Advisory Opinions - Revisiting the Coach Kennedy Case with Hiram Sasser

Episode Date: July 7, 2022

David and Sarah begin by going through SCOTUSblog’s end-of-term Stat Pack. Then Hiram Sasser, executive general counsel for First Liberty Institute, joins for a deep dive into the Kennedy v. Bremerton School District Supreme Court case. Hiram, who was co-counsel on the case, explains the story and talks about Coach Joseph Kennedy from a more personal point of view. How did the facts become so muddled throughout the process? Our hosts have a lively debate about how the case could have—or should have—been handled.   Show Notes: -SCOTUSblog Stat Pack -Kennedy v. Bremerton School Dist. Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC cashback mastercard?

Well, if he wants to earn cashback on his purchases, he will. Oh, hang on. He's at the computer with his card, and he's done it. Oh, click he wants to earn cash back on his purchases, he will. And hang on. He's at the computer with his card and he's done it. Clicky click magic trick. The clicker around the room. You guys just about finished. Sorry. We got excited. Thanks for snagging those tickets. Make every purchase highlight worthy with the BMO Toronto FC cash back master card. Ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we've got some good stuff for you today. We're going to start off with some Supreme Court statistics from the most recent

term, some interesting stuff there. We're going to have a good conversation with Hiram Sasser, a guest from the First Liberty Institute who is co-counsel in the Coach Kennedy case. And we're going to, I promise you, we've kept teasing some other topics, and we're going to deal with those, many of them with our next guest that we've got coming up after this podcast. We've got good guests coming in future podcasts. But for now, we're going to stick with a couple of big topics. And Sarah, let's start with stats. So thank you to SCOTUSblog for their annual stat pack. This is for the October term, 2021. And we'll put it in the show notes so you can go read it all yourself. It's 28 pages, so we're not going to be able to cover every single thing in it. But worth noting at the top

what is and isn't included in the SCOTUSblog stat pack. So for example, it's 66 cases that were designated as formal opinions of the court. That's incredibly low, first of all. The numbers overall keep going down. We'll get to that. But it does not include those shadow docket cases, David. And on the one hand, maybe those were a bigger deal when we were getting all of the COVID shadow docket. But for example, it's not going to include the OSHA vaccine mandate case because that was a shadow docket case. So lots of interesting things, nevertheless, of the 66. Although again, I just feel like I have to put an asterisk because it's like, well, a lot of those shadow docket cases had opinions. because it's like, well, a lot of those shadow docket cases had opinions. And I don't know, you could imagine including those in some other way. But just of the 66 non-shadow docket cases,

these are the key findings from SCOTUSblog, some of which I just think are worth a combo. Decline of unanimity is their number one. Only 29% of cases were decided unanimously. the lowest rate of unanimity in the two decades that they've been tracking this statistic. And David, this one's interesting to me because this is something John Roberts wanted to emphasize in his time as chief justice. He wanted to have as narrow decisions as possible to maximize unanimity because he thought that would be good for the institution of the court and sort of lower the temperature on the politicalization of the court by having more unanimous decisions. Only 29%.

Yeah, it's very interesting that we're down to the 29%, but I think the bottom line, Sarah, is he just doesn't have the power anymore to engineer the nine zeros because he's not the swing vote anymore. If he decides to sort of withhold his vote or if he decides that you're going to only get my vote if we get a super majority, well, you don't need it so much because that gets to the next statistic, the rise of the 6-3 court. We have about 30%, 19 decisions or 30% were 6-3. So you had more 6-3 decisions than you had unanimous decisions. And of those 19, 14 were polarized in which all six Republican appointed

justices were in the majority. Note, so that's Roberts joining there in that, but he just doesn't have the power. Yeah, and I do think when we talk about the 6-3 court, I think actually using all 19 is misleading because that's not the 6-3 that most people are thinking about. So it's really the 14 out of 66 are the true, quote unquote, 6-3 ideological court. That's still pretty high. I don't think it's much higher than the 5-4 numbers that you would have seen in previous terms. I think we're now sort of considering that 6-3 to be the equivalent of 5-4, as in the court breaks along ideological lines. But, you know, when those cases are the ones that get the most attention, and there's 14 of them, yeah, that's going to affect the perception of the court.

And so now, Sarah, who are the swing votes? Who has all the power? Not even a close call. It's Roberts and Kavanaugh. Now, fascinatingly, remember from the last two terms, Kavanaugh was the swing vote. He was the justice in the majority more than any other justice. This time, they tie. Roberts and Kavanaugh are in the majority for 95% of the court's decisions, and they agree with each other 100% of the time, which I had actually

not seen that before in any of the previous stat packs. I would need to go back and look to see if that's ever happened, where two justices are on the same side of every decision. Now, of course, this does not, again, include those emergency docket cases where clearly they were not on the same side in every single case, which is why I'm like, oh, but maybe there's a way to just do this again, but also include some of them. But then I get some of them aren't. I don't know. This gets it gets weird with all of these emergency docket cases. Not surprisingly, Justice Sotomayor was the justice least in the majority. She dissented in 27 of the 66 cases.

Yeah, that does not surprise me remotely that she was. Nothing about that is surprising. Now, here's what was interesting, and this kind of surprised me. So they also include who argues the most in front of the court. And they said, this is no surprise, U.S. Solicitor General Elizabeth Prelogger was the, argued five cases this term, which solicitor generals argue quite a few cases. But the next highest, or the tied with her, not next highest, tied with her was Texas Solicitor General Judd Stone. Stone argued five cases also. It's just, I don't know, how many did Scott argue when he was SG of Texas?

10 or 11. He hit double digits. It's pretty clear. It's pretty clear, isn't it, Sarah, that becoming Texas Solicitor General might be, might be, and not just might be, as in fact is a prime way to get yourself in front of the Supreme Court of the United States more so than any other state Solicitor General? Is that too much to say? No, it's just factually accurate. Although again, it varies from year to year, who's in the White House, because so much of what Texas is going to do because they have a larger staff is bring cases against an opposing administration and like on behalf of a bunch of conservative states. And so when you have, you know, at the end of the Obama administration, when Scott's SG, they're going to have a ton of arguments because you will have started the cases when the guy,

when the, you know, a Democrat comes into office, those cases have to build through the lower courts and they're really coming to fruition at the end of an eight year term. Far fewer cases during the Trump administration. And now you're starting to see some of these Biden cases start up. And so Judd Stone, those were his first five cases before the Supreme Court. Congrats, Judd Stone, on that. Anything else jump out to you? Yeah, there's a whole lot of fun stuff. So for instance, we were just talking about those 5-4 cases in previous terms.

