Advisory Opinions - Originalism v. Common Law

Episode Date: May 7, 2024

Judge Edmund Sargus from the Southern District of Ohio joins Sarah and David to take on originalism and different means of constitutional interpretation. The Agenda: —Brown v. Board of Education and the different judicial philosophies that can be applied to the case —Originalism vs. common law traditionalism —Challenges and limitations of textualism and originalism —Landmark cases and the Supreme Court’s decisions shaping societal progress —Interpreting ambiguous constitutional terms like ‘equal protection’ and ‘due process’ —Thus ends DEI Show Notes: —Plessy v. Ferguson —Rutan v. Republican Party —Bostock v. Clayton County —Loving v. Virginia —A blast from the past: Rep. James A. Traficant found guilty of corruption —David for the NYT: The Magic Constitutionalism of Donald Trump —Seceding from Secession: The Civil War, Politics, and the Creation of West Virginia —Fifth Circuit opinion from Judge Andrew Oldham Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and this is the long-awaited episode. It's maybe four, five years in the making, David. It is. It is. Because today, we have a guest who is going to take on originalism head on. And maybe more importantly, that guest isn't just any guest. It's Judge Edmund Sargas from the Southern District of Ohio, who's come to really explain a different judicial philosophy that we've been having a conversation back and forth now for about a year. I met Judge Sargas at Legal Eagles in Gettysburg last year, and it's been one of the

most rewarding conversations of my legal career. And Judge, I'm so thrilled that you're here and willing to share some of your thoughts with our audience. Well, thank you, Sarah. And thanks to you and David for inviting me. As you know, I am a very avid listener of podcasts. So let me first give kudos to both of you.

I really enjoy that you are able to address controversial subjects in a way that treats different sides of the debate fairly. I don't think we do enough these days to talk to each other about divisive issues. I think people, I'm one of them, oftentimes avoid topics like this so we don't end up getting in arguments with people we respect and like, but don't want to necessarily disagree with. So what I'm hoping we can do today is to ferret out different ways of looking at constitutional interpretation. I will tell you as we begin, I am not a believer that one size fits all. I think originalism has its place. I think the common law, organic view, has its place.

I think the common law organic view has its place. And I should also add a caveat. As a district judge, the one thing I tell new members of our court when they start, we never ever get the final word on major issues of constitutionalism. The losing side will take it to the Court of Appeals. The Court of Appeals owes us no deference when it comes to a pure legal question. So I've written some cases on some important issues, a few of which have mattered just in the scheme of things. We do obviously apply the Constitution in Section 1983 cases a lot. But when I say apply, it's more to see if a party has enough to get to trial, and then

we try the cases. But making new law on fresh constitutional issues is not my day-to-day work. Well, Judge, I have to say, I'm so excited you're here. Very happy to have this conversation. Really been looking forward to it. And I just have to share the most Sarah thing ever, listeners. So I get an email and it's all caps says, hold on to your butts.

And I'm like, what is this? What is this? And it's Sarah announcing that Judge Sargas is coming on the podcast, which I'm equally excited about. Like I've never heard the hold on to your butts phrase. I thought Sarah came up with it. I now know it's Samuel L. Jackson. And then I look up and in the two line,

Judge Sargas is included. And I'm, you know, practiced for a long time and I have this sense that when you're interacting with a judge, even in social circumstances, there's a degree of formality, right? There's a degree of, we latch into our talking to a judge voice, if that makes sense. And I just thought like that is the most phenomenal, like just best, hey, this is a great ceremonial of just treating people like people.

I love it. Look, law students do what I say, not what I do. This was not, I'd like to me, that's like my highest like OMG. Like from the 90s. It's not appropriate and I shouldn't have done it. Okay. Judge Sargas. We can take that out of the podcast. I like that. I like that a lot. Judge Zargas, like David, likes to say, where you stand depends on where you sit. So I thought we should start with, how would you say you got here? You were the U.S. attorney.

You were appointed by President Clinton. How did you become a judge? Everybody has a story, as you know. So I grew up in a little town of St. Clairsville, Ohio, a wonderful little town of 5,000 people, about 10 miles from Wheeling, West Virginia. I knew growing up, I wanted to be a lawyer. My late father was a lawyer. I also enjoyed government. My father died very young, but he was in government. He was a state senator. Some people grew up memorizing baseball

statistics. I could tell you the county chairs all around Ohio when I was 15 years old. So I eventually ended up working campaigns for two U.S. senators who became close friends, John Glenn and Howard Metzenbaum. And when the position came over for U.S. attorney, it was, I wouldn't say that I was the obvious choice. I would say I was their choice and did that job for about three and a half years. And then judicial vacancy came open and I've been in this job for the last 27 and a half years. I also practiced law for 15 years in a little town. I always liked to channel Abraham Lincoln. What I tell you, some of the disputes had some pretty interesting rings to them, neighborhood disputes that could

escalate sometimes. We get a lot of different kinds of cases. Ohio has a funny law that if you're a farmer and you put a fence on one side of your property line, you can build the other side for half of it because they're getting the benefit. And I did a few of those. I had a psychiatrist who bought a farm as a place to get away and the neighbor who was a farmer didn't like him and wrote a nasty letter saying,

I'm building a farm one fourth of the way across our common boundary and you're gonna pay for half of it thinking you drive them away. The psychiatrist had me send a letter back, oh no not once for I'm building the rest of it and you're gonna pay me the half that's much more than what you had planned on and the matter went away. So I had a lot of cases like that. And you're married to a judge as well.

I am. You're poor children. I know that it is unfortunate for them. But yes, my wife was a judge before I was. She was a common please judge in St. Clairsville for 24 years and has some very interesting cases herself. Yeah. What does a judge of that, like what does she do?

Because I think our listeners know what a federal judge does. We all spend a lot of time on local judges. In Ohio, the common please court is the highest level court. It would be comparable to the district court, only under state law. So felonies, civil cases, equity powers, the whole nine yards. What we always joked about is when someone filed a lawsuit that she drew, and she was in a two-judge court, and the other side would be moved to the federal court, sometimes they'd bounce from one judge, Sargas to the other.

And I'd always get a big kick out of that. Judge, I'm convinced that the best dinner companion that you can find is someone who's practiced law in a small town for, say, 15, 20 years. Because the stories that they are going to have are going to absolutely blow your mind. That is true. You know, the law walks in the doors, we call it, and people would show up with problems. And yeah, one of the things you can't do much in a little town is specialize. So at a certain point, we didn't do any criminal work. But the civil side is you can guess everything from black lung cases to tort claims to all sorts of things.

