Advisory Opinions - "Naw Dawg" The Sequel

Episode Date: December 14, 2020

The Supreme Court on Friday declined to hear Texas Attorney General Ken Paxton’s lawsuit contesting the election results in four battleground states, ruling that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” What does the court’s order mean in plain English? Should the justices have said more? Why did Justices Alito and Thomas issue a separate statement? “The bottom line is all nine justices rejected this case,” David explains. “Seven clearly for one reason, two for any number of additional reasons that they didn’t specify.” After breaking down the Texas lawsuit, Sarah and David discuss Trump v. Wisconsin, Bush v. Gore, the counting of the electoral college votes, and what options President Trump might still have to contest the election. They wrap things up by answering some listener mail about the LSAT. Show Notes: -Arizona v. California dissent, Supreme Court’s Friday order on Texas lawsuit, Trump v. Wisconsin, Bush v. Gore, Bush v. Palm Beach County Canvassing Bd, 3 U.S. Code § 15. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started today at Questrade.com. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And election commentary rolls on, Sarah. It rolls on. But I've got to say something just before we dive in. I think the gnaw dog doctrine is a thing.

Like I think it's catching on. Yeah. Although there is a spelling controversy. Well, let's, we should adjudicate that controversy because I think I'm on the side of the dissenters. I think I am too,

which basically just means like Caleb, our producer who actually, this isn't a democracy. He is the sole arbiter of the spelling of the nod dog doctrine. And he spelled it. He spelled it in a W it N-A-W, which is correct. D-O-G,

right? Yeah. No. Instead of D-A-W-G. Exactly. It is not gnaw dog. It's gnaw dog. Right? I think that's probably right.

So let's just roll the bus over Caleb, but then like back up and reverse it over Caleb. Exactly. Well, we got a lot of gnaw dog to talk about today. So we had double gnaw dog from the Supreme Court in the sense that seven justices turned back the Texas Attorney General's lawsuit on one version of gWDawg and two justices turned it back on another version of NAWDawg. Then we had a Wisconsin NAWDawg that is very important that we need to talk about, which is going to lead us into a question about Bush v. Gore. Very good question from a listener. We're going to talk about, after Bush v. Gore, we're going to talk about the counting of the electoral college votes and what options might Trump still have to try to contest this election,

especially on January 6th when Congress convenes to count the electoral college votes. And then what was the last thing? Oh, LSAT advice. Yes. Also from the mailbag. From the mailbag. See, we read our mailbag and Sarah is on it in responding to the mailbag. She is so good about it. I need to be better. I'll do better. I promise. No, but you're good at the comment section. Yeah. I dive into the comments. Yeah. When I can, when I can. We balance each other

out, David. Yeah, that's right. Complementary strengths. But all right, let's start with Nodog part one. We almost did an emergency pod on Saturday morning, almost, to talk about the Supreme Court's very brief decision in the Texas Attorney General's case brought against the states of Wisconsin, Michigan, Pennsylvania, Georgia. I'm going to read the whole thing, Sarah. I'm going to read the whole thing, and then you translate and we'll discuss. So this is for the first time, no, read the whole thing, Sarah. I'm going to read the whole thing, and then you translate, and we'll discuss. So this is for the first time. No, maybe the second time in advisory opinions history I'm going to read an entire Supreme Court ruling. The state of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution.

Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections. All other pending motions are dismissed as moot. Statement of Justice Alito, with whom Justice Thomas joins. In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California. I would therefore grant the motion to file the bill of complaint, but would not grant other relief. And I express no view on any other issue. Sarah, tell the people what that means in plain English. Nah, dog.

So here's what the president of the United that it meant he tweeted this uh i believe last night nope it was early this morning the fact that the supreme court wouldn't find standing in an original jurisdiction matter between multiple states and including the president united states is absurd it is enumerated in the constitution they just chickened out and didn't want to rule on the merits of the case so bad for our country okay there's a bunch of things wrong with that tweet factually which i know will surprise you but um let's start on the, they didn't rule on the merits. So what's interesting about the order statement from Alito and Thomas is that it's so vague. They, okay. So what Alito and Thomas are

saying is that basically they got pinned in by this Arizona v. California dissent from February of this year, where they said that they think that the Constitution's original jurisdiction clause is mandatory because it says shall, not may. Fair enough. It's a pretty good dissent. We can put it in the show notes if you want to read it. It's short. It's fun. Catchy. You'll be singing it at all the cocktail parties. You'll be singing it at all the cocktail parties. So they had to say something because otherwise I think it would have been equally disingenuous. I don't know what the right word there would be.

But if they had just ignored that they had just said that, it would have looked more political. That they were clearly trying to get rid of the president's case, ignoring even their own thoughts on original jurisdiction, even though this is the exact same close enough situation of a state suing a state. So they say they're a little bit. Normally, that would be the end of it in any Supreme Court order. I think that our jurisdiction

is mandatory here, sort of like in Arizona v. California. The rest of that dissent, it's not about the merits of the case. It's about whether original jurisdiction is mandated under the Constitution. Shall, may, some history, some fun stuff. They kind of want some briefing on it, as Thomas does from time to time, where he's like, this poses an interesting question.

I'd be curious if anyone out there wants to do some research on it. And a whole bunch of lawyers jump at the opportunity. What's weird about this one is the sentence that comes after. I would therefore grant the motion to file the bill of complaint, but would not grant other relief. And I express no view on any other issue. So what is your, why aren't you granting other relief? Is it because Texas doesn't have standing because they don't have a cognizable injury? Is it because you don't think that the merits of the fraud argument are worthwhile?

Like, it doesn't say. So in that sense, they did reach the merits. Yeah. And they found that they would not grant other relief but they don't tell us why because a i think that that would have then been a much longer opinion and they wanted this to be uh the most spoon feedable way to say this like so there's no misinterpretation this lawsuit is meritless we would not grant other relief on anything yeah but they're going to express no view on any of the specifics because i think to do so is you know again

these justices are human they understand what's going on in the country no need to leave openings cracks misinterpretation and so that is what that interesting thing is. Now, by the way, people are saying it's a dissent. It's not a dissent. First of all, this isn't an opinion. It's an order. I know that seems like a small distinction, but an order is simply resolving a case.

And the statement of Justice Alito, with whom Justice Thomas joins, says that they would not grant relief. It is not a dissent. Please, people on Twitter, online, TV, otherwise, please stop calling it a dissent. It's just not. Now, and by the way, it doesn't have to be like a full opinion to then have a dissent because in Arizona v. California, that was a dissent. And that was a dissent on the denial to take the case also. So they could have issued a dissent.