So in October term 2006, 33% of the cases were 5-4. So even more than the 14 out of 66 that were 6-3 along ideological lines this time. And by the way, 14 out of 66, calculator, calculator, 21%. So to compare that, I don't know, roughly, it would put it certainly in the top. OT18 had 28% that were 5-4. OT08 had 29%. There's another 29. But in OT15, only 5% of the cases were 5-4. Oh, but that one shouldn't count because that's going to be the year that Justice Scalia died, isn't it? OT 16 is 10%. Anyway, you just can walk through when the court has been more polarized than others and what cases were coming up and whether those cases drive polarization on other cases. They also run

through the justice agreement numbers of each justice agreeing with each other. And if you remember, this is where I got a lot of the data for my 333 court. But we've said repeatedly that you're just going to need some time with Barrett on the court to figure out who she is, what kind of justice she's going to be. The search continues, David. It's just fascinating. So they break it up. Justice is agreed in full. Justice is agreed in part. Justice is agreed in the judgment. I'm going to go in full justice is agreed in part justices agreed in the judgment i'm going to go in full here and i'll tell you a little bit where those are going to differ down the line barrett agrees in full the most with drum roll justice roberts the chief justice and of the conservative the ideological uh conservative justices, she agrees the least with Justice Gorsuch at 61%.

So on the one hand, that kind of looks like my 3-3-3 thing and Barrett is with Justice Kavanaugh and Justice Roberts. But you go down to just agreed in the judgment, and the numbers get pretty different. She's now agreeing with Gorsuch 81% of the time. Alito is now her number one justice in agreement, 90%. Right. Now, it is interesting when you look at the stats involving sort of where you are in frequency in the majority for all cases versus frequency in the majority for all cases versus and frequency in the majority for divided cases. And you do see the 6-3 for sure, but you also see a 3-3-3 subsplit. So let's take the 1-3, Sotomayor, Kagan, and Breyer in the majority of, in all cases,

lower than the other six, divided cases lower than the other six, but there are splits in the six. So you do have a cluster of Roberts, Kavanaugh, and Barrett who are in the majority 95, 95, and 90% of the time respectively, and a majority in divided cases, 93, 93, and 87. So they're one cluster. And then you have the other cluster of Gorsuch, Alito, and Thomas that's in the majority slightly less frequently than the other three.

And the interesting outlier is Gorsuch. Gorsuch is closer to Kagan in the percentage of times he was in the majority in all cases than he is to Roberts or Kavanaugh, which is fascinating. He's closer to Breyer in which he's been in the majority in the percentage of all cases. Can Kagan and Breyer than he is to Roberts? So that is, he's closer to Sotomayor, just doing the math, which is fascinating. And similarly, in divided cases, Gorsuch is only in the majority 65% of the time, which is a ton closer to Kagan than it is to Roberts or Kavanaugh. That's really interesting,

Sarah. And by the way, quick correction, the vaccine mandate case was considered one of the 66, I guess, because they issued a formal opinion, even though that was an emergency docket case. I have questions about that, but it has clearly been included in here. So my bad. David, on the people who argued before the court, they put together everyone who argued more than one case. It's a really interesting list. First of all, just for number of arguments all time, if you're curious, number one, Ed Needler, he is the deputy solicitor general. He has argued 151 cases, David. Now, why is that that because he's been at the solicitor general's

office forever there isn't a time where ed needler wasn't working as an assistant to the solicitor general or deputy solicitor general and so that's how you rack up 151 uh the other way by the way is by being paul clement who remember was solic General. So a lot of these cases are going to come from that as well. But he's at 110, a lot of which have come in private practice for this year. But I noticed, David, if you take out the people who currently work in the Solicitor General's office, who argued more than two cases, office who argued more than two cases. I'll just, I'll, uh, I'll read some of them to you. Judd Stone, Paul Clement, David Frederick, Cannon Shanmigan, Michael Kimberly, Daniel Geiser, Michael Dreeben, Roman Martinez. Do you know what all of those people have in common, David?

Uh, I do not. They're all men. Huh. Not a single woman in private practice argued more than one case before the Supreme Court this year. This has been a longstanding complaint that the Supreme Court bar is incredibly male-dominated. And that, you know, for instance, the stat that 30 percent, sorry, there were 32 female advocates this term, for instance. A lot of those are coming from the Solicitor General's office, which is simply a different metric than hiring someone in private practice to argue before the Supreme Court. Definitely some frustration there. frustration there. I'll also note that of the people who argued before the Supreme Court this year, 25% went to Harvard Law School, 17% went to Yale Law School, 5% from Chicago, 5% from Virginia. Hey, UVA, well done. And 4% from Columbia. So again, a huge number coming from

very few, from five schools. And then for the circuit scorecard, as in the cases come from the circuit courts and their reversal rate, this isn't surprising particularly. 18% of the cases came from the Ninth Circuit and 100% of them were reversed. Wow. That's 12. That's 12 cases. Oh, man. First circuit, 100% reversed. Second circuit, 100% reversed. Third circuit, 100%, but that's only one case. But my goodness, 12 cases, 100% reversal. That's impressive. Yeah. And look, overall, if they take your case, you're probably getting reversed. But the reversal number this year felt incredibly high,

82% reversal rate. So yeah, once they take cert, if you won below, you should get real nervous. And to a point that we're gonna talk about briefly with Hiram about this first Liberty case, once the Supreme Court had taken the Coach Kennedy case, it was strange in a sense that the school district wanted to keep litigating it when, again, you had an 82% chance of losing at that point. Yeah. Yeah. No, that was, I mean, that was interesting. But, you know, at the same time,

once you're in front of the Supreme Court, there's a lot of powerful sort of, there's a powerful pull to try to go ahead and see it through. Very true. You don't get many cases in front of the Supreme Court in your career. Yeah. So every now and then you see situations. It's very rare to see someone pull the plug, but we saw that with the first New York gun case where they tried to just go ahead and pull the plug

and move the case out. But that's not, that is not what people normally do, even if the odds are stacked against them. So on the five, four cases, interesting breakdown. So the five, four cases, huge number came out on the quote unquote liberal side of the ideological bent. Um, only three came out on the conservative side in all three of those Gorsuch, uh, was

the fourth vote as an, in the minority with the three liberal justices, uh, fascinating. And then of course, on the liberal outcome of the 5-4 cases, you have Gorsuch, sorry, Roberts and Kavanaugh for the majority. But, you know, you've also got a Barrett-Gorsuch there. You've got a Barrett-Thomas and you've got a Gorsuch-Thomas. So the 5-4s really are toss up in terms of who you might get as your fourth and fifth vote on some of these cases. So, you know, you never know, but you're going to get reversed. That's what you do know. Yeah, yeah, exactly. Here come the carrots making their way upfield, followed by the whole wheat bread

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I've been racking my brain. You know, you've heard, no doubt, of the Thrilla in Manila, the Rumble in the Jungle, these epic boxing matches. And I've been trying to figure out something that rhymes with podcast. Yeah. And I can't get to it. Listeners will no doubt have suggestions for you.