All right. Let's do this. So I thought perhaps the best place to start is Brown versus Board of Education, because I think across the board, regardless of your judicial philosophy, you want Brown to come out the right way. And so it's almost a reverse engineering thing. We can go through various judicial philosophies, but you need to make sure that Brown v. Board of Education comes out to say that racial segregation in schools

is unconstitutional, that separate but equal is unconstitutional. And what's sort of fun about also starting with Brown v. Board of Education is that the opinion itself is incredibly short and there's just so little to it. It was a unanimous opinion. If you remember, it was argued twice because there was a lot going on at the court at the

time. They were basically waiting for some changes to happen to some court personnel. This was the new Chief Justice Warren's, really his first major case. Of course, he was going to go on to have a lot of major cases, though none ever, I think, as big as Brown really. The opinion says a few things. One, it says, we looked at the 14th Amendment, and you know what?

We can't tell either way. Shrug, moving on. Second, we don't necessarily think that racial segregation is a problem exactly, but, like that separate but equal is inherently unconstitutional, but, and then the opinion really hinged on this psychological data that even if the schools are totally equal in teachers and quality and all of those stuff, there is a psychological impact

of segregating children that makes black students feel inferior. And that is bad. And therefore, school segregation is unconstitutional. It's like kind of a weird opinion that I'm not sure a lot of people would necessarily defend as that judicial philosophy being their own. I think part of the reason why it's kind of fun is because there's like only a six paragraph opinion, it's really short. You can take the facts of Brown and say, here's how it should have been decided in terms of the judicial philosophy and reasoning. So Judge, we've talked a little bit about Brown from an originalist standpoint. You think that originalism would not get to the unconstitutionality of racial segregation

and more to the point, and I think you're going to call it common law traditionalism, you think that it is the better method. So take it away. Well, first of all, the Supreme Court itself, nine to nothing said that the answer would not be found in what the framers of the 14th Amendment and the ratifiers would have said. I've gone back and read the debates, and there's no mention of blacks and whites going to school together. There's a lot of history, and there are bits and pieces we can take, as you'd expect. This was ratified by three-fourths of the states.

There are a lot of people speaking in the Florida debates. There are a lot of things said. One of the main sponsors, John Bingham, who by the way, would have been my member of Congress had I lived in St. Clairsville in the 1860s, he actually went to school with African Americans and had lifetime friendships with the people he went to school with. So you can look at him and make a little bit of a point. But I think the important thing is, in Brown, the Supreme Court asked the litigants to brief something close to original intent.

What did the framers of the 14th Amendment mean when it came to school segregation versus integration? And they said two things. One, it can't be discerned. And two, in the end, it really isn't going to be what determines the outcome. That instead, if we look at a common law approach, meaning one that starts with deference to precedent, continuity being a good thing, and a break with the past only when necessary. They focused, as you remember, on education having fundamentally changed

at the time of the ratification of the 14th Amendment in 1868 to their decision in 1954 to become such an important feature in American life that the foundations for Plessy versus Ferguson, for example, were no longer good law. So as you know, Justice Scalia took a shot at this in his dissent in Rutan versus the Republican Party. And the statement he made that, and I agree with it, was that, quote, in his view, the 14th Amendment requirement for equal protection of laws combined with the 13th Amendment's abolition of the institution of slavery, leaves no room for doubt that laws treating people differently because of their race are invalid. I completely agree with that statement. I don't agree that's

originalism though. I think that's something very different. Well, that's a great, I think that's a great place to kind of define our terms because one of the interesting things about originalism to me is that when I was learning originalism, I felt like I learned it in a way that was a little deceptive. That advocates of originalism sort of put it like, okay, and I've used this analogy before, it's like you're an archeologist and you're digging

and you finally find like the stone that demonstrates that King David actually existed, you know, back in biblical times or whatever. You're digging through history and you're finding the nuggets that really make something sort of indisputably, one reading indisputably more correct than the other. Whereas in reality, it's actually more of a framework for how we decide things. It's not something that's going to guarantee a particular kind that two originalists, in other words, can disagree on the same case. And so, which was not something that I had sort of thought in my youth when you're talking about originalism.

And I've now read a lot of different kind of definitions of it. Is it original public meaning? What is original public meaning? The text history and tradition approach, what does that mean? How do you define originalism, Judge? When you hear someone say, I'm an originalist, what are you hearing them say?

Well, I'm gonna start on a light note. You and Sarah have put me to my steps over the weekend. You had an article within the last week in the New York Times, speaking of originalism, what's the definition? It starts with what you just said, to discern the common, ordinary meaning of the words, and second, at the time of the document's adoption.

Now to be clear, I think there are lots of times originalism can be really helpful in deciding how to interpret the Constitution. I wouldn't say forget it. I think what's oftentimes going to be absolutely definitive is just the simple words of the text. When the Constitution says you have to be 35 to be president, When the Constitution says you have to be 35 to be president, we wouldn't be debating, maybe we could be debating this year, whether people were too young or too old, but the courts aren't tasked with that. The words are absolutely clear. That's the end of it.

It's words like, in the Brown case, equal protection, due process, those are the kinds of things where I think originalism clashes with a common law approach because the world has changed. The common law assumes progress by the way. Originalism assumes going backwards. I think the two pull in different directions, but at different times they may speak to a particular part of the Constitution. So I think there's also the way that textualism interacts with originalism that we have to talk about in order to make some progress here because and I'll use Bostock as an example.

And mind you, there was a big fight among conservatives over the textualism and originalism of Bostock. And look, the shorthand is that textualism applies to statutes and originalism applies to the Constitution, but that really you're doing the same thing. Bostock was statutory, so we use textualism for that. But I also think that intuitively, you think about different things when you use the word originalism and you use the word textualism. So I want to use the word textualism a little bit, is what I'm getting at. So in Bostock, it was about the word sex, sex discrimination, basically. And there wasn't really much question that at the time of the Civil Rights Act, nobody

thought that the word sex would include a man putting on women's clothing to go to work. But what Gorsuch was saying was, nevertheless, that is what sex meant. You were discriminating on someone based on the characterization or stereotypes of their sex. So skirts aren't inherently one thing or another. So if a man wears a skirt, the only reason you're mad at him is because of the stereotype that women wear skirts. And therefore,. So if a man wears a skirt, the only reason you're mad at him

is because of the stereotype that women wear skirts. And therefore, if you were a woman wearing a skirt, you wouldn't have that opinion. Therefore, you're discriminating on the basis of sex. Okay, that's like my rough boss doc thing here. And so when we think then back to Brown and about equal protection, the, I think you're right,

the originalism that people think of is would they have thought that school segregation was constitutional at the time of the ratification of the 14th Amendment? But a different way to think about that is when they said equal protection of the laws, whether they understood that they were including school segregation or not, did they mean that you could not distinguish between two people based solely on their race? I will grant you that actually even the historical record on that isn't 100% one way or the other as we learned during the affirmative action briefing and oral arguments at the Supreme Court in the Harvard case, but it is different.

