Advisory Opinions - Maskgate at the Supreme Court

Episode Date: January 20, 2022

On today’s podcast, David and Sarah break down "Maskgate," the claim that Justice Neil Gorsuch refused to show basic courtesy to Justice Sonia Sotomayor by refusing to wear a mask and find the claims wanting. They ask, "When a report seems to fall apart, what should a reporter do?" They also talk about how Sarah is setting Supreme Court precedents, wonder if a Satanist flag will soon fly over Boston, and discuss for just a few seconds Ted Cruz's very, very boring case at the Supreme Court. They close, however, with a dash of English cultural history that you won't want to miss.   Show Notes: -Nina Totenberg’s mask story at NPR -Statement from Justices Sotomayor and Gorsuch -Statement from Chief Justice Roberts -Trump v. Thompson -Advisory Opinions: “January 6 and Executive Privilege” -Shurtleff v. Boston oral argument transcript -Federal Election Commission v. Ted Cruz for Senate oral argument transcript Learn more about your ad choices. Visit megaphone.fm/adchoices

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The roller, lightly cradled in his hands, applying just the right amount of paint. It's like hearing poetry in motion. Benjamin Moore, see the love. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And my goodness, have we got a podcast for you. We're going to start with what we're just calling mask gate around these parts, which is

the NPR report of dissension on the court regarding masks and tension on the court that then got some really interesting and rare rebuttals from none other than three of the nine justices on the Supreme Court, including the relevant justices mentioned in the story and the chief justice. Well, he was also mentioned in the story. So I've got questions for Sarah about that. Then we have a Trump privilege, executive privilege decision from the Supreme Court that, is it fair to say, basically cites you, Sarah? Oh, I think it was written to me, but then it was published publicly.

Yes, basically cites you. Then we have two oral arguments, interesting oral arguments to discuss. One, to me, is more interesting than the other. We might get to some other stuff that I'm not going to actually tease yet because we might not get to it. But then we are going to have the definitive answer about those 17th and 18th and early 19th century schedules, sleep schedules, including and party schedules in old merry old England

that Sarah was asking about before. And the answer to that is fascinating. Absolutely fascinating. Definitively delivered by a knowledgeable listener. So we've got a lot. Okay. We're starting with Maskgate. And I'm just going to open by reading the first couple of paragraphs, or the relevant paragraphs, and then what happened next. And then, Sarah, I have questions for you. Okay, so this is a story by Nina Totenberg, and it begins like this. It was pretty jarring earlier this month when the justices of the Supreme Court took the bench for the first time since the Omicron surge over the

holidays. All were now wearing masks. All that is except for Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone set up in her chambers. Sotomayor has diabetes, a condition that puts her at high risk for serious illness or even death from COVID-19. She has been the only justice to wear a mask on the bench since last fall, when amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic. Now, though, the situation had changed with the Omicron surge, and according to court sources,

Sotomayor did not feel safe in close proximity to people who are unmasked. Chief Justice John Roberts, understanding that, in some form, asked the other justices to mask up. They all did, except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the Justice's weekly conference in person, joining instead by telephone. Okay, that report comes out, and there is an avalanche

of condemnation for Justice Gorsuch, an avalanche of condemnation. The story is picked up. It's carried everywhere. Justice Gorsuch, who has famously made arguments for civility and decency in public life, the narrative is set. Gorsuch refuses to mask. That makes his vulnerable colleague uncomfortable. His vulnerable colleague doesn't attend oral arguments. doesn't attend oral arguments. And then all of a sudden, three of the nine justices come out and release statements, Justices Sotomayor and Gorsuch about masking, quote, reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends. disagree about the law. We are warm colleagues and friends. Justice Roberts issued a statement as well, denying that he'd asked everyone to wear masks. And then NPR comes out and says,

we stand by the story. Okay. Sarah, so many questions for you. And I want you to put on your hat here of being the Department of Justice spokesperson. All right. Yeah. So, and all of your many years in dealing with media who are relying on leaks to report on internal dynamics. All right. Yes. So here is my first question. My first question is, why would NPR, and I have an idea about this, but why would NPR stand by its story after Gorsuch has denied it, Sotomayor has denied it, and Roberts has denied it. So that's a very insightful question. I had this exact conversation last night with someone. NPR stands by the story, I believe, when their original source was a justice. And let me explain a little bit of why I'm saying that.

Okay. And just go into some background maybe on all of this, because it's both a court story, a media story, a political story. It's a lot of things. Nina Totenberg is probably the most well-known Supreme Court reporter currently, but maybe of all time. She's the duen of the Supreme Court press corps, certainly. She is not, however, well-liked by the justices, frankly, from justices that I've heard about, let's put it that way. So much so that at least for one

justice's investiture, where they do sort of a thing with the Supreme Court press corps, and there's like toasts and stuff, when Totenberg came up to toast, that justice sort of dissed her, let's just say, and like left the room. And it was awkward. So first of all, we've talked about who all works at the court. There's the justices, there's the clerks, and there's a whole bunch of staff. The staff, however, is not doing day-to-day fun-time gossip with the justices. That's really their clerks, and they have a permanent secretarial person. The idea that Nina Totenberg would be able to develop a relationship with a clerk who's only there for one year, get a leak like this, and trust it so much to stand by it seems to me

unlikely. In my experience doing things, when there is a direct contradiction on the record from all the parties involved, the reporter in question has a very, very senior source. In the White House context, I have seen this happen, where the source was the president of the United States, and that's why we're standing by it. In the DOJ context, I've seen similar versions, let's say. So putting all that together, I also will tell you that I don't think the three justices

come out like they're not being cute with their statements. A whole lot of people on Twitter like so let's do the order of operations here. NPR story comes out full condemnation of Gorsuch for just being unkind, right? Even if you think she's bonkers town and masks do nothing and she's wrong in the science, you know, she's wearing a cloth mask. What the what? Not that she was, I'm not saying that. It's just unkind to then not wear a mask, even if you think it's like unicorns and tooth fairies. And so why like, other than just to thumb your nose at her, but that narrative never made sense because Gorsuch and Sotomayor have a very good off the bench relationship from everything I've heard. They actually are. They're not saying they're friends. Like they actually are friends

off the bench. And so this idea that he would be that unkind and be that unkind to her, that's weird. Okay. So then you have Sotomayor and Gorsuch jointly release the statement that she never asked him to do that. And immediately, people from across Twitter say, aha, but that's not what Totenberg's story says. She never said that Sotomayor asked Gorsuch to wear the mask. Roberts did. These people are being too cute. They're lawyers. They should know better. I would just say for a second, by the way, that in my experience with lawyers, they are so unaccustomed to doing press statements, to having their press statements picked apart, that they weirdly take off their lawyer hat and put on their how I talk to normal people