We have the long-awaited conversation. I'm going to say conversation, not confrontation between you and our special guest today, Hiram Sasser from First Liberty. And he was co-counsel in the Coach Kennedy case, your favorite case, Sarah, from this term. And do you want to introduce Hiram more fully? Because I think you've got some disclosures about previous stakes and meals. I do. Hiram Sasser is the Executive General Counsel for First Liberty Institute. And we're going to talk about all that they do, how they find clients like this. And look, I need to disclose, as David said, Hiram has bought me many a steak and eggs

breakfast during the Federalist Society. They host an incredible event there. And so I have been hearing and supporting their work for a long time. It's what makes, I think, this a really fun conversation because it will be between friends. And I respect Hiram so much and everything he does. But yeah, Hiram, I don't love your client in this case. So tell me, how did this case come to you guys? Explain to our listeners how First Liberty

works. Well, first, I mean, how do you know you don't love him? Have you ever met him? On spec. On spec. He's a very lovable guy. It's all from afar. I mean, even the Seattle Times in 2015 did an editorial cheering for him, saying he was wrong. They thought he was wrong, but they loved him. And they wished that he was their kid's football coach. So he's a lovable guy. So you don't know that you don't... I think you would actually love him. All right. Well, and I should mention, by the way, after we first covered the oral argument in this case, you emailed me and said, let me come on the podcast and let's have a conversation about this. I think that there's things you're missing in the record. And I was like, yes, this is exactly what we want.

Especially when sort of I'm coming out on one pretty hard side of a case to have someone come on and say like, here's the other side for our listeners. So this is great. I'm pumped. Yeah, well, you were asking about, you know, how we got the case, where it came from.

A guy by the name of A.J. Farati, he's a lawyer in Oklahoma City. He happened to, my hometown, he happened to graduate from Bremerton High School, played football there, and had some Facebook connections and saw that this was all going on. And he asked a mutual friend. He didn't know me, but he asked a mutual friend, AJ did, who she talked to about the situation going on with Coach. And that mutual friend recommended me. And so AJ and I connected. We've been long friends since then and done lots of other projects together. But this was our first one. What's the model for First Liberty? but this was our first one. What's the model for First Liberty? Talk a little bit about what y'all do in the, you know, public litigation section here. Well, sure. You know, we typically partner with other law firms to bring our cases together. And we just find that that, you know, model works

really well. And, you know, we had highquality local counsel in Jeff Elston there in Tacoma, Washington. He's a highly respected guy. And we started off with Jim Ho and Becky Ricketts and Ben Wilson from Gibson, Dunn, and Crutcher. And, you know, they did a fantastic job all the way through the first parts of the case. Then, you know, Jim Ho decides he wants to take some federal government job that, you know. He's the worst. Because of Fifth Circuit judge and abandons the case. I don't know why he picked fifth circuit judge over our coach Kennedy case, but anyway. Um, and so, uh, you know, we, we brought in to try to fill Jim's shoes the best

we could, uh, with, uh, Paul Clement and, uh, and, and Kirkland and Ellis and Paul. Good to have Paul Clement warming up in the bullpen. I mean, it was, you know, Jim's a heavy hitter. And so, you know, you got to respect that by making sure you bring in somebody that can try to carry his water. And so Paul and Kirkland took it on and we carried on the case from there. All right. So you listened to our podcast. We covered this a few times. Tell me what you think we got wrong, where you

think sort of the narrative on this case got away. You know, when we talked about this case after the opinions came out, I said this was really a battle of the facts, that the majority was looking at a very limited time frame for the facts, and the dissent wanted to look at a much broader set of facts. And my guess is that's not exactly how you see the case in either scenario. Yeah. So basically what happened was, you know, back in 2008, Coach Kennedy, you know, decided that he was going to take the football coaching job after 20 years of serving in the Marine Corps. after 20 years of serving in the Marine Corps, was in Desert Storm and had retired, went back to his hometown of Bremerton where he had essentially grown up quasi on the streets. I mean, by the time he was 15 years old, he was living in his own apartment that he paid for himself

and went to high school. And the only reason he ended up with his GED is because he wanted to be a Marine. And he had to have his GED to become a Marine. And so he'd come back, been offered, you know, hey, let's, they wanted him to coach football. He had no coaching experience. He'd just been a Marine. And so he saw the movie Facing the Giants, and he felt sort of his new faith that he had just found post-retirement.

He'd just become a Christian, and he thought, well, maybe this is something I should do, and he decided that he would do it, but after every game he would take a knee at the 50 and say a brief prayer. So he's not really a religious guy as such. He's never really done a lot of religious stuff. This is the first time he's ever had any kind of thing where he thought he should do something religious. And so that's where it started.

And he was doing it. And for quite some time, nobody even knew that he was doing anything out there because he was only about 15 seconds and and either extremely quiet or or silent and uh uh some players asked what he was doing he told him what he was doing and they asked if he could they could join him and he said it's a free country you can do whatever you want he's not a con law expert he didn't know anything and uh you know he's just a marine you know marine gunnery sergeant you know he knows to defend the constitution he doesn a Marine, you know, Marine gunnery sergeant. You know, he knows to defend the Constitution. He doesn't know what, you know, all the details. And so all this goes on for years.

But, you know, it builds over time and people players are joining and things like that. So he finally gets word from the school district that, you know, there's something wrong with this. And they because they were responding to a compliment that they had received from another coach on the other team. And so, of course, you can't just take a compliment from the government. You've got to investigate. They decided they were going to tell him, no, you can't do that. And he got a letter outlining you can't pray with the players anymore. And he was like, well, okay.