And I think this gets to a problem with all forms of judicial philosophy. At what level of generality are we doing this game? And you know, Justice Breyer has a version of your, he wouldn't call it, I don't think, common law. He calls it traditionalism. But it's the same idea. His is a purpose-based test. What was the purpose of this law as best I can discern it? And how can I best effectuate that purpose? But the

problem is, what level of generality are you going to define the purpose? Because at some point, the generality of any purpose is, well, they were trying to make the country better. And so I'm going to come up with the way that makes the country better. So that is my pushback on textualism versus originalism definitionally. And I'm not sure it's a good thing for textualism and originalism, because it means that you can kind of play a little fast and loose. Is it whether they thought it would apply to this specific question back then,

or is it simply what the words meant back then? So I'm first here. I'm not a big ism person. We'll put common law, we'll call it common-law-ism, just so I haven't excluded that. But you know, the Bostig is a great example of the difference between originalism and textualism, as you said. One of the arguments for that distinction is that if Congress disagreed with the interpretation of the statute, it could amend the statute, not so when it comes to the Constitution.

But the two things I would argue in the Obergefell case, Justice Kennedy had to know that you're not going to go back in the 14th Amendment ratification period and fight any mention of gay rights. Didn't exist. We know that you're not going to go back in the 14th Amendment ratification period and fight any mention of gay rights. Didn't exist. We know that. And yet, I love his quote, the nature of injustice is that we may not always see it in our own times. The generation that wrote and ratified the Bill of Rights in the 14th Amendment did not presume to know the extent of freedom in all of its dimensions. So they entrusted the future generations a charter protecting the rights of all persons. I love that. I think that's exactly right.

We're going to make your case harder on Brown. Okay? Well, there may be some ambiguity in the historical record. That's what the Supreme Court said. How about miscegenation laws? There's no ambiguity. I went back and read this morning. This was the canard the opponents of the 14th Amendment would use. If you passed the 14th Amendment, then your daughters and wives are going to be marrying freed black slaves. And the Republicans uniformly said that's a bugger bear. A bugger bear was one of them. They had all sorts of words saying, whatever, we get into this debate about African-Americans, you always pulled this out.

Everybody knows that's not what this is about. They completely disclaimed any intention to fight a constitutional right of blacks and whites to marry. Yet in 1967, a unanimous Supreme Court finds exactly that. That's where originalism can't take you. I agree. Where traditionalism and common law will take you there, though. So this gets to another fun question, I think, about different judicial philosophies. And

it's worth noting, Justice Scalia did not think that originalism was the be all and end all. It was something like democracy, right? It's the worst form of judicial philosophy except for all the others it has faults But those faults are less than the faults of other judicial philosophies And you know he listed one of the faults as it's really hard to go figure out the history It can be voluminous. It can be ambiguous all of those things and second He said originalism could be a medicine quote too strong to swallow and I think that's what we have here because we Want the Constitution to have protected interracial marriage, just like we wanted the Constitution to protect

gay marriage, for instance. But here's the question. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos.

So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day.

It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off, plus free shipping on their best-selling frame. That's AuraFrames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. And this gets to a congress do-your-job, but it's, I think, much easier to say, like, look, we have a Congress, they can do this, blah, blah, blah. It's much harder if you need a constitutional amendment. Now, I actually do not believe that interracial marriage needed a constitutional amendment.

There was nothing that we were overriding in the Constitution. There's nothing that banned interracial marriage, but you certainly needed a statute to do it. So I think some of the questions that you have to answer is, wouldn't it have been okay if Loving v. Virginia had turned out the other way and that the enormous amount of political pressure that would have been put on Congress at that point, because at that point, by the way, it was, you know, the tides had very much turned on this question. Isn't that fine if then Congress just had to pass a statute and supersede a Supreme Court decision?

Okay. But to counter that in a, in a, in a nice smiley way. Okay. On that theory, we don't need to throw an emojis at me. On that theory, we don't need a bill of rights. It would be better if Congress passed the Miranda warning. It would be better if Congress passed New York Times versus Sullivan. But we have a constitution to make sure that certain kind of fundamental rights are not left to

the majority. So waiting for Congress to act is another way of saying, we're waiting for a majority rule to overtake this. And sometimes that isn't going to happen. Or if it's going to happen, it's going to happen generations too late. That that was the essence of our constitution was to enshrine these sort of fundamental rights and take them out of the wheel of the majority. Of course, in the case of Brown v Board of Education, the Supreme Court said that school segregation was unconstitutional,

unlawful, they were ahead of the culture on that one. And so what happened? Schools did not desegregate for 10 plus years until Congress acted. So what I think the history shows is that if the Supreme Court acts before the culture, the culture waits for the culture. If the Supreme Court acts in a way

that is already directionally where the culture is going, and here I'm thinking about Obergefell, then it just kind of happens. You're right, maybe a few years earlier than Congress would have done something. And then you have Roe v. Wade, where the Supreme Court acts sort of different, like just sort of in a moment where it's unclear

which way the culture is going. And then it creates 50 years of political havoc. Let me push back a little bit on Brown versus Board. Certainly, there was a role for Congress to play. By the way, before Brown versus Board, as you know, I'm going to guess most of you listeners do, there were a lot of things happening in the 30s and 40s in the area of race relations.

The military was integrated by order of the president. There were several Supreme Court cases before Brown that made it clear the court was taking a hard look at segregation. So this wasn't completely out of the blue. And in the 1950s, think of Little Rock, there were courts enforcing Brown versus Board. There was President Eisenhower sending in troops to make sure the order was enforced. So the country was moving. Truly part of the country wasn't moving though. And that's what this case did. So I think it did probably push school integration by at least a generation or two in some states ahead. Roe v. Wade, I want to be careful here because I can be stuck with some cases in this area.

That's a different issue where the Supreme Court didn't settle the case. An extreme example I would use is Dred Scott. The Chief Justice at the time thought that the Supreme Court was going to put the slavery issue to bed, did exactly the opposite. So there are times in our history where the Supreme Court has pushed far away from public opinion and led to regret. So I would put Brown in the category of one that worked, Dred Scott being the extreme opposite example,

lots of cases in between. But the one thing we can say about Roe is that it did not settle the issue. And that's probably, I think, something we could all agree on. This is where, let me make your case for you for a minute. I need all the help I can get. Let me make your case for you for a minute in what I call the difference between good originalism and bad originalism.

So I think of good originalism as when you're taking the words on the page as the words on the page of the Constitution are their paramount. And to the extent that any historical background helps us amplify or explain those words on the page to give them force and effect, that would be what I would think of as good originalism. Here's what bad originalism is. Bad originalism is when you have the words on the page and then you go into history to explain why the words on the page don't mean what they actually say. And this is where we get into some of the equal protection issues.