hat. Yes. And then they're tagged with not writing their statements like lawyers. It's a very weird dynamic that I have experienced. So then, what, two hours later, David? Then the chief puts out his statement, making all those people look real dumb, I think. And the chief is like, no, I didn't ask any justice to wear a mask. And they're like, aha, but that's not what Totenberg's story says. It says in some form. I don't, what? In some form, ask the other justices to mask up. So then you had all these people on Twitter coming up with what that could mean. Like maybe he just sent out a thing that said, keep in mind health. Like, no, I'm sorry. That's and, and look, if Totenberg story had just listed those facts, I actually could understand them standing by it. And even then parsing these statements, but let me read the headline. Gorsuch didn't mask despite Sotomayor's worries, Gorsuch didn't mask despite Sotomayor's worries, leading her to telework. And that is the thing that I think the three statements most disprove, that it was causal.

I do wish that Sotomayor's statement had said, regardless of all of my colleagues masking, which I so appreciate for their own health and safety, due to my own personal concerns, I did not think a mask was sufficient. And I was always going to do the argument from my office, four hours sitting next to a bunch of people, even masked that day would have been a risk, right? Masks are really for relatively short interactions, you know, 30 minutes, an hour, four hours in a room. That's a long time, even with a mask. And I can totally understand her concerns. I think they're reasonable. Um, but Totenberg story is causal. And, and also, uh, the next part that you didn't read one, her point is that there was causality Gorsuch didn't wear a mask and that's why Sotomayor wasn't there. And two,

this proves Gorsuch is a prickly justice in her words, not exactly beloved even by his conservative soulmates on the court. Yeah, well, two justices put out very, very rare statements, we should say, like this does not happen, that Supreme Court justices put out statements against a random news story. And so for them to do that, to defend Justice Gorsuch, kind of proves the opposite, doesn't it? And so both parts of her story pretty much disproved by the statements, even again, if the single fact of that sentence that the chief justice in some form asked other justices to mask up. I'm not even interested in really the truth of that sentence anymore because it wasn't the point of the story. Last note on this, to have three justices put out such rare statements rebuking Totenberg tells you what they think of Totenberg, it also, again, in my media experience,

tells you that the story is wrong to them. Right. You know, what really jumped in... And wrong in all of its form, in all of its... Like, there is nothing truthful in this story, or I don't think they would have put out the statement. Certainly not all three of them. Well, and what stood out to me,

and we've said it several times already, is this, in some form, ask the other justices to mask up. I don't even really know what that means. You either ask justices to wear a mask. Does this mean he asked them to wear a mask, but I don't know if he did it in person or via email? He asked them to wear a mask, but I don't know if he did it in person or via email. That's initially what I read it as, in some form, meaning I don't know the manner in which he asked, not the words in which he used. Yeah. Yeah, exactly. Exactly. So that was right from the get-go, it was an odd phrasing. But I want to circle back to your explanation because here's what I wonder happens inside NPR.

Hi, Nina. This is your editor. Sotomayor and Gorsuch and Chief Justice Roberts have put out statements undermining your story, Chief Justice Roberts most directly stating that he didn't ask anyone. What do you have to say about that? And does she then respond, well, Mr. Editor, does she say my source was, or does she say my source was as highly placed as these individuals? What does she say that makes an editor, makes an institution then back her up? Because I've seen some speculation that says, well, her sources were probably Sotomayor's clerks. Or her sources were clerks who were standing by the story and saying that Sotomayor was trying damage control. I think that's unlikely.

And I think, again, just in experience on this, the most likely is that Totenberg did not reveal her sources to her editors in the initial publication of the story. They asked her who her source was. She declined to tell them in a very form and fashion that they would be very used to with their top reporters. Also bear in mind the editor, again, I don't know this, but the editor is probably not nearly as senior in terms of reputation and everything else as Totenberg. When the story is then challenged, I would not be surprised if at that point, someone even maybe above her editor asked her to please disclose the source so that they could weigh the story now. And my guess is that Totenberg probably would,

again, with the understanding that only one person, one other person at NPR knows who the source is, and that that person then also makes the decision that we're going to stand by that story. You know, but David, look, going into this, there's two possibilities, even with the facts as she had them from her source. A, Sotomayor didn't come to the argument because Gorsuch refused to wear a mask after the request.

Or B, Sotomayor informed Gorsuch or everyone that she wasn't going to attend the argument in person, which we did know about in advance, by the way. And he took off his mask because he knew she wasn't going to attend the argument in person, which we did know about in advance, by the way. And he took off his mask because he knew she wasn't going to be there. Both of those would fit the facts as we actually know them. Again, this is my husband's argument. So I knew who was going to be in the courtroom that day, who had tested positive. They had said that Sotomayor would not be there in person at least 30 minutes in advance of when the microphones turn on. And Gorsuch comes out without a mask. Okay, those are the facts as we know them. Two very different interpretation of events and Totenberg runs with the one and dismisses the possibility of the other. Yeah, that was, it was the causal aspect of this. Which could have run either way.

Right. Which was very glaring and the story, it runs one way. And then in spite of this in some manner, when the chief puts out the statement, flat out disagreeing with the idea that he asked the justices. And I think, you know, if you have, now here's the question. All right, Sarah, your source, your Nina Totenberg, this has all occurred. Put on your Nina Totenberg hat for a minute. And I'm just making this up. So Justice Breyer, I know you're listening. I know you're not the source, but I'm just making this up. I know you're not the source, but I'm just making this up. Your source is Justice Breyer.

Okay. What do you do? What should you do in this circumstance if you're Nina Totenberg? I have been in a very similar situation to this where, as far as I know, to the best of my knowledge, the reporter's source, it's even worse, David, in my version, the reporter's source was a senior DOJ official and that senior DOJ official came out and denied it. Yes.

And they stood by the story. Mm-hmm. Now, look, it's a little less glaring than that for anyone who wants sort of the details. Basically, the senior DOJ official deputized someone to call that reporter. And so they had it from that person, but not directly from that person. And it allowed some wiggle room to then go out and deny it, etc. I just want to be clear. I do not have this dead to rights. It is my surmising. Yeah. Yeah.

