visit megaphone.fm/adchoices

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That's the powerful backing of AmeriMexpress. Visit amex.ca slash ymx. Benefits vary by card, other conditions apply. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, we're going to keep Opinions. I'm Sarah Isger. That's David French. And David, we're gonna keep this one tight. We've given the people a lot of content recently. We have some things we need to get through,

but we're not doing any extra beyond what we need to tell you about today, right? Yeah, yeah. No, this is gonna be not Joe Rogan-like. No question about it. Okay, so there's many reasons for that. Most of which is, this reminds me of when I worked at the Department of Justice and we had this news cycle in June or so of 2017 where every day at 4 p.m., a massive news story would hit and then we were just there all night. And then you'd get back to work the next day

and you're sort of like, huh, what am I doing? And so you'd mess around for a few hours and then boom, four o'clock. Like sort of those summer afternoon thunderstorms that you get in the south. That's what the last several weeks has been here in DC. Yesterday was no different, except I was also traveling. So I got home at 1am and the brisket was sitting at the top of the stairs, just staring down at me in the dark. And I was like, I looked up really scared

because it was dark and I couldn't really tell who it was. And that's never happened before. And he said, I was waiting for you to check on me. What? What? What? What? What?

That would be a little, just a little spooky. I had a similar incident with our youngest, except just she was standing at the top of the stairs, obviously sleepwalking and babbling. So two, three in the morning. How old? This would have been five, four, five. The same age.

I think he might have been sleepwalking because like who just sits at the top of the stairs? It's not like I was home or he could have heard me. Also, let's just ask what husband of the pod was doing that the kid got out of his room, got to the staircase and he had no idea sound asleep in his bed. And then unfortunately from that point there was a child awake every hour on the hour

the whole rest of the night. So I'm doing really well. I just want to say as a representative of the husband union, I think you're jumping, you're just jumping to conclusions about Scott. There's no foundation for this accusation. Yeah, I just think you need to slow down and take your time on this investigation.

So I saw this thing that I don't know if it's true or not, that I mean, it can't really be. I don't think it's true, true, but I will be looking into it today because it was while I was sitting on the tarmac at JFK for like three hours last night that I saw this on like social media. And it said when women sleep,

only 10% of their electrical activity in their brain is reduced. And obviously that's to listen for the baby. Like it's literally like we're evolutionarily wired to be woken up by our children in the middle of the night. But then when men sleep, 70% of their electrical activity in their brains are reduced. And I'm like that checks so hard right now. And it would be nice actually for our marriage if it were a biological feature and not just a nope, he's able to ignore them crying. That would be good.

Sarah, that's why we're just able to be at peak performance so much during the day. That's the explanation. I hate the whole male species. Okay, so David, I want to start, I want to pick up where we left off about the Eileen Cannon decision dismissing the Trump classified documents case on the grounds that the special counsel was unconstitutionally appointed, separation of powers problem, under the appointments clause. He's not Senate confirmed and therefore there needed to be something that Congress passed by law allowing the attorney general to appoint a special counsel.

You and I both thought it was varying degrees of bonkers town. I will tell you over the, I don't know how many hours it's been or days or weeks since we recorded that, I'm lowering my bonkers rating a little in part because I think of all the other times where we've hemmed a little closer to a clear statement rule on like sort of other major questions, doctrine-y things. And this is a constitutional provision that we're speaking to not major questions doctrine, which is of course a canon, but not a constitutional provision.

And you and I like clear statement rules and a lot of other things. And yes, we said like, maybe there are some clear statements in the law, but they're at best vague clear statements, right? And so major questions doctrine would kind of, and again, it's not actual major questions doctrine, but the premise would apply that did Congress intend to give the attorney general such huge sweeping big and pretty specific power that they knew how to do otherwise in such vague language

that for instance, the one was tacked on to what amounts to an FBI creating statute and the other one just pretty vague and there's alternate interpretations to what 515B does. And it's worth noting there was also an op-ed in the Wall Street Journal today by James Burnham who was at the Department of Justice in the Wall Street Journal today by James Burnham, who was at the Department of Justice during the Trump administration, and Will Levy, Chief of Staff to Attorney General Bill Barr during the Trump administration. Disclaimer, both very good friends. And they have this op-ed, The Smearing of Judge Eileen Cannon, Commentators on the Left Trash Her Throw and Scholarly Decision in the Classified Documents Case. I don't know that the headline even really explains it as well as just this last paragraph.

Whether Judge Cannon's opinion will ultimately be upheld isn't the point. She presided over a case raising complex and novel issues while litigating under an intense media glare where few observers are fair-minded, and she answered with a lengthy explanation of her views, one that critics should read before they comment. Judge Cannon has done her job. So I take their point. But even so, we have these questions that I think are also worth diving into. One, you and David are overestimating the continued dominance of strong Scalian textualism in the face of systemic frustration by the Supreme Court's conservatives of the Department of Justice fishing for prosecutorial authority outside of the specific context for why a

statute was passed. The potential use of prosecutorial discretion that is plenary vested in the president to thwart the political process is an explicit problem for Congress to deal with, not something that should be ad-libbed by the DOJ. I hope the DOJ is reformed rather than lobotomized by a future administration." So here, David, he's actually referring to the Supreme Court in these corruption cases and in other criminal cases, think more Gorsuch here, basically saying, yes, there's been a proliferation of the criminal code and DOJ seems to think that this is a license to find the crime and then go back and look for a vague provision that they can charge that crime under. Of course, this isn't the crime itself.

This is their prosecutorial power to appoint a special counsel, but I still wanted you to address the possibility that maybe Thomas won't be alone here, but perhaps for slightly different motivating reasons at least, that this is about reigning in this proliferation of roving prosecutorial power. Yeah, I'm not gonna say that this case has always felt 8-1 to me. We've talked about Thomas in his previous statements regarding special counsels, but it's not felt 8-1 to me. I could

see a 7-2. I might get even squint and see a 6-3 for the reasons in that email. But I do think there is a difference here. So when you're talking about some of the criminal statutes, what's happened is Congress just sort of had this broad, a pretty broad statement of the law at that the Justice Department kind of went and ran with it and made it broader in some ways. Here you have a broad statement of the law, but the regs actually make it more narrow. These are the narrow specific conditions in which you're going to have a special counsel. But the language is still the language, and the language is quite broad in both 533 and 515B.