They very, very much chose not to. Right. Yeah, this was very interesting because just before this came out, the decision came out, I was on a podcast. And it was a live YouTube slash podcast thing. And one of the viewers asked, what do you think will happen? And what are you concerned might happen? I said, well, what I think will happen is, and what I'm sure will happen is that the Supreme Court will reject Texas's case. What I am concerned about, I'm not concerned that they'll take the case. What I'm concerned about is it'll be done in such a way that it is not a unanimous rejection of Texas's case,

but rather a 7-2 with Alito and Thomas saying, well, we need to hear it. We need to hear it. And leaving it at that. And leaving it at that. And what they did is they just kind of squared the circle in a way that is in a way it's almost even more dismissive of the case than the way the seven justices handle it by just saying, you know, Texas lacks standing. They said, no, we think we should hear this thing. I mean, we think that, you know, that, let me read exactly the words so I'm not messing it up. We don't have the discretion to deny the filing of the bill of complaint, and it still loses, and we don't even need to explain it to you. It was, if possible, more dismissive

in an interesting way to me. It left the Texas AGs team and the 126 members of Congress and Trump and the 17 other AGs with really nothing to hang their hat on, like nothing. And so, you know, the best, sort of the last ditch legal dead enders were saying,

well, the seven who believed Texas didn't have standing, maybe they would have ruled if Texas had standing or if someone fought. And I'm thinking, no, no, no, no. But the bottom line is all nine justices rejected this case. Seven clearly for one reason, two for any number of additional reasons that they didn't specify. But all nine justices rejected you know uh you know that i could you come up with a better best case scenario for either the sort of mood of the country or the institution of the supreme court and its legitimacy is there something else they could have done differently in your view

that would have been better? Than this? Yeah. Like, did you want them to maybe write more? Actually, I liked this. I liked this. I think the reason why I liked this is because, you know, I went back and forth. And again, I was asked about this at the time. And the other thing is I said, I guess I want them to write something rather stinging, but I go back and forth between stinging and dismissive. And I kind of like this because it was just dismissive. It was, you know, I think there are a few better ways to demonstrate how specious an argument is than just by swatting it away, just swatting it away.

And I think that, but I do think that some of the lower court decisions that have dived more into the substantive issues that were brought under proper procedures and with proper standing have been necessary. And we're going to talk about one of those in a minute. But I like the way the court just sort of backhanded this thing away. It was not the merits of this despite the magnitude of it. So the magnitude of it, what Texas was asking for was huge, but the merits were nothing. The magnitude was immense. The merits were nothing. So how do you deal with that? I think you swat it away. I don't know. What do you think, Sarah? saying behind the veil what would have sort of been best to resolve this issue is a 9-0 opinion on the merits that basically mimics some of those opinions that we've seen that says this is meritless. Again, I think this is actually, if you balance those two, this was the right balance to strike. But, you know, if you imagine a nine zero

opinion saying, you know what, we're going to you don't have standing, but we're somehow going to wave that even beyond the Article three problem with that. And nevertheless, you do not state state any cognizable injury here. A 9-0 on that would have prevented some of these tweets and some of the president's lawyers saying that the Supreme Court ducked it so we still haven't been heard on the merits. Now, I understand that nothing, they were going to have something to say no matter what, but a 9-0 on the merits might have forced them into even a tighter corner than they're in now. Maybe that would have been interesting. But I also understand that a 9-0 opinion on the merits would have left those cracks and cubbyholes like, well, well, well, they didn't actually say this one random thing in a footnote that we mentioned. well, they didn't actually say this one random thing in a footnote that we mentioned. Okay, I have another question for you, David. Article 3 of the U.S. Constitution says that in all cases in which a state shall be party,

the Supreme Court shall have original jurisdiction. Do you think that Alito and Thomas are right? Or do you think that the seven are right is original jurisdiction discretionary or mandatory no i i i think the seven are right i think the seven are right i don't think that the statement that the supreme court has original jurisdiction means that there's a waiver of all standing doctrine and a waiver of of other conventional rules of procedure. It just means that this is where I can file. A federal district court judge,

a federal district court might have original jurisdiction over a host of issues, but that doesn't waive all of the other basic requirements of standing. Yeah, but this was on a bill to file. They didn't take the case and then kick it on standing't this was on a bill to file they didn't take the case and then kick it on standing they denied them the bill to file and then they did not need to gave them the reason why they did so which happened to be on standing right right so you're sort of like in between the seven and the two i think uh i don't know. If Justice Roberts, if I'm going around the table and we're going around the

Supreme Court Zoom, I'm with the seven. I'm with the seven. What about you? I think you're dead wrong, per usual. All right. So Article 3, Section 2, says, The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, the treaties made to all cases affecting ambassadors and ministers, some maritime stuff, controversies to which the United States is a party, between two or more states, between a state and citizens of another state, between citizens of different states.

So basically, Article 2, Section 2, first paragraph lays out what we call federal jurisdiction. In fact, you and I, I believe, both took a class called Federal Jurisdiction. It is long, it is detailed in terms of what that first paragraph means. One can fill textbooks and hours. Okay. Paragraph two says, paragraph two, section two, article three. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned in the paragraph I was reading earlier, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. Ruh-roh. I don't know. That seems pretty darn clear to me. And I think Alito and Thomas have kind of pointed this out. Like it's a little hard to wiggle out of

this, except that the Supreme court's docket has gone from, you know, what, when you pass the bar, the Supreme court was deciding 200 cases a year, probably David. And now they're deciding in the neighborhood of like 80 cases a year. So this just seems like they don't, they don't want to do it. So this just seems like they don't want to do it. But fun note, by the way, today some opinions came out. We were expecting opinions. We thought that perhaps the census case that we have discussed, the apportionment case would come out today because it is the last day of the December sitting pre when the census stuff would go into effect. Now they can always issue an opinion later in the month. No big deal. But because of that, thought there was a decent chance that it

would happen today. It did not. Instead, however, we got the opinion in Texas v. New Mexico about the Pecos River master's determination on evaporated water stored at Texas's request under the Pecos River Compact. And guess what the jurisdiction for that was, David? Original jurisdiction. It be original jurisdiction. Yes. When are we going to do our four-part podcast on that case? Anyway, that's all to say, I think Alito and Atamas are making a very good point. I would

like to see more briefing on it, more history on it, but the text, the text looks pretty clear to me. Hmm. All right. I'm with Amy Coney Barrett. You're not. Let's take a moment and thank our sponsor, the Acton Line podcast. Acton Line is the flagship podcast of the Acton Institute for the Study of Religion and Liberty, dedicated to the promotion of a free and virtuous society characterized by individual liberty and sustained by religious principles. With episodes released every Wednesday, Act In Line brings together writers, economists, religious leaders, thinkers, journalists, newsmakers, and more in conversations that bridge the gap between good intentions and sound economics. By demonstrating the compatibility

of faith, liberty, and free markets, conversations on Acton Line reveal how economic freedom is essential to creating an environment in which religious freedom can flourish, but also that the market can function only when people behave morally. Faith and freedom must go hand in hand. To subscribe to Acton Line, visit acton.org slash opinions, or search Acton Line on Apple Podcasts, Google Play, Spotify, Stitcher, or where fine podcasts are available. That's acton.org slash opinions to subscribe. So this is a good segue to what I think is a really important case. My friend Annie McCarthy at National Review, former colleague, highlighted this case in a piece that's going viral.

