Advisory Opinions - SCOTUS on Student Loan Forgiveness: Nope

Episode Date: July 4, 2023

For Advisory Opinions' purposes, the Supreme Court term is over. Sarah and David return to share their end-of-term thoughts and feelings, David's crankiness about the student loan forgiveness commentary, look to the next term and: -Student loan forgiveness is dead -D.O.E. v. Brown -Compelled speech in Colorado -NYT: I Teach at an Elite College. Here’s a Look Inside the Racial Gaming of Admissions Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And it is the end. Well, not really, actually. So a lot of people are saying, colloquially, it's the end of OT22 term. That actually doesn't happen till october so for instance if there were death penalty cases which there will be or emergency docket cases all of that will still happen this summer and it will happen under the header ot22 but for our purposes

david the term has ended we have two more opinions to talk about, the student loans and 303 creative compelled speech. Then we're going to do our statistics pack wrap up end of term thoughts and feelings. And then we got the orders list. So we're going to have to look at which cases the court has accepted for next term, which ones they didn't and which ones they were cranky about. It's a lot. Strap in. Here we go. First up, David, student loans. There were two cases. One was unanimously rejected by, with Justice Alito writing, which we said those standing arguments for a lot of these student loan cases were wanting but in the other case and this was the Missouri Mohella where Missouri has its own little corporate entity that does student loan administration it was a 6-3 opinion with the court's three conservative six conservative justices on one side three

liberal justices on the other side saying yes they're standing and no the biden administration does not have the authority under the heroes act to forgive 430 billion dollars in student loan debt justice chief justice roberts writing with what i thought was one of the best opinions of the term, Justice Amy Coney Barrett's concurrence on major questions doctrine and trying to explain that and where she actually thinks the court is on major questions doctrine. Since Justice Barrett has joined the court, I've been wanting more. I feel like she's the justice who I know the least about, their thoughts, their feelings. And boy, was it worth the wait. It was lovely. It was highly recommend for writing quality, thinking quality. It is one

of the best thought out opinions of the term, I think. So we'll get to that. And then, of course, the dissent written by Justice Kagan. David, surprises either in the opinion or things that you surprised yourself upon reading the opinions or the dissent that you agreed or disagreed with? I know. I mean, there were no really real surprises at all. I thought the student loan case, the entire case was going to hinge on standing because once somebody had standing, this program was going down. I didn't think it was that close of a call, waive or modify the language in the statute, waive or modify to imply that you can just strike out

$400 billion worth of student loans just to waive them away. And then you had, of course, some of the similar fact patterns that you've had in some of these other administrative cases where you have this long political effort to get Congress to do something about student loans that has included rhetoric saying the president can't do something about student loans all on his own. And then the president does something all on his own on student loans. And then some of the same people who were saying before that the president can't really do this are just shocked and dismayed and can't even believe this activist illegitimate court for overturning this obviously proper and lawful exercise of presidential authority.

Yeah, I'm a little cranky, Sarah, about all of the commentary over the last three to four days. I'm a little cranky about it. Someone spent too much time online this weekend. And I didn't really. I barely dipped my toes in the water online. I know. But all of a sudden, you have people who didn't pay attention all term showing up at the end, spouting off. But we'll get to that. So let's just talk about standing for a second. The Chief Justice laying out a few reasons why this Missouri corporation has standing.

First off, because they service federal loans, they had money on the line because the federal government pays them per loan that they service. So if the federal government then forgives all these loans, they lose whatever it was, $40 million. And that's their injury. And that would be sort of the traditional standing question. But A, there was always something a little strange about that because if everyone just paid off their debt and you lost $40 million, that's not an injury because people paid off their debt. That's part of the deal, if you will. So the fact that the federal government's paying off the debt, is that really an injury to you because you don't get the money? Because the

debt doesn't exist anymore. It'd be different if the federal government just said, we're not paying you anymore under this contract or something. That's an injury. So there was that sort of substantive question on standing, which frankly, the chief justice just said, yeah, it's an injury. Let's move on. Okay. Second, there was sort of the meta aspects of what a Missouri corporation means. And this came up a lot at the oral argument, the fact that MOHELA, which is again, the acronym for the Missouri organization, corporation, MOHELA could have sued themselves, but they didn't. And instead the state of Missouri sues. And what's the relationship between a state run corporation and the state in terms of its legal

abilities. The Chief Justice actually spent quite a bit of time on that, running through interesting precedents of various other government corporations that absolutely are held to be state actors. So for instance, Amtrak. Amtrak's a private or a separate corporation or whatever. But yeah, Amtrak can't violate your federal rights because they're a state actor. They also had an example of Arkansas versus Texas, which was fun because Arkansas and Texas have a fraught relationship. And that was about the University of Texas. Same thing, right? It doesn't matter that University of Texas is separate from the state of Texas.

Texas can defend the University of Texas, can sue on behalf of the University of Texas if it wants to, according to these precedents of the court. And so the chief justice is like, yeah, if you can hold them to be state actors for sort of offensive purposes, then surely you can do this

for defensive purposes as well. David, were those slam dunks to you? I this for defensive purposes as well. David, were those slam dunks to you? I will say nothing about the standing. Well, I would say in the Brown case, the case in which there was a 9-0 no standing, I agree with that. I think that was a slam dunk, hang on the rim, taunt your fallen opponent kind of no standing um it was closer i on standing in the in the missouri case it's still you know this idea that the actual entity that had the most direct injury didn't actually file suit uh i i i do stub my toe on that one a little bit sarah i do like i don't i don't find that to be uh a slam dunk that the state had standing when the entity most directly implicated by the program

didn't actually sue and the answer remember an oral argument about why it didn't was sort of ah state politics stuff and and those who are not watching, I'm just waving my hands in the air like, ah, well, you know what? It's just messy state stuff. You don't need to bother with Mr. Chief Justice. So that one, I would say, let me put it this way, standing was much less of a slam dunk here than the merits argument the merits argument from day one and look remember if you think that that's weird to say that like you've been spending your time on twitter over the weekend and you just can't wrap your mind around this decision any longer um remember how much the Biden administration was trying to tweak this

program sort of on the fly to prevent anyone from having standing. There were a lot of machinations to try to prevent people from having standing to challenge this case, which is not necessarily a sign that you feel like this case is going to do well on the merits. And so, yeah, I found the reasoning regarding standing to be somewhat persuasive. I would have thought it would have been, had the Mohella organization actually been in it, a lot easier to say, a lot easier to define. That was, to me, the weakest part of this. And then you get to the merits, and the merits are the strongest part.