But what ended up happening was he felt he didn't do he didn't say a prayer he kind of gathered the team around at that tradition of gathering around and kind of gave a little motivational speech but he felt bad he felt dirty we had to go back to the field afterwards at night to go pray to fulfill his commitment to the lord and so that's when so that's when we ended up having those communications of trying to figure out what's the solution. How do we balance what the school's asking him to do with the thing that he feels called to do, which is to pray by himself after the game? How do we navigate that and sort of dislodge him from what had happened prior to get back to the only thing that he's actually called to do, the only thing that he has really standing to do to challenge,

which is he only has a religious belief to be able to pray by himself. So that's the only case that there can be. And we've got to try to figure out how do we walk, get back to that, to both fulfill the school district's requirements that they set out in their September 17th letter and to fulfill his duty to the Lord. And so that's kind of how the matter started. But there were other things going on. For instance, there's the prayer that's happening in the locker room that is happening around this, in between some of this time frame. There's all the Facebook posts.

There's the press conferences and the media attention. And here's the part of the record that I think has just really got under my skin, I will tell you. And I will read it to you. Okay. and I will read it to you. Okay. He repeatedly demanded to, quote, continue his prayer practice, declaring that he was, quote, helping these kids be better people. And as his counsel explained to the district court, the young men on the team are looking up to the coach. That's precisely why Coach Kennedy wants to do what he does. That, to me, is the ballgame. Yeah, the problem with that is that that's a lot of words coming from different parts of the record

that are kind of getting smashed together to form a story that's not really accurate. So about the prayers in the locker room, that was a practice that predated Coach becoming a coach at Bremerton. And because he got noticed as the guy taking the knee or whatever, and that became a thing, they asked him to do that. And he said, sure. He had no religious claim to do that. He didn't care. He wasn't called to do that. So the school district said, don't pray in the locker room anymore. It's not, okay. You know, I'm not a con law guy. I didn't know that was bad, but I don't care.

And so the part about looking up to him, that's all about him standing up for his own personal rights. He did not want people to see him as a Marine not standing up for the Constitution. not standing up for the Constitution. And when he found out that he had a right to be able to pray by himself, he was just not going to back down from his desire to exercise his right in accordance with his calling that he felt from the Lord that he had to do. So the thing that he felt like he had to do was pray silently by himself for about 15 seconds on the 50 after the game.

But why on the 50? The school is happy to provide him any number of accommodations to pray elsewhere. They're like, let's talk about this. Let's come up with a way that this works. And he basically, not only does he not engage in that accommodation process, he posts on Facebook,

I'm about to get fired. He goes and hosts a press conference. A state legislature comes to help him out. It seems like this is a lot of attention. And the reason that I harp on that a little is because then after this case, there's the picture of him where he is taking a knee in front of the Supreme Court in front of all the cameras so that that's the picture. And that, to me, sort of goes to this, like, this is not about a silent private prayer. This is about getting on the front page to evangelize. Hiram, can I tag in? Can I tag in for just a minute? You can tag in if you want. See, all of that is, to me, irrelevant to his First Amendment claim. All of that's irrelevant. No, it goes to the coercion point, David. Whether you like... No, it doesn't. No, it doesn't. So if you don't like the way in which someone engages in their free exercise, fine, criticize it. It doesn't mean that it's not constitutionally protected any more than if he was,

as came up with the oral argument, kneeling for the flag at the 50. You could say, why are you doing that at the 50? Why are you kneeling in front of the Supreme Court and disrespecting the flag? Nobody likes that. Look at the message you're sending to kids. They're going to think that you need to kneel before the flag because you're engaging in your own free speech rights. The issue here isn't whether or not you like his expression. That's not the issue. No, the issue is the purpose of his expression, David. Someone who wears like the examples that the Supreme Court gave, wearing a yarmulke during class, having a prayer before eating your food. The purpose of that religious exercise is quite clear. It's a private religious exercise.

What I'm talking, the reason that I bring up the media stuff and the state representative and the quote about trying to turn these into good, helping these kids be better people through prayer, it goes to the purpose. The purpose is not a private individual religious exercise if the purpose is to pray so that the kids become better people. That's for their benefit. Well, that's just what he's praying.

It has nothing to do with whether he wants anyone to join him. So back to the story. So here's what happens, okay? Yeah. So we send a letter. And what we're trying to do is we're trying to transition because this has already received tons of media coverage. The media coverage has already happened before First Liberty arrives on the scene, okay?

Yes, although, again, the media coverage at least is in part because of his facebook posts where he's on the team you can't post a facebook post to say yeah yeah that something's you know something's happening and he doesn't even know what the issue he doesn't even know all the legal issues at the time he's just posting a facebook post about about what the the school district is. He's trying to gin up attention by on the school bus, he's posting, I'm about to get fired, lol, for praying. Exactly. I don't understand why that's a big deal because I see Facebook posts about people's life events all the time. I didn't know that you were supposed to post bland articles about the weather. But anyway. Fair enough. So this is what he does. So it's all the media coverage has already happened. The September 17th events have happened. Now we're in

October and we're trying to distill down. This is what he really just wants to do. He just wants to be able to pray by himself. So we sent him a demand letter. And they respond. And, you know, there's some back and forth via email. And then on October 16th, he's trying to pray by himself. All right. And the players from the other team unexpectedly rush out and surround him. And members of the media or whatever all came on the field, which, as far as we were concerned, were not allowed to do. And that's where that picture comes from with all of that. He was supposed to be praying by himself. That's what he was trying to do. all of that, but he was, he was supposed to be praying by himself. That's what he was trying to do. Um, the next, so they sent a letter and they said that, that his religion, they said it was

fleeting. They said that was fleeting. The school district said that was fleeting. Trying just, just to be clear, trying to pray by himself on the 50 yard line in front of everyone. But okay. I take, I take your point. Yeah. Yeah. Look, I mean, look, I, you know, I saw a meme that said that Chief Justice Roberts wrote a concurring opinion that said it was okay if he prayed on the 30. I mean, I don't understand why everybody's all fixated on the 50, okay?

That's just where he happens to be also at the time because he's saying, he's congratulating the coach from the other team. That coach walks away. His players are walking away. He's going to take a knee by himself for 15 seconds. He could be tying a shoe, but he's just going to be praying, and then that's it. So I actually think that's a really relevant point, and a good one for your side, by the way,

that he is at the 50-yard line at the end of the game because that's where he's supposed to be. And so what you're saying is right when he finishes, shaking the hands, they go through the players. He's already at, he's not walking out to the 50. No, no, he's already naturally there. I do think that's important and a relevant point that makes it more similar to, for instance, the lunchroom prayer or something like that. Well, this is why I was really surprised that Doug Laycock filed an amicus brief against his professor Laycock. He wrote a law review article on Tinker versus Des Moines that talked about that the standard on free speech should be that you have a free speech right to say kind of mostly whatever you want in a place you already have a right to be.