It went viral over the weekend. I dove into the case this morning. I really wanted to take a close look at it because, and here's, it raises and answers a very important question. Okay. So, if you're somebody who is hearing a lot of stop the steal arguments, you're going to hear a number of different permutations. So one that we're all familiar with, that we have dealt with, that we've talked about a lot over the course of the Advisory Opinions podcast post-election is just the flat-out vote fraud argument, Dominion, hammer and scorecard, dead people voting, yada, yada, yada. All of those things have

zero factual basis. And now I'm not going to say that no dead people voted in the U.S., but there is no factual basis for the assertion that any of these things, either A, happened, or B, to the extent that they happened, had any material effect on the outcome of the election. So those are the flat-out vote fraud arguments. Time and time again, they've either been laughed out of court when they're in the Kraken lawsuits with Sidney Powell or not even raised, for example, by a lot of the Trump of some of the like the Texas case, et cetera, is that, hey, wait, the Constitution says that legislatures specify the manner of the of the election of the selection of electors, secretaries of state and governors and all of these other people, especially in response to the pandemic, have been tweaking the way the elections are conducted in all of these states without the legislature passing a new law ratifying all these changes. Therefore, that's a violation of the Elector's Clause, because the manner of the election should be settled by the legislature, not by the Secretary of State,

not by the governor. And so, and then the next argument is, and then therefore we should throw out this whole thing. But anyway, I thought this case was very interesting because what the judge did, it was interesting on two counts. One is here we had a Trump appointed judge, 2017 Trump appointee, who was willing to hear the merits of the Trump case. team does not make a fraud argument indeed agrees to stipulated facts regarding the conduct of the election and puts all of its all of its eggs in the basket of the manner of the electors clause and what the judge does i think is really quite important. He sits down and he says, what this manner, when you're talking about the manner, you're talking about, are the electors selected by popular vote? Are the electors selected by the legislature? Are the electors selected by the governor? In other words, how do we select the electors? The manner is the broad determination of a popular vote.

Then the method in which the popular vote is conducted is different from the manner in which the electors are appointed. And these Trump arguments have gotten that completely confused. And so the manner is popular vote. Nobody disputes that the electors in Wisconsin were selected by popular vote of the eligible voters in the state. The method of that popular vote election is determined by an election apparatus that the legislature sets up, signed into state law, that includes state officials who have some discretion under these legal regimes. And the judge makes this really effective argument. He says, look, there's no other way to handle this because if you were to say that an election has to be thrown out, if there is any discretion exercised by any state official that is not specified precisely in a statute, you essentially couldn't have an election in the United States of America.

One of the things we pointed out in a previous podcast was Texas, in essence, was arguing for its own electoral votes to be tossed because the Texas or what happened is there are changes made to some of the methods of counting ballots or receiving ballots. But the manner popular election was still preserved. And that I think that's a very important ruling. And it's based in original public meaning. I mean, this is a conservative, rigorous judicial opinion. And I think it's a pretty darn decisive answer to those people who say, well, all of these states that made pandemic-related changes violated the electors' clause. No, they did not, because they all still conducted their election according to the manner popular votes specified by their legislature.

Does that make sense, Sarah? That makes a ton of sense. Yeah, the manner is the type of election we're holding. Yes. Not the specifics of whether that ballot is counted or that ballot is counted. Correct. Or how many drop boxes there are. Yeah, interesting.

Yeah, so I think that's very, very important. And then there's one other, so there's sort of a triple layer argument about the legitimacy of the election. One is, you know, the Dominion hammer scorecard, dead people voting. There's just no evidence that any of that, either A, happened, or B, was material enough to change the outcome of the election.

None, okay, none. Backup argument two is this electors clause argument, which as we just discussed is being completely and totally misinterpreted and is wrong. It's just as a matter of law, wrong. Then backup number three is, well, and I've seen a lot of this and you'll see some of this in conservative publications that don't want to exactly go on record alleging fraud without evidence, but at the same time, they definitely don't want to say the election was kosher because their comment section might come after them with pitchforks and torches. And they'll say, this election was conducted with massive mail-in voting, and mail-in voting is more susceptible to fraud.

Therefore, you cannot have any confidence in the outcome of this election. That's another one of those sort of like facially interesting or facially seductive arguments that upon any kind of analysis is increasingly ridiculous. I kind of analogize it like this, Sarah. Let's imagine that, so I have a Honda Accord. Let's imagine, I don't know what car do you have. What car do you have, Sarah? I have an Acura Chick SUV. Okay. So you've got an Acura SUV. I've got a Honda Accord. Studies have shown, Sarah, You've got an Acura SUV.

I've got a Honda Accord. Studies have shown, Sarah, that your Acura is 5% more vulnerable to theft than my Accord. Sarah, why are you driving a stolen Acura? Sarah, can you prove to me that that's not a stolen Acura? When did you stop hitting your wife, David? This is literally the argument, okay, that you'll have some experts who will say, well, I believe that a mail-in election is less secure than an in-person election.

Therefore, what? I don't have to prove anymore that there was fraud. All I have to prove by expert opinion only, all I have to prove is that in theory, it is more susceptible to fraud. So I don't have to prove the fraud. I mean, that's a pretty astonishing line of reasoning, but it's everywhere. It's everywhere. Have I missed any of the big sort of strands of this stuff? Oh, the big things, no, but I do have a super nerdy footnote to this conversation. Oh, please. Yeah. So I thought this was one of the better written opinions that we've seen in this whole debacle. And remember that there's going to be some law

made here that will extend past December 2020 2020 you know yeah uh and we said bad bad bad facts make bad law but also the urgency of a lot of this also has the potential to set up bad precedent for down the road that like people just weren't thinking through it because they thought it was a meritless claim so they just like sort of skip a bunch of stuff on the way to throwing it out. But enter this opinion, which I thought was really well done. So yes, the defendants argued that Trump's claims were barred by the 11th Amendment and Pennhurst, which I have not thought about Pennhurst in so long for my lawyer stands listening. I mean, that is a deep, deep track, you know? And the judge says, no, they do. They can bring this regardless of the 11th Amendment and Penn

Hurst. And I was like, whoa, whoa, whoa. So the 11th Amendment is probably the least cited amendment ever, David? Maybe ever? I mean, there's no parades for the 11th Amendment. There's no t-shirts for it. Like even you and I enjoy the Third Amendment from then and now again. But even you and I don't get out of bed for the 11th Amendment.

So the 11th Amendment is something called state sovereign immunity, and it basically says that you, dear listener, cannot sue another state. The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. Okie doke. What does that actually mean? Not a lot. Because you can, similar to sovereign immunity of the president,

you can sue cabinet members of the president. You can also sue some state agents. And that was called Ex Parte Young from 1908 that satisfied that. But then there's this Pennhurst case that basically was like, well, okay, yeah, you can sue these state officers,

but basically a federal court cannot enjoin a state officer from violating state law. This gets to what you and I have talked about where state courts are in charge of interpreting their own law and federal courts don't step in

to interpret state law. And it's a sort of an exception to normal federal jurisdiction under article three, which I was just reading, of course, in our original jurisdiction conversation, because it says that if me, Sarah and Virginia sue you, David and Tennessee, we can go to federal court because you're in a different state. And Virginia suing Tennessee can go to federal court, perhaps with original jurisdiction, of course. But me, Sarah, suing the state of Tennessee, uh-uh-uh, says the 11th Amendment.