I think overall, this court, there's a few complaints I have about the court. For instance, I do not have a complaint about the quote-unquote shadow docket, because you have to have emergency petitions. I don't really seem to have much of a complaint about the ethics things, and we've gone through that. Here are sort of my two big complaints right now, meta complaints about the court. So first, the court's not taking enough cases. 58 cases this term.

They're not resolving all the circuit splits. I know they're not an error-correcting court, but you could correct a few more errors out there. You need to take more cases. That's my first complaint. But my second complaint, I think, at this meta level is standing doctrine. It's pretty... I mean, wave your hands in the air at this point. Yeah. And it doesn't mean that it's political exactly. It's just vibes or something. I don't really know.

There's not great factors to look at. There's not great factors to look at there's not great precedent to look at so that's where i sort of fall like this all made sense to me i'm totally good with this outcome as far as like that makes sense on standing but like do i feel like i have a great sense of the court's standing doctrine after this i do not no especially after this and I do not. No, especially after this and the Biden immigration standing decision. Okay. So if there had been standing there and standing here, I would say I would have a better grasp, especially on some, you know, including some of the Trump era precedents, which really seem to expand state standing. And one of the ways that I would articulate standing doctrine would be that states are going to have a lot of standing that normal people don't have

for many reasons. But after the immigration decision, I'm not sure if you made me, Sarah, can you please deliver a lecture? And at the end of that lecture, the students, the task, your goal is to provide the students with a predictable analysis, analytical framework, or an analytical roundup and comparisons on some of the tougher cases. All right, but let's move to the merits of this student loan case. As you said, David, pretty much everyone across the board thought if you can get over the standing hurdle, even the most liberal legal scholars were like, there's not a whole lot here substantively to defend this program. And that is in fact what the Chief Justice wrote. He goes through the statutory language, the waive or modify that the Heroes Act gives to the Secretary of Education and was like, look, you're not waiving anything and you're not modifying anything. You're just canceling you're not waiving anything and you're not modifying anything you're just canceling huge amounts of of stuff i did like this line the chief justice was feeling a little spicy here at the end of the term i think this is the spiciest i've seen the chief justice in like since he became chief justice probably um between the affirmative action case and this case there

was just a little bit of like i don don't know, there were some elbows. Can I predict which passage? Yeah, definitely. Okay. The secretary's plan has modified the cited provisions only in the same sense that the French Revolution modified the status of the French nobility? Actually, no, but that was a good one.

Oh, oh, I thought for sure. Okay. That one came up at oh, I thought for sure. Okay. That one came up at oral argument, which I enjoyed. I enjoyed its reemergence. No, this one, it's actually not that far off though. Aside from reiterating its interpretation of the statute, the dissent offers little to rebut our conclusion that indicators from our previous major questions cases are present here.

The dissent insists that student loans are in the secretary's quote wheelhouse. But in light of the sweeping and unprecedented impact of the secretary's loan forgiveness program, it would seem more accurate to describe the program as being in the quote wheelhouse of the House and Senate committees on appropriations. I know if you're home and this is like your first ever Supreme Court opinion,

that may not seem very spicy, but it struck me as very spicy. Yeah. Chiefy spicy. Yeah. Some of the back and forth in between the majority and the dissent in each of the three of the biggest of the final cases from 303 Creative to student loans to affirmative action, a lot of back and forth. It was actually reminiscent to me of the way Scalia would deal with dissents or the way in which Scalia would either be a dissenter or deal with dissents when he was in the majority. Kind of spicy, pretty direct. Yeah, it was very interesting.

Although, again, worth reading the end of... So he has the substantive take, just using the text, the waiver modify French Revolution point. And then he says, but even without that, you would have a major questions doctrine problem in which it's just not remotely clear that Congress ever intended to give the Secretary of Education this broad sweeping power. And that alone on the who decides question means that it goes to Congress to decide not to an executive agency. But after all those little elbows, very chiefy elbows,

he ends his opinion with this. It has become a disturbing feature of some recent opinions to criticize the decisions which which they disagree is going beyond the proper role of the judiciary. Today, we have concluded

that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri. That the words wave or modify do not mean completely rewrite and that our precedent, old by Missouri, and answerable to Missouri is indeed part of Missouri. That the words waive or modify do not mean completely rewrite, and that our precedent, old and new, requires that Congress speak clearly before a department secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial

decision-making in doing so. Reasonable minds may disagree with our analysis. In fact, at least three do. We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country. The judgment of the district court, the Eastern District of Missouri is reversed, etc. So a little like more elbows and then kumbaya yeah okay yeah i but i do think that look i mean there have been a lot of direct back and forths in supreme Court history between majorities and dissents, going back a long, long, long time without people thinking the sky is falling around collegiality, legitimacy, etc. So, I did think that was a nice little reminder. And I do have another, to add to your critiques

of the court you just stated, which I agree with both of them, I think standing doctrine is kind of a mess. There should be more cases. One of the others is, I think this dynamic where a certain number of extremely controversial cases are released all at once at the very end of the term is harmful. I do think that what ends up happening is that all of the other decisions that don't fit the mold, that were very consequential, I mean, very consequential, are just forgotten in all of the doom, gloom, anger, etc. around the most sharply divided cases, which are decided at the

very, very, very end. And I know the reason it's because the majority in the dissents aren't all ready yet. Well, get them ready. Get them ready because I think it really does alter public perception. And there's nothing inherent in these decisions that means that Morby Harper couldn't have come out Friday and 303 couldn't have come out Tuesday. I mean, and this sounds like a nitpick, and I know it sounds like a nitpick, but I do think that there's an actual harm that is done. actual harm that is done. I've spent a lot of time this weekend answering emails from concerned friends about the Supreme Court. And I had to remind some folks of some of the decisions that they were cheering as shocking and good decisions from their perspective from the Supreme Court on really big matters just a few days before. And all of that's sort of wiped away. Now, part of that's public responsibility.

You have to have a memory longer than a goldfish, right? But part of it is there is a habit. You could, in fact, for instance, have a norm at the court that all majority decisions are due one month after oral argument and dissents have two weeks. And then we're sort of regardless, two months after oral argument, the decision's coming out instead of just like letting it be a gas that expands to the size of the term until flights are booked for the summer.