And so, for example, if you had an originalism that privileged the words on the page more than anything else, you don't need the 19th Amendment granting women the right to vote because it seems to me that denying women the right to vote is a clear violation of the term equal protection or privilege or immunity of citizenship. So in that sense, it feels like the 19th Amendment exists because there was a determined effort or a feeling or a sense or an original public meaning that equal protection did not actually mean equal protection.

And that's why one of the reasons why I go back and as you're noting, Judge, I used a Judge Newsom's definition of originalism in a piece I wrote last week for The Times that talks about the most important element is text. Text is the most important element. And I feel like there is a version of originalism, and I've explained it poorly, that previously, that weirdly enough de-escalates orates or deprivileges, de-emphasizes the text. And it seems as if some of the common law elements

you're talking about actually in an interesting way might privilege the text a bit more by giving the text its full force and meaning over time. Is that a fair, would you say that's a fair description? I do. The trouble with words like equal protection due process is that they're not self-defining. So originalism when it comes to women would say,

look, there was a push in 1866 to 1868 to put women in the 14th Amendment. It failed. So it's hard to see how a court could come along and say, wait a minute, equal protection means women have a right to vote. That took a constitutional amendment. Today we see that as, well, that should have been an easy decision to make. Women should have equal rights.

Blacks should have equal rights. We could say the same thing with the benefit of hindsight about about gays. But but there's more. And what is the limit? I mean, what groups are included? You know, you're familiar with the famous footnote in Coraline Products case. They had a definition of what groups could be included. That certainly wasn't from the text, wasn't from the historical records of the people who framed the amendment. But it did seem to me consistent with what

our whole structure of government is supposed to be about, which is to protect minority rights from having fundamental rights infringed upon, but at the same time let the country be governed by the will of the people in all other regards. But I think equal protection is the hard one because it just doesn't have an easy, I used to have red hair before I turned gray, but I've always wondered if red hairs should be a group protected by equal protection. But so far no one's bought that. Well, David, though, under the boss doc reading, I think women would have had the right to vote under the 14th Amendment, right? Oh, yeah. Under a boss doc type of textual reading, I think women would have had the right to vote under the 14th Amendment, right? Oh, yeah.

Under a boss doc type of textualism, I mean. Absolutely. You're 100% correct. Like a text-privileged, a ritualism that privileges the text to such a degree that you're only moving towards the historical meaning when the text, I mean, men can vote and women cannot seems to be about as basic an equal protection violation as the words on the page could convey. And yet the original public meaning was, oh, no, oh, no, equal protection does not mean

this at all. And that's what I mean by originalism undermining text, as opposed to originalism amplifying or helping us understand text, if that makes sense. And that's been my issue with it. Let me get the Justice Scalia story in here. There was a case that I'm sorry, I don't have the citation in front of me. It was pretty early, 1990, 1991. And I remember the facts there was a male working on an oil rig. It was a pretty rough place to work. He was gay and he just had enormous amounts of harassment to the point he

quit, bought a lawsuit. And Justice Scalia said sex means sex, that he had been a woman who liked men. That would have been fine, but he was a man who liked men. It was because of, that's the words from Title VII. And that was out there, didn't make a lot of news. And the Sixth Circuit, where it was covered, had several cases after that that said that gays were not protected by Title VII. So as a district judge, I'm in the spot of, well, the Supreme Court said the opposite and the Sixth Circuit tells me it's not so. What do I do? I followed the Supreme Court. This was before Bostic. And then of course, Bostic cleared it all up. So let's get back then to Scalia's point that originalism is the worst, except all the others.

And, and let's talk about what tools you use in your common lawism to discern the meaning. Are you looking at things like the legislative record or purpose like Justice Breyer suggests? You mentioned sort of the easy things, precedent, that you do, of course, look to the text. But it feels like everyone's willing to talk about the easy stuff that all sounds good. Get to the hard part of yours. What is the problem with common lawism? Well, what I like about common lawism

has a lot to do with where I sit in the system. I'm a trial court judge. If I can digress sentencing for a moment. Digress on this podcast? My goodness, who could imagine such a thing, sir? trial court judge. And if I can digress sentencing for a moment. Digress on this podcast? My goodness. Who could imagine such a thing, sir? What I hear in this demand for certain, in other words, show us the principles, show

us how cases should come out under a process, an ism, so to speak. That rings in my mind of this federal sentencing guidelines. And so we have to take the judging out of judging. We have to take any discretion out of sentencing. And then it's turned out over the last almost 40 years that they've been in effect, that it doesn't work like that. The cases are too unique. There's the different kinds of crimes are too varied.

So what we have instead is a system that says, here's what a typical judge did over the last 30 years before we promulgated these guidelines. And that's a starting point for you. Start there. And if you think the sentence is too high, explain it. If you think it's too low, explain that. So I think there's a lot more judgment that goes into this in a specific case than just having an ism.

But what I do like about the common law side is you start with what's the precedent? And that in most cases should carry the day, that we have an idea that the past wasn't all bad, that other judges got this right. Now, you know, what's changed? Once in a while, Brown, for example, or Loving, things have changed, and you need to explain why they've changed. And you need to explain why they've changed. And you need to move this forward. What had changed in Loving?

In Loving, what has changed is a hundred years of our history. That we, as a nation, began to realize that it was shameful how African Americans were treated, that they should have equal citizenship. And the public had moved in that direction as well. It's not a popularity contest, but it has some sense of where the public is and where certain rights aren't being protected. And the argument I would make is just like with originalism, either one can get this wrong. The court could be too far ahead under a common law theory. They could.

And you can probably use Tred Scott common law and it would be a bad outcome. There are three amendments to the Constitution that overruled Supreme Court cases. So that's part of our history. The Dodge case shows that over time, if the opinions are unpopular, that there is a way to change the composition of the court. But I don't think either originalism or the common law approach is foolproof. I think our system is based on the idea that each branch of government is capable of mistakes. That's why we had the three branches of government. But I don't think one has an advantage over the other in terms of judges run loose, whatever you want to call it. Can you give us an example of a time where you applied your common law-ism and it came out differently from the way you think it, you would have wanted it to come out?