Right. Tennessee is in charge of interpreting its own law, etc. Okay. So why is this relevant here? Because the defendants in this case were arguing that Trump was trying to sue the state of Wisconsin and that that was basically asking a federal court

to enjoin a state officer from violating state law. And there's something sort of tempting about that. It would have been an easy way to kick the case because they are saying that the state officers were violating state law and they wanted a federal court to do something about it. But this judge, I thought pretty persuasively, argues that no, the electors clause is a little carve out to this. They're not arguing just that Wisconsin officers violated Wisconsin law.

What they're arguing is that Wisconsin officers violated the electors clause of article two. And their evidence of that is that they violated Wisconsin law, a little complicated, a little nuanced, but I was kind of here for it. And then, and then there's a quote, David. Yes. While plaintiffs also cite provisions of Wisconsin's

election statutes, he does so in attempt to show the defendants violated not merely those statutes, but rather the electors clause itself. In this unique context, alleged violations of state laws implicate and may violate federal law. See Bush v. Palm Beach County Canvassing Board 2000. Quote, in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of presidential electors. The legislature is not acting solely under the authority given it by the people of the state, but by virtue of a direct grant of authority made under Article 2, Section 1, Clause 2

of the United States Constitution, a.k.a. the Elector's Clause. And I thought that was a really well done explanation, David, and I was pleased to read it. And it, it dovetailed nicely with some mail that we got about Bush v. Gore asking this exact question of why Bush v. Gore could interpret state law without violating our,

but the Florida Supreme court should be in charge of reading Florida law. So I was like, whoa. And then it's right here. Yes, exactly. No, I think that's a great segue, but I just want to say again, and we'll link this case in the show notes. If you're a lawyer, either by profession or by hobby, or just a dedicated advisory opinions listener, law curious, I would urge you to read this opinion because it's very clearly written. It is something that virtually anyone can read and understand. And it is extremely valuable in dealing with a particular argument that's just been everywhere since the election.

It also feels like, it actually feels a little like a federal courts class in a single opinion. There's mootness, there's 11th Amendment sovereign immunity, state sovereign immunity, there's a whole section on abstention doctrine, which folks, if you thought you wanted to go to law school, but kind of want to be convinced out of it, please read section D of this opinion on three different types of abstention doctrine, Wilton-Brilheart abstention, Pullman abstention, and Colorado River abstention. Don't worry. That's not all the abstentions that are out there. Just the three mentioned in this. And you will spend, I don't know, David, two weeks, three weeks on abstention doctrine and fed courts, and you will leave knowing relatively little about how abstention doctrine will affect your life moving forward. Well, and I just want to say,

Sarah, that you ignored an advisory opinions convention, which is to give me a trigger warning before any mentioning of Fed courts, because those who have deep dive knowledge of advisory opinions know that I told a story months ago about how the night before my Fed courts exam, which was only one of the hardest courses in all of law school, not only did I have a raging argument with the person who less than one week later was going to become my ex-fiance. I lost my hard drive crashed and I lost my FedCourts outline for my open book FedCourts exam. And so I walked into that. Wow, wow, wow. You sound like excuses to not know Pullman abstention doctrine, David.

It was a real deal, Sarah. It was a real deal, Sarah. It was a bad deal. I walked in with a scrawled handwritten effort to recreate a typewritten outline and basically took it as a closed book exam. It was bad. It was bad, Sarah. It was a bad time. Okay, I won't make y'all wonder anymore.

I'll tell you what Pullman abstention doctrine is. It applies when the resolution of a federal constitutional question might be obviated if the state courts were given the opportunity to interpret ambiguous state law. As in, this is part of the constitutional avoidance doctrine, basically. It's just a specific type of abstention doctrine that can apply to it, that you don't need to resolve a federal constitutional question if, in fact, if you kicked it back to the states, they could sort of fix this on their own. So don't assume that a state is violating the federal constitution, basically. If it's just unclear whether the state is violating the federal constitution, give them another chance,

says Railroad Commissioner of Texas V. Pullman in 1941. You're welcome. Thank you for that, Sarah. Thank you for that. That is the explanation none of us knew we needed today. That's right. We're so far afield from election law. See, some of you don't like election law, but maybe you're into abstention doctrines. some of you don't like election law, but maybe you're into abstention doctrines. I don't know. So now we'll ask the question, wait a minute, wait just a cotton pick a minute. If the Supreme Court is supposed to stay out of state court election law determinations, law determinations, how did it decide Bush v. Gore? Is this just raging hypocrisy that they liked Bush and they didn't like Trump? What's going on, Sarah? Woof. So you know what? Yes, there are legal explanations for all of this, but yeah, plaintiffs matter. That's not, not true in this case. So we all think of Bush v. Gore,

but actually Bush v. Gore is Bush two. Bush one is, and that's the actual like name of it that even the court uses. Bush one is Bush v. Palm Beach County canvassing board. That's decided a week or so before Bush v. Gore. That case is when they send it back down to the Florida Supreme Court, arguing that there was, quote, considerable uncertainty as to what the Florida Supreme Court was trying to say. And they sent down two questions. One, to what extent did the Florida Supreme Court see the Florida Constitution as circumscribing the legislature's authority under Article 2 of the federal constitution?

Or two, how much consideration did the Florida Supreme Court give to, oh my God, David, I'm so excited to say this, 3 U.S.C. 5, the safe harbor provision. Doesn't it just feel like I set these things up a week ago and then I'm just, and this isn't the last time we're going to talk about 3 U.S.C. section stuff that I talked about last week. This is going to be our discussion of 3 U.S.C. 5, but we're coming up on another discussion of 3 U.S.C. 15. Hold on to your hats, cats and kittens. Okay. But why is Bush v. Palm Beach County Canvassing Board relevant? Because that's the case where they talk about the Elector's Clause and that giving sort of this federal hook that one can violate the Elector's clause in theory. And that, of course, is different than simply a federal court saying that you violated state law for the purpose of violating state law, which I thought the Wisconsin

opinion lays out really nicely. What they're saying is that by violating Wisconsin law, you violated the electors clause. And so Bush v. Palm Beach County is saying that there could be such a thing as violating the electors clause. That's relevant. Fast forward, the Florida Supreme Court rules again, and then back up we go to Bush v. Gore. Now, everyone remembers that it was 7-2 on the Equal Protection Clause. So this is about, okay, backing up. What the Florida Supreme Court ordered was a recount of the undervotes. And several of these counties decided, Palm Beach County, for instance, changed the standard for counting the dimpled chads a

few times. They were just flip-flopping around. Broward County used a different standard than Palm Beach County, which wouldn't be hard to do since Palm Beach County switched their standard a few times. Miami-Dade rejected a whole bunch of ballots that didn't include the precinct numbers. the precinct numbers. And what the Supreme Court said was, you can't have the exact same vote in two different counties count two different ways. That is a violation of the Equal Protection Clause. And that is a federal violation,

not that it violated some part of the Florida rule. Right. And that's the main part of the ruling. And that's the one that we all think about today. That is seven justices signed on to that. Two did not. It was then 5-4 on the remedy of like, OK, what can you do about it? Because in theory, right, you can fix that equal protection problem by simply allowing the Florida Supreme Court, for instance, to set a standard recount method. But, and the five said, look, we're too close to the safe harbor provision. The state must comply with that.