Well, I think it's very important that you just, just before you go into what Totenberg should do, I think that is very important that you said that because I have seen this kind of media criticism happen again and again and again, which is unnamed sources have said X is true about John Smith. John Smith comes out and has denied it. Therefore, the original report is debunked. And I'm sorry, that's not debunking. That's denying, that's denying, that is not debunking. This is why anonymous sources are dangerous for everyone involved. And I have a whole rant on this, but they're dangerous for reporters.

Reporters should be far less willing to use anonymous sources. But second, and by the way, you will note that her story does say sources, plural, which means she does have more than one. I'm not saying she has multiple justices. I doubt that very much. Two, though, when you look at stories and what more people think is true, people think is true. Proversely, anonymous sources based stories are seen as more accurate. And let me give you an example. You know, Donald Trump eats his own boogers, according to anonymous sources. It is accepted as fact.

Donald Trump eats his own boogers, according to Miles Taylor, the anonymous guy. Well, everyone's like, oh, well, he has a total ax to grind with Trump. He hates Trump. Therefore, it's almost certainly not true. It's the same source. It's the same story. When you hide who the source is and people can't judge for themselves what that source's motivation is, credibility is, or anything else, the source, again, so perversely, has more credibility. And it drives me crazy because it's then in everyone's incentive. It's in the reporter's incentive to use anonymous sources. It's in the source's incentive to stay anonymous and say that they're not authorized to speak. And it's something that the media, I know, has been grappling with, individual reporters who I talk to all the time about this, but there's no good solution. It's a collective action problem

in a lot of ways. And it's an audience problem, I will tell you. Yeah. Okay. So can I tell you how I would respond if I'm David Totenberg on this? And my source is a justice. Well, one thing you do is you update your story. You say, since publication of this story, the following things have occurred, including that my source, using whatever is the sort of magic agreed upon language, stands by their assertion. Yes.

Yes. And it helps everyone then. Here's what the three justices have said. But I reached out to my source. My source stands by it. They still cannot reveal who they are for fear of reprisal, you know, whatever. Here's why I've decided to keep my source anonymous. Like pull the curtain back a little now, because frankly, at this point, I think this absolutely hurts Totenberg. I think it hurts her credibility

with the public at large. It hurts her credibility with me because exactly what you just said, David, he simply, I stand by my story. Your story needs updating at a minimum now. The story has changed. Yeah. And the version I'm looking at online is not updated. Nope. I refreshed mine. Yep. I just refreshed it. I've refreshed it four times because I was going to make the updated point. And I didn't want to in the middle of this podcast, the update to pop up. But yeah, it seems to me you update it and then if your source is that credible a a supreme court justice fine say your source stands by it but

now what's your position on if a if an anonymous source lies uh what's your position on whether it's ethical to burn the source? I think you'd have to know dead to rights they're lying. Statements from other justices would not be nearly sufficient, even if it's a clerk or a secretary or something. It could be a misunderstanding. Maybe they overheard something incorrectly and they really, really believe what they're saying. You only burn a source when they knowingly lie to you at the time that they told you the lie. Maybe you're sitting there,

you're looking at an email that says, yes. And then they say, I emailed Sarah and said no. That's right. DQ presents how to officially start your summer. Step one, head to the perfect spot to kick off the season. DQ presents How to Officially Start Your Summer Step 1. Head to the perfect spot to kick off the season. DQ! Step 2. Try the new Summer Blizzard menu. I mean, summer is right there in the name. And Step 3. Dig into flavors like new peanut butter cookie dough party,

new picnic peach cobbler, and more. Because with treats like these, every bite feels like you're starting summer off right. But don't wait. These flavors are only around as long as summer is. Make the season official with the new Summer Blizzard menu. Only at DQ. Happy tastes good. All right, we got Supreme Court stuff to cover. Yes, we do.

We do. Okay, let's move on. And let's say, Sarah, do you just want the honors of taking your lap? I really do. Your victory lap on the executive privilege case? Because it's a really simple ruling with an Easter egg for you. Yeah, so October 11th, 2021,

you and I discussed at some length January 6th and executive privilege and the assertion by former President Trump and Steve Bannon about their assertions of executive privilege to the January 6th committee and related to the head of the National Archives, who was in control of the former president's documents from when he was president. And I just want to read you what I said. All right. So to summarize, and perhaps we differ on these, I think that a former president does have some amount of executive privilege, but on that seesaw, it starts to wane over time. You still want them

getting candidate advice while they're in office. So the day they leave office, you don't get to then subpoena all their aides and all their documents and say, see, no executive privilege. It's January 22nd. But on the balancing test, it wanes over time, I would say. This concluded a long conversation we had about the different questions one would have to ask in a case like this and i will say that by and large the sort of publicness of this conversation was that i was insane i was very very wrong former presidents have no executive privilege the privilege rests only with the current president And the idea of a privilege waning over time, you know, wasn't even like dealt with. David, I would like to fast forward you to yesterday.

Yes, please, Sarah. to an order on application for stay of mandate and injunction pending review in the case of Donald J. Trump, former president of the United States, versus Benny Thompson in his official capacity as chairman of the United States House Select Committee to investigate the January 6th attack on the United States Capitol. The question whether and in what circumstances a former president may obtain court order preventing disclosure of privileged records from his tenure in office in the face of a determination by the incumbent president to waive the privilege are unprecedented and raise serious and substantial concerns. these questions because it analyzed and rejected President Trump's privilege claim under any of the tests he advocated, i.e. even if he had been the current president on the balancing test, they said executive privilege would not apply to these documents and testimonial stuff. And therefore, the president, the former president, a staffer, anyone loses in this situation, turn over the stuff.

Okay. So that is simply the statement of the court. Interestingly, we have Justice Thomas, who would grant the application, meaning he would issue the injunction on behalf of former President Trump. No writing from Justice Thomas. And then we have statement of Justice Kavanaugh, respecting denial of application. And before we go further, David, I should just say that while my brain wanders to all of the justices from time to time in terms of who is sort of my spirit justice, if you will, what justices I would most like to, you know, sort of have as my bestie to like kick back and paint some toenails, braid some hair with. My heart, I have to admit, is always with Justice Kavanaugh. Braid some hair with.