Well, I was going to, facetiously, but also in real life, I'd only had one constitutional case where I felt I was deciding an issue, coal, from scratch. Do you remember a congressman from Youngstown named Jim Trafickett? Of course. Okay. So, fascinating guy. I'll cut this short because he could dominate the rest of the show. But he was expelled from Congress after having been convicted in federal court of income

tax evasion and bribery. But he hung on to the bitter end. They actually had a trial on the floor of the house. He defended himself, didn't have counsel. They expelled him. In the meantime, there had been a census. The state had been, the state government had reapportioned the congressional lines, and his congressional district basically was disappearing. So I think the vacancy occurred sometime in October of the last of two years of that term. As you know, the Constitution says no one can be appointed to the House. There has to be a special election, and it says the executive of the state must order an election. Well, the way the

math would work out, if you put all this together, had an election, they'd get somebody in office towards the end of December. And the term ended in January, and the whole seat ended in January, January 1, to be exact. So both the chair of the Democratic Party, chair of the Republican Party wrote a letter to the governor saying, shouldn't do this, big waste of time, and whoever gets the seat is going to be gone in just a few days. So the ACLU sued the governor of Ohio at the time, Robert Taft. I got the case. There's really nothing comparable to that. So honestly, I looked at the text and thought there's mischief here. If a Republican governor held up a Democratic seat for a year and a half. That doesn't have any appeal. There's also no sense of that happening here when both parties have asked the governor

not to hold an election. So I basically said that this is a situation where the Constitution was meant to be practical. On the one hand, if there were any showing of any sort of abuse of discretion by the governor, I would order an election because the Constitution didn't have a maybe, it said shall. So just so you know how persuasive my opinion was, I was reversed three to nothing by the teacher. So that's not the kind of case I normally bump into. It was a very kind reversal, by the way. And it was after they took the case, even though the term had ended, because they

found it was capable of repetition, which was right. So what did they say? Now I'm just curious. They said that shell means shell, and that this could be abused, and that there should have been an election. But no, what I wanted to emphasize is that this is not my daily line of work where I

apply regionalism versus textualism versus common law. It's just a view from having looked at this. And frankly, I've always had a great interest in the history of the 14th Amendment. You know, one thing that I think is very helpful about this conversation, because again, I go back to sort of thinking about how these arguments were debated or how these arguments were defined and how we debated these things when I was in law school and as a younger lawyer where you're sort of thinking through competing legal philosophies is I think a lot of originalist defenders of originalism say we're really the only people who truly focus on text, but that's not exactly accurate.

The approach you're talking about is also quite text heavy. It seems as if the divergence is, how do we figure out when the text isn't self-defining? How do we figure out when the text isn't, the term equal protection, as you noted text isn't self-defining? How do we figure out when the text isn't, the term equal protection, as you noted, isn't self-defining? Where do we go when it's not self-defining? Not the text doesn't matter.

And I think that this has kind of been the caricatured version of the opposition to originalism. We originalists make ourselves feel better because we're the only ones who care about text. And that's not accurate. And one aspect of the common law, the other case of interest is US versus Jones. That's the GPS device on a car and whether a warrant was needed. If you remember the debate between Justice Scalia and Alito, it was interesting because

Justice Scalia took his right to 1787, talked about what a constable would do and whether this was a trespass. And you remember Judge Alito's famous comeback that had to be either a small wagon or a very large wagon or a very small constable. They were now judging the constable would be hiding your wagon as a drove away to know exactly where you went. There are many times that what the framers meant is important, but in the modern era when we're talking about a GPS device on a car, that sort of factual analogy, I think,

at least in my view, isn't helpful. That's what I would call it. But the words themselves, because there are some things in the Constitution that are quite specific. You know, the idea of having to identify the home to be searched, that's right in the Fourth Amendment. So, you know, anything like that, that has a clear meaning, that's the opposite of equal protection, I would argue. That's where the text needs to carry the bay. Okay, so how does common lawism differ from living constitutionalism? It doesn't go backwards. It doesn't say as a starting point, what were they doing in

1868 or 1787? It's okay, we understand how these cases interpreted equal protection before. We will be guided by those unless something significant has changed that would make us think that the foundations of the precedent no longer made sense. Okay. How does common lawism differ from Breyer's purpose-based test? I don't think it's purpose-based as much as a court being sensitive to... Here's the example I would use, interstate commerce. If in 1789, the first Supreme Court of the United States had to find what is the meat industry, is it intrastate or interstate? And in those days, if you killed a cow and didn't have some way to refrigerate it, it would rot in a day or two.

So you couldn't have meat cutters in Philadelphia selling meat in New York City. Intrastate not subject to congressional regulation. But now 115 years later, Chicago has figured out the refrigerated railroad cart, and they have stockyards that can send frozen meat all across the world. That's changed. The factual underpinning of that 1789 decision isn't true anymore. The world has changed and the law needs to change with it. That's where the common law tradition accommodates change. It doesn't change the principles involved, but it does change the application of facts. Yeah, this is so, so helpful to hear you articulate this, because I do think this is where you're really pushing on the things that trouble me, Judge.

So let me take another issue. And this one, you may not be able to really touch it, because you may have cases. So let me just throw this out there, and you cannot respond or not respond. But for example, the Second Amendment, when it says the right to keep and bear arms. So an originalist says, arms mean, what is arms? What does arms mean?

An originalist would say, okay, what we're talking about is weapons that are personal defense weapons, but also at the time were military grade weapons. In other words, the Brown Bess Flintlock musket, which was hanging on over the mantles of a lot of colonists' fireplaces, was also the weapon that the British regulars used. So therefore, if you're going to regulate an AR-15, which is, which might be in your gun safe in your house, which is very similar, not identical, but very similar to the M4 that I carried in Iraq,

originalism would say that's arms. But it seems to me that a common lawism approach would not take, would not look at it that way. It would say, well, you're allowed to have some weapons. You're allowed to have some weapons, but we can't look back to 1868 with the ratification of the 14th Amendment, which incorporated the second

or go back to the 1787 Constitution and then the Bill of Rights, ratification of the Bill of Rights after the 1787 Constitution, and then determine that. What are arms? That is a process that is evolving through precedent and case law. Is that, well, you may or may not be able to answer that, but that's how I would interpret some of the differences between the two. Well, that's a great question. So in terms of a common law approach, I'm not sure how that would turn out. I don't sense, you know, the country's divided on gun issues. I mean, police says one thing, but there are people with strong opinions on either

side. I doubt a decision from the Supreme Court would end this debate one way or the other. So there's a certain amount of, I would like to think for people who really adhere to this common law idea, there should be a certain hesitancy of jumping into a great undecided political debate and taking a side. One thing the common law is supposed to do is maintain respect for the legal system as a system of laws, not as a system of gratuitous policymakers. So I'm not sure the common law would lead to any great cataclysmic difference in the gun

area as opposed to originalism. I think you can make originalism from the common law side, very wouldn't. You could say, well, if we look to 1787, good luck with your fledlock, right? Right. But I don't think that's the only way to do originalism. I like what you said, which was the gun we're talking about would be comparable to what a soldier in the Revolutionary War would have carried. And then you make that same analogy today to an AR-15, for example. I know that's

going to make some of your listeners upset the way I put it, but I think that's the kind of issue that unless the common law can identify some big change in facts that makes the earlier precedents, uh, challengeable, uh, no longer good law, uh, I'm not sure this is one where originalism versus the common law would make that much difference in the final decision of the court. I love this. Judge Sargas, you've been incredibly informative and helpful, and we so appreciate you taking the time out of your Article III lifetime tenure

to come talk to us about this issue. Well, I feel very privileged to have a great conversation with the two of you. Thank you for inviting me. Yeah, this has been a real treat, Judge. It is technically your second time on Advisory Opinions because in our special Legal Eagles episode we discussed your book on events transpiring in Wheeling, West Virginia. Yep. Article 4, section 3, how to create a new state out of an existing state.