And so it seems to me that this is a bit the opposite of what the DOJ has done. It's been given broad language. It's given broad authority. The attorney general has broad authority to a point and they have created a reg, which actually narrows that authority a bit. So it feels a little opposite to me, honestly. That's funny. My response to this email, I'm sure,

sometimes I'll respond to you all and be like, no, that's definitely wrong. And then I'll talk about it on the pod with a lot more nuance. So just know that that's part of my personality. That's true. I've seen those emails. In this case, I said, I think special counsels are a bad idea, which I've seen those emails. In this case, I said, you know, I think special counsels are a bad idea, which I've said a ton. Doesn't mean it's

unconstitutional though. But then I slept on it and was like, oh, maybe it's more interesting point than I was letting on. So along these lines, I wanted to explain some other stuff. You know, We talked about the special assistant US attorneys, and I had someone weigh in on the difference legally between the special counsel and a SAUSA. By the way, yes, DOJ has all of these fun little acronyms that we pronounce, like PAYDAG, right? The Principal Associate Deputy Attorney general versus a DAG. Anyway,

salsa. The crux of Trump's argument is that because Garland has repeatedly said Smith is acting independently in overseeing the investigation, the special counsel should be considered a principal officer, a top government official who has no immediate oversight and whose appointment requires Senate approval. Of course, then you have to really get into a question of whether Garland, despite sort of his Smith is acting independently, that what Garland actually means is I haven't been nudging or pushing the special counsel to do anything they don't want to do, not these guys are running around the playground with no supervision whatsoever. And that actually that could really be a fact-finding issue on the constitutionality

of the special counsel. Of course, there's also those regs, right? So the argument on the other side would be if you're so practically hamstrung by the reg provision requiring you to report to Congress when you overrule the special counsel, that means you, the AG's oversight, isn't meaningful and the special counsel really is running amok doing whatever he wants with no real supervision. Analogy, a super lax, negligent parent with a kid who roams around biting other kids in front of the parent. Some say the parent is right there and exercising oversight. Others say that kid needs a good spanking, but will never get one.

The kid is essentially feral. I felt that one in my bones. Nate doesn't bite, but I don't know about case. But yeah, basically when Garland did this, he said the special counsel will have all the powers of a US attorney. Well, you couldn't, for instance, stop there. You couldn't say, I'm creating another US attorney without Senate confirmation. And so I now am thinking about perhaps this is a fact specific question about whether Smith is acting as functionally a US attorney or whether he's acting as a subordinate to the attorney general with a very specific mission that would be constitutional because the law allows for a prosecutor reporting to the attorney general and acting on his discretion.

It does not allow the attorney general to just create more roving U.S. attorneys without Senate confirmation. That would be very odd because, of course, then you just wouldn't have US attorneys. You just create the roving US attorneys. Yeah. You know, that equivalent US attorney never... That argument, I think, is only applying within the very narrow scope of the appointment of the special counsel. So within the very narrowly confined scope, they're supposed to act like a US attorney,

but that's not being like a US attorney. So if you're a US attorney in your district, you're prosecuting just an enormous array of crimes. You know, now you're going to operate under the Attorney General's guidance and with the Attorney General's prosecutorial emphases, but you're going gonna have an enormous amount of prosecutorial discretion yourself, an enormous amount ability to orient your district in particular ways. That's not the case with the special counsel. So yeah, he's a US attorney and he's not.

He's got US attorney-like authority in the case he's appointed to, but nowhere else. So that to me says he's not a U.S. attorney. All right, last one. This came from a judge listener, which will be relevant to the point. The court only has authority to rule on matters for which the parties have standing.

Therefore, there is always a duty of a court to determine whether they're standing for a case. The idea that the Supreme Court statement that there was standing by the special prosecutor in Nixon could possibly be determined to be dicta is absolutely ridiculous. There is no way and the question of whether it was briefed is irrelevant. I take the point and I do think it's a point worth making that standing is jurisdictional. So you must as a judge and they do like as a clerk you always first is like anyone got

standing okay like even if it's very obvious You're just like check check. It's like a have you ever read that book checklist No, where oh my gosh that sorry slight tangent here a tool Gawande wrote the checklist manifesto how to get things right and he was talking about how checklists have now been implemented in hospitals and airlines. And basically, when you've got a bunch of rote stuff that must be done or people die, don't try to remember it. Don't rely on each other. Just have a checklist.

And it's like a revolution in thinking. And it saves so many lives. And so I read this several years ago and actually implemented it at the Department of Justice when it came to press conferences. Just have a checklist. Stop trying to remember all the things you need to get done. And that way, if someone else needs

to run the press conference or when we're gone, hand off this checklist to the next folks. So standing is the thing on the checklist whenever you're about to write an opinion, like check standing, yada yada. However, there's a problem. Just because you should check standing doesn't mean that you checked all the problems that there could have been with standing or that maybe you just missed it.

No one had raised the problem, so you didn't even think about the Appointments Clause issue. And so even though the Supreme Court has this line where they are clearly saying, yep, they're standing, it's not like they're addressing the Appointments Clause issue. And so if it hasn't been raised as a question presented to the Supreme Court and it hasn't been briefed, I don't think that's irrelevant.

Okay, you don't think it's irrelevant? Okay, help me on that. You'd... Yeah, there's too many negatives. Okay, you don't think it's irrelevant. Okay, help me on that. Yeah, there's too many negatives. I don't think it is irrelevant to question the Nixon precedent and that line in Nixon because the question was never asked or briefed to the court that perhaps there was an appointments clause problem. So the fact that the Supreme Court said there was standing, they were perhaps addressing the point

that it was the special prosecutor coming in instead of the attorney general. They didn't see any problem with that. They didn't even think of the appointments clause issue. So I stand by my point. I do not think that the Nixon language is dicta, and this gets to the role of a district judge, certainly, and all of that. But I also don't think it's as easy to say, the Supreme Court must always find standing. Therefore, if they're deciding a case, the standing issue has already been resolved.

Yeah, I would agree with that. I would definitely agree with that. But I also think that that's the role of the Supreme Court to say that when we decided the Nixon case, we did not take a close look at that specific issue. But if you're the district court and you're reading that court opinion, just sort of leap into the Supreme Court's mind and say that was just a casual aside with no greater significance, no real significance at all because it wasn't the central issue of the case. That's not what district courts should do. But yeah, I think it's absolutely right if the

Supreme Court were going to take this case and dive into it, that they might say, wait, that language from the Nixon case, that was not central to the holding. This was that was not central to the holding. This was only casually glanced at in the case. And we're taking the deep dive that they didn't take in Nixon. Yeah, I mean, you could imagine a world in which there could have been a footnote in the Nixon case that said,

we thought through the appointments clause issue and we see no issue here. And you could see them not including the footnote because they didn't feel like they needed to. I.e., we don't know why they thought there was standing and what all they thought through in finding standing because they found there was standing. If they hadn't found standing,

then they probably would have told us why. So yeah, I'm with you at the end of the day, but I also agree that just because the Supreme Court sort of said there was standing doesn't mean that they found there was standing for all the reasons that you said. I just don't think it's a district court's role. Yeah, and this is something we talked about last time.