They want to, clearly. And therefore, time's up. Bush wins. Bye-bye. There's this little, though, concurrence. And you've probably heard about it already, and this is the Rehnquist concurrence. And it says that the Florida Supreme Court's ruling violated the electors clause, that the Florida Supreme Court was interpreting Florida law, but they did so in such an egregiously not reasonable way, making up sort of new law. They reset the time for the electors. So the time for the certification was November 12th. The Florida Supreme Court extended it to November 26th. Things like this that were set in state statute, that that rose to the level of violating the electors clause. This was signed on by three justices, not five. That's why it was a concurrence. And then there was a dissent on this point, or rather there's a dissent on the 5-4 point, but it includes a conversation just ripping Rehnquist for all of this business. And we'll include this in the show notes,

but they're basically arguing that just because the state in Bush v. Palm Beach County, that the safe harbor provision should counsel towards something, like we should give the state opportunity to fix these things and ambiguity and all of that, does not mean that it must ensure that they meet the safe harbor provision, that that's really up to Florida and that the chief's concurrence just sort of twists the electors clause in order to get there. It's pretty interesting interesting but to our lovely readers question which i have gone pretty straight pretty far from the mark here the point is they were not interpreting florida law as florida law they were interpreting even the concurrence was interpreting florida law to determine whether it rose to the level, whether the Florida Supreme Court ignored state law

in that manner way, which is, by the way, a different interpretation of manner than the Wisconsin case, of course, and whether that then violated federal law and the electors clause. And the equal protection thing has nothing to do with any of this. That has nothing to do with Florida law,

unless perhaps there was like a Florida statute that said each county should count their ballots differently. Instead, it just left it up to each county to count their ballots. But they're saying that that then the choice by the counties to count them differently violated the equal protection clause. And so that was that that was Bush v. Gore and messy. It was also speaking of things that are decided quickly, you know, these were per curiam opinions, David, not really cited for precedent. So there's that as well. Right. I mean, the fact that, you know, look, we have to be clear, the fact that something comes up from a state regarding a challenge to state election law does not mean that there is a blanket hands-off approach by the federal by the by the

supreme court the federal constitution state election law still has to comply with the federal constitution that's why the judge in the wisconsin case took the pains to just tell us what the electors clause meant if the electors clause meant. If the electors clause meant something else other than what it did, it could have applied, but it didn't. The equal protection clause applies to elections. The 15th, for example, if you want to go with sort of like

the most grotesque example of how the state might violate the federal constitution when it decides the manner of choosing or the way in which it runs its elections is if it, for example, discriminated on the basis of race. That would violate the 15th Amendment, even if it's just a matter of state law. So state law has to pass constitutional muster. That is true. And that's what Bush v. Gore was saying, was that it couldn't pass constitutional muster. And that's why the Wisconsin judge evaluated Wisconsin law in light of the federal constitution.

The determination of state law to raise a federal question has to implicate a federal right. And that's why the Wisconsin judge was slapping it down. He was saying the electors clause does not mean what you argue that it means. Does not mean that. This word, it does not mean what you think it means. Let's take a moment and thank our sponsor, Headspace. Life is stressful. It's stressful under normal circumstances, and it's particularly stressful in 2020. You need stress relief that goes beyond quick fixes. That's Headspace. Headspace is your daily

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you to build a life-changing meditation practice with mindfulness that works for you on your schedule, anytime, anywhere. You deserve to feel happier and Headspace is meditation made simple. Go to headspace.com slash opinions. That's headspace.com slash opinions for a free one-month trial with access to Headspace's full library of meditations for every situation. This is the best deal offered right now. Head to headspace.com slash opinions today. So shall we move on to what is happening as we talk and what will happen on January 6th? Yes. I am very excited about this because it brings us back to 3 U.S.C. Section 15, which you'll remember I said was the worst written piece of federal code that I had maybe ever read. written piece of federal code that I had maybe ever read. And yet it contains multitudes, David.

So I originally discussed this in terms of if states sent in multiple slates of electors, but they sent both slates in before the safe harbor provision or both after or one before and one after. Basically, Section 15 discusses why the safe harbor provision is important. If only one slate is sent in before safe harbor day, that one counts. So by the way, I'm seeing some stuff about how some states are going to send in a second slate of electors. Too late. Because I think all but one state, I think West Virginia did not meet the safe harbor deadline, but I think the rest did. Regardless, I know that the swing states each did, the ones that are being contested.

So the safe harbor provision under 3 U.S.C. 15 says that that one will be counted by Congress. But, David, 3 U.S.C. 15, before we get to competing slates, discusses objections. Yes. And why we need to talk about this. This is the last, this is the Hail Mary.

I had a lot of people ask me after the Texas case was shot down on Friday, is it over? When the electors vote today, which is happening as we speak, different states are reporting in their slate of electors has cast their votes. So today, Biden will have the vote of the Electoral College. On January 6th, you will have the counting of the electoral votes in Congress. And this is the last opportunity to object. And this is the procedure. So I'm sorry, sorry to interrupt Sarah, proceed. Not at all. 3 U.S.C. Section 15 starts. In fact, Congress shall be in session on the sixth day of January, succeeding every meeting of the electors. And it goes on to talk about how they will start

at one o'clock in the afternoon on that day. The president of the Senate shall be the presiding officers. Two tellers shall be previously appointed and on the part of the Senate shall be the presiding officers. Two tellers shall be previously appointed on the part of the Senate, two on the part of the House. They open stuff. It's fun. It's a party, yada, yada. You're going to get to the middle of 3 U.S.C. 15. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing and shall state clearly and concisely and without argument the ground thereof. By the way, I'm not sure. I mean, I kind of understand, but how you would cite an objection, the grounds for your objection without being able to make an argument, like the grounds themselves probably

are argumentative, but regardless. okay, shall be made in writing clearly and concisely without argument, the ground thereof, and shall be signed by at least one senator and one member of the House of Representatives before the same shall be received. Then skip on over to 3 U.S.C. 17, when the two houses separate, so the House goes to the House and the Senate goes to the Senate, when the two houses separate to decide upon an objection that may have been made, each senator and representative may speak to such objection or question five minutes and not more than once, but after such debate shall have lasted two hours, it shall be the duty of the presiding officer of each house to put the main question

without further debate. The end. So this, of course, all arises, as I mentioned previously, from the election of 1876 and the Hayes-Tilden debacle. And this is all from the Electoral Count Act of 1887. So yes, it is law passed by Congress. Congress could, in theory, override its own law. But they couldn't just decide willy-nilly that day to set this aside, David. And there's no constitutional violation in any of this. So that means that we've heard a bunch of House members saying that they want to raise an objection. They need to find a senator to sponsor their objection. And then the whole thing is going to be limited to two hours per objection, basically to keep this show rolling. In 1887, they did not want this to drag out for days, weeks, months.