And plug the book for us because it's actually a pretty fun book. Well, it's an interesting question of originalism too. This is a very specific part of the Constitution. They were anticipating new states. They were also anticipating some states splitting in 1787, Virginia being one of them. Kentucky was split off. But the amendment, I'm sorry, the Article IV, Section 3 says that if a state is split, the state being split has to consent. So the problem was Virginia seceded, but then West Virginia wanted to split off.

And the question of what kind of consent did West Virginia need when the state that would otherwise get consent says we're no longer covered by the Constitution. That was the great dilemma in 1862, 1863. That's what our book's about. But I love what West Virginia did to solve the problem. Because Virginia was no longer part of the Union, West Virginia peeled off, said, now we're Virginia, and us, as the government of Virginia, now gives consent to West Virginia to peel off. And then basically they disbanded their Virginia government and became West Virginia. That's exactly what happened. And then basically they disbanded their Virginia government and became West Virginia.

That's exactly what happened. And their biggest supporter, by the way, was one of the main drafters of the 14th Amendment, John Bingham. This district was right alongside West Virginia on the Ohio side. And his view was once the government's in rebellion, it's no longer a Republican form of government. The federal government could step in and West Virginia became a state. Now, it's a lot of grief, though. And perhaps this brings up the practical side of judicial philosophy because in the moment, it was incredibly important to have West Virginia separate from Virginia and part of the Union because important railroad lines ran through there that could move supplies. Yep, the B&O railroad, the biggest railroad in the country at the time, the most important important railroad lines ran through there that could move supplies.

Yep, the B&O railroad, the biggest railroad in the country at the time, the most important. By happenstance, West Virginia happens to track those rail lines. All right, what's the name of the book? Ceasing from Secession. I just love these little bits of our history, David. I do too. I mean, we could have a whole podcast, which would be fascinating to maybe only me, about the way in which the fact that the Confederate states were in open rebellion against the Union, and the Union did not want to recognize the Confederate states as a belligerent

power, because that would in many ways ratify the secession as a legal matter in an interesting way. But at the same time, as for all practical purposes, they were a belligerent power. And so how did the union constantly shift between, okay, as a practical matter, we're treating them like a belligerent power, but as a legal matter, we're treating them as if they're just in open rebellion

in a state of treason. It's really fascinating. It's a fascinating subtext history of the Civil War that involves the Emancipation Proclamation, that involves the creation of West Virginia, that has relevance to the ratification of the Civil War amendments. It's really the whole way the war was conducted with prisoners of war, et cetera. It's really fascinating. I mean, so somebody out there who's a legal scholar who wants to write that book, you have one sale. Two, I'll buy it too.

But Judge, I'm running and getting your book. So I'm fascinated by this question. All right, Judge Sargas, thank you. Thanks so much. Thank you, Judge. Well, David, that was an incredible conversation. Yeah, that was really great. And I'm very glad that we talked about it

in a way that showed that, look, because I think a lot of originalists tell themselves, we're the only ones who care about text. Everyone else is outcomes-based, we're text-based. I think we've seen how originalism can become outcomes-based. And I think I want listeners to know how competing judicial philosophies are text-based. And it's not as black and white as we often think,

especially when we're having these law school arguments, like I engaged him constantly. And there's ways, and Judge Newsom was right when he talked about, he had this great speech that we've talked about before, how originalism can become living originalism. And you can end up with outcomes that when you go read the text,

you're like, how did this come from this text? And so I do think that that's I found that super helpful and a great way of shedding more light than heat on the debate. So that was fun. Well, I'm excited to continue the conversation. If you're in the San Francisco area, May 22, at the Sydney Goldstein Theater, I will be talking to Justice Breyer about his purpose based traditional traditionalismism judicial philosophy.

And I'm told I was invited for the express purpose of making a little spicier with Justice Breyer. So I'm gonna try to bring Serrano level. I love it. I love it. That's exciting. All right. A few more things.

One, MIT president Sally Kornbluth was quoted this week as saying, we can build an inclusive environment in many ways, but compelled statements impinge on freedom of expression, and they don't work. MIT now becomes the first elite university to ban diversity statements. Harvard's Randall Kennedy, who David, you and I

have been on panels with Professor Kennedy, and he's so interesting to talk to about the underlying purpose of DEI, how it's been actually put into practice. His quote was, it would be hard to overstate the degree to which many academics at Harvard and beyond feel intense and growing resentment against the DEI enterprise because of features that are perhaps most evident in the demand for DEI statements. So I tweeted this out as thus endeth DEI. Now, yeah, and you said David, like, oh I want to talk about this. So I want to be clear before you launch into me that, and I

think you knew this. No, no, I'm not launching into you. I don't mean that like, and now DEI has ended, like it's over. What I mean is this is the way DEI ends. In the same way that 10 years later, these schools were like, oh, it turns out that getting rid of the SAT hurts the very people we claimed we were helping. And then when we said that anyone who opposed us getting

rid of the SAT was racist, we now take that all back. We're sorry. Similar to DEI statements, right? When you talk about compelled speech, they're like, well, this isn't compelled speech. It's being against discrimination. It's being for diversity. Who's against diversity?

And all these people were saying, not only are you this is unlawful. like you're violating the rights of your faculty here, you're violating, of course, academic freedom, but also it's not going to work. Making someone say something is not effectual in any way, and it's been proven over and over again. And in fact, in the DEI world,

in, for instance, employment trainings and stuff. It's been shown to have the reverse effect, a mild but nevertheless counter effect to the intended purpose. So I think that what I'm saying is the end of DEI is these schools realizing that it is both bad and not effective will mean the entire structure collapses very quickly in my view. Yeah. I think when you have some historical perspective on these university disputes, your tweet was entirely fair. And if Twitter existed 20 years ago, when the speech code litigation effort was at sort of at its peak And you began to see schools repealing their own speech codes.