And, you know, just to put it even more concretely, imagine, you know, after the Net Choice remand, this is the case where challenging the Texas social media law that is restricting the way that Texas, that social media law that is restricting the way that Texas that social media companies can moderate content in Texas. If the Fifth Circuit just took a look at all of the dicta, so to speak, and Elena Kagan's majority opinion there and just threw it out the window, that's not going to go well for

them. That is not going to end up with the ruling that they would like to see. And that's the thing that I would say that is, as I said before, that is the number one thing that made me believe it's Bonkers Town adjacent was the way it just swept past the Supreme Court language, as if she was a peer and not a subordinate. And that was the number one factor. Well, speaking of that, I have one more email to read. By the way, we went into this and I was like,

David, I've got two comments to read. Now it's been several, but it just reminds me of some of these great things that I've been reading from you guys. This is from a law student. It seems to me the structure of our judicial system is set up to promote some amount of meaningful diversity of law and that there are countervailing pragmatic reasons to prefer

such diversity. First, structurally lower court judges are divided into geographic circuits and there's no formal requirement that a lower court judge in circuit A must follow circuit B precedent. True. Congress or the Supreme Court could mandate such a cross-circuit binding authority, but they haven't. Nor has the Supreme Court made an effort to address every circuit split, even though it says it prioritizes federal uniformity of law.

I think this is because the Court recognizes that there are benefits to this geographic diversity and competition of legal thought, similar to those benefits we get from unencumbered markets, open elections, and free speech. Competition and diversity promote creativity, and the best ideas rise to the top. But if the first circuit were to decide an issue that controls all the others forever, then there's no room for real critical analysis of the issue. And it creates a cycle where

the Supreme Court is never prompted to take up cases with hard questions. After all, if everyone agrees on the outcome, then that's circumstantial evidence the question is not hard important enough for the Supreme Court. And thus the contours of the Constitution never get accurately fleshed out because everyone assumes the first court to say something on a matter got it right. I therefore conclude that not only is Judge Cannon not bound by the DC Circuit's precedent on the issue, by the way I agree with that, but that Judge Cannon is duty bound to apply her independent judgment when an issue is of first oppression within the 11th Circuit while thoughtfully considering the reason of the DC circuit as she seemed to do.

And the more important the issue, the more important it is for Coarse to try to quote get it right rather than defer to other judgments. In a similar vein, after Loper Brite, we conservatives celebrated the judges now have to independently assess the law in the administrative law context rather than defer to agencies. I think we should similarly support celebrating independent assessment of the law between circuits. If Judge Cannon got it wrong, the 11th Circuit can always disagree with her and create its own binding circuit precedent based on its considered an independent view of the law, fully informed by competing views of another circuit, and the Supreme Court, since it's not very busy, can always use its

discretion to take the case and resolve a split as it sees fit. This leads to the issue of whether the Supreme Court's Nixon opinion is binding on Judge Cannon. If that paragraph were dicta, the 11th Circuit in SCOTUS can always take up the case and say otherwise. Then, for the same reason stated above, the benefits of diversity and competition of thought, I think we'd want a lower court to apply their independent judgment to the issues that come before them, even if it contradicts half century old non-binding SCOTUS language, regardless of how on point that dicta is.

A contrary conclusion would be to say that there's no distinction between Supreme Court dicta and holdings in terms of their binding authority, and no lower court or circuits have ever obligated itself to follow such a rule. Okay, so David, first of all, DC Circuit binding on Judge Cannon, absolutely not. And he's 100% just right as a matter of law on that. But actually, I love the way he explained it and why we

want that diversity. The Supreme Court has said this several times. They want that percolation of legal questions in the different circuits to proceed largely independently so that, one, they get the best legal thought from around the country on an issue, and two, it does rise up the important issues because those are going to be the ones that the smartest minds disagree on, whereas if everyone kind of comes to the same conclusion around different circuits independently, you're like, eh, probably seems right. But, so I just loved his explanation of that. I think it was very well done. But the role of a district judge on the Supreme Court issue is a little different. I take his point that there's still a good reason that if it's a close call,

maybe we should want the district judges to exercise independent judgment for that same, you know, creativity, smart thoughts to percolate an issue up. But I'm guessing by the expression on your mouth that you're a nawdog on that one. Yeah, I'm a nawdog when the language from the Supreme Court is that clear and then the argument isn't over the clarity of the language, it's sort of over the gravity of the language. You know, one of the, there's always a balance between this argument that he's making, which is, yeah, there is absolutely a need for diversity of thought,

which is why I think, you know, it just is a matter of both law and policy. He's completely right that the circuits shouldn't, the circuits don't bind each other and they shouldn't bind each other, that the Supreme Court should bind the circuits. He's losing me when we get to the district courts because one of the, you also have- He's basically doing an opt out regime

instead of an opt in regime. And I think district judges are very much, yeah, no. It's not that they then take up your case and say, no, it wasn't dicta. You assume it wasn't dicta, and then they can take up your case and say it was dicta. And also we can't forget that a key element of the rule of law is predictability.

And so this is how we govern ourselves. One thing that I think is a little bit misleading if you don't practice law, if say even listening to this podcast is because we're always talking about the most contentious cases, the cases that are at the edge of the doctrine. I think we maybe give people a misimpression that the law is more contingent than it really is. But the reality is the vast majority of cases that are filed in federal courts, the outcome of them is pretty darn predictable.