And that's where the coach is, right? And so they say it's fleeting. They're still analyzing it. We're engaged in additional email dialogue. All right. And then I say we I see an article where the superintendent says he wants to have a meeting. So I send an email to Jeff Gantz and the lawyer for the school district say we would like to have a meeting. And he said, well, what would you like to meet about? And I respond. I want to have the meeting the superintendent said he wants to have.

That's the meeting. I want to have that meeting. Can I get that meeting, please? He says no, because we're not licensed in the state of Washington. And therefore, he's not going to allow us to meet with him and his client to try to resolve the issue. So I think at this point, we're about this far apart. Like, I think it started off there. I think he's trying to pray by himself. I think the school

district's acknowledging that. They're saying it's fleeting. They've put out a statement saying he's not coerced anybody. He's not coercing anybody. That's their words. And so I feel like we're getting closer and closer. And I figure we're going to be done with this thing in about a week or two weeks tops. Then they won't meet with us. So I try. OK, fine. So I send an email and I said and I'm copying, you know, Jim Ho and others at Gibson Dunn, Jeff Helsing, our local council right down the street from the guy. We're here now, you know, let's you know, maybe we can have a discussion. Nothing. We get nothing out of them. This whole narrative where we didn't want to meet, totally false.

They didn't want to meet, and that was a big problem. And so I'm sitting here thinking this is a case that's really easy. They've said a lot of things that have been kind of favorable to us, and I'm reading that as acknowledging that we're migrating to him just praying by himself in compliance with their September 17th letter and in compliance with his religious duties. And then the phone goes dead. So we file the EEOC charge. Phone is dead.

We sue them. We ask for a preliminary injunction. Phone line's dead. Then they win. They defeat our request for preliminary injunction. And once they got that taste of victory, there was no discussions with them until, frankly, even now, even now, I'm trying to meet with them. And they said that they do not want an in-person meeting right now, like last week. They will not meet with us.

Oh, I definitely want to come back to that point. Were you as surprised as I was by the oral argument and how, I don't know, how have I phrased it, David? How antagonistic I felt like they were to Justice Thomas, for instance, scoffing at his questions. I thought that they gave away their case by not even trying to really persuade someone who might disagree with them on sort of the religious grounds, but maybe agree with them on a coercion, the public school aspect, whatever else. And at what point did, it sounds like that attitude kind of came about quite suddenly, as in they didn't have that attitude at some points during this and then all of a sudden it was like nope we're we're lawyered up you're lawyered up let's face off yeah you know i don't really know what was motivating they kept saying they needed to avoid a lawsuit and they kept saying that in the middle of the lawsuit and so i didn't really understand what was motivating them. And then when we got the statement from Justice Alito signed, you know, with four, you know,

you have four justices on it saying, you know, come back and see us, get some of this stuff resolved. That looked to me like the writing was on the wall. We still can't, we still can't have a conference. And then for them to then flip when we get to the Supreme Court and really double down on this, that somehow their story became that we're making up all these facts. And their story became that essentially Paul Clement, who gets paid millions of dollars by big companies to argue at the Supreme Court, he decided he was just going to get rid of all of his credibility, just sell all that credibility, just give away millions and millions of future income so that he could lie about a pro bono case. That was their story. And that's just a terrible story. And so I didn't understand their strategy.

I thought Paul's oral argument was one of the best of his career, in part because I probably disagreed with his position. And it helped that he was facing someone who I thought that was one of the less good oral arguments that I had heard in terms of persuasion and trying to actually win the case versus trying to cheerlead your own side of people who already agree with you. But so I definitely want to move on to what you say moving forward to a high school, to Sarah as a high school student, David, but you, you look poised. Yeah. So I've got, I've got a couple of things on the case. So yeah, one is I was, it was very interesting to me as a matter of legal strategy that the school district seemed to really circle its wagons around the establishment clause.

And rather than, let me put it this way, the scoffing towards Justice Thomas, for example, and sort of the really aggressive attitude against sort of religious speech in general seemed to be a very interesting litigation tactic, given that there was, this court is known for two things, being strongly protective of the free exercise clause, but not necessarily protective of public employees' speech. And so what was interesting to me was they really seemed to double down on the argument that this court was least likely to adopt and much less emphasis on the argument that the court was more likely to adopt. And I'm just kind of interested in your own take on sort of the, where did you see,

going into this argument, where did you see your vulnerabilities, if you can disclose that now that you've won and all of that, where was your head at as to what did you worry about and not worry about? Because it seemed to me the opposition focused on the very thing, focused on your strength, and didn't drill down on your potential weaknesses. Well, like any of these cases where the government takes action, especially against an employee because of religious speech, our best ground is when they're, when they're singing the tune of the establishment clause, that's a clean case. Right. And, and then the

only issue is if that's your only reason while you're excluding the speech, then we, we always have as sort of a, like a, a fallback position is good news club, which is what, you know, what justice Thomasomas said writing for the majority there he said look that's it's an interesting question whether the establishment clause could ever be used in that case to to justify viewpoint discrimination under the under the free speech clause but but but at at minimum he said it has to be an actual violation of the establishment clause so when they make a sound oflause the defense, they then have to demonstrate that allowing whatever it is that they would be allowing is an actual violation of the Establishment Clause. And that seemed to be what I thought was their weakest position.