That's a vivid. I love that. A gas that expands to this size of the term. That's excellent. I want to spend a little bit of time on Justice Barrett's concurrence because it was such a thing of beauty. Her concurrence is only on that second substantive question, how the major questions doctrine works, how it works here in particular. It's because, right, we've been playing around with this for a couple terms now,

this idea. And remember, I got really cranky a while back that all of a sudden people were like, the major questions doctrine, which was invented by Brett Kavanaugh in 2018. Like, what are you talking about? It was invented in the 80s. I mean, invented is maybe a strong term even there, but it's been around since the 80s by liberal justices. And you just don't like its application now, I grant you. And maybe the term major questions doctrine wasn't being used. But from the 80s through Scalia in the 90s talking about Congress doesn't hide elephants and mouse holes. I mean, this idea that it's some brand new kid on the block, like, please.

However, it has certainly become more controversial, this idea that it is a substantive canon. And you just have Justice Barrett saying like, okay, I'm going to do my own AO episode on substantive canons, major questions doctrine, how it applies here, how it's applied in other cases. So I want to just read a few sections of this because I could not possibly describe it better. First of all, and again, I'm reading from her, substantive canons are rules of construction that advance values external to a statute. Some substantive canons, like the rule of lenity, play the modest role of breaking a tie between equally plausible interpretations of a statute. The rule of lenity, remember, is basically the tie goes to the criminal defendant. If it's ambiguous and we're not quite sure, you don't just get to throw people in jail. Others are more aggressive. Think

of them as strong form substantive canons. Unlike a tie-breaking rule, a strong form canon counsels a court to strain statutory tax to advance a particular value. There are many such canons on the books, including constitutional avoidance, the clear statement federalism rule, and the presumption against retroactivity. Such rules effectively impose a clarity tax on Congress by demanding that it speak unequivocally if it wants to accomplish certain ends. This clear statement requirement means that the better interpretation of a statute will not necessarily prevail. Instead, if the better reading leads to a disfavored result, like provoking a serious constitutional question, that's the constitutional avoidance doctrine, the court will adopt an inferior but tenable reading to avoid it. So to achieve an end protected by a strong form canon, Congress must close all plausible off-ramps.

All right, so then she's going to talk about major questions doctrine. Some have characterized the major questions doctrine as a strong form substantive canon designed to enforce Article I's vesting clause. Remember, the legislative power is vested in, you know. Yes. On this view, the court overprotects the non-delegation principle by increasing the cost of delegating authority to agencies, namely by requiring none requires an unequivocal declaration from Congress authorizing the precise agency action under review, as our clear statement cases do in their respective domains. So what work is the major questions doctrine doing in these cases? I will give you a long answer, but here's the short one. The doctrine serves as an interpretive tool reflecting common sense as to the manner in

which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. And then David, I want to give you her long answer example because it's the most Justice Barrett example ever and obviously resonated very much with me. Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parents hand the babysitter her credit card and says, make sure the kids have fun. In Bolden, the babysitter takes the kids on a road trip to an amusement park where they spend two days on roller coasters and one night in a hotel.

Was the babysitter's trip consistent with the parent's instruction? Maybe in the literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multi-day excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to, quote,

make sure the kids have fun. But what if there's more to the story? Perhaps there is obvious contextual evidence that the babysitter's jaunt was permissible. For example, maybe the parents left tickets to the amusement park on the counter. Other clues, though less obvious, can also demonstrate that the babysitter took a reasonable view of the parents' instruction. Perhaps the parents showed the babysitter where the suitcases are in the event that she took the children somewhere overnight. Or maybe the parents mentioned that she had budgeted $2,000 for weekend entertainment. Indeed, some relevant point of context may not have been communicated by the parent at all. For instance, we might view the parent's statement differently

if this babysitter had taken the children on such trips before or if the babysitter were a grandparent. In my view, the major questions doctrine grows out of just these same common sense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also expect Congress to speak clearly if it wishes to assign to an agency a decision of vast economic and political significance. Mic drop, David. So good. Yeah, it was really, really good. And look, I think that if this court has sent,

we talked about the muddy messages this court has sent. Here's a clear message that it's been sending, which is, say it with me, everyone, advisory opinions listeners, do your job congress do your job that is absolutely a message that the court has been sending i think it's just going to keep sending it uh congress do your job and and look you know i know people say well congress is broken congress doesn't do its job yes and no. Okay. I would have been actually more sympathetic to this idea that, well, Congress is fundamentally broken two, three years ago.

But you know what we've seen in the last two to three years, Sarah? Some actual legislative compromises. We've actually seen that happen. So I'm not going to say Congress is healthy, but it has a pulse. For example, memorably from my standpoint, because I got roasted so much for supporting this, but the Respect for Marriage Act, Congress legislated on a hot button culture war issue, but there was compromise laden in that process. And so, one of the things that I'm thinking through as we're talking about what are the ramification second and third order effects of all of this jurisprudence

is I'm actually more optimistic now than I was maybe two to three years ago that a Congress do your job message can resonate. There are still legislative compromises that are lying out there able to be obtained i mean we saw one around the debt ceiling it was you know you can argue about whether or not the brinksmanship was appropriate i don't love it but there was some there were reasonable compromises made there were reasonable compromises made on a number of pieces of legislation over the past two to three years. So it is possible. But I will tell you what does not happen when Congress does its job and compromises. Activists do not get everything that they want. On either side. On either side. And so they get angry about it. They lose their minds about it. They'll even write to you and say you should be thrown out of your

church for supporting it but look you know the process of legislation is a process of give and take it is a process of compromise especially when you don't have a filibuster proof majority and so you know congress can in fact get some stuff done. It's just the one community, I think, that's sort of left on the side of this is the hardcore activist community, which at least when it's talking through executive action, when you control the presidency, when you have a maximal view of executive power, you can give yourself the illusion of getting everything when the president's in power until your president's not in power anymore, and then that all switches. So I'm more optimistic, Sarah, that a Congress do your job message can actually

sink in because I feel like it has been sinking in to some degree. For longtime listeners of the pod, you may remember that a year and some change ago, I was a pretty big fan of the major questions doctrine, that it was a necessary sister component to the non-delegation doctrine. And then we got the clean power plan decision where these sort of factors of the major questions doctrine were laid out. And I was like, wait, that is made up. That doesn't sound like anything that's just vibes and y'all know I don't like vibe tests and so then I was like oh now I need to rethink my own thoughts on the major question doctrine and it's just sort of been percolating there for me um for this a lot of this term and then this concurrence came out david and it is beethoven's seventh symphony second movement level

beauty ah so i was just reading just some very small choice excerpts of it highly recommend um that you also and maybe even put it while you're reading it just put on beethoven's seventh symphony second movement and I think you will feel similarly. 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.