And that's actually a really good thing because unless legal outcomes are in the main, not exclusively, but in the main predictable, unless that is the case, it is very difficult to do commerce. It's very difficult to have a functioning system of justice that provides fair notice to citizens. Predictability is very, very important for the rule of law. And one of the things that gives us predictability

is the constraining of the district courts that they are not in fact circuit courts even, and they're certainly not the Supreme Court. And so I do take the point completely from the email at the circuit court level. I'm much more skeptical, much more skeptical at the district court level. And I'll just read this actually from her decision for what this is worth. Dicta from the Supreme Court are entitled to considerable and in some cases even precedential weight, citing 11th Circuit authority. And another case emphasizing that dicta from the Supreme Court is not something to be lightly

cast aside. Inferior courts must accord Supreme Court dicta appropriate respect and deference. Then citing a Fifth Circuit opinion from 1980 when the Fifth Circuit and the Eleventh Circuit were won before Darwinian branches split off of the family tree and we went chimpanzees and bonobos in different directions. I'll let you decide who are the chimpanzees, the aggressive apes, and who are the bonobos, the love apes, as it were. Between the Fifth and the Eleventh? Oh, that's easy. That's easy. Readers know. I mean, listeners know, sorry. Okay, with that, David,

I thought we would move on to some Texas porn. Well, of course. Well, of course. So this is a case that the Supreme Court has said they will hear in the fall. Comes from the Fifth Circuit. It was a two-one panel decision. Judge Smith writing for the majority with Judge Elrod and Judge Higginbotham dissenting. And let me read you HB 1181. It regulates only certain entities, specifically commercial entities that knowingly and intentionally

publish or distribute material on an internet website, including a social media platform, more than one-third of which is sexual material harmful to minors. Those regulated entities must use reasonable age verification methods to limit their material to adults. So this is gonna be a First Amendment question that basically, yes, minors may not have a First Amendment right to access pornography, but adults do. And so when you put in this age restriction,

that's affecting adults' ability to access First Amendment protected material. How do we think about that? Do we look at the children's rights or the adults' rights? Is it rational basis? Is it strict scrutiny? So I'll read a little bit from the panel opinion. The Supreme Court has repeatedly held that states may rationally restrict minors access

to sexual material, but such restrictions must withstand strict scrutiny if they burden adults access to constitutionally protected speech. So David, I want to read you the question presented that the Supreme Court took. And we've talked about this before, the QP matters, you know? Yes. This QP is going to strike you a certain way. I'll put it this way. Okay. Okay. I can't wait. This is not an even-handed QP.

This court has repeatedly held that states may rationally restrict minors' access to sexual materials, but such restrictions must withstand strict scrutiny if they burden adults' access to constitutionally protected speech. In the decision below, the Fifth Circuit applied rational basis review rather than strict scrutiny to vacate a preliminary injunction of a provision of a Texas law that significantly burdens adults' access to protected speech, because the law's stated purpose is to protect minors. The question presented is whether the Court of Appeals aired as a matter of law in applying rational basis review to a law burdening adults access to

protected speech instead of strict scrutiny as this court and other circuits have consistently done. and other circuits have consistently done. Rawr! Yeah. Okay, so just to read a couple lines that I wanted us to talk about. This is from the majority opinion on the Fifth Circuit, the Judd-Smith opinion. The state has an interest to protect the welfare of children and to see that they are safeguarded from abuses. For that reason, regulations of the distribution to minors of material obscene for minors are subject only to rational basis review.

So I thought that was such a frankly like First Amendment slight of hand because it kind of does strict scrutiny to get to rational basis review. You're saying that the state has a compelling interest. Remember, strict scrutiny, if an important constitutional right is affected, then the burden is on the government to prove that there is a compelling government interest and that the restriction is narrowly tailored to engage that interest. But here it says the state has an interest to protect the welfare of

children and to see that they are safeguarded from abuses. That sounds like you're saying that's a compelling government interest. But then the result is for that reason, regulations of the distribution to minors of material obscene for minors are subject only to rational basis review. So like you kind of already did the strict scrutiny analysis, then went down to rational basis review. And rational basis review basis review of course is if there's any rationale for this law that's not just On Tuesdays we wear pink Then you're good to go. I know guys. I don't want all the emails. I know it's on Wednesdays

They wear pink the precedent though here. David is the Ginsburg case and this is Boy was that from the 60s, 50s, something like that, where when you walked into a bodega to get, I think it was a Rhode Island statute, maybe, you walk into the bodega, if you want a girly magazine, you have to show an ID. And the Supreme Court was like, yeah, that's rational basis review. That's not really a problem because you're not really affecting adults' rights to get the magazine. Of course, most of the time, adults are gonna look like adults and you don't even really need to check an ID

to get their age because they look like David, lol. Great-grandpa Steve, you mean? That's right. And so to the extent that you're 19 and have to show an ID to access the girly magazine, it wasn't really much of a burden on your right to get that Girlie magazine and the state, you know, interest in preventing minors, like whatever.

But Ginsburg also, it's weird because I think you can do it under strict scrutiny and that law would still stand. The state has a compelling interest in minors not getting Girlie magazines. This is narrowly tailored to address that interest. We're good to go. Here's one more line.

This is the first paragraph of The Descent by Judge Higginbotham. And full disclosure, I was in a wedding in Judge Higginbotham's chambers recently, and he is just a delight of a human being. He has an old jury wheel in his chambers, David, where you'd like put all the little like ping pong balls, whatever pieces of paper with the folded names and then turn the wheel to pull out the jury. He found it as one of the old like courthouse buildings was being torn down and just like put it under his arm and took it home. And like that's, that's who he is. This man loves cowboy boots. He loves Texas and And we love Judge Higginbotham.

So here's the first paragraph from his dissent. Advocate that he was, James Madison penned the amendments to the work of the Constitutional Convention, ordering them in his perceived scale of value to their adoption by the states. Its valence and ratification aside, inherent in the First Amendment's seminal collage of religion, speech, press, assembly, and petition, lie the seeds of a signal commitment to individual autonomy yet to be realized, and in many ways, a child itself until the 20th century, when the sense of its embrace of individual worth soon became palpable. Did Hemingway write that? You know, David, I talk a lot about judicial writing

on this podcast and I mentioned, you know, the credibility issue of a judge Sutton opinion that I think are just universally so well done. But sometimes when it comes, especially to the first amendment, prose, poetry is kind of a nice little snack. Yeah, no, absolutely. I loved that. And I think this case is going to be fascinating because remember we had a debate about this very issue. I've written about this issue a lot. And my point

is, wait a minute, okay, when you're talking about online speech, there are often, in fact, almost always sort of offline allegories for online speech. And you just talked about it when you're talking about the 1960s case where ID is required to purchase a pornographic magazine. So that is not burdening adults' rights. So when the Supreme Court was considering the Communications Decency Act in the early 1990s, or in the 1990s, sorry, not early, later 1990s, which restricted pornographic material from minors,

they were coming at it from the standpoint of two, really two things. One was a classic First Amendment analysis of, hey, what is this definition here? This definition seems too broad, this definition seems too vague. And then there was also, but what about the feasibility? And remember, this is early in the internet. And what they essentially said is, wait, this just isn't feasible right now.