You know, like not just maybe our hair, like my little pony hair. You never know. My Little Pony hair. You never know. The vision of Clarence Thomas sitting on the floor there next to you with a My Little Pony. Honestly, if I had an Alabama football game on, I think he'd be cool with it. Maybe. Maybe. So here's Justice Kavanaugh's statement. The Court of Appeals suggested that a former president may not successfully invoke the presidential communication privilege for communications that occurred during his presidency, at least if the current president does not support the privilege. As this court's order makes clear, those portions of the Court of Appeals opinions

were dicta and should not be considered binding precedent going forward. Moreover, I respectfully disagree with the Court of Appeals on this point. In bold, David. I mean, it's not in bold, but it's in bold to me. A former president must be able to successfully invoke the presidential communications privilege for communications that occurred during his presidency, even if the current president does not support the privilege claim. Concluding otherwise would eviscerate the executive privilege for presidential communications. And he goes through why, right? If the point, as we talked about in our podcast, if the point is to allow the president to get the most candid advice, then flipping the switch after inauguration day would not allow him to get candid advice if everyone thinks

that on January 22nd, there's no more privilege. To be clear, to say that a former president can invoke the privilege for presidential communications that occurred during his presidency does not mean that the privilege is absolute or cannot be overcome. Moreover, it could be argued that the strength of a privilege claim should diminish to some extent as the years pass after a former president's term in office, comma, Sarah, C-E-G, the October episode of Advisory Opinions. Some of that may not have been in there. Some of that. Well, all I'm going to say is you are more concise. You are more concise. Even though it was the free flowing form of a podcast, you are more concise.

Yeah, it's, that was a very, very interesting concurrence. And we actually, and we, we talked about that for a while because we had, we had dived into that entire discussion over whose privilege is it? Is it the office of the presidency? Is it the individual president's privilege? And the waning over time is kind of a hybrid position. And one that I don't think anyone has taken except for me and Justice Kavanaugh. Well, does this mean we can officially call Justice Kavanaugh a friend of the pod? I mean, I think people who have been listening for a while know this, but Justice Kavanaugh married husband of the pod and me. And so in our bedroom, maybe creepily, there is a picture of Justice Kavanaugh. I think that pretty much defines friend of the pod, but you don't want to just use any sort of outside relationship to classify friend of the pod. But when you marry, marrying you and Scott, plus basically for all practical purposes, quoting you and opinion.

So henceforth, we have decreed friend of the pod. But on the substance of this, you know, the bottom line here is 8-1, the D.C. Circuit ruling stands. And, you know, the D.C. Circuit, when we went back and when we talked about these assertions of privilege and the DC circuit decision didn't deal with all the possible privilege assertions related to January 6th, one of the things we said is they, you know, this is in theory, there's some issues raised here that are interesting, such as previous, can a previous president raise a privilege? In fact, the balancing test is going to kind of go like, yeah, this is all interesting and everything, but there was an

effort to overturn an election. Right. And like we said in October, when you have an elephant on one side of the seesaw, it doesn't matter whether you have really interesting rabbits on the other side. Exactly. Exactly. And that, so the bottom line is, at least on this round of privilege argument, Trump loses, Trump loses decisively, and information shall be turned over. Yeah. And by the way, what we're expecting in this, I mean, there might be things we're not expecting, the unknown unknowns, if you will. But the things that are known unknowns are the drafts of the video. So the video he puts out in the afternoon telling his supporters to go home, we know that there are at least two previous drafts of that video, and we believe that they are in the National Archives. So expect that to make some waves when

it hits. Oh, man. Now, if they're just sort of he stumbled over his words. That's right. Which I actually I have to tell you, that's what I'm expecting. Yeah. Yeah. I maybe he curses when he stumbles or something and like, ooh, president use potty words but. I've long thought there's, it's just bloopers. Because one of the things that we found with this administration is that if they do their, what they do wrong, they just do wrong out, out in public. And, and so what's interesting in, in a weird way, this is always redounded to their benefit because you're, the way you're used to dealing with scandal is you get a whiff of it and then

you search and then you search and then you search and you find out, aha, there's a blue dress as in, in, you know, 1998 Lewinsky, we've got it. We finally got him.

Trump just walks around in the blue dress. And. Well, and to, well, you know, the there were good people on both sides after Charlottesville. Trump said that privately the day before he came out and said it publicly the next day. So, you know, we haven't heard whatever we've heard, I think, is what we've heard. Right. You know, it's interesting on the, just on this one quickly on a lot of the, I'm doing an analysis right now on some of the new revelations and what they might say about criminality and the effort to overturn the election results. And what's interesting about the behind the scenes stuff that we now know with the pressure that was put on Mike Pence behind the

scenes, well, it was also just right out there in public. It was just right out there in public. What we didn't know is that there was a legal pretext that had been prepared, but all of the pressure on Pence was just right out there in public just as it was in private. But let's move on from that to flag polls, shall we? Wait, I think we should do campaign finance first. Let's eat our vegetables. Then get to dessert. This will be quick. Okay, okay.

I'm just going to hand the ball over to you because frankly, I know, I know it's a First Amendment case and I know I'm supposed to really care about this, but I'm having trouble, Sarah. So tell me. You're not wrong. And that's why it's going to be quick. Okay, good, good, Sarah. So you're not wrong. And that's why it's quick. Okay, good, good, good. But it's like interesting and why it's not interesting, if that makes any sense. So

there is a rule in the 2002 BICRA, the Bipartisan Campaign Finance Reform Act. And it says that if you loan your campaign money, you can repay it with pre-election dollars. However, after the election, you can only repay up to $250,000 with money that you brought in after your election. money that you brought in after your election. Okay, that's not that interesting in a lot of ways. But Ted Cruz then decides to loan his campaign $260,000. After the election, he pays himself back $250,000 and has $10,000, therefore, that he cannot be paid back under the law. And he sues arguing that this is unconstitutional. First of all, there was a standing issue, meaning can he even go into court when he set up this case? And he totally admits he set up the case. Yep. He gave $260,000. He waited until after the campaign was over to repay himself.

It was all very intentional. And the government is arguing, well, you can't just like set up your own constitutional challenge. You don't have standing because you didn't have a real injury. It was totally avoidable. You injured yourself, as the government's lawyers pointed out. If you go to McDonald's believing that their coffee is hot, get their hot coffee and then pour it on yourself, you don't have standing, which interestingly is not actually true. You have standing. You just have contributory negligence.

Yes. But whatever. That's raised in the argument as well. But David, we have a rule in this podcast. And the rule is, if the justices start asking you about Plessy, you're in really bad shape. You're losing. So if you'll remember, Plessy v. Ferguson, that's the rail car case,

separate but equal. And in that case, a black man goes into the whites only rail car, sits down and is arrested and fined. He obviously knew he was going into the whites only car. It was a setup case. And so the justices are like, oh, did Plessy not have standing to bring that? And they're like, no, no, that's totally different. Totally different totally different and look he had some arguments about why it was different they were really unconvincing he keeps getting pushed on Plessy that's the end of the standing argument as far as I'm concerned but David that's the part of

this case you should care about because they're set up cases on constitutional law all the time and where that line is on like how much it was intentionally set up like Plessy. Um, that's maybe on the less intentional side in the sense that it's very intentional, but also the thing that you would do, whether it was intentional or not is the same all the way over to Ted Cruz sort of doing this thing to injure himself so that he would have the ability to come in. Like, I don't know how you possibly draw a line around any of that. Therefore, there's not one. Okay. So now the substance in itself, for those wondering why this, this loan rule exists, it's the appearance of quid pro quo corruption, like campaign finance limits in general. So you can only give $2,900 right now to a federal candidate.