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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 A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, 303 Creative. Before we get to the decision, David, there was some news the night before the decision came out, and it's worth maybe touching on that for just a second, which is, got to go through a little bit of the facts here, but basically this lawsuit is filed as a pre-enforcement challenge, i.e. Colorado has not taken any actions against Lori Smith at this point, but rather she fears that they will. And that's it. That's all it says. Then the next day,

she gets an inquiry into her inbox from Mike and Steve asking if she would be willing to build them a website for their gay wedding. Several months later, they amend their complaints. There's other court filings involved. And the Mike and Steve inquiry does then appear for the first time. It is, I'm going to, might get this slightly wrong. It's like not mentioned in the district court opinion, but it is mentioned in the circuit court opinion. Like it's relevant sort of fades and waxes and wanes along with the moon here. Right. So the night before, there's a story published that a reporter, and I got to give props here because I think this is just good reporting,

gives Mike and Steve a call because their phone number and email address is all in the filings, in the record. And dude picks up the phone and is like, yes, that's my email. Yes, that's my phone number. I have never heard of this in my life. And I'm straight. I've been married for 10 years.

I have kids. Why would I send this? All right, so there's a few things here. A, does this somehow moot the case? Who's going to get sanctioned for this? Was this all a setup? And I want to bring a couple thoughts to bear, David, and then get your response. One, based on all of this information, three things are potentially true. One, Mike and Steve are lying and they did send in the inquiry just to, you know, be trolls or whatever

when they saw the news about the lawsuit. Two, Lori Smith is lying. She created this all herself and somehow actually found real people and their email and website of another graphic designer in California. And she created it, which would be also lying. For three, someone else did.

We aren't going to know who that person is. And we have no idea why they picked this dude and like a real, again, a real website designer based out in California, who's a straight guy with kids and used his name, email, and phone number to send in this inquiry. Based on the facts as we know them, I have no reason to believe or disbelieve any of the three of those. All three are as equally plausible to me, frankly, sitting here right now.

They're all weird, as in none of them are plausible in some respects. But one of them is the answer. Right. It's all weird. But I'd go a little further and say it's all irrelevant. And that's point number two, and none of it mattered. None of it matters. Because, well, that's not totally true. None of it matters to the outcome of the case. Because it was a pre-enforcement challenge, that wasn't necessary for standing, as long as she had a credible fear of Colorado enforcing this law against her, which she absolutely did.

And she didn't need this inquiry to make that argument. With one exception, David, if Lori Smith, the plaintiff, the original plaintiff in this case, or her lawyers did this and lied about it and put it into their filings, they are up for some ethical problems and disbarment stuff, but it doesn't actually affect the outcome of the case. Do you have reactions, thoughts, feelings? That's exactly right. This was a pre-enforcement challenge. This is normal.

This is normal. I want to say this a hundred times more. This is normal. This is normal. I want to say this a hundred times more. This is normal. And often used on the left, more often than not. I'll give you some good recent examples. The drag queen cases. So they're filed before the effective date of these drag queen restrictions. And courts are issuing decisions usually on the day of or the

day after when the when the actual statute goes into effect nobody's actually been arrested there hasn't been an enforcement action it's pre-enforcement this is something that happens all the time all the time and then the other thing that's interesting here, Sarah, is it's a pre-enforcement action, which is very normal, that was litigated under a collection of really interesting stipulated facts. And not enough people have talked about this, to be honest, because that was absolutely key to this opinion. so it's a pre-enforcement action normal routine every day a day ending and why kind of litigation filed but what is not super normal routine was the stipulated facts and this is something that was really interesting to me about this case, because the stipulated facts actually really hurt Colorado a lot. And I could easily imagine

with a different, if they had not stipulated to some of this stuff, I'm not saying it would have come out differently. I don't necessarily know if it would have been a great vehicle for the Supreme Court at this stage. There would have had to have perhaps been more litigation. So here's a stipulated fact. Ms. Smith, Lori Smith, 303 Creative is, quote, willing to work with all people regardless of classification such as race, creed, sexual orientation, and gender, And she will gladly create custom graphics and websites for clients of any sexual orientation. Stipulated fact. So it foreclosed the ability of the state to say that she was engaging in LGBT, status-based LGBT discrimination.

Then you go on and you move on beyond that. The websites and graphics Miss Smith's designs are original, customized creations that contribute to the overall messages her business conveys through the websites it creates. That's again, a stipulated fact as to the expressive nature of what she was doing. Okay okay so if you're not stipulating those facts how are you contesting this case well one of the ways you contest it is you would say wait a minute this is all a subterfuge for lgbt discrimination that in fact i'm not gonna stipulate that she serves lgbt customers um you're gonna have to prove it to me okay so that you you don't stipulate that changes the dynamics a bit and then the other one is you don't stipulate

that she's engaged in expressive activity you say remember if you go back long time advisory opinions listeners will remember the oral argument because at the oral argument there was a lot of discussion as to whether or not these websites that she was creating were in fact expressive on her part at all or were they just sort of a plug and play kind of cookie cutter form of website and because the business has not been fully out fully, essentially they're stipulating a key element to this case. And so once you stipulate- The element to this case, perhaps.

The key element. So you're stipulating that she's not engaging in status-based discrimination and she is engaging in expression. How do you win that case with this court, Sarah? And indeed you don't. It was 6-3 with Justice Gorsuch deciding, I mean, writing. Yeah. And Sotomayor filing the dissent, citing in favor of Lori Smith that it was compelled speech

and that Colorado couldn't enforce its statute against her. I just wanted to get the outcome out there because we sort of forgot that. Although I'm sure if you're listening, you've heard it. But David, you get to something really important here. Remember how I've complained that if you have a liberal cause, it's like baffling to me that you would hire a liberal advocate while complaining about it being a quote unquote, six, three court. Like either you want to win your, or it goes to this whole culture of losing, that term that DeSantis has coined, that somehow losing is proof of your purity.

303 Creative is this incredible example of this, where Colorado at any point could have chosen higher ground to litigate this on, or really foreclose the case entirely, you know, by simply stipulating, we're not going to force this against you. I mean, any number of options to prevent this from getting to the Supreme Court or prevent it from getting to the Supreme Court on such legal grounds instead of factual grounds. And instead it's like they wanted this to be litigated. They knew who was on the court to do so and then all of these folks are complaining that they lost i don't know to me and forget forgive me for the sort of crass comparison but this is a little like ruth bader ginsburg not retiring

and then being really really upset that am Amy Coney Barrett replaced her. I get it. I'm not saying you can't complain about the substantive problem with that, but you do need to look in the mirror just a little bit at what got you there and the decisions that made that almost inevitable. There were two big look in the mirror cases this term, two of the three, the Harvard affirmative action case and this one. Both of them did not have to get to the Supreme Court if you didn't think you were going to win the case. And in both, the liberal side was like, no, no, no, we definitely want to litigate this

in front of this court, the worst possible court for us at this time. I know, I know. And then, and then when you think of the facts that Harvard was bringing to the court, see, this is the thing that gets me, again, I'm a little cranky, Sarah, about this because I've seen a lot of anger directed towards the court over the Harvard case. I've seen very little anger directed at Harvard over the Harvard case. And what's interesting is I haven't even actually seen any defenses of Harvard. They just don't talk about it, which is kind of all you can do because the facts of the way that Harvard treated these Asian applicants, they're really grim facts.