The tech isn't where you can actually create this kind of gating requirement without seriously impacting adults. And so to me, the question then going forward is that was not saying that the internet can be a regulation-free zone regarding children's access to this kind of material. No, what they were saying is you're gonna have to define it

and it's gonna have to be feasible. It's gonna have to be properly defined and it's gonna have to be feasible in the same way that it's feasible offline to show an ID, for example. And I think that's the key question here, really is this feasibility. What is the real world practical problem with providing ID as a precondition

of accessing this material? And this is where we had some of the sticking points which were, wait a minute, even if it's practical, I don't want to see, I don't want these people having my information. I don't want them having my ID. But again, in the offline world, they see your ID, they identify you by name and your face when you come in.

So I think this sort of idea that no porn site should have my ID as a condition for me accessing, I don't think that that kind of absolute rule will fly. I think it's going to be more feasibility. But of course, I could be wrong about all of this. But I think that this will be a closer case than some people might think. We also have the tech Supreme Court problem. You and I keep saying this is going to be the tech term.

This is going to be the social media term. And each time Kagan kind of does this, you know, we're not the world's, you know, the nine foremost experts on the internet. And when it comes to that feasibility question, David, which I think is huge, they are not the world's foremost experts on age verification feasibility.

And for those listening, I mean, you can give a credit card, maybe. You can put in your birthday. People can lie about that. I mean, you can give a credit card, maybe. You can put in your birthday. People can lie about that. You can have to upload your license. That seems really overly onerous. I mean, there's not actually a great way to do this.

And for me, I think this case turns on, do you look at this through the lens of, the state is trying to prevent children from getting access to this material? Have they done that? And um, that's a compelling interest. Have they done that in a relatively narrow way? And again, I get that when it comes to Restricting the kid's ability its rational basis. So like

That's fine But I think what the supreme court is going to say is basically you don't think about that at all Like of course that passes the kids first Amendment rights aren't the issue here. A kid isn't suing. So, forget the reason that they passed the law, basically. I mean, we're going to get to it under strict scrutiny. But an adult showing an ID absolutely implicates their First Amendment rights. I think they will find.

Then you apply strict scrutiny. So is there a compelling interest? Oh, you're trying to prevent kids from also getting into this place. Okay, they'll have to decide whether that's compelling enough. Then you'll look at the means to do so and whether those are narrowly tailored and the least restrictive means.

And in this case, that's gonna be a really specific, hard, technical question. But basically, you only look at the adults trying to access it. You don't care about the kids trying to access it. And I think mentally, that's sort of a paradigm shift. You know, David, I look forward to the oral argument in this one because this is going to be a real test of First Amendment absolutism and not, because nobody's really on the side of, like, let's err on the side of letting kids see porn.

Right, right. Well, and we forget that we do know there will be one opinion that will be a text, history, and tradition, Clarence Thomas, analysis of 1785 restrictions on sexual drawings. Oh, see, I'm thinking of the angry cheerleader case, analysis of 1785 restrictions on sexual drawings. Oh, see, I'm thinking of the angry cheerleader case, the beat the children with sticks.

They're like, that is countervailing for Justice Thomas. That, you know, F those children. All right, David, we have another fun opinion from a judge that we don't talk about enough, frankly. Judge Bebus on the Third Circuit, just overall, cool freaking dude, Stephanos Bebus. He's a Trump appointee. He was a professor of law and criminology at Penn, the head of their Supreme Court clinic. He clerked for Justice Anthony Kennedy. When we think of those sort of top-tier judicial minds

whose opinions we really look for, Judge Bebas is absolutely in that group for me, but we don't talk about his opinions enough, I think perhaps because the Third Circuit doesn't always get the sexiest cases as compared to the Fifth. But I just want to give an overall shout out to how cool Judge Bebas is and that this opinion I think really highlights some of that coolness, if you will, David, judicial coolness.

A special kind of coolness. Not recognizable in the wider world that much, but... It's AO coolness. not recognizable in the wider world that much. But it's a coolness. There you go. Like in our high school, he sits at the popular kids. This is about a gun law and assault weapons ban. And the question though, is going to be about whether you can get a preliminary injunction in joining the law from going into effect as this case is litigated on the constitutionality of the assault weapons ban.

And the reasoning of why they reject the people who want to strike down the assault weapons ban is unconstitutional, why they reject their calls for preliminary injunction are just not the ones you think. And it's pretty interesting. And I think it's a new way to think about preliminary injunctions as you see judges, I think, struggle with the proliferation of them. The Supreme Court is clearly trying to find its own way to limit the run-a-muckedness of all

of these baby preliminary injunctions running around. And this was a new way to think about it, for me at least, that I wanted us to talk about. A preliminary injunction is not a shortcut to the merits. Before granting one, a district court must also weigh the equities, the public interest, and the threat of irreparable harm. Yet the challengers here urge us to leapfrog these careful considerations and just resolve the case. They argue that if a plaintiff will likely succeed on the merits of a constitutional claim, a court

must grant a preliminary injunction. Not so! This equitable remedy is never automatic. It always involves a district court's sound discretion. Key to that discretion is whether an alleged injury jeopardizes the court's ability to see a case through. So interesting, David. So remember those those four factors. One, irreparable injury in the absence of an injunction. Two, that the threatened injury to the moving party outweighs the harm to the opposing party resulting from the order, three, that the adjunction is not adverse to the public interest, four,

that the moving party has a substantial likelihood of success on the merits. And of course, the Supreme Court's been trying to deal with that. You have Justice Kavanaugh saying, look, we're never going to avoid having to look at that likelihood of success on the merits. You have Justice Barrett adding in that perhaps also for the Supreme Court's point, whether

they would grant cert on the question should almost be like a Chevron step zero issue. But here you have a circuit judge saying, fine, I'll give you the likelihood of success on the merits, and I'm still not giving you this injunction because of those other factors. Those aren't ignorable factors. And that the actual text history and tradition for injunctive relief looks at the equity issue. And right, equity is just fancy word for fairness here. Just the fairness of whether you should get an injunction really

differently. And we go all the way back to Alexander Hamilton. Alexander Hamilton assuaged those legitimate concerns. He explained that the great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to the general rule. That's Federalist 83. Looking to Blackstone's commentaries, Hamilton insisted that the principles by which that relief is governed are now reduced to a regular system. By the founding, that system had stabilized into the practice of the Court of Chancery in England. Hamilton's understanding of equity prevailed. Congress gave Article III courts concurrent jurisdiction with state courts over civil suits and equity. Injunctions were and are still extraordinary relief.