You could have tweeted out, thus endeth the speech code because it's a tide turning moment, you know? And so I would describe what's happening, the battle for academic freedom as often a battle between illiberal activists on the right, mainly coming at the university from outside the university. So I think, for example, of how TPUSA has like a professor watch list, right? And then they're trying to get their people to contact schools to attack professors who've transgressed TPUSA's version of what free speech is. And so you have an illiberal right

that's often mainly outside the academy, and you have an illiberal right that's often mainly outside the academy, and you have an illiberal left that's very much inside the academy, as we've seen from some of these protests, for example. And that illiberal left inside the academy is constantly trying new ways to implement their version of justice through illiberal means.

And so when you back down the speech code, bias response teams rise up and they say, well, it's not really a speech code. We're just an educational opportunity to find you when you engage in wrong speak and talk to you about why all your wrong speak is wrong speak. And then you back that down and the DEI stuff rises up. Well, we're open to everyone,

but you just got to tell us what your worldview is before we hire you. And it's whack a mole. No, you have to agree to our worldview before we hire you. Yeah, you have to agree with our worldview. We're actually not that curious about your worldview. Yeah, we're not gonna tell you that you have to agree with us,

but we're just gonna ask you to state your views and then if we don't like them, you have no chance. And each one of these moles that then if we don't like them, you have no chance. And each one of these moles that comes up, you can whack them, but it takes a while. And what the universities need to do, what the university administrators need to do is realize we have an illiberal left in our midst and we can't constantly let them win until we're sued out of it. And this is what's happening on the university campuses.

They have let the illiberal left win constantly, and then they get sued and backlash out of it. And then what's next in 10 years, Sarah, five or 10 years, unless you start to draw these lines like, say, for example, you do at University of Chicago or Vanderbilt. But I think you're exactly right. The instant you know the tide is turning was when an apex level university says no more, we're not doing this anymore. That's a sea change moment. And that's absolutely why I wanted to talk about it. All right, next up, we have this opinion from the Fifth Circuit, and it's a unanimous opinion. It's Judges Oldham, Engelhardt, and Jolly,

Judge Oldham writing, and I will say, there are times when I find Judge Oldham's writing is too sharp for the occasion. Mm-hmm. This is not one of those times. So... We need to arm wrestle for who gets to read the first few paragraphs.

I get to. Because you're the host. Darn it. For those who worry that qualified immunity can be invoked under absurd circumstances, buckle up. Austin Thomas Hughes is a good Samaritan. After 2 30 a.m. Hughes called 911 to report a pickup truck swerving violently across a four lane highway in Houston. 610 for those of my Houstonians listening. While Hughes was on the phone with emergency dispatchers, the drunk driver crashed. Still on the phone with 911, Hughes pulled behind the drunk driver and effectuated a citizen's arrest in accordance with Texas law. But when police officers arrived at the scene, they let the drunk driver go and then arrested Good Samaritan Hughes.

Parentheses, seriously. Piling insanity on irrationality, the officers then charged Hughes with a felony for impersonating a peace officer. Hughes spent thousands of dollars defending against the frivolous criminal charge before the city of Houston dropped them. Then Hughes brought this 1983 suit against two officers who victimized him. The district court denied qualified immunity. We affirm. Obviously.

So that is the summary of the story, but actually the details of the story make it worse. Oh, oh, can I do the next one? Yes, please feel free because it's... At about 3 a.m. on March 25, officers Fue and Garcia went to Hughes' home to arrest him. The record does not reveal and judicial imagination cannot fathom why officers needed or wanted to execute this arrest warrant at 3 a.m. But Hughes, who was asleep with his wife at the time,

answered the officers through the door. Pugh and Garcia asked to see Hughes' Uber app, insisted they needed to see his actual cell phone rather than the screenshots he'd already sent. Hughes cracked open the door to give his cell phone to the officers. However, instead of taking the phone, the officers grabbed Mr. Hughes, outstretched arm,

pulled him out of his apartment, into the hallway, the officers grabbed Mr. Hughes' outstretched arm, pulled him out of his apartment into the hallway and handcuffed him. The record does not reveal, and again, judicial imagination cannot fathom why officers needed to trick an undressed Hughes into extending his arms through the cracked door so he could be forcibly arrested in his pajamas. Fuon Garcia allowed Hughes's wife to clothe him

before taking him to the Harris County Joint Processing Center. Man! It's weird because also, in most of these types of stories, there's a story of animus. You sort of already know why the police officers don't like the guy, and then they abuse their power and their official status to, you know, make life hard for this person

that they don't like. That doesn't exist in this story. It's particularly bewildering because they show up on the scene after multiple 911 calls of Hughes following the drunk driver. He's an Uber driver. He's got two people in his car. He is doing his job and clearly he tells the two people, sorry, like this person this person's gonna kill someone we've got to follow him and make sure that everything ends up okay. They can hear the Uber people in the back saying like yes he's super drunk he's swerving this is oh my god you know all of that. Yeah. So when the police oh and then when the guy crashes his car the Uber driver pulls over

and like tries to get the guy and the guy starts running into the road and if you've ever driven on 610 you are going to get killed they. And then the guy starts running into the road. And if you've ever driven on 610, you are going to get killed. They cannot, it's dark, they can't see you. And so he, I mean, to say he's citizens arrested the guy, no, he prevented the guy from killing himself. Yeah. He just didn't want him running into the road.

Okay, so then the police finally show up and the drunk guy says, I was at a flea market with Jesse and his friends. Jesse said that we could go back to his place and that he lived on I-59 South near downtown. I told Jesse that I lived on I-10 and he said that he would take me home. I said, okay, because I had been drinking

and had more than seven beers and I was too drunk to drive. But I had a friend at the bar that could have taken me home. Jesse said, let's go to his house and offered a drive, so we went. Midway through the trip, I was not familiar with where I was at. I started to ask Jesse where he was taking me. I finally asked Jesse to just take me home, and that is when he got mad.

Jesse asked if I had something going on with his wife. I told Jesse no. Then Jesse asked me what was going on with his wife. And I was confused, and I asked what he meant. Jesse said, he knows there's something going on. Jesse stopped my truck on the freeway and got out of it. Okay, so the police believe this story, even though this guy has now failed

all six drunk driving tests. Gosh. Hughes' name is not Jesse. And of course he has his license so he can prove his name isn't Jesse. And also, let's break this down. How did Jesse's car get there? Right?

If this story is true, and they were both at a bar together, and he was like, I'll drive your pickup truck for you. How are there two cars at the scene? It makes no sense. But they believe the drunk driver, let him drive the rest of the way home by himself, not arrested, and then arrest Hughes a few days later at 3 a.m. whose name again, I wanna repeat, is not Jesse.

So Sarah, I can't remember if I told this story on AO earlier, this exact fact situation almost happened to my son, this exact fact situation almost happened to my son that he drove his car to a party, parked it, a drunk driver who was super sloppy drunk, piles into my son's parked car with such force that it propels the parked car into the road, totaling it by the way.