This is the kind of thing I was reminded both in the Harvard case and 303 Creative of the greatest Cold War movie, Sarah, and that is Hunt for Red October. Oh, the best. Absolutely. One of my top movies of all time on any topic ever. So glorious. So you remember the time when the guy who's chasing the Red October in this Akula-class Soviet attack submarine. And he fires a torpedo. I believe, you know,

it's a little hazy, but I think he removed the safeties from his torpedo to do a short range, a shot. There's this incredible evasion maneuver. And then the torpedo comes back and hits the Soviet submarine. And right before the torpedo impacts the uh second in command looks at the captain and says you arrogant ass you killed us and i think that's what i thought on both of these cases it's so perfect i never would have thought of it and it's so perfect um yeah i mean my favorite red october line is one

ping only oh it's such a great movie it's such a great movie but this was one where and look you know i there is a pretty there is a there is a first amendment case from the not so distant past i believe 2010 i think it was the last religious liberty case that was a loss at the supreme court on and this was the cls versus hastings case cls v martinez and in that case there was a hidden mine and it was a stipulation that the plaintiffs had entered into in that case and And that stipulation ended up controlling, essentially controlling the outcome of the case. And I knew a little bit as to why that stipulation was entered into.

There was a real feeling that, hey, we want to sharpen the issue and fight on this particular legal ground. That's one of the reasons why you enter into stipulations is to sharpen issues and to litigate on, to do the best that you can to litigate on to do as to do the best that you can to litigate on your preferred ground well that stipulation was disastrous it was so disastrous i did a post um a post decision seminar or or a panel discussion at hls where charles freed was moderating noah Feldman and me. And right before it got to my

portion of the discussion, he turns to me and he says, before we begin, who was the idiot who entered into the stipulation? And A, I knew who it was. And B, the person was not an idiot, but it was a mistake. It was a mistake. And that's what happens here. You had major mistakes by Colorado, in this case, by Harvard, and you have no idea what's happening in the back and forth behind the scenes. Our lawyers saying, hey, I'm not feeling great about this case on this grounds. And they're saying full speed ahead, full speed ahead, or don't know what's going on. But in both of these cases, those plain, the, the, I'm sorry, those defendants were walking into those cases with some really bad facts.

And in the Colorado cases, stipulations rendered it the facts so bad for Colorado, the cases otherwise, honestly, Sarah, uninteresting. It's a flat out application of existing precedent. That's all 303 Creative is. But let's run through a few things about this. So one, I saw a lot of stuff online of people who thought they were dunking on the right and saying like fine i won't make whatever your artwork is i won't do any henna tattoos i saw this one i won't do any henna tattoos of crosses great that's what the that's what it actually protects you that you don't have

to do that that's fine and then another one like, I'm not going to serve any customers who voted for Donald Trump. Well, now wait a second. She says she's serving gay customers. She's just not making a message. Now, because it's Donald Trump voters that may or may not be protected, given on your state, yada, yada.

So you may be able to refuse to serve Trump voters if you want to in your state. But if for some reason your state, yada, yada. So you may be able to refuse to serve Trump voters if you want to in your state. But if for some reason your state does protect political viewpoint discrimination, again, it's not that you can just not serve customers. Laurie Smith- That wasn't the case. Has to make websites for gay people.

She just doesn't have to make a website for their wedding. So there's that stuff. But David, can I tell you my biggest disappointment with this case? Yeah, please go for it. Where is Justice Kagan? Yeah. So Justice Kagan, as you remember, wrote the opinion in Counterment. That's the true threats case where it's like, look, even the most odious speech is protected speech.

Now, if you show that the person had a reckless disregard for whether they were issuing a true threat, and we talked about countermen quite a bit, but nevertheless, it was sort of Justice Kagan, free speech maximalist, which she has done many, many times since her time on the court. Her thumb is always on the scale of speech.

Yep. She's in the dissent here, but she doesn't even write to explain why this case is different to her. Because if we're protecting odious speech, which I think you and I are pretty in favor of odious speech, right? I'm the Skokie girl, right? I love me some Nazis marching in Skokie. Just love every bit of it. That's an easily misinterpreted statement. I love what it says about our civil liberties and free speech rights in this country. If you believe that this is odious speech,

to not be willing to make a website for someone's wedding their happiest day because they're gay, because they're marrying someone of the same gender. That's odious speech. And it's also protected. And that's where I wanted to hear from Justice King. And I want her to explain to me why they're different to her, because I think she's brilliant.

So tell me, because I'm open to hearing it. I wanted to hear from her. And I was disappointed in the dissent mainly for this line. Today, the court, for the first time in its history, grants a business open to the public, a constitutional right to refuse to serve members of a protected class. Is that what the court did? No. No.

That is not what the court did. No, that is not what the court did. And the other thing is, again, all of this vitriol flowing in when it was a straightforward application of precedent, y'all, just look at the stipulations. This was an expression case. This was not a goods and services case. It was an expression case. And once it was an expression case, Colorado was going to lose. It was going to lose.

I don't even know why they charged straight into this cannonade. And if you're going to say, well, this is just pure anti-LGBT hostility on the part of the Supreme Court, the opinion was written by, I'm now doing the checks notes thing, the guy who wrote the Bostock majority opinion, extending protections against discrimination on the basis of sexual orientation and gender identity to all persons through Title VII

sex discrimination prohibition, a case that if you remember, if you again have a memory longer than a goldfish, made people so angry on the right that I think Josh Holly declared that it was the end of the conservative legal movement. Right.