And really what he says here is at the bottom line, the purpose of a preliminary injunction is to keep a case alive until trial. And I found this line really weird, David. Thus, the threat of irreparable harm does not automatically trigger a preliminary injunction. Sometimes harm threatens to automatically trigger a preliminary injunction. Sometimes harm threatens to moot a case, as when one party's conduct could destroy the

property under dispute, kill the other party, or drive it into bankruptcy, for otherwise a favorable final judgment might well be useless. Much more often though, even non-pecuniary injury does not rise to that level. First of all, I'm having trouble thinking of a case, David, where without an injunction, one party gets to kill another party. Huh? I really wanted a footnote there, Judge Bebas.

What are you talking about? I mean, I guess in death penalty cases, but whoa. I mean, I guess he is saying it's an extraordinary remedy. So yes, if you get to kill someone else without an injunction, I think just in general, we should probably always have injunctions in those cases. And perhaps I'm getting to his reasoning, which is otherwise, the case would be moot. David, what do you think of this way of thinking about preliminary injunctions, that they should be extraordinary remedies, and really about

preserving the court's ability to see it through to the merits, not about preserving the status quo for the parties, you know, like F them kids, F them parties. Yeah, I detected in this opinion, and it'd be interesting to talk to, you know, it'd be interesting to have a chance to like get the judge and have a off the record chat and see about this. But I detected impatience and frustration with the litigants and that there was,

he talks about there was a four-month delay before they sought the injunction, that they haven't been hastening to trial, that their claim is basically, well, we just wanna buy this stuff. And it strikes me that he's looking at this and sort of saying, wait a minute, are these plaintiffs just, is there true cause of action

that they just don't like this law? Is this what's actually happening here versus we're dealing with something that is a true emergency for these guys? And I think that he just detected that there's just no urgency here. Nobody has urgency. What they're actually trying to do

is just get the law struck down. They just don't like the law. There isn't anything else going on to lend urgency. And so I thought it was a really helpful discussion of the different constitutional rights. Like for example, the First Amendment, deprivation of your First Amendment rights is an irreparable harm. That's not necessarily the case for other kinds of temporary constitutional deprivations. I thought it was really interesting, but the

bottom line to me, Sarah, was he was just sort of saying, stop thinking that this four-part test is a one-part test. It's not a one-part test, and it's a four-part test is a one-part test. It's not a one-part test, and it's a four-part test. And when you come in with maybe some strength in parts one and two, but not at all in three and four, unless you're a First Amendment litigant, we're just gonna ask you to have more. We're gonna ask you to show

why this is particularly urgent. And that strikes me as extremely reasonable. By the way, there was a concurrence in this case, basically saying, yeah, but also on likelihood of success on the merits. I do not believe that assault weapons are arms under the Second Amendment. So don't worry, we'll get to the merits of these assault weapon bans. They're all percolating up. But I just thought the injunction conversation presented a new concept from what we'd even seen the Supreme Court batting around and in the exact way that our law school friend was describing of

creativity of the lower courts presenting, you know, the smartest legal minds out there trying to think through these issues. Really interesting. I wonder whether we'll see some Supreme Court justices reference or even potentially wholesale adopt this view of injunctive relief, especially when you think about nationwide injunctions, universal injunctions and things like that. Yeah. And also just always important to remember, and I think every Supreme Court justice would say this, maybe not every lawyer could be a Supreme Court justice, but there's certainly 30 other guys who could. And so, just because you're in nine doesn't mean that a bunch of these circuit court judges aren't as eminently qualified to think through some

of these constitutional issues. Now, we've talked about the text history and tradition problem of them maybe not having the bandwidth, the Supreme Court librarians who are super helpful to help them do some of the research. These Supreme Court librarians who are super helpful to help them do some of the research, but that's different than the mental horsepower, I think, as we've talked about. There's one other thing about this that I think is interesting is that this is coming up on a probable, at this point,

can we say probable Trump second term? I mean, if Biden doesn't drop out, we'll say certain, nearly certain Trump second term. But we know that Trump that, you know, while Trump is distancing himself from Project 2025, we know that unlike Trump Term 1, there's a lot more legal, there are a lot more executive actions that are ready sort of from day one for a second Trump term than were for a first Trump term. And I was talking to in another podcast about this and I was saying, just imagine the oath

of office for Trump term number two as the starter's pistol to the courthouse. Because you're going to have two things happening at once. One group of liars are going to be rolling out a bunch of executive orders, and then a whole other group of liars are rolling out their complaints, trying to enjoin those executive orders. And injunction practice is in all likelihood going to get extremely important, extremely quickly in Trump term two, should it occur. Yeah, and I also really took to heart something Judge Bibas referenced in this opinion, which is when you ask judges to decide the likelihood of success on the merits, there's a very human instinct that once you've thought about something and come to a preliminary quote unquote conclusion about how it's going to come out, mentally you have a bit of a lock-in effect.

Now you have to overcome your own sort of mental math. They're like, well, I'm pretty sure this is unconstitutional. That's the likelihood of success on the merits. And so then when you revisit on the merits, like, well, I already decided that was likely and now I have to overcome that presumption. That's not the way that should work. In an ideal world, you should do the whole merits and all of the briefing and all of the hearings

and everything else first, not have sort of a shorthand in your head that has to be overcome. And if the only factor that really matters in injunctive relief is that likelihood of success and the merits, you risk putting a little bit of thumb on the scale on that, just again, very human mental lock in. No, that's true.

That's absolutely correct. Okay. So last thing I thought would be fun to talk about, and it hasn't been released yet, but Biden plans to propose Supreme Court reforms. We are hearing that it will include a proposal for term limits, a proposal for a binding ethics code, and potentially a proposal for a constitutional amendment to supersede the Supreme Court's decision in the Trump immunity case. This is interesting in several respects, David. When President Biden came into office,

of course, he had his Supreme Court commission look at term limits, packing the court, etc. I mean, I nerded out so hard on those commission meetings and the preliminary draft report and the final report. And if you remember, the commission basically came to no agreement at all. They seemed, they also said it wasn't their job to have recommendations to the president, but just to sort of tell him their thoughts and vibes. Yeah. And their vibes were anti-court packing and term limit curious, but not that curious, but just sort of like, that's not as bonkers. I'm curious how you're thinking about all of these now. And also the sort of meta question of the why now, because I, that's not as bonkers. I'm curious how you're thinking about all of these now.