But, I mean, you're right. I mean, no one wants to get in a big Garcetti, you know, fight. No one wants to get in a big pickering fight and try to revisit how that entire framework works. You can kind of see some hints of that kind of, well, you know, we'll deal with that later in the concurrent and the concurrences. Right. But but bottom line is the reason why they they excluded their speech in this case that they said over and over and over again was because it violated. They thought it violated the Establishment Clause and they thought it specifically violated Lemon because they kept raising endorsement, raising the endorsement patina on Lemon. So that's that's what this case was about and and and so to a certain extent what they were arguing doctrinally is everything that they put forward in 2015 in the very beginning i was just surprised they didn't try to

shift tack and try to create a new legal argument instead what they did was they tried to create a new legal argument. Instead, what they did was they tried to create a new factual argument, which didn't really help because we had a record. And look, Justice Sotomayor sells a different story in her dissent than the other side was trying to sell. But even her dissent is kind of thin on record citations. Whereas if you read, you know, the majority opinion,

you'll see a lot more specifics. I'm not trying to cast this first. I'm just, I'm just simply pointing out that, that the, the meticulous reading of the record reveals that coach just wanted to get to the point where he was praying by himself. That's what he's trying to accomplish. And that's the only relief that he's seeking in

the case, which by the way, I think that's very important for some reason. It's, it's like people just generally speaking, we didn't have to get to the secondary argument, but you know, you can think someone owes you a million dollars, send them a demand letter for $100,000, and then sue them for $1,000. Especially because all we were seeking for is prospective relief. Even if he theoretically wanted to pray with people, which he didn't, that wasn't what he was called to do. But even if he was, he could sue for something narrower than that if he wanted to. And so I just never really understood all this analysis about what he's trying to do when he's stating what he's doing. And if he was trying to get relief to pray with everybody like he had before, he waived it by not seeking it. And he didn't have

legal standing to challenge or to be able to seek relief where he would go back to the locker room, for example, to go pray in the locker room. He didn't seek that. And he's not religiously called to that. When I was reading the two opinions, I wish Gorsuch had put more of, had put a more complete recitation of the facts in there. I wish he had put in there some of the, the, some more of the facts regarding, for example, when folks stormed onto the field, which you're saying coach never intended that, but they did it. I wish it had been a little bit more of a complete recitation, but whether or not, what struck me about Sotomayor is it felt to me like, and this was my critique of her dissent,

it felt to me like what she was trying to do was create a factual, tell a factual story that is essentially, I don't like this guy. I don't like the way he did and the way he exercised his religious liberty, his rights to religious freedom. And when people exercise their rights in a way we don't like, in a way that we find, you know, that then we're going to find a way to rule against them in the absence. And this, Sarah, goes to one of your concerns, I think, in the absence of record evidence of any kind of coercion on the students. Ah, ah, ah. There's the letter from the parents saying that their students felt coerced to join in the prayer.

And that was dismissed by the majority as saying, like, basically it was hearsay and not, you know, the students themselves. But that's in the record. Well, wait a minute. What's the evidence of coercion? That these students felt coerced. The affidavit from the parents saying that their students felt coerced. No, no, no. I'm saying, but what made them feel coerced?

That it's their coach, David. It's a teacher. So if I see a teacher kneeling before the flag in protest, I can just say, well, I feel coerced by that. Yeah, David. Even if the teacher doesn't coerce me. So let's be clear. Even if the teacher doesn't. Let's go back to Sarah as a high school student.

But you were actually, there was an actual policy that treated, in your situation, people who attended Bible study. I'm going to talk about a different part. My high school was full of this. I don't need to go back to the same example. My orchestra teacher had prayers before orchestra concerts. I felt very socially put upon to not participate, to choose not to participate in that prayer. Not because I wasn't gonna be first chair violist, humble brag, because I was. Because you were already first chair. Right. And for that matter, I was orchestra president, for what it's worth. Also, huge humble brag on that one. But there's social pressure,

David. It's an adult you look up to who you want to respect you, who is saying this is what he thinks good people do. And you can join or not join. And you're 16 years old. I just think I'm forced to be there. It's public school. I don't choose this. I would otherwise have to pay to attend a different school or home, you know, my mother would need to homeschool me. And that would not have gone well for any number of reasons. So yeah, I mean, I think that's clearly coercive and it's not because of any threat on the other side. It's coercive by its very nature. And religion is different than math, you know, teacher saying, join the math club. nature and religion is different than math, you know, teacher saying, join the math club.

It's different because it's religion. Can I ask a question? Uh, so if you had a teacher that had about 20 rainbow flags hung up in the classroom, it was handing out the rainbow pins and said, you know, we're going to celebrate pride, uh, uh, now from now on in my in my in my classroom um do you think that that has the same coercive effect on the student the one student that chooses not to uh wear the rainbow uh lapel pin i actually think it does i just think one is protected by the constitution and one isn't oh okay so so so one side of the debate has their hand tied behind their back and the other one gets free reign to be as coercive as they want. Okay. The Constitution makes clear that religion is different.

And so a student in that case can choose not to wear the rainbow pen and they're protected from doing so, just like a student who chooses not to say the Pledge of Allegiance because it's their free speech right to do so. But when you're talking about, and by the way, I don't think a teacher can do that for other reasons, but when it comes to religious exercise, that's not a religious exercise by that teacher. You don't think saying the Pledge of Allegiance, everyone says the Pledge of Allegiance. Everyone's doing it. You don't think the Barnett sisters in 1943 in the middle of World War II felt coerced? I absolutely do. And they had a right not to do it, but the school can do the Pledge of Allegiance. It's not religion. It's just different. And the founders said religion

was different. Barnett sisters thought it was religious. No, they thought it violated their religion. They did not think that the pledge itself was religious. So I think the difference is, I don't think, Sarah, that the combination of the Establishment Clause and the Free Exercise Clause gives religious expression less protection than other forms of expression. Not less, but David, you're talking about where it bumps up against these students. It's a public school. It's different than at the corporation. You know, I'm trying to think of a public employee at a non-school where you're dealing with minors. What are we going to do about the coercive?

And maybe this is a better question for Hiram. Hiram, if I could show in the record that the Christian, the students who were choosing to pray at the 50-yard line with him, again, they're not being told they need to do it. It's his private prayer. But if I could show the disparate impact that the students who were showing up at the 50-yard line to pray were getting more time on the field than the students who weren't, then would this violate, like, would that be lawful? Yeah, but the problem with this case is that when one of the students said he didn't want to participate, the coach made him the team captain. Not this case. I'm saying in a future case. I mean, if you have evidence of actual coercion, it's a different case. But why? To