And so at some point, some people have to stop constantly freaking out about these cases and think, huh, is there an underlying judicial philosophy here that I can explain without use of epithets and without use of insults. And look, the underlying philosophy here is this was a free expression case as stipulated by Colorado and find me, I defy you to find me a compelled speech precedent from, I mean, we're now 80 years, 80 years since Barnett. In the last 80 years of a compelled speech that was permitted, that wasn't on a core cultural,

political slash religious dispute, you're just not going to find it. And so that's why this was really an on all honesty once i once you read the stipulations and you know this court you knew how this case was going out you just knew it all right last thing on this case we had talked about how this case would have potentially much larger implications beyond this sort of very specific part of the culture wars on the left, meaning it was going to also have implications on the right. For instance, these social media bills that have popped up in Texas and Florida and now are coming up in some other states as well, that those tend to be age restrictions. And disclosure, my husband,

husband of the pod, represents net choice in the Texas social media bill case that's currently pending before the court. So take everything I'm going to say with that disclosure in mind. But there were a lot of things in this 303 creative opinion that had pretty profound implications, I thought, for the tech company arguments and that come out pretty strongly in favor of the tech companies and against the social media bill cases, which, David, we've said all along. We think we've said since the very beginning, since before, I believe, Husband of the Pod was involved, that we thought we knew how those cases were going to turn out, and that it did not

look good for Texas and Florida trying to force private companies to keep up and promote content that they didn't agree with. But some interesting things on here, if you want yourself to go read the Gorsuch opinion, for instance, on sort of how to think about common carrier status. That's something that's come up on the right a lot. Like, well, maybe Twitter's a common carrier.

Justice Gorsuch throwing a lot of cold water on that idea. Definitely that it's just because it's for profit or it's in a corporate form that somehow it becomes less protected. No.

First Amendment applies equally to speech on the internet, combining multiple people's speech. Because remember, for this wedding website, she's taking their story, but putting it in her own words. Like, yep, that's protected. I mean, I thought the common carrier stuff was probably most important.

So Gorsuch says, quote, common carriers in places of traditional public accommodation like hotels and restaurants exercise something like monopoly power or hosted or transported others or their belongings much like baileys and then explains how social media websites don't operate operate anything like common law bailies. Right. And of course, it's also notable that six justices signed on to that, all on the right.

Including one, Justice Thomas, who had raised the issue before. When I think about the attempt to expand the definition of common carrier, almost to whatever is open to the public, I'm reminded of a different pop culture moment sarah do have you ever seen that like the viral british cooking show moment where the the british host says to maybe a french chef if you added ham to this it would be like a carbonara

and then he turns to her with this look of utter scorn and he says if my grandmother had wheels she'd be a bike where it's like when you add something to something it's not the thing anymore it if you it feels like my tattoo uh so anyway i think that that you can read in a little bit in the 303 Creative. You can see some boss stock coming in. You then got this case, and it's going to be part of a trilogy with those social media company lawsuits as well. All right, David, can we do a little end of term stat pack? Yes, let's do it.

All right. There were 58 cases decided this term. Incredibly low number. 50% were unanimous in outcome. Now, that included three per curiam opinions. That means that we don't actually know the vote of those, but they're not precedential. And there were no noted dissents.

And from experience, generally speaking, those three were almost certainly unanimous. Okay, so 50% were unanimous. generally speaking, those three were almost certainly unanimous. Okay, so 50% were unanimous. 89% of the cases this term had at least one liberal justice in the majority. 8% were decided 6-3 with the six Republican appointees all on one side. For comparison, by the way, that was five cases total of the 58. Last term, there were 14 cases total that were decided, six, three along those lines. And it's the lowest number of straight ideological split decisions in the last six years. So an all-time low for ideological decisions. And we're

defining ideological as party that appointed the justice. Another 3% of cases were decided 5-4 with all the Democratic appointees in dissent. So arguably you could say 11% were decided along quasi-ideological lines. If you think that the three liberals are the part that matters, not the six conservatives.

So I broke those out. So let's see. Kavanaugh was in the majority 96% of the time. Roberts 95% of the time. Amy Coney Barrett, 91% of the time. So that's your 3-3-3, David. I mean, chef's kiss. Love it. Love to see it. I also thought it might be helpful to remind people what the cases were that were 6-3 and 5-4. Since there's so few, we can actually very easily run through them. 303 Creative that we just talked about. Nebraska, the student loan case that we just talked about. Harvard and North Carolina, that was actually counted as one case in the R numbers, which is how this court counts. So that's

why I'm going to count them as one case here. But if you want to count them as two, feel free. Samia, that was the Sixth Amendment co-defendant confession case. Remember when we talked about the, like, Kagan's point about if you just sub in other people and it's like, wink, wink, the person sitting next to me? That actually was 6-3 along those ideological grounds. Jones v. Hendrick was the death penalty successive habeas petitions about statutory innocence that we also spent some time on. That was 6-3. There were only two 5-4 decisions that I mentioned where the three liberals are all on one side of that 5-4 in dissent.

Arizona v. Navajo, tribal water rights. And that was joined by Justice gorsuch with the three liberals and then coinbase that was an arbitration case joined by justice kavanaugh in dissent with the three liberals so david even of the like hit parade cases that you know were six three and five four not all hit parades right Like some of the ideological ones are less culture war than you'd think they are. And to your point, I wanted to remind people what the other cases that were hit parade cases that weren't decided along any ideological lines. So for instance, the Groff Religious Observance Free Exercise exercise case that was unanimous the indian child welfare act

case the uh biden immigration case the independent state legislature theory case and the section two of the voting rights act case All of those were decided this term. All of them were not along ideological grounds. And all of them were divisive hit parade, quote unquote, cases. You're right, David. It's a shame that those came out all sort of in one clump on the front end. And then the divisive ones that were ideological were the last taste in people's mouths. Because frankly, that's all people think happened this term. Yeah, it really is it's amazing and arguably so 303 creative of the hit parade cases was the least consequential it was a straightforward application of 80 year old precedent i mean it's hard to overemphasize

how routine at the end of the day that ruling was. Justice Sotomayor's mistaken line from the dissent notwithstanding. The student loan case was consequential just because of the sheer size of the money involved. But I don't know, Sarah, it never felt real to me because it was so plainly outside the realm of the statute. And then the harvard case was quite consequential although it is very much worth noting that consequential in what how i want to ask every reporter and every time they're talking about supreme court cases to say quote if they say the biggest cases of the term were decided along six three lines or whatever they're saying, please define the word biggest because you're not defining it by number of people affected. And that's fine. You're defining it by a divisiveness or a political

valence that you came into it with. So it's a bit tautological, right? Like you said it was divisive and then it turned out to be divisive. Therefore it's the biggest. Um, but like affirmative action, as others have noted, uh, the of americans don't go to college of those who do go to college the majority go to schools that basically let everyone in that are not selective quote unquote and then even among the most selective schools where affirmative action is a zero-sum game and making a difference it is very very much on the margins and we're talking about a few thousand students a year that it's probably changing what school they go to that's it now that's a lot and it matters and