And also the sort of meta question of the why now, because I think that's really relevant. As in, I think it's one thing to say, we are having a problem at the Supreme Court with the justices versus I don't like this decision, and so I want to reform the Supreme Court. And so in that sense, I think the ethics conversation to me is very different than a term limits conversation.

The term limits conversation seems much more into, we don't like their decisions, so we want to term limit them. The constitutional amendment question, I can't tell you how in favor I am of more proposed constitutional amendments, especially coming from a president, and more constitutional amendments

superseding Supreme Court decisions that you don't like. That's exactly what we should be doing. And I think the more the American people realize that's an option, maybe we can stop hating on the Supreme Court. We ask them to make a decision, they do the best they can. If you don't like it, we have power to change that all the time. You can have a law in Congress

for a lot of these fixes or a constitutional amendment in some of them. So while I don't know whether I would vote to ratify that constitutional amendment, I think I might, depending on how it's worded. I'm constitutional amendment curious, but I'm sure as hell in favor of the debate and the process and all of that. Term limits you already know I don't like and ethics code, very open to it. Very open to ethics code, very open to term limits, very open to new amendments. But people, I often get the question, what is the first constitutional amendment? What is a constitutional

amendment you would propose? And my first one is make it easier to amend the constitution. Yes. How dare you take my amendment? I know that's the best to do amendment. Make it easier. You still need super majority, but not super duper majority like you do now is the way I would want to see it. But I've always been, like you do now, is the way I would want to see it. But I've always been, since the advent, the last 40 to 50 years of these judicial wars and the appointment wars, I am much more term limit curious because I like the idea of integrating it

into the regular order of American democracy. And that there's a predictable rhythm and pattern. And if you look back since, so the most senior justice is Thomas, so this goes back to George H.W. Bush. Since that time, Democrats have won most of the presidential elections and they have one third of the court, which is a really interesting

thing because from Republicans, you don't tend to think, oh, look at us, look how lucky we are. The ball bounces in our direction when it comes to judicial nominations. But from a standpoint of, okay, long-term stability to the democracy, the randomness of it combined with the significance, the ever-increasing significance of the court, I think creates a problem, which is one reason why I am term limits curious, but very open to it, very open to it. Also open to, you know, opposing ideas, but I'm very open to it. And the ethics code, I just think that's just got to happen.

And we're setting aside some of the legal problems with all of these things. That's a separate conversation. Just imagine a magic wand where all the legal and constitutional issues go away. On the ethics code, I have two thoughts. One, I don't think it will matter. As in, if your reason for wanting an ethics code is because you don't like Justice Thomas on the court, the ethics code doesn't solve your problem, right? He'll still be on the court. And I have yet to really see anyone make a particularly compelling case that his decisions have been driven by any of his alleged ethical lapses. So even if you think these are horrible ethical lapseses the actual effect on the court

Again aside from public opinion and all of those things But like if you don't like the decisions, I just don't see how the ethics code is gonna fix that that being said, of course I'm I'm all for an ethics code. Yeah, just do it for the right reasons and like know what it will and won't affect I think I am more in favor of a that no one's Who's coming with me? No, I would like an ethics code that is more in favor of a, that no one's, who's coming with me? No one. I would like an ethics code that is more a statement of principles perhaps than most, because I think an ethics code would be pretty short to me,

which is a judge or justice cannot, should not, accept any gift of any kind, if it would not have been offered, but for their official position and title as a judge or justice with the exception of invitations to speak for educational purposes to groups. If that makes sense. Yeah. That like these are smart people. Would this person be offering you a ride on their private plane if you weren't a justice? If yes, because you went to junior high school together

and you're moron of a buddy, hit it big, great, get on the plane. I'm fine with that. If they only came around when you're a justice and they're inviting you to impress their friends and to have this menagerie of important people at their house, no. But I do wanna make sure that we're accepting justices speaking to groups

because I think it's so important that we get them out of their bubble for their sake, but also for our sake. This is how we learn about how they view their jobs, how things actually work behind the scenes. I mean, would I really know that the Chief Justice is the chairman of the Smithsonian Board, but for Chief Justice Roberts saying that at a public event? So I don't know that we need a 500-page code of ethics that hits on every single possible concept. I think in this case, oddly, a Stephen Breyer balancing test might be much better at capturing the spirit of what

we're trying to get at. Because again, I don't think you're changing much in terms of, for instance, the outcome of cases one bit. It's the appearance of propriety at the court. And I think that's what my very one sentence ethics code would get to. I want to sharply restrict access to gifts, as we've talked about before.

And I like your general principle. I would think it would need to be fleshed out more precisely. Yeah, I think the general principle that says if I'm getting something because I'm a Supreme Court justice. That's probably a no. Yeah, that's a no. That's a no. Yeah, don't do that.

And that includes, by the way, Beyonce tickets from Beyonce. Right. No, yeah, don't do that. And that includes, by the way, Beyonce tickets from Beyonce. Right. As in, this isn't all gonna be private jet flights to yachts. Some of it's gonna be stuff that I think most people find relatively innocent. But you wouldn't have gotten those Beyonce tickets

from Beyonce if you hadn't just been confirmed to the Supreme Court, Justice Jackson. So, nope, that's a gift you don't get to accept, even though it's fun and harmless. But what the gift stuff reminds me of is, you know, for many years, we've talked about members of Congress who seem to do really well in the stock market once they're in Congress.

Don't even get, oh, my head's going to explode, David. Going to explode. So while you can't trace like quid pro quo corruption here, like if it was the case that you could prove someone- You mean except for the members of Congress that we've indicted, including one while I was at the Department of Justice for exactly that, but yes?

Yeah, if, I mean, the quid pro quo, we've got that covered by law, but just the stock trading by members of Congress, it smells so bad. And it's one of those things that smells so bad that it smells so bad even when you can't trace it to specific corrupt acts. It just creates this aroma of opportunism. And so I went- Do you know what their argument is, though? Speaking of corrupt

acts, their argument is that insider trading is only when you have, you know, you're inside the company, and you've received information that's like internal to the company. But as members of Congress, we just know how we're going to regulate that company. Therefore, it's not insider trading. When I go sell a bunch of stock, because we know we're going to come down like a hammer on them in a few days.