Hiram's point, why? Because what you're saying is what you're then saying is as an exercise of your official duties as an agent of the state, you are preferring one religious student over a non-religious student or a student of a different religion. You're elevating them because of their religion. No, they're just better players. It's coincidental. Well, I mean, it depends on the evidence. If the evidence is the five-star running back that is being recruited by a real, I almost said University of Texas, but that's a real, that's not a real football program. University of Alabama. You could say Oklahoma State University. You have a five-star running back and he's getting all the playing time, of course. But David,

that's not going to be the case. That's never going to be the example. It's going to be on the margin. Because that's not what's going to happen in these schools, David. They're going to not want to litigate. They're going to not want to save their money. And it's going to be on the margin. But Sarah, shouldn't you wait? Because that's not what's going to happen in these schools, David. They're going to not want to litigate. They're going to not want to save their money. And it's going to be the kids like me who are burdened with this. Wait, they're not going to want to litigate. In this case, they decided they didn't mind litigating. And they didn't mind potentially being on the hook for millions of dollars in attorney's

fees, which are going to have to now be collected. Plenty of schools don't have those resources and aren't going to do it and are going to, and we've seen this the other direction. Almost every school district I've ever dealt with is happy to fight us. And I think the reason why they're not happy to fight the other side, but they happen to be happy to fight us every time is not because they're worried about resources or money or whatever. I actually think that a lot of the school district apparatus, a lot of the organizations, the associations wrapping around school districts, and the lawyers who participate in that happen to

lean left on average. And I think they're motivated in that direction. Okay. So where's the line? Where's the line for you when minor students are in a different position? Is it junior high? Is it a factual difference on coercion? Well, for this case, he just wants to pray by himself and that's all he wants to do. But the students are allowed to join him. And so let's say that a majority of the team is going to join him and they're in sixth grade. Is that going to be coercive enough? It's impossible in the Coach Kennedy case. Yeah, yeah. I'm talking about in the future. We now have the Supreme Court precedent that you have set in the Coach Kennedy case. And now it's a junior high coach. He's praying by himself on

the 50-yard line. The students are allowed to join if they want. And the majority of the students are choosing to join him. It's a very monolithic community in terms of its religious beliefs, similar to the one I grew up in. At what point is it coercive? Is it their age?

Is it the number of students joining? Where's the line? I know that a silent 15-second prayer by himself is not coercive. But that's not my question. My question is in the future, please come with me in my hypothetical where the students are allowed, if they want to, after the game to go on the 50-yard line and do their own silent prayer when the coach is doing his silent prayer? At what point is that going to be coercive and violate the student's rights? That's my question. That's an interesting question. I don't know what other evidence is going to have to

take place other than the evidence that you just described. But the evidence, everything you just described, we don't know why they're coming out there. We don't know what he said and all those sorts of things. And I think those types of details will matter. What's interesting about the Coach Kennedy case is that we always thought of this case as a narrow case. That's how we viewed it, as a very narrow case. The other side, their tactic led to the announcement that Lemon's dead. It wasn't us seeking to—we never thought of this case as going to be a Supreme Court case. We thought of this as something that would last about three weeks and it would be over with. We were very surprised that it ended up going as long as it did. I guess my point is that you can go down the rabbit trail of a lot of different hypotheticals, adding little pieces of facts until finally you get to the tipping point.

I don't know what that tipping point is. But do you agree there is one? I don't know what that tipping point is. But do you agree there is one? But, well, there's got to be one somewhere. But it's going to have to be a culmination of facts that areion of the Pledge of, I mean, that's hugely coercive. And we don't say, no, no, you can't say the Pledge of Allegiance anymore when somebody raises the objection. We say you don't have a right to participate. And by the way, if you want to exercise your rights and not be retaliated against, you have to have a little toughness to you, right? You have to be able to say,

I'm going to sit while everyone's standing. And you have to be comfortable with the fact that you're taking a position that's contrary to everybody else in the room. But that's what America is all about, is that you have a right to take a position contrary to everybody in the room, not to be retaliated against. You have a right not to be discriminated against. But that's what America is all about, is that you have a right to take a position contrary to everybody in the room not to be retaliated against. You have a right not to be discriminated against. But that doesn't necessarily mean that you have a right to shut everybody else down. Is there a line on the religious aspect there? Yeah, sure, there is. But we're not even close to it in this case.

But again, and you're using the pledge example. That's not the equivalent example. The equivalent example is a prayer being led in class, which we all immediately know isn't okay. We know religion's different. And that's why when we change it to a teacher praying in the front of the class, we're all like, whoa, whoa, whoa. Obviously, you can't do that.

But if they're saying the pledge, we don't feel that way. So religion is different. Yeah, I agree religion is different. Yeah, I agree religion is different when you're talking about a, so when you're talking about leading a specific prayer in class, you are talking about formal public religious expression, which does implicate the establishment clause. When you're talking about private religious expression, when a person is in their capacity as a private citizen, I don't have a right as a teacher to say the Pledge of Allegiance in front of class. I don't have a right to do that, okay? Because that is a state policy. It's part of the state curriculum.

It's how schools, if I wanted to say, if a state revoked this Pledge of Allegiance and said, we're not doing the Pledge of Allegiance, and I said as a teacher, I'm going to do the Pledge of Allegiance anyway, I don't have a right to do that under current law. I don't. So we're comparing apples and oranges here in just the same way that I don't have a right to lead public prayer. The Pledge of Allegiance is a matter of state policy that doesn't violate the Establishment Clause, but I don't have a right as a teacher. This is my point. This is my point. No, but I have the exact same right to lead the pledge, right to lead the pledge as a teacher, as I have a right to lead a prayer as a teacher,

which is not. I do not have that right to lead my class in the Pledge of Allegiance. If the school told me, no, you may not lead your class in the Pledge of Allegiance. If the school told me, no, you may not lead your class in the Pledge of Allegiance, I cannot say I'm going to anyway and win that case. Under Sabalis, Garcetti v. Sabalis. Right? David, you're agreeing with me. I'm saying that Hiram using the Pledge of Allegiance example isn't all that relevant to our conversation.

And you're agreeing. That's what I'm trying to say. The reason I'm using that example is is that we we have to come up with some sort of concept of what is coercive what is coercive and i don't know i don't know exactly where the ultimately that line is going to be drawn other than what we do know is that you know praying by yourself silently for 15 seconds on the 50-yard line after a football game is not coercive. And we also know that whenever you have things that are sort of embedded in the history and tradition of the nation, those things are going to be allowed. Those types of activities are going to be allowed.

Passive monuments and displays, those are not coercive. loud. Passive monuments and displays, those are not coercive. So it's going to have to be something like Lee versus Weissman or something else. Whether even Lee versus Weissman is still good, I don't know, but it's going to have to be something that or worse in order for there to be coercion at this point. And I also think it's a really dangerous line to sort of say, we're going to presume that people feel a certain way, and therefore we're going to restrict private free expression because of the way in which people subjectively feel. Even when those people are 10-year-old kids. Yes.