The argument over the loan is that if you loaned your campaign money and the election has already passed, you now have to believe that you're not getting any of that money back. So if all of these people donate money after you've been elected, knowing by the way that you've won,

they know that they are giving basically you money directly, not your campaign. And so it is different than a campaign contribution used for campaign purposes during the election to buy ads, put out yard signs, whatever. Money donated after the campaign, when you have an outstanding loan to repay yourself is basically money going directly through this third party campaign apparatus into the candidate's pocket. The problem is, of course, why the $250,000 limit? Like what candidates can't be bought for less than that, but $260,000, they can be bought. And of course, you can't just write a check for $250,000. You're still bound by the $2,900 limits. And so it's like prophylactic on top of prophylactic. The $2,900 is supposed to the election. But that 87th person, nope, now the whole thing's corrupted. Look, I actually think that that's, you know, I don't think it's totally

bonkers on the loan point. I do think a loan is different, a repayment after the fact. But, you know, Ted Cruz's campaign ended up with $2.7 million worth of debt. campaign ended up with $2.7 million worth of debt. Less than 10%, obviously, was the candidate's debt. If you think of it, interestingly, as creditors and debtors, and the candidate is simply one of the creditors, then the contributors are simply paying off all of the creditors. Then it got into expenditure versus contribution. I mean, there was some interesting stuff here if you care about campaign finance law, but here's the bottom line, David. Even if Ted Cruz wins, all that will happen is that you can repay your loan no matter how big it is with money raised after the election, which is going to affect exactly no one's life except

incumbents, sorry, challengers. Because all of 2002 BICRA, as far as I'm concerned, is a giant incumbent protection program that was put under the guise of getting money out of politics. That was never the point. It was never the intention, which is why it hasn't worked. It was always meant to, it was written by the people already in office to protect the people already in office. If you are an incumbent, you have no problem raising pre-election dollars. If you are a challenger, you have a much bigger problem. You're much more likely to loan your campaign money. And then after you win, you can raise money to pay yourself back. And so it could, in theory, make it easier for incumbents. You know, let's assume you're not super wealthy, but you really believe that this election is

important and that you have a shot at winning. And so you put a second mortgage on your house and you throw in $500,000 right before the election to get those ads up. You wouldn't do that if you knew you couldn't get any of the money back if you won. That's the argument. Right, right. Yeah. I do think that the idea that, okay, now I'm giving money to somebody who's already won. I know the money's going straight into their pocket. They're going to be particularly grateful. That is not a silly idea. It's not a silly idea. What's a little random is we can make it $250,000 richer, which is real money, by the way. $250,000 is real money, but not $255,000 richer. It feels a little arbitrary, but it seems to me, using our nearly impeccable advisory opinions, predictive capacities. I'm feeling good about Ted Cruz's chances in this one. For sure. There's also some interesting stuff where

the Supreme Court, if you're wondering why they took this case to begin with, they had to. It was non-discretionary because of the way that the law is written. It went first to a three-judge panel and then to the Supreme Court. So I do think the judges were also a little bit checked out on this. There was a very similar case called McCutcheon back from my RNC days. That was about how much basically you can give all these money to the different campaign committees, but then there was an overall limit on how much you could give total to all campaign committees or candidates. So like you could only donate to, you know, the $2,900, I forget, you know, to 30 candidates, but not the 31st candidate. And their point there was, but you already have a $2,900 limit. So the prophylactic on top of the prophylactic doesn't make sense.

Set aside that this is very different in some respects. It's still a prophylactic on top of a prophylactic. You don't wear two condoms and Ted Cruz wins this case. Okay, that will not be the title of this podcast. Although it could be the most clickbaity title

we've ever had. You don't wear two condoms and Ted Cruz wins. Just facts. All right. Now, the next case is more, it is not super consequential, but it is nonetheless interesting. This case is called Harold Shurtleff and Camp Constitution versus City of Boston. And this is a really simple case factually. I'll just read a paragraph from the original cert petition here. It says the City of Boston designated its City Hall flag polls as one of several quote public forums for quote all applicants and encourages private groups to hold flag raising events at and on the flag polls to foster diversity and build and

strengthen connections amongst boston's many communities so put that in plain english they have a flag poll one of the flag polls different groups can apply to fly their flag, you know, for fun, for awareness, whatever, over the city of Boston. So it's over the course of 12 years, the city approved 284 such flag raisings by private organizations with zero denials, allowing them to temporarily raise their flags on the city hall flagpoles for the limited duration of their events. But when petitioners Christian civic organization Camp Constitution applied to raise its flag during a flag raising event to celebrate the civic contributions of Boston's Christian community, the city denied the request expressly because Camp Constitution's proposed flag was called Christian on the application form. But other than a common Latin cross on the flag itself, there's nothing to identify the flag

as a Christian flag. So essentially, pretty simple setup. You have a flagpole, 280 people plus groups have used the flagpole to fly their flag. You apply to fly the flag. You see the word Christian on there. Boston doesn't want a quote Christian flag flying from the city flagpole. They deny, goes to the Supreme Court and predictable oral argument hijinks ensue, which is this, essentially, Sarah, once the city opens up the flagpole for different groups, what they essentially then do is rely on the goodwill of the groups that are applying to fly the flag to make sure that trollishness does not occur. Now, this was not a troll request, though.

This was a request by a Christian organization. It's interesting that a Christian organization would be called Camp Constitution, which makes me think of some Christian nationalism maybe kind of issues there, but whatever, doesn't matter constitutionally. And they want to fly a flag with a Christian cross on it from the flagpole. Citi says no. So why I say predictable hijinks ensue is then you begin to have the predictable questions that are raised. Well, what about, say, a Nazi flag or a flag that says discrimination now or something that is absolutely not at all what a message the city wants to

convey? And, you know, the general response to this is when you've opened up a forum, general response to this is when you've opened up a forum, too bad, so sad. You know, there's been some stories running around about after school Satanist groups that have sort of tried to pop up at a school here and there. And people are saying, whoa, what, a Satanist group? Well, once you've opened up the public forum, you know, you have a Christian group, you might have a Muslim group, you might have a Jewish student group, you might have a Republican group, a Democratic group, and then there's going to be some fringe groups that want to get in on that action as well. All of these cases are a little bit interesting to me, but it's kind of chapter 787 of the same kind of argument, which is often when the state says we want an awful lot of people to use this facility, but not those guys, but not those guys. And the question is, are there limits you can draw? And if so, what are those limits?