racial discrimination matters and that's why i'm fine with a different definition of biggest totally fine with it but don't tell me it's by number of people affected because that ain't it y'all that ain't it and and by the way, by the way, for people who think that this is a hair on fire, doom and gloom moment for diversity in the United States, arguably the most progressive state in the country

is the University of California, arguably. I mean, Vermont and some others might duke it out, but certainly the most progressive big state in the country has the flagship state university program

in the country. A lot of people will say the UC system is the flagship state university program in the country. A lot of people will say the UC system is the best state university system in the country. And guess what? It has been barred for years, for years from taking into account race. 25 years. 1996 is when they passed the bill. 1998 was the first class that it affected. And you know what, David? When you're annoyed about stuff, I then get annoyed about stuff. So someone said to me, for instance,

that California schools have become less racially diverse in the past 25 years. And I just, I need, oof, it makes me a little cranky because here's the actual statistics. Black and Latino enrollment in those schools has gone down. I'm not saying that's a good thing. White enrollment has stayed the same and Asian enrollment has gone up. So I have no problem with every single story that says in the past 25 years since banning affirmative action, black and Latino enrollment in California

schools has gone down. What I'm not okay with saying is that it's become less racially diverse because then what you're saying is that you don't think Asians are racially diverse. And that makes me angry. And that makes you sound like Harvard. Right. Very, very well stated. But if we're also going to keep this talking in this vein about consequential cases, look, Morvey Harper was a big case. That was a big case. And if you doubt its bigness, wait until the 2024 election. If Donald Trump is on the top of the ticket for the Republican Party, the combination

of electoral count act reform and Morvey Harper, those two things are going to be a firewall against the nightmare we endured in 2020. That's pretty big. If you want to talk about big, let's talk about the Alabama Voting Rights Act case. That is big. I mean, it's not huge big but it's big big the if you want to talk about big the biden immigration enforcement case again this is talking about what are your priorities on how do you remove unlawful entrance into the country again this is all of these things are big things so you can can't sort of say, well, the Supreme Court, it doesn't get all ideological until it gets big.

No, it's and not just from normal Twitter trolls, but by people who should know better and who do know better about this. And it vexes me. I'm vexed. All right. Let's talk about next term. The Supreme Court has granted even fewer cases on pace. term the supreme court has granted even fewer cases on pace so that's not making me happy but they did issue the last orders list of the term granting uh you know what is it one two

three four four ish five ish cases so the biggest ones and this is one the sec case we talked about this coming out of the fifth circuit and this is looking once sec case we talked about this coming out of the fifth circuit and this is looking once again at these quasi-independent agencies with quasi-judicial authority and adjudicative authority and whether that violates the constitution huge case everyone expected it to be granted and lo and behold it got granted cool but here's an interesting one that got granted, David. Rahimi. Yes. The thing that keeps me up at night. Oh, both of us for different reasons.

Maybe not for different reasons. Maybe for the same reasons. case again out of the Fifth Circuit that struck down the domestic violence prohibition, the civil orders of domestic violence allowing someone to be disarmed, and that that violates the Second Amendment. You and I thought one of these cases would make it to the Supreme Court, and we'd obviously narrowed in on Rahimi as being the most likely, and there were good reasons for that. likely and there were good reasons for that however rahimi is the worst case if you're a second amendment fan yes and the reason i say that is because there were several other pending cases that had much better facts for you yep looking at for instance range v attorney general that was decided just a couple weeks ago this month. That was a Third Circuit en banc decision about 922G overall. So that's the felon in possession. It's probably the

most common federal crime charged in America. I haven't actually run the numbers, but I can't imagine that it's not. But in this case, the guy who was charged under 922G, felon in possession, this case the guy who was charged under 922g felon in possession his felony was food stamp fraud and so it was a non-violent felony um you know yikes right it was years ago he had done his you know time and all of that and then whatever this was a decade or maybe longer later he has a gun and they're like aha felon inon in possession. You're going to jail for a really, really long time. The third circuit held that a person convicted of a Pennsylvania fraud offense, a misdemeanor punishable by up to five years imprisonment, remains among, quote, the people protected by the second amendment and that the government

failed to show that history and tradition of firearm regulation supported disarming him. failed to show that history and tradition of firearm regulation supported disarming him. So those are really good facts if you want to strike down some of these laws, right? Food stamp guy trying to feed his family? Then similarly, and just this week, there was the really, really fascinating case from Judge Reeves out of Mississippi, U.S. v. Bullock. case from Judge Reeves out of Mississippi, U.S. v. Bullock. This was also a felon in possession case. And it was, you know, pretty spot on felon in possession. This guy had served 15 years in state prison for manslaughter and aggravated assault after killing someone in a 1992 bar fight. someone in a 1992 bar fight then in 2018 when he was 57 years old he was indicted under 922g because of uh he had a firearm despite his felon status that would add 10 years that would give him another 10 years in prison and here you have judge reeves a very well-known liberal judge saying, no way. Under Bruin, that just, you know, your history and tradition

test, if you like it so much, sit in it, swim in it, drink it, come to the party. Now, his decision is a little bit, I don't think it's snarky actually, David, but it certainly makes clear that he doesn't agree with Bruin and that he's applying it in its absurd result here. And he says that he thinks the Supreme Court was continuing to engage in, quote, law office history. That is history selected to fit the needs of people looking for ammunition in their cause. Nevertheless, he says, the standard announced by the Supreme Court in Bruin is the law of the land. It must be enforced. Under that standard,

the government has failed to meet its burden. And notes, by the way, like he doesn't have a historian that he can bring in to help with this case, but neither did the government provide him with one. And it's a lot of side eye of Bruin, but you have a very liberal judge saying 922G is unconstitutional.

Any of those cases, well, not this one because it was just decided, but the range case actually could have been granted cert by the Supreme Court instead of Rahimi, and it would look a lot different, I think. So that's the most interesting cert grant to me, most interesting cert grant to me david yeah for me too by far uh i would also say i i shall we just label when you have horrible facts and you're stampeding to the supreme court the shall we just call it the harvard problem from this point forward so the harvard problem here rests with second amendment advocates now yeah rahimi's a bad dude rahimi's a bad dude um let's see let's read officers in the arlington so wait a minute between december 2020 and january 2021 rahimi was involved in five shootings in and around arlington texas uh five shootings on

december 1 after selling narcotics to an individual, he fired multiple shots into that individual's residence. The following day, he was involved in a car accident. He exited the vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver's car. On December 22, Rahimi shot at a constable's vehicle. On January 7, Rahimi fired multiple shots in the air after his friend's credit card was declined at a Whataburger restaurant. Look, that would make me really angry too, to get denied my Whataburger for any reason. Unbelievable.