And then when the police come, he says, this guy hit me and he ran away. And so when my son walks up to see the devastation done to his vehicle, the police almost arrest him. I mean, they, you know, hands in the air, he's sitting by the squad car and they're thinking that he is the, he's a hit and run guy and they almost let the obviously sloppily drunk underage person go but then finally decided to field

test him at which he failed immediately and the dynamic shifted. So these are much better police they could see that the obviously drunk person was obviously drunk in the moment. So the opinion continues qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Government officials are entitled to immunity from 1983 suits for damages arising from their duties unless the plaintiff can show one, that the officer violated a federal statutory or constitutional right, and two, that the unlawfulness of the conduct was clearly established at the time.

The officer's basic contention is that even if they violated Hughes' constitutional right, they are nonetheless shielded from liability by the fact that an independent intermediary, namely the magistrate who approved their application for an arrest warrant, blessed their unconstitutional conduct. We first explain the interdependent intermediate doctrine and the Franks' exception to it. Then we B, apply that doctrine to few in Garcia's reckless and intentional misstatements and omissions in the warrant document. And finally, we explain that the warrant affidavit could not have been established, sorry, could not have established probable cause without the offending misstatements and omissions. I.E. your warrant doesn't cure your bad behavior if you lied to get the warrant. Duh. Right. Right. Exactly. Exactly. It's just a tremendous opinion from start to finish. And

it's one of the times when quite sharp judicial language is abundantly justified. Just abundant. But I do love the perins, like obviously. Yeah, in some ways this isn't an interesting opinion, except that it's qualified immunity. And again, you're watching these courts struggle with more and more situations where common sense is just beggared, if you will. And slowly but surely, David, this isn't happening, I

think, the way that either of us thought it would. But qualified immunity doctrine is shifting. The Overton window of qualified immunity is shifting such that a situation like this now falls way outside the Overton window of qualified immunity in a way that perhaps even 20 years ago, they would have denied qualified immunity to these two guys. But it would have been a far more serious hand-wringing exercise than the WTF, XOXO, Judge Oldham opinion that we have here. So I have a theory, Sarah. I have a theory.

Qualified immunity has already been bitten by one of the walkers and the walking dead. And it's in the zombification process. Not a zombie yet. Yes. Well, this is why I'm waiting for the Trump immunity decision, because I think that it will have impact on qualified immunity because what they're going to have to create is a form of qualified immunity for presidents. I think it's going to have an impact on it.

And I think I'm fascinated to have an impact on it. And I think I'm fascinated to see how this decision goes. Because although I'm not nearly as alarmed as some observers were about the argument, I had eyebrows going up. But I still think it's like, you know, in The Walking Dead, when that bite first happened and you would see those little black marks like moving up the arm, that's our stage right now. That's our stage. I'm thinking more the last of us as the fungus, you know, takes over and you see the fungus. So they've inhaled the spores at this point?

Yeah. Okay. I think so. All right, don't forget. I should say the doctrine has inhaled the spores. The doctrine has inhaled the spores. Well, I'm glad you clarified that. Yes, thank you. It's really important.

Our next episode, we are going to attend class, David. You and I are going back to law school to attend a class that I need actually, which is jurisdiction stripping from the Supreme Court in the Constitution taught by none other than Judge Newsom of the 11th Circuit. And I just want to warn you, Judge Newsom, I know very little about this subject. Like, I'm coming in pretty blank slate here. I've got a lot of questions. And I'll be the gunner in the front of the class. My hand will be up the whole time. I have a question. That's me. Were you a gunner in law school, David?

No, intentionally no. I literally sat because I had a, I had, I had a lot to say, Sarah. Uh-huh. And I knew that if I vented, it gave, if I let myself go, I would be one of those guys. So I'd literally had a one every three classes commenting policy. Internal commenting policy. Internal commenting policy.

Internal commenting policy. One out of every three classes. I'll sit in silence no matter how much it hurts me for two out of three. But I did not want to be a gunner. I realized that I couldn't both be a gunner and skip class as much as I wanted to. Because then they'd know I was missing. It would be very obvious. So I had to pick which was more important to me,

voicing every thought in my head or attending class only when I wanted to. And I think you can guess which one I picked. Napping is so important to really everything that I am. No, I hear you, I hear you. No, you do have to decide. I mean, but for me it was an easy call because I thought if I'm a gunner

as one of the only conservatives in the whole freaking school, I will have no friends by the end of this experience. So, and I wanted friends. There's a famous story from section two. One of my friends from that section, actually several of them remind me of the story every few years. It was contracts class and our professor was kind of a lunatic. He wasn't really

teaching contracts and he would just rotate who got called on. There was just a list of the class and he would just go through. I attended the class three times total for the whole semester. It is also worth noting that I did get an A in contracts, which maybe shows you how helpful the class was. That's amazing. But on one of the classes that I attended, because I did want to check in to make sure, you know, is he going to talk about the final? So one of the classes that I attended, I of course sat in the very back row, it was stadium

seating, and I'm, you know, on my laptop doing who knows what, nothing related to contracts, I assure you of that. And all of a sudden, I'm not listening, all of a sudden, he says, Miss Isker? And the class knows who I am, because I'm in other classes with him that I do attend. You know, first year section, you're in all your classes together. So the whole class turns around and looks at me. And at that moment I have a choice. And I make the choice to turn around and look behind me. Did you really?

And he repeated the name a couple more times and moved on. And no one ratted you. Nobody ratted me out. That is a section to stick with. I think section four, 1991. Section two. Section two. I would have been shanked in the yard like, no question.

That's hilarious. It made sense in the moment. I love that. I loved Contracts Law. I just liked reading the textbook. And in fairness, like this makes me sound like I'm just so freaking cool. I'm too cool for that.

I actually have terrible auditory listening skills. And so listening to a lecture while sitting, like I can't listen to books on tape while sitting. I have to be driving or doing something like to basically move one part of my brain to focus, like the visual part of my brain to focus on something else in order to be able to like listen. So when I'm driving, I can basically repeat back to you everything the book on tape said. I can also tell you exactly where I was on the road for different sentences.

But in class without that visual stimulus, it just doesn't work. And so, like, to be very honest, I couldn't understand what was being said in class. I like literally wasn't processing it. So there, it was just a waste of my time. I was better off spending the 90 minutes reading the book than sitting there and not being able to really understand anything like process what was being said. So before I just sound so cool. No, that story, I can't even tell you how, that's gutsy.

That is gutsy. Thank you. Yeah. Well, you know, like it, cause it then looked like everyone else was just also looking all the way back, not at me, right? Yeah. Yeah.

Yeah. I love that you're on the back row and you looked behind you. I looked out the door. Maybe she was coming. In fairness, which is where you normally were was somewhere outside that door. That's right.

Yeah. All right, listeners, next up, Class of Judge Newsom.