Sarah, what did you think about the exchanges? Yeah, so I have lots on this. Let's go into the law a little bit here. So different forums, right? Let's start at the very top of the forums. Okay, government speech, pure government speech. When the mayor takes the podium at City Hall, he doesn't have to read the speech that you hand him or anyone else. He gets to read his own government speech.

Okay. A non-public forum. And I'm going to read now from a chief justice opinion back in 2018 called Mansky for some of these, where he runs through the different forums. Mansky was actually about a Minnesota law that said you could not wear anything political in a polling place. They didn't define political except to define it really, really broadly. Like it doesn't have to be about candidates. It could be a group that seems political to others, basically. Like people tried to wear a Tea Party t-shirt in. That was deemed political. They wore buttons that said, ID me, as in check my voter ID or whatever. And that was deemed political. And so that was struck down in 2018, saying, look, you can do some things. But

that was just way too overbroad of what political means. So in that opinion, though, he runs through the different types of forums. So non-public forum. The government may reserve such a forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. Polling place would be a really good example of this. Airport would be one. Okay. Limited public forum. The government may discriminate against classes of speakers or types of speech. However, the government is still prohibited from engaging in viewpoint discrimination. So for instance, a high school that allows only school clubs to use the rooms after school.

That is discriminating on who can use the rooms, but it's not viewpoint discrimination. It's types of speech. Designated public forum. Spaces that have not traditionally been regarded as public forums, but which the government has intentionally opened up for that purpose. So maybe a university classroom that they say is always just open. Like anyone, it's like a soapbox inside. And then there's traditional public forums. This is your parks, streets, sidewalks. The government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on

content must satisfy strict scrutiny. And those based on viewpoint obviously are prohibited. So you can't use a bullhorn at 2 a.m., but yeah, if you want to talk about why the Nazis should take over the United States, go for it. No problem. Okay. So the question for this case is, what is the flagpole? Now, obviously it's not a traditional public forum. This isn't a park. Is it a designated public forum? Probably not. You know, something that isn't usually a traditional public forum, fine, but the government has intentionally opened up. No, because you do have to apply for it. So it's not a designated public forum. A limited public forum. There's an application in a limited public forum process, but it's for types of speech. That's what they said here. Non-public forum, much closer to that, a polling place, an airport lobby, much closer to that, a polling place, an airport lobby, where, again, they can limit the type of speech, but not viewpoint discrimination, or is this pure government speech, which is what Boston is arguing, that this is the mayor, you know, standing and saying what he wants, you know,

the sign on City Hall that says, welcome to Boston. We're the greatest city in America. Like, no, you can't put up your sign that says Boston sucks. Um, look, we had the, the, the lawyer representing the church group and asked the KKK question. I'm just going to call it the KKK question. He says, yep, you have to let the KKK raise their flag. That's a dumb answer. I don't understand why he gave that answer because basically you may still win the case, but then Boston takes down, well, they may not take down the flagpole, but they certainly end the flagpole program. And so you don't get to raise your flag. So again, you may win at the Supreme Court, but you lose for your client in that case because nobody, the city of Boston, is not letting the KKK flag fly.

Sopan Joshi argued for the Solicitor General's office. They got some time in this argument. And David, I'm prepared to declare it right now. Sopan Joshi had the best argument of this term to date. By far, I loved it. I have a little oral advocate crush on so Panjashi who I do not know. And I'm sure that people are going to play this for him. I thought he was brilliant. This kid is kid. This kid's young though. Uh, he clerked on the court in the 2016, 2017 term. That is young. It is young.

Northwestern Law School. Yes, I Google stalked him for sure. I did. I thought he was comfortable and the way he was able to talk about where these lines are for the justices was smart and correct and hard to argue with.

So I want to read you some. So for example, nonprofits, or I think Justice Kavanaugh, you mentioned Al Qaeda. A no terrorist rule seems pretty reasonable to me. So that would probably pass muster, but they can't draw lines based on viewpoint. So if the program is such that, for example, a group could raise a Black Lives Matter flag, they probably would have to be able to raise a Proud Boys flag. I mean, that's just what the First Amendment demands, even in a non-public forum. He says this is the difference between a symposium, where he's explained, you know, the government can pick

the speakers at the symposium, and an open mic night. And, you know, they, at one point they're talking about, well, it's what a reasonable observer would also think the flagpole is. And so a reasonable observer, if you're just walking down the sidewalk would think that a flagpole at city hall is clearly government property, government speech. You know, there's three flagpoles. One has the United States flag and a POW MIA flag. One, I believe has just like the city of Boston, the Commonwealth flag or whatever. And then there's this third one, which I guess is like differently located. It's like maybe on thepole at City Hall and it's government speech. And so we're arguing over what you can presume the reasonable observer knows. And it's like, well, look, is it a reasonable observer who knows about the flag program? Well, that's sort of silly. Nobody knows about the flag program. But there's case law that says that maybe you do assume that of your observer.

And anyway, he's noting the problem, though, if you simply say that as long as the program is so secret that no one knows about it, that then you get to viewpoint discriminate. And he says the First Amendment should not allow a government to evade the strictures of the First Amendment and the prohibition on viewpoint discrimination simply by being innovative in its program or by fooling the public or by having a secret program on the side that only a few people know about. Such a great point on why the reasonable observer line is actually much harder than I think Sotomayor and Kagan were giving it credit for. So Panjashi, you came out of nowhere. I don't know you and you're winning my gold star. Obviously, asterisk on all of this, the husband of the pod doesn't get included in any competition for advocate of beer.

Yeah, no, that's not reasonable. You can't do that. I will note, however, that this case is a follow-on to the Walker case from 2015, which is the Confederate license plate, whether the state of Texas had to allow the sons of the Confederacy to have vanity Confederate license plates that had the battle flag on them. And that was argued by husband of the pod. And he won that case.

Texas does not have to include Confederate license plates. Interestingly, Alito dissented from that and said, yeah, I'm sorry. Those vanity plates have been opened up at this point to all speakers. So you would need to include Confederate license plates, even if we don't like the outcome of that. Change your policy.