they did not want this to drag out for days weeks months each objection gets two hours yeah so here let me let's play this thing out how this may unfold so stephen miller was on fox news this morning saying that there are slates of trump electors okay that they're that they are trying to present slates of an an alternative slate of electors. So let's say that they have a slate of electors that Mo Brooks from Alabama is holding in his hand. I have a slate of electors that should be counted. I object to the electors that have come out of this December 14th, I mean, this December 14th count, I have the real slate right here, I object. And then immediately, rising out of his seat, fellow Alabamian Tommy Tuberville in the Senate says, I join my esteemed colleague

from Alabama in an objection. Now, that would then trigger this process. However, it should be a super short process because there's only one slate of electors that has met the safe harbor deadline, and it isn't the alternative slate that Stephen Miller is promising the Trump administration will put forward. But let's say that we have the debate, we have the debate, and then there's a vote. Now, the vote would have to be concurrent from both houses. So you'd have to have the Democratic-controlled House and the Republican, maybe Republican-controlled Senate, rule to uphold the objection. But they can't even uphold the objection because there's only one slate of electors that has met the safe harbor deadline. So this safe harbor should shut this down, but that's not going to stop, maybe, it's not going to stop some members of the House from raising an objection. That has been essentially promised at this point. If they're joined by anyone in the Senate, that will trigger at least part of this process. But you want to know what's really ironic, Sarah? I do. What's ironic is there is a time in the recent past when someone tried to raise an objection during the counting of the

votes. And it happened in 2016. In 2016, a Washington representative, and I'm going to mess up the pronunciation, please forgive me, Pramila Jayapal, Jayapal, Jayapal, raised an objection that was immediately gaveled down with the statement, there is no debate, there is no debate, there is no debate. And this was also said to Sheila Jackson Lee in Texas. There is no debate. There is no debate. There is no debate. Who gaveled down the objection to Donald Trump, Sarah? Joe Biden. Should have been the president of the Senate. Yeah. Joe Biden. So Joe Biden, that's kind of funny. He gaveled down the objection to Trump and is now

going to depend on somebody in all likelihood to gavel down the objection to him four years later. Funny how life works. Indeed. Indeed it is. Although it puts Mike Pence in an interesting situation. Doesn't it though? Doesn't it though? Yeah. Now I fully expect if nobody joins, say Brooks or Mike Johnson or any of these other folks, if nobody joins the objection, Pence will have no choice but to gavel it down.

Sure. But I think that they will eventually find a senator to sign their objection with them. That's a good, but it has to be from the same state. All right, I'm going to let you guys in on a little advisory opinions, insidery stuff. Every now and then, we do something called a timeout. And so we'll say, one of us will call timeout, literally on Zoom, we do the T. And when we have a question about

whether we're saying something correctly legally, we have a sidebar. So we just had a sidebar. Was I correct that when I was talking earlier about do the member of the House and the member of the Senate who makes the objection have to be from the same state? And the best answer I can give you is upon looking at the statute, it's ambiguous. Because this is the worst statute ever written. It is so badly written. So this is what it says. Here's what sentence, the first relevant sentence, every objection shall be made in writing and shall state clearly and concisely and without argument, the ground thereof, and shall be signed by at least one Senator and one member of the house of representatives before the same shall be received.

No problem. Yeah. Anyone, anyone, Anybody. So it could be Tuberville and Mike Johnson, you know, Alabama, Louisiana. So I timed out and was like, David, show me where they have to be from the same state in that sentence. Clearly that sentence, standing alone, any House member and any Senator can lock arms and object. Yeah. So was I smoking crack when I said Tuberville and Mo Brooks? It had to be the two of them, maybe. But then you go to the next sentence. When all objections so made to any vote or paper from a state shall have been received and read, the Senate shall thereupon withdraw, and such objection shall be submitted to the Senate for its decision,

and the Speaker of the House of Representatives, blah, blah, blah, blah. So the next sentence says says from a state. So, listeners, does it have to be from the same state or does it have to be, can it be from a representative in a Senate from representative and a senator from any state? I don't know. To be honest. I don't know. I think the safest course, if you want to avoid a procedural objection, would be to have a representative and a senator from the same state. But this is a bad statute, y'all. It's a bad statute. Yeah, I think that I read when all objections from a state shall have been received, that they are presuming that it would come from a single state. Probably because at the time, sectional rivalries being such as they were and states being as powerful as they were, it would have been strange for a House member and a senator from another state to be

even particularly hanging out together, right? Like you'd all be part of the same delegation. So I think it is an underlying assumption in the second sentence that the first sentence would be from the same state. But certainly you could argue that it does not need to be. And if you want to be safe, you should find a senator from your own state. Yep. So anyway, listeners, that's just a little bit of insight into the care that we take to try to get this right,

even when it's the worst written statute in the history of statutes. And nevermind the irony of saying every objection shall be made in writing and shall state clearly and concisely. And never mind the irony of saying, every objection shall be made in writing and shall state clearly and concisely the ground thereof. Statute, heal thyself. So anyway, that's the January 6th Hail Mary

is the objection process. But the safe harbor, the safe harbor combined with the vote that happens today should cut all of that off completely at the knees. There is just no legal basis for an objection when the safe harbor deadline has been complied with and the electoral vote has been accomplished. But that won't stop some objections from being raised. Let's take a moment and thank our sponsor, ExpressVPN. Earlier this year, more than 100 Twitter users

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Yes. So I have an email from L. We're going to call him L. Hello. Been a faithful listener since the pandemic started. I have never missed an episode. And I'm wondering what is the best way to study for the LSAT? I'm a freshman in college right now,

and I know that I want to go to law school and preferably a top one. I figured since you are not a dinosaur like your co-host, you might have used his testing services. Wait a minute. Goodness gracious. This is getting out of hand. I just want to tell you that he also though sent proof of his affection for you in visual form. It is a Spotify playlist that is called David Frenchism. And the picture for the Spotify playlist is the Aquaman cover. Oh, that he's redeemed.

Total redemption. Total redemption. But I thought this was a good question because I've gotten it before of what advice we have in taking the LSAT. I am brimming with advice, David, but I would like to hear from a stegosaurus about how that used to go.

You know, I had an advantage when I took the LSAT. And that is my advantage is my dad is a math professor who wrote a logic textbook. Okay. And so the LSAT is a giant amount of logic. And one of the most difficult parts of the LSAT, I would say almost universally labeled as the most difficult part. I'd be curious, Sarah, if you agree with this, are the logic games. And so what I did to prep for the LSAT is my dad gave me a condensed logic

course. Wow. Yeah. So I had one-on-one personal condensed logic course. And then I took the test a bunch. I didn't go to test prep. I didn't do a test prep class. I didn't have the money for that. So I just took practice tests. I think I probably took six or eight practice tests before I walked in. So I took a homebrew logic course and I took about six or eight practice tests. And I would say that... And what'd you get? Well, it's the logic.