So then it says officers identified Rahimi as a suspect in the shootings, obtained a warrant to search his home. They found a rifle and a pistol. He admitted that he possessed the firearms. He also admitted he was subject to an agreed civil protective order. So here you have a guy stampeding into the Supreme Court. Now, I get it from his perspective. He's on a Hail Mary trying to save himself from prison.

But he's stampeding into the Supreme Court having multiple unlawful discharges of a firearm, having agreed that he's a threat to his own family and saying, yeah, it's unconstitutional. But this is the Judge Ho concurrence that, again, at the beginning, I found Rahimi to be a pretty outrageous opinion. Judge Ho amended his concurrence and I started to be like,

oof, this is getting harder and harder. It's a civil restraining order, not subject to all the sort of protections and due process of the criminal process. That he agreed to. Yeah, yeah, I get it. I'm just reminding people. I know, I know.

I think Judge Cho did as well as you can possibly do with the barking dog that is text history and tradition as it currently stands. It's, yeah, it's a mess. So they're also granted a interesting, to me, double jeopardy case where you're found basically innocent on one charge, guilty but mentally ill on another. The court, the state court tried to send it back because that violated double jeopardy. Two immigration cases. The court, the state court tried to send it back because that violated double jeopardy. Two immigration cases. But yeah, so far, we just don't have a lot of cases for next term.

David, what was notable about the orders list was not the cases that got granted. We, you and I thought Rahimi would get granted. We definitely knew the SEC case would get granted. But on all the cases that didn't get granted and all of the very strong opinions that justices had about those cases that did not get granted. So, for instance. This was maybe my it was a 57 page orders list, by the way, because of all of these statements. This Deonta McClinton case. So basically. He's found he's acquitted on a charge at trial but then in sentencing they basically bring back that acquitted charge and it's added for his

sentencing purposes which is kind of crazy this case was denied cert on sort of the sentencing guidelines treatment of acquitted conduct justice sotomayor is then dissenting and then you have a statement from kavanaugh gorsuch and barrett that just says as justice sotomayor explains the court's denial of certiorari today should not be misinterpreted. The use of acquitted conduct to alter a defendant's sentencing guideline range raises important questions. But the Sentencing Commission is currently considering the issue. It is appropriate for this court to wait for the Sentencing Commission's determination before the court decides whether to grant certiorari in a case involving the use of acquitted conduct. But wait, there's a third. So you have the dissent from denial,

you have the statement on denial, and then you have Justice Alito concurring in the denial. This court does not lobby government entities to make preferred policy decisions and no one should misinterpret my colleague's statement as an effort to persuade the Sentencing Commission to alter its long-standing decision that acquitted conduct may be taken into account at sentencing. Oh, so fun times. Oh, and sorry, I misspoke. Justice Sotomayor was not dissenting from the denial. She was simply putting a statement of a statement respecting the denial. So two statements respecting the denial, then a concurrence in the denial, all on this one case.

All in all, it's many, many pages of thoughts on this thing that everyone says they shouldn't be deciding. Like violent agreement not to take this case. And David, there were so many other thoughts on denial of cert in some of these cases. Two qualified immunity cases were denied cert. There was the case about COVID racial prioritization in health treatment.

And then there was a husband of the pod case that got denied cert. This Washington state case on implicit racial bias in jury outcomes. That is a fascinating case, and maybe we'll talk about it some other time. But David, overall, this whole thing on them denying cert so much, you need four justices out of the nine to take cert, not a majority, but four. of the nine to take cert, not a majority, but four. And one really wonders whether we're not starting with nine on the table if this many cases are getting denied. You know, to your point, David, if you know how the case is going to turn out or you think you know how your colleagues are going to vote, you may do sort of a defensive cert denial vote in basically everything because you don't want this court deciding things. Now, back in the Kennedy era swing vote of the court, there were a

lot of defensive cert denials because the conservatives weren't sure how Kennedy would come out. But for conservatives to not be taking more cases right now on the court is a little baffling because the court's not going to get more conservative friendly than this. I know that you might be concerned about how the chief's going to rule or Kavanaugh or Barrett for that matter are three swing voters this term, but it's not getting better. So take the cases. I don't get it. And why do we not have four votes on the table for cert a lot more often than we do? Yeah, you raise such a good question, Sarah.

We do need more cases. I hope somebody's taking notes because we've had some three good suggestions. The taking more cases, the let's put not all of the most polarized cases out on the last day of the term to leave people with the impression that that's how the court runs itself. And oh gosh, I just pulled a Rick Perry. What was your other suggestion? Standing doctrine. It's a mess. That's right. That's right. So I'm sure everyone's going to take this to heart. Yeah. Now that Justice Barrett fixed major questions doctrine, that one's now off my list. So it's only three now. So that's cool.

Well, can I give folks a reading assignment right before we go? Please do. It's, you know, 4th of July. They need their reading assignments. Oh, I know. I know. So this piece, it's titled, I Teach at an Elite College. Here's a Look Inside the Racial Gaming of Admissions. um at the times by dr tyler austin harper who's a professor at bates college and this is a guy who supports affirmative action um has gotten so many eyeballs and it's important that it has and i want to add to it and i just want to read the opening paragraph when i was in graduate school several years ago i spent my summers getting paid to help Asian American kids seem less Asian. I was a freelance tutor helping high school students prepare for college admissions while living only a few miles from the heavily Chinese and Chinese American neighborhood of

Flushing and Queens. For my first gig on a sweltering summer afternoon, I made my way to a cramped apartment where my teenage client told me what she needed for me to read over her college applications and make sure she didn't seem too Asian. That's where we were in admissions. And if you're not grappling with that, if you're not taking that seriously and what a court should do about that, I would submit you're not taking these cases seriously because these were the facts. This is what was happening and you just got to look it in the face and realize and that that and these are 18 year old kids many of them first generation immigrants or immigrants themselves and my gosh with that and this is not a community by the way that is historically privileged in the united states

of america it's not even a community so that's the other problem that's true that is historically privileged in the United States of America. It's not even a community. So that's the other problem. That's true. That is true. You raise a really good point. But anyway, that's my reading assignment. Good reading assignment. We, David and I, are going to take the rest of the week off, but you listeners will have plenty of content.

You've got this epic episode that lasted forever, end of term rap, but you're also going to get the special legal Eagles episode this week, uh, where you're going to get some crazy audio of circuit judges, tramping through the wet pickets charge and everything else involved. So enjoy that as well and have a wonderful, happy 4th, July.