Interestingly, Joshi clerked for Justice Alito and Justice Alito. Justice Alito gave him the what for at different points. But I thought he again handled it as well as I have seen any advocate this term. So, Sarah, your prediction on it? Speech wins, right? Like, I think it comes out very similar to the Manske Minnesota polling case in that sense, where it's like, look, you can change your program. You can change the flagpole. You have a lot of options. You know, Breyer pushes all of them several times of why hasn't this case settled?

Why are we here? Kind of annoyed, to be honest. And a lot of the justices seem to echo that. Like, you guys both just seem to want a Supreme Court argument at some point versus actually working out what this is. The record isn't great. It's not clear. There are disagreements over what's actually in the record. At one point, Assistant Solicitor General Joshi says, I'm an appellate lawyer, not a trial lawyer, but I'm pretty sure you can't reopen the record at this point. record at this point. So, you know, I think there could be an opinion on the side of speech, but that remands it potentially for more record finding and things like that. This is coming up on summary judgment. I will say, though, that again, I don't think that the church group

did themselves any favor in their briefing or argument and taking such an extreme position because that's where they were like why hasn't this settled then you know because they're not gonna allow the kkk flag to fly so you actually don't seem to want your flag to fly you just want the whole thing taken down like well y'all can settle that and just end the the flag program or change it to countries only um but like this is stupid you raised the flag program or change it to countries only. But like this is stupid. You raised the flag for the credit union that's across the street, but you're not raising this flag. Come on, guys. They raised the flag for the Montreal Bruins, by the way. But in fairness, again, I thought the city of Boston had a pretty good answer to that. That was actually government speech.

The mayor made a bet with the mayor of Montreal over the hockey game, and whoever lost had to raise the flag of the opposing team's hockey team. So that was pure government speech in that case. Well, you know, the difficulty in the Nazi question, quite frankly, is that if you're going to, once you have this sort of limited, if it is a limited public forum, the answer is yeah. The answer is yeah, that flag goes up. And, you know, so this is what ends up happening in all of these hypotheticals, and this is what ends up happening around the country when

you have these kinds of disputes. And it's actually a tactic sometimes used by extremist groups who want to shut down a forum. So their goal might not necessarily be to form a Satanist club, but they don't like all the Christian clubs around. And they know that if they put together a Satanist club, then a lot of the Christian parents and families will say, what the heck is happening in our town? We can't have this Satanist club. And then all of a sudden, the state, knowing that it can't engage in viewpoint discrimination, has to say, well, we're closing the forum. And that's a way to actually shut down, for instance, the Boy Scouts. If you don't like the Boy Scouts of America, the way to do it is to go to whatever room they're

using and try to use it for the Satan club, because you know they're not going to let the Satan Club in, and the result will be that the Boy Scouts can no longer use the room. It's a weapon. And here, you know, they could say the limited public forum was for country flags only to celebrate the pride of ethnicity or something. They could say it's for, you know, I don't know, cooking wear, and you can only fly flags of spatulas and wooden spoons if you want to. But what you can't do is say it's for civic organizations. You can probably exclude terrorists on that point, as Joshie points out. I have no idea if I'm pronouncing his name right. I'm feeling kind of bad about that. name right. I'm feeling kind of bad about that. But you then can't probably exclude the KKK, as he was mentioning about the Proud Boys. If you let Black Lives Matter in as a civic organization, you let Proud Boys in. But it's up to the city to determine that. They didn't hear, it seems. And I agree with you that the weaponization of these forums so that you can hurt the group that you like, even without helping your group, is, by the way, a little bit in the record here, David,

that the person involved with this saw the Chinese Communist Party flag flying for the People's Republic of China and complained to City Hall about it. After they told him that they wouldn't take down that flag because of this was the forum that it was, that's when he put in the Christian flag. So it feels a little like, I know my flag won't fly, but I'll be damned if the Boy Scouts can use the room. Yeah, well, and look, if you're saying yes to the PRC flag and you're not saying yes to the Christian flag, you got a

problem. You got a problem. Unless you limited the forum to countries only. Which of course they hadn't done. Totally. But I'm saying if they did, you could fly the PRC flag. You'd still have to fly then the Iranian flag. And by the way, what would happen when the Palestinian group wants to fly their flag? I'm not saying that would limit the problem, but you would at least then get to say, ah, see, we don't fly anything but countries' flags. Yeah. So, you know, one of the interesting things about these, and I've seen this, I've seen versions of this only, I don't know, at last count, 817,000 times. at last count, 817,000 times. Because time and time and time again, what happens is a state official will open up a forum of some kind. Sometimes it's a flagpole. Sometimes it's a free speech wall at a university. And then they'll say, wow, this is going to be a great place for

discourse. And maybe 19 days out of 20 or 999 days out of 100, it's pretty anodyne stuff, well within the Overton window. And then here comes somebody that maybe is within the Overton window, but you don't really like them at all. Or maybe they're way outside of it. And they go, whoops, not that, not that. And you know what happens when that's brought to court? You lose. You lose. And then, you know, what's left is then you say, well, we're just going to shut the forum. But that has its own problems because it turns out that a lot of people kind of like the forum and they're willing to tolerate some, you know, craziness every now and then because they like the forum. some craziness every now and then because they like the forum. And so this is just something that comes up again and again. And I'm actually kind of, like you said, I'm kind of surprised it's a Supreme Court case to begin with

that feels kind of in that realm of really, this has been done to death. Yeah, look, I'll be watching very closely where Kagan comes out in this. Kagan, so Sotomayor and Breyer seemed very skeptical of the Christian flag's argument. I'm just going to call that side the Christian flag. Seeming to defer to the city of Boston that it's for civic organizations. It's government speech.

They are choosing which civic organizations to partner with. speech. They are choosing which civic organizations to partner with. The fact that they don't reject any of them just means that it turns out all the civic organizations so far are things that the city agrees with, and that's coincidental. How fortunate. How fortunate. Kagan, though, is the interesting one in all of this because she's in the majority on Manske on that Minnesota polling place case. And on a lot of free speech cases, you see Kagan being very pro free speech, even when there's otherwise, let's call it like liberal judicial philosophy issues that would push on the other side. Um, so watching very closely where she comes out, as I said, I think Christian Flag wins something,

unless the case just gets digged. I don't think it'll get digged after this argument. They were asking questions about the record, but not so skeptically that I think they don't even get to an opinion. But I think the Christian Flag wins something. I'm not sure they win what they think they're going to win. Well, you know, what they might win

is the flagpole being completely that the use of the flagpole being completely transformed is I think either way, the flagpole is getting completely transformed. I'm surprised it hasn't happened. There is a new policy since 2018. But even then, they were mostly trying to codify what they thought their previous policy was. And just declaring something government speech does not make it government speech. No, no, no, no. That is not, you don't get around viewpoint neutrality requirements quite that easily. Not a magic words test.