It's the dinosaur. It's the dinosaur. It's the dinosaur system. Still. I'm not saying it'll mean anything to me, but I still want to know your score. 46 out of 48. Yeah. I have no idea what that means.

Cool. Yeah. It was percentile. It was 99 percentile. Nice. Nicely done. Yeah. Well, thank you.

Thank you. So it's interesting that our um both our experience and our advice is going to be pretty similar my father was not a logic professor but um and i did anyone else have this experience when i was a kid well my parents used to take me out of school for like a month out of each year and we used to go on these wildlife trips, and that usually necessitated extremely long plane flights. So we were, I think, some of the last people to get to camp overnight in the Ngorongoro Crater when I was 10, and that's like 25, 30 hours on a plane. So they used to bring these little booklets for me and they included the logic games, which is so weird. As I found that out as an adult, that basically I was just taking practice LSATs as a 10 year old. What the, now these are made for kids, but it would be like, you know, the monkeys have five names. They have, you know, seven t-shirts and they each like a different fruit. Here are the rules.

Sally Monkey only likes the red shirt. Bobby Monkey will wear the red or the blue shirt, but only on Tuesdays. And Timmy prefers bananas, but on Fridays and Thursdays, whatever it was. Right. And I just love those things. So I would do them all the time. And again, this is before my dad went to law school also. So like, it's extra weird that this was just like a thing that I must've found as a child. But I think that's like the equivalent of you taking the logic course from your dad. I sort of, it was like, I had already sort of grown up intuiting how to do the logic games. So, but here's my advice to you. how to do the logic games.

So, but here's my advice to you. Feel free to take a test prep class. This all depends on how you learn. If you learn well in a classroom setting, by all means, do it. However, the former test, the previously used tests that they publish are the only correct practice tests to use. The Princeton Review ones,

the Kaplan ones, and all of that are written by them, not by the test writers, and they are slightly different. And if you want to score in the 150s, low 160s, I think those are fine. The differences are not all that relevant. But if you're looking at scoring 170 or above, the differences become extremely relevant. And so feel free to take those classes to sort of use tricks for how to do the logic games or something else, but only use the real test courses, test books. And in doing so, this is my process for you. You do not need to take the whole test, like to do like a four hour, four and a half hour, whatever it is now, sit down,

test, like to do like a four hour, four and a half hour, whatever it is now, sit down, maybe do that once or twice just to work up some stamina because it is a physical slog to take that test for your brain. What you really need to do are to just do each section. And at first, don't time yourself. Do each section until you can get every question right without timing yourself. Then time yourself, but give yourself 30 minutes instead of, I forget if it's, sorry, 45 minutes instead of 25 or 30. I forget what the actual time is for the sections. But if it's 30 minutes, give yourself 45 minutes and do that until you can get every question right in that section. And then obviously do the amount of time that they actually give you. And if you're feeling real, you know,

spunky about it, cut five minutes. So if they give you 30 minutes, do it in 25 and then 30 minutes will feel like an eternity. Uh, and it'll be really glorious on the day you take the test. But, you know, think of this like preparing for a marathon. You want to, uh, you know, just work up your, your speed, your accuracy over time, don't just keep timing yourself at 30 minutes and expect to get much better. You're looking to teach your brain pattern recognition, both in the logic games and in the logic questions. The reading is the one thing that I think is the hardest to study for or prepare for. There will be some patterns that you can pick up on what

types of questions that they're asking you. But the problem is, unlike the SAT or something, where it's like a couple sentences, this will be three paragraphs and then six questions to follow. And if you misread something that first time, at least if you're like me, even rereading it, you will misread it again that same way. And that can be very frustrating. So that's why I suggest not setting a time limit on yourself at first, but plan to spend a lot of time studying for the LSAT. And I thought the logic games were pretty fun. I haven't done one since because it's pretty scary to walk in there because basically, again, if you read that prompt wrong for that logic game, you're getting four questions wrong, and that's kind of the ballgame if you're looking to go to a top law school. And so you're going in

there knowing that you've really got to come pretty close to batting 1,000. David, I'm guessing that you missed between two and four questions on the entire exam to get your score. Yes, that's correct. I can't remember if it was four or two. I know it wasn't three. Yeah. I missed two or four. And I missed them all in the logic games.

Everything else I got all correct. Oh, really? Even though I had the logic course. Even though I had the logic games. Everything else I got all correct. But I, even though I had the logic course, even though I had the logic course, um, it took me longer to do the logic games. And I began to feel a little time pressure, even though I, even though I knew I was going to get done and I was on pace and everything. Um, but yeah, that, that's where I missed them. And, you know, I would say a lot of people say, you know, make sure you get a lot of sleep and everything beforehand. I never could sleep before a big test. Like, you know, I get a lot of sleep. I'm sitting there laying there thinking, oh my goodness, I've got a lot of my future at stake. Especially when you're in your early 20s and you're thinking you put way too much import into these tests and into these admissions decisions.

And you don't really realize that, yeah, where you go to law school is important, but your professional success is truly determined by your professional conduct. Far more than it is by the quality of law school you get into. It gives you an advantage, no question. It's no question it helps open doors. But as a practicing lawyer, you've got to be able to step through and perform. And with each year that passes, where you went to law school becomes less relevant. It just starts to recede further into the rearview mirror because you begin to develop your own independent legal reputation and your own reputation that is reflected on your actual performance as a lawyer and not on your grades. But I would say this, I was always the worst practitioner of get rest before the big test. My first, I probably slept 45 minutes to two hours, something like that, before my first law school exam. I was kind of freaked out about it.

Sarah, I got it. You know, in campaign world, I always tell my younger intern, younger staff, that the key is to get rest the night before, the night before. Get good sleep that night. You're not going to get a lot of sleep the night of the election. You're going to be too riled up and thinking about what could happen the next day. So don't even try to sleep that night. Don't put that pressure on yourself. Just get some good sleep the night before, the night before, the penultimate night, if you will. Yeah. No, that's good advice. It's good advice. My LSAT experience. So I did not have a great college GPA. I wasn't particularly special in any way. I hadn't been deworming orphans in Somalia a la Legally Blonde. I had not discovered a cure for anything. And so I walked into that room of 500 people or so, other Northwestern students taking that exam.

And I have this very distinct memory. It was a classroom that I hadn't been in, a stadium seating classroom. And I looked around to my right and to my left. And I said to myself, you have to beat every single person in here if you want to go to law school. Every single one. Now just crush them. And you know what, David? I did. You did. You did.

So what did you get? I don't do, I don't translate the scores as well, the new fangled, which by new fangled, I mean like more than a quarter century old. I got a 178 out of 180. That's pretty good.