Who are forced to be there by law. Yes. Okay. to be there by law. Yes. Okay. They're not. So again, like if I'm a 10-year-old and I see all of my teachers before lunch praying in front of their meal, that's not coercive. That's not a legal problem, even if it creates in me a feeling that, well, every authority figure that my 10-year-old brain sees is seeing a prayer. David, I agree with that,

but that was not my hypothetical that I gave you. My original hypothetical was that it's a 10-year-old junior high football coach, and the majority of the team is also on the 50-yard line praying with him for their silent prayer. At what point is that coercive? Your hypothetical sounds like a moment of silence. And moments of silence have routinely won in court even when the stated purpose of the legislation, one of the underlying purposes, was to allow a

time for, quote, prayer. So if there's some sort of time where everybody's allowed a moment of silence. Okay. So if they're silent, it's probably not coercive. But if they're praying and saying, and after their moment, they all say in Jesus's name and stand up, and they're 10 years old, and they're with their coach, and they're at the 50 yard line after the game, and there's five students on the sideline who are Jewish and Muslim, is that coercive? But your hypothetical is starting to sound a lot like Good News Club. And it's starting to sound a lot like the cases that deal with the teachers that are public employees. The bell rings and then they become

the Good News Club teachers. I think there was a Seventh Circuit case, Whig versus Sioux Falls. Anyway, where a teacher was told, you can't be the leader of the Good News Club in the same classroom where you were just a teacher five minutes ago by taking off your teacher hat and putting on your private citizen hat. And the court said, well, sure she can. Sure she can. And the reason why is there's a difference between private speech and government speech.

And I really believe that in Hedges versus Wakanda, the Seventh Circuit said it best. And strangely enough, the Ninth Circuit block quoted it, Hills versus Scottsdale, in another case, which was that if the schools cannot teach the kids the difference between government speech wait a minute, we're dealing with kids as young as five. These are like kindergartners and pre-kindergarteners and that sort of thing. And the answer is there's a difference between government speech and private speech. The correct answer for the government is not censorship. It is education to educate about the difference between government speech and private speech. That's the responsibility. It's not to censor. And I think we should leave it there. I think if we give it 40 more minutes, we're getting close. Hiram, thank you so much for joining us. And for those who want to hear more about First Liberty's cases, check out First Liberty Live is their YouTube page. And they talk about their cases and what all they're working on.

It's very cool. And you can get way more Hiram brilliance on there. Thanks so much, Hiram. Really appreciate it. Hey, thanks for having us. And thanks for talking about our case. It's a lot of fun. And we'll take a quick break

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All right, Sarah, lively conversation. Closing thoughts. So I said this before about this case. I am great with the outcome of this case, which it sounds like Hiram agrees with, was a very narrow outcome, as in private, personal, religious exercise, just because you're a government employee and just because you're during government hours, is still protected. I am great with that as the holding. The problem though for me is that to me, nobody is able to tell me what is the next line. So what happens about a coercion test that nobody seems that

interested in trying to figure out now that Lemon's gone? There is going to be something to me about public schools, young students with teachers that's different than simply an establishment clause violation. And again, where students are forced to be there by law and it's a public school, religion is different. And it's not this case. I totally acknowledge that. But I haven't really seen anyone be able to come up with what that line is, what it'll not wrong, is that there are circumstances where private expression can become coercive because of the time, place, and manner of it. Would that be a fair way of saying it? It's not.

It's also who. It's the person in an authority position over young, minor students. And then the time, place, and manner. Yeah. over young minor students. And then the time, place, and manner, yeah. And then I don't think there's a coercive aspect to a public employee who works at the library who's doing prayer and the other librarians

feel some coerciveness to join the prayer. Like, no, that's obviously not the case. And I think that the sort of the disconnect might be that the coercion test feels much more difficult to discern versus a public-private test. Is this in their capacity as a public official or in their capacity as a private citizen? And that that should be the real inquiry. Is this part of their job? Are they doing this as part of their job?

Or are they doing this as a private citizen? That seems like a lot easier to wrap your arms around than the notion of when does your speech as a private citizen become coercive? And I think that might be some of the disconnect. Because I keep locking in, when I think about it, I keep locking in, when does this become part of their duty? When is this expression literally part of their duty? When is this expression literally part of

their duties? And maybe it's because I've done only a million of these see you at the poll kind of disputes over the years where that's always been the big issue is are they in there in their capacity as a teacher or are they there in their capacity as a private citizen? And that's always been sort of like the key distinction. Yeah, I do think what makes this different is that it's not before or after school. Everyone agrees that this is during school time, as in you could discipline a student for their behavior during this time. And he is on duty. Everyone agrees with that. He is on the clock as a coach. And so the hypothetical is more, what do you do during that part of the day? So it's not rally to the pole or whatever you're calling it, where it's clearly before school, but on school grounds. This is during

a school activity where, again, students have to be there. They can be disciplined for their conduct. Teachers are on the clock being paid for this time. It's part of their duties. So the private religious exercise is protected. But what happens when students feel coerced to join that? You know, a majority of the students start joining the teacher to also do their private prayers and some students are left out and you know again it might depend on the age it might depend on um on i don't know various other parts of that but nobody

seems to be able to give me a good example or good legal test for what that will be but to me it's clearly going to be the next case yeah this issue is not over nope it's not this issue is not over. Nope, it's not. This issue is not over. And the larger teacher speech issue is far from over. There are cases volleying up into the courts right now surrounding not just the anti-CRT stuff, but also the pronoun issue. So you're going to have a lot of cases now volleying up asking, wait a minute, do teachers really have no free speech rights at all when they're on the clock and in their official capacity? So man, this is not going away. This is one of the next frontiers, I think, of really meaningful First Amendment litigation. Because the Garcetti decision, a lot of people are going to want to

test the element of Garcetti that says, hey, wait, we're not deciding one way or the other on teaching and scholarship. So it's going to be a fascinating area. All right, Sarah, anything else? Nope. Cannon Shanmugan, our next guest. Absolutely. Multiple oral advocate, multiple time oral advocate at the Supreme Court. Including this term. Yep. So we're going to reflect on this term and what it means.

And I'm really looking forward to that discussion. So that will be on Monday. So make sure you don't miss that. If you like the podcast, especially if you're a new listener and we have new listeners, please go rate us where you get podcasts and subscribe where you get podcasts. And please check us out at thedispatch.com and we'll be back.

I said, well, Monday, it's actually Tuesday morning. We record Monday, put it out Tuesday morning. So we'll talk to you for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it.

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