No, no. All right. So before we go, my goodness, do we have to pay tribute? We have to give credit where credit is due. And I have to say, we get a lot of emails, and by extolling this email, I am not denigrating other emails. I don't know. I kind of am, to be honest. No, no, no, no.

I can say LeBron is the GOAT, and that doesn't mean I don't like John Morant, right? But this was the GOAT email that we've gotten so far, so far. I'm not saying it's the be all end all for all time, but it's the GOAT so far. So Sarah, do you want to walk through your question and the response? In fact, I'm just going to read a good chunk of this response. My main reason for contacting you, however, is in response to your call for an answer about 19th century culture at the end of last week's mailbag episode. When you finished that segment by saying something to the effect of, I bet one of our listeners is

an expert in this area, I thought, oh my goodness, that's me. I'm currently in the midst of a PhD in Victorian literature at Indiana University, and thus an expert in training. Home, by the way, to the field's flagship journal, Victorian Studies. Ooh, learning thing. Oh, why am I not a subscriber? To understand this question. By the way, my question was about how you read these books and the times of day they're referencing and the meals they're referencing with times of day don't make any sense. They're like talking about like two,

three, four in the morning. And then they're having dinner at three and I'm like three in the afternoon, three in the morning. I'm having trouble following some of the plot here because maybe they're using different times. Like maybe, I don't know. You know how we have the 12 hour clock and the 24 hour clock. I don't know. Maybe there's a post night clock. Okay. To understand this, he says, we need to remember that in the 18th and 19th centuries, parliament was just starting to take the form that we know it to have today. It is an obviously an ancient institution, but its current form really solidified in this period. We don't get anything resembling a prime minister until Robert Walpole's term as chancellor of the Exchequer from 1721 to 1742. By the later

part of the 18th century, parliament season opened between late October and early November and lasted until late May, early June. This time was known as the season, which for any Jane Austen, Middlemarch, Sense and Sensibility fans, like yes, the season. Heck, even Bridgerton mentions the season and became the focal point of aristocratic life in England. It was the time when members of the House of Commons and the House of Lords would travel to London from their country homes and not only meet for running the government, but of course, also meet to make business deals, shop for the latest fashion, find artists to patronize, and look for eligible bachelors and bachelorettes for their children. With so much going on, Parliament became notorious for

later and later meetings as members scheduled morning social call, luncheon business meetings, afternoon strolls around fashionable parks. In the 1720s, debates frequently didn't begin until 2 p.m. And by the end of the 18th century, it was more common for debate to begin around 5 p.m. As many of the scions of English society would then be held up in parliament, the timetable for evening social events was pushed back even further. This was a uniquely English phenomenon. A newspaper article and diary entries from late 18th century note that while in Paris, most cafes and operas closed by 11 p.m., it was rare to find a London theater that opened before midnight. See, this is why I'm confused.

I was so confused by all this. Similarly, most balls of the season started between 8 p.m and midnight and lasted till 5 a.m or even later i would imagine that this in turn led to later morning rising which meant that parliament couldn't meet till later in the day and thus a vicious cycle was formed because of the lengths of these balls partygoers tended to need an additional meal so supper was devised as a formal meal midway through the night's festivities and frequently featured as many as 60 dishes for guests. As with most things, what began as a London phenomenon quickly spread to the country, and so country society soon adopted London's late night schedule, though likely with less extravagance. So wondering if how this all came to an end, are you? Well,

he says he's entering purely the realm of speculation here, but I would imagine more middle-class MPs who tended to push against such excesses were less enthusiastic about such extravagant parties. By the 1870s, the lavish parties we think of in Jane Austen novels were really a rarity and only put on by the most aristocratic families. However, the habit does seem to have held on longer in provincial settings, so it makes sense that the culture of Middlemarch, which takes place 1829 to 1832 but published in the 1870s, more closely resembles the culture of the late 18th century than novels which took place in London at the same time, such as Bleak House. So, I mean, could you ask for a more thorough response? So fantastic.

That is so fantastic. And what a vivid picture of a very different life. Yes. Midnight performances of plays, eating at 2, 3 a.m. And a meal, a set meal. Like, oh, it's supper time. Yeah. Stumbling to your carriage at like 5.30 in the morning and then realizing there's no

way I'm meeting anybody before noon, which then restarts the whole cycle. It's crazy. Really, really cool. I love that we have such expert listeners many of you wrote in by the way about the bifurcated sleep that has been hypothesized somewhat documented in medieval times and uh even before then you know first sleep and second sleep uh yes totally aware of that by the way but it wouldn't answer any of this because in these victorian novels of course they're not taking first sleep and second sleep. They're just awake, it seems, and taking meals.

You know, like you'd read in these books, we showed up to the bowl at 10 PM, blah, blah, blah. We did this. He said that. And then supper was served. And I'm like, what? Supper with 60 dishes. What time is it now? Huh? Did we skip a day? So thank you for all the notes about bifurcated sleep, but it really takes someone who is, you know, with the flagship journal, Victorian Studies at Indiana University. Congrats on working towards your PhD. I feel like this should be sufficient, by the way. As your PhD advisors, we say yes. Yes. Yes. Granted. And if you're wondering that diploma, if you're wondering whether I've written back to him several times with other questions I have about, for instance, what an income really means and why there was such income inequality,

it would seem like someone's living on a hundred pounds and this other person has 30,000 pounds. Yes. He answered all of those questions too. Really fantastic. He recommended books to me. So I will get his permission to post some of this in the show notes for those who want a Victorian primer from both the expert, but also such a clear, concise writer. And if you're curious how long he took to write this, I believe it took him less than an hour to write me back on some of these with long discourses on it. Really, this is cool. Yeah, very impressive. So thank you. That was fascinating. I mean, it was like my email of the year so far, for sure. So very much appreciated. And we're going to be back on Monday, and we've already got a full plate. I mean, there's

maybe developments between now and then, but we're going to talk about seditious conspiracy. We're going to talk about the Attorney General of New York's filing and the Trump investigations. We've got a lot already. So come back on Monday. It's already going to be a good pod. But until then, please rate us on Apple Podcasts. Please subscribe on Apple Podcasts, and please check out thedispatch.com.