It's pretty similar to yours. Well, it's a little bit different scale. So as 178 out of 180 is better, but I don't know how it all scales better than 46 out of 48. But that's pretty awesome, Sarah. I'll admit you to law school. I was the only person in my law school class to come from Northwestern from my year. Oh, you're kidding. Yeah. So I really did beat everyone in the room, which gave me...

Some people don't like standardized tests because they sort of psych themselves out the other way. I think it is, it is one of the things that has just helped me in life. It's actually my number one skill set is standardized test taking, which is a bummer because that skill set has really run the course in life. Like it's sort of over. And it is probably the thing that I am, have the biggest competitive advantage on other people, but I attribute it entirely to being able to channel nervous energy into competitiveness. I would say it's interesting that you...

So there's a couple of common themes here. I just think this is fascinating. Well, we both had a degree of sort of family privilege. Yes. And which is really... I mean, man, the more you're around education, you realize like that first generation to, that, that first generation to gain an education and to start to really pass down that sort of that culture of education to your kids, those are the pioneers and they have a, they can have a legacy that

lasts generations, like generations of influence. So we both had sort of this interesting family privilege, but we both had major competitive spirit. So for me, it wasn't, I got to beat everybody in the room. It was a guy a year before. So I went to a little Christian college, then little, now it's much larger called Lipscomb University. And there was a student before me. He was star basketball player, awesome guy, super guy. He's the AD right now of the college. And he ripped the LSAT, just destroyed the LSAT and got into Duke Law School. And I had friends who said to me, you can't possibly do as well as he did. Like, you just can't. Not only can he play better basketball than you, he's way smarter than you.

And that just like inflamed my competitive spirit. And so I had his score. Everyone in the whole school knew his score. He was a legend. And I had his score like in my target sites. And what was interesting is every practice test before the actual test i scored one point lower than him like every one of them so i felt like the biggest underdog walking into that room like i know i can do one point less than him can i do better

and so i had like this competitive fire burning in me. And it's so funny. I mean, like that's basically my whole academic life was there was always this one person that was like throwing down the gauntlet and that I had to beat that one person. And so it's so funny. I mean, like that, there is also that.

Do you kind of have a competitive spirit? And a lot of people are drawn to law do have that competitive spirit because they want to test themselves in a courtroom. They want to get in front of a jury. They want to get in front of a judge. And they want to win a case. And so don't leave that competitive spirit behind when you take the test. So, Elle, you heard it here.

Yes, there's things you can do to study for the LSAT. We have some advice on that, but maybe more than anything, find someone who you want to crush at the test. Exactly. My dad, I had all my extracurriculars in high school that I enjoyed, and I was president of the orchestra, as I'm sure I've mentioned. A few times. Yeah. Well, it was a big deal. Big deal. So my dad really wanted me to take a test prep course for the SAT. And I was like, that's ridiculous because

then I'd have to not go to orchestra stuff and that's just not going to happen. And my dad was like, you know what? Fine. I'm not going to fight you on this. If you don't want to take a test prep course, how about we make a little deal? If you can score over a 1500 on the SAT without a test prep course, fine. And if you don't, then you will drop all of your extracurriculars, take a test prep course. And then whatever you score is fine with me. And I was like, wow, no problem. So I scored a 1510, which he thought was really funny because he was like, I should have set it higher. Well, then the other thing, though, is when there's no competitive aspect, my academic diligence lags. Oh, same.

It's a problem. The bar exam. The bar exam. It's just pass-fail. It's just pass-fail. It's just pass-fail. There's no incentive. Did you get your score? No, I didn't get a score. I just got a P or an F. So in Texas, they give you a P or F, but they also give you your score? Oh, really? And so we had bets in the... I was clerking at the time we got our scores back

and we had bets going. I didn't take a test prep course for the bar exam either, because again, I just thought, you know, if I failed, no problem. I would just take it again later. Right. So we had bets for all the clerks and there were, you know, like 20 of us in the courthouse who ever got the lowest passing score would win because in Texas, the person who gets the highest score gets to give this speech, which is ridiculous because that person arguably lost. They studied too hard for a pass-fail test. And so out of a thousand points, David, I passed by seven. Yes. And yes, I did win that money.

Well, you know, I look at that as like the perfect expression of efficient effort because anything over pass was wasted effort, right? Because there was nothing to be gained. And that was how I convinced myself that I was doing the right thing by not studying the whole summer before the bar exam because I was thinking it's just pass fail. And then about 10 days because I was thinking, it's just pass-fail. And then about 10 days before,

I'm thinking, oh, crud. I have not studied for the bar exam. And then so I dive into it, and I dive into it, and I'll never forget the very first question in the essay portion of the bar exam. And I think I've told this story before was regarding the Uniform Tennessee Bulk Sales Act. told this story before was regarding the Uniform Tennessee Bulk Sales Act. The problem, Sarah, I had never heard of the Uniform Tennessee Bulk Sales Act. I didn't know it existed. And so my entire answer was, what is the Uniform Tennessee Bulk Sales Act? Do you think it was jeopardy? Like you need to answer in the form of a question? I didn't know. I didn't know.

But I got very, I mean, Tennessee, I think you took 11 essay questions to pass seven. So I still could have failed a couple more essay questions. But I think they even tossed that question because so few people, it had never been asked about in the bar and people study for the bar based on previous bars. And so I might've gotten lucky. Sure. Yeah. Might've gotten lucky. So anyway. All right, Elle, thanks for the question. So appreciate it. And college freshman man in the middle of a pandemic, good luck. We hope your Zoom classes have been going well. pandemic. Good luck. We hope your Zoom classes have been going well. I don't think this is normal. There's more good to come. I promise. College will get better. I hope so. My son's a sophomore. He started his freshman year with mono. His second semester of his freshman year gets ended halfway through because of the pandemic. And then he rolled

into his first semester of his sophomore year with COVID. So, yeah. So, don't hang out with that guy either. I don't know where you're in school as a college freshman, but to the extent you run into one Mr. French, just, you know what? That kid doesn't seem lucky. I'm sure he's a nice guy, but steer clear. Run away. He's awesome. He's awesome. Well, he's, yeah. No, he's awesome. You'd love to hang out with him. Just make sure that all the COVID is gone. It's gone. It's gone. It's gone. of academic war stories from 20 years ago, which everybody loves those. Well, 20 plus years ago for me, just a few years ago for you. But next time we'll be heavy on the law, probably light on the academic war stories.

But either way, we'd love to have you join us again on Thursday. Next time, David, we have a question from the movie. We'll do the movie question, the double jeopardy. What happens? Yes.

What happens to Ashley Judd in real life? Yeah, that's a good question. So if you don't know what happens to Ashley Judd in real life, tune in on Thursday. And before that, rate us on Apple Podcasts, subscribe, and check out thedispatch.com. This episode is brought to you by Tresemme. Want silky smooth hair that's still full of natural movement? The Tresemme Keratin Smooth Weightless Collection is your simple solution. This new collection features a wide range of products from nourishing shampoo and conditioner to lightweight heat protectants and a silky smooth serum for a sleek finish. Wave goodbye to frizz and say hello to three days of smooth hair with the

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