Whoa! And so these people are grifting, hardcore, making money off their job as congressmen and have, I agree with you, it's hard to prove the quid pro quo-iness of this, but they have this huge incentive to basically affect the stock market in a way that benefits their stock portfolio. Yeah, it's grossness. I mean, there's a whole category of ethics

that just should be deemed under the subheading grossness. This is grossness. And that's what the GIFs communicate to me. Not necessarily that a person is changing their rulings here, but that what we're seeing is someone fully enjoying the perks of the job in a way that is potentially corrupting and certainly, certainly casts doubt on sort of, it certainly is something that creates public doubt. And there's just no need for it. There's just no need for it. I agree with everything you just said

about the Supreme Court ethics code, but I think the congressional stock trading thing is a difference in kind when it comes to corruption and that anyone who says that they're hot to trot on the Supreme Court ethics code and has no real thoughts and hasn't been hot to trot for years on members of Congress trading individual stocks.

And by the way, Supreme Court justices can also trade individual stocks, which I think is egregious as well. Yeah. Then like, frankly, I don't believe you about the Supreme Court ethics code. I think you just don't like the decisions of these justices and have gotten, you know, caught up in partisan brain. Like this is the problem, right? There's a good reason to have a Supreme Court ethics code.

And a lot of people are caught up in partisan brain who want a Supreme Court ethics code. Right, right, absolutely. It's important, I think, to separate those two. And we even talk about how for the first time in American history, there is now a member of the Senate, the former chairman of the Senate Foreign Relations Committee, convicted of what amounts to treason.

Incredible. Actual treason. Incredible. And it's like the seventh news story in the day, including on this podcast. And Republicans aren't even really doing anything. They're not, no one, I haven't seen a single Republican senator calling him to resign. Last I checked, I think 36 Democratic senators have called on him to resign. It's weird because it flips the partisan valence Republicans my understanding behind the scenes Republicans believe that whoever replaced them will be worse quote unquote politically

So they're not they don't really care whether Menendez is there Which is really gross because I don't care how woke the next guy is. Will he be selling out America to Egypt? Not a particular ally of ours, by the way. This isn't like the UK, not that that would make it okay, because you know how I feel about the British and that I still am very keen on that whole two wars that we fought against them for our independence. But like, this is Egypt. I don't understand why an expulsion vote wasn't held immediately. And if Republicans wanted to vote to keep him in the Senate after a criminal prosecution, then run against them on that basis.

But the hold the vote, expel him. Good grief. I mean, what are we doing here? The allegations. And of course, I think the thing that makes it more upsetting to me, more egregious to me is like there were two previous sets of charges that were for different facts. One dismissed, one a mistrial. So like there were shots over the bow, stop taking money for official acts. And then he was like, hold my beer. I'm going to do it for a foreign government.

I mean, this guy is the most anti-American, truly probably one of the most treasonous people we have ever had in elected office. And in high elected office, and as chairman of the Senate Foreign Relations Committee, if this were 2004, the entire election would turn around this conviction because it would be seen as such a breach of national security that this guy got to the highest ranks

of the American government as, you know, what amounts to worse than a spy, because he was giving government secrets and he was doing it for money, but also more than that, official acts. Yeah, no, it's bad. I don't know, David, I'm really upset about it.

And just on the term limits, we've talked about all this when the Supreme Court Commission was discussing it. My short version on why I'm against term limits is that I believe if you know with certainty that every president will get to Supreme Court nominations, they will eventually, I don't mean this will happen the first cycle, eventually they will have public pressure to say who they're gonna nominate to the court and then from there eventually those two people will basically become part of the

ticket. So you'll have a president, a vice president, and the two Supreme Court justices who that person will appoint. And that will make the appearance of the court, I think, so much more partisan. And who those people are, suddenly sort of like how we stopped picking presidents because they're good at being president, but good at running for president. I fear we will stop picking Supreme Court justices

who will be good justices and instead who will be good on the campaign trail. And maybe this seems like a parade of horribles, but again, I did do campaigns for 20 years and I think I've got a pretty good idea of what the incentives are behind the scenes on this stuff. No, I hear you, I hear you. I think though that the difficulty that we have is,

in many ways, I think a lot of the campaigning elements that you've talked about, which I really agree are problematic, are already present in post-Philibuster. But not from the justices. Oh, I see your point. Yes. Yes. It's on the way. I'll give you that. We're riding down the road. Yeah. We haven't like made it up the hill yet. Exactly. Or down the hill. All right. Well, look, was this the shortest podcast that we've ever recorded? Absolutely, it was not. We did not do that at all, but it's not the longest.

It's true. That's true. It is on the longer side of normal. Damn it. Are you watching Presumed Innocent with Jake Gyllenhaal, the remake of the Harrison Ford 90s movie? Yes. Have you seen the Harrison Ford 90s movie. Have you seen the Harrison Ford movie?

Yes, and I've read the book. Oh, you're a triple threat. Yeah, I'm a triple threat, but we can't talk about it until it's over. I agree, but here's my question to you sitting here right now. Because they have diverged plot-wise from several points, do you think that they will be sticking with the main parts of the plot? I think so, but they've diverged enough that I'm wondering. I know, it kind of makes it fun. Yeah, and the protagonist, I don't remember the protagonist

being as big of a jerk as... Which I also like. Yeah, yeah. Yeah, Jake Gyllenhaal's a real P.O.S. He really is. I mean, he's leaning into that. And we're getting, okay, we need to stop. Adam is just slacked to his all caps. No spoilers. So we need to stop. Okay, no spoilers, but we will definitely be talking

about this show after. Scott Turow is one of sort of the quintessential legal fiction writers right up there with John Grisham. So I'm just super pumped they've done this. I think they're doing an excellent job so far and I think their plot divergences have only made it more interesting. And the thing that I will be looking forward to talking to you about David about those plot divergences... is what it says about our current cultural zeitgeist, that those plot divergences were made and were...

interesting to us as viewers. For example, that the main character is not a nice guy. We've seen that over and over again in our pop culture, right? Batman, we now have Dark Batman, Breaking Bad, and the Sopranos and all of that. So there's like this zeitgeist moment where he's not even an anti-hero here. He's just anti.

So- Kind of a villain. Okay. Yeah, kind of a villain. More to come, what we're on, well, I think episode seven is gonna air tonight, Wednesday night. And then, yeah, so like another month is gonna air tonight, Wednesday night. And then, yeah, so like another month

and we'll be talking about it. Yes. Oh, is it a month? Well, I assumed it was gonna be 10. You think it's only eight? Oh, I don't know. I don't know. We'll see.

No, okay. We'll find out. Bye y'all!