Advisory Opinions - Shooting Down the Spirit of Aloha

Episode Date: December 12, 2024

This jam-packed episode features Sarah Isgur and David French dissecting the latest Supreme Court opinions, judicial retirement rumors, and the evolving era of marijuana banking. Plus: Did we push David to his limits? The Agenda: —Retirement rumors —Revoking visas and sham marriages —Parental rights in schools —The spirit of Aloha stands —Dismissing Nvidia —Marijuana banking —Corrections! Two of them! —U.S. v. Approximately Two Dogs —Motion to determine lunch spot Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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The Agency, new series now streaming exclusively on Paramount+. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Skirthats, David French. This is part two, for no particular reason, of a two-part episode. And David, in the midst of starting our two-part episode, we got Supreme Court opinions, both on Tuesday and Wednesday morning. Now no, they weren't the most exciting opinions

in the world, but in their own way, they kind of were. I mean, for starting off opinions, these were more fun than I expected. What'd you think? Yeah, well, first, that we have opinions in December is kind of nice. It's kind of nice to have a couple of opinions in December. So that's, we encourage that.

More opinions, faster, fantastic. And I would put it as, yeah, better opinions than I expected for December as well. So, yeah. So let's start off. The first one is unanimous opinion written by Justice Jackson, Borfa v. Mayorkas. On its face, this is not going to thrill anyone.

It is about whether someone could have their visa revoked for a sham marriage. Not their current marriage was a sham. They actually have children with their spouse in this marriage, but that there were allegations that their previous marriage had been a sham marriage and that he had paid $5,000 to his ex-wife to marry her to get his legal permanent status here in the United States. He then divorces her, marries new wife, they have children. They find out about the previous sham marriage. Interestingly, the ex-wife then recants the whole thing. Look, this is rule number one,

the most important decision you will make in your life. It's not your career, not where you live, not whether to have children. It's who you marry. David, do you agree? I absolutely agree with that. Who you marry? David, do you agree? I absolutely agree with that. Who you marry, man, that is. It affects all those other things.

Yes. And I think people don't understand how much it affects your career and your decision to have children, raising those children. Everything is affected, your happiness, your loneliness, all of those things. So I don't know whether the first marriage was a sham marriage, whether the wife's first version where she said he paid her $5,000 or the ex-wife's second version where she said she was pressured into saying that,

I don't know, all I know is not the best ex-wife to have. So the Supreme Court unanimously says that basically they were allowed to cancel his legal status here in the country. Okay, but that's none of why this is interesting. Why this is an interesting case is because it's about jurisdiction stripping, which is really relevant to the future of the Supreme Court, I would argue, to you, David. Yes.

Because basically Congress, when it passed these laws, said if something is mandatory for the Attorney General or the Secretary of Homeland Security to do, that is reviewable by courts. But if it's discretionary, Congress said, courts can't review a discretionary decision. So the law said that if you find evidence of a sham marriage, you must not give them their legal status, i.e. in the original investigatory period, right? If you think it's a sham marriage, shall not give that. So that's not discretion. That would be reviewable, that initial decision. But it also says if the secretary finds, you know finds stuff later, they have discretion to decide whether

to revoke that status. And here the court unanimously said, obviously, when you find the evidence later, this is just a discretionary issue and we don't have jurisdiction over this because Congress said we don't have jurisdiction. Again, David, this may not be the most interesting jurisdiction stripping case, but in, for instance, the Biden Supreme Court Commission report, an entire chapter of that was dedicated to the idea of jurisdiction stripping and whether that was a way to remove power from the Supreme Court by saying, you know, they can't hear administrative procedure at cases, or they can't hear cases about abortion, or they can't hear cases about guns,

and what the Supreme Court would do with that kind of jurisdiction stripping, the various efforts at jurisdiction stripping up to this point. Interestingly, there were lots of discussions about culture war style jurisdiction stripping through the 60s and 70s and even the 80s, but Congress didn't do it.

Right. And then they did it in two cases that ended up at the Supreme Court. Both were about habeas in national security context. The Boumediene case, which you may remember from the early aughts, forgetting the name of the other, but it was also a habeas—oh, it was an Edput case about successive petitions in the late 90s. In one of those cases, the Supreme Court said, absolutely, in that jurisdiction stripping

for successive petitions in a state conviction, Congress can say, yeah, they're not actually removing your habeas corpus rights. They're just limiting how many times you get to go into federal court, you can still go into state court, so your habeas corpus rights are still intact. So they allowed Congress to do the successive habeas petition, jurisdiction stripping for federal courts. But in Bomediene, when it came to habeas corpus jurisdiction stripping for Gitmo detainees arguing that they weren't on US soil and therefore were not entitled to file habeas corpus petitions in federal court,

the Supreme Court gnaw-dogged that one and said basically like, yeah, you can strip jurisdiction, but you can't violate the Constitution while doing it, which is kind of an interesting jujitsu move, if you will. And we haven't had a whole lot of jurisdiction stripping since then, David, which makes this where the Supreme Court sort of yields to its own lack of jurisdiction pretty interesting. Yeah. Yeah, it was interesting. And I, you know, we don't want to read too much into this.

This is, this is very, it's a limited holding in a narrow area of law, but it is very interesting nonetheless. And it to, you know, when you read the opinion, there isn't a lot of discussion about jurisdiction stripping in general. It's just sort of, yeah, that's what happened here. And it fits within the jurisdiction stripping that happened here. So it's very hard to draw larger conclusions from it, but it is still a very live issue.

And so one of the things that you do see from the cases that you've walked through this current case is that there does exist an area, there does exist a jurisdiction stripping authority in Congress to some extent, to some extent. We just don't know what that extent is, but it does exist to some extent and this just don't know what that extent is, but it does exist to some extent and this decision reaffirms that

as well as reaffirming the mistake that the plaintiff made in his first marriage. My goodness, she narc'd on him. And since this is advisory opinions, we should mention the constitutional text where from jurisdiction stripping comes. This is of course article three. In all cases affecting ambassadors or other public ministers and consuls and those in which a state shall be a party, the Supreme Court shall have original

jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the Congress shall make. So there's not a whole lot of limitation in there for Congress's jurisdiction stripping powers, David, which is why we're all kind of confused on the limitations of jurisdiction stripping and what happens if it conflicts with another part of a constitutional right, et cetera, which is where the rubber would really hit the road on the Supreme Court Commission version of jurisdiction stripping where you're talking about really reining in the Supreme Court because you don't like their opinions, which is different than just saying, we put something in the discretion of the secretary or the attorney general. Right.

And courts just don't get to review discretionary decisions by a cabinet member that don't implicate some fundamental right. Yeah. Yeah, and I think that that analysis is ultimately where the jurisdiction stripping argument will end up is, okay, you're going to have latitude and that latitude stops when fundamental rights begin. Okay. We got a second opinion on Wednesday. This one was very short. It was a case dismissed as improvidently granted. If you listen to this podcast a lot or Supreme court nerd,

you know we call that a dig and the past tense of dig isn't Doug, it's digged. So this case got digged hard. This was NVIDIA Corp versus E. Omen J Semicolon or Fonder AB. This is about NVIDIA chips being used by crypto miners. None of that matters so much as the very embarrassing oral argument for Neil Katyal in which he was just drilled on why they took this case. Isn't this an error correction case? I mean, this is the nightmare. Like, this is what you see in pool memos from Supreme Court clerks. It says, you know, splitless, fact-bound, no error apparent.

That could be a one-page pool memo that means your case is not getting granted. So somehow this case did get granted. And then that's basically what they said at oral argument. This is a splitless fact bound case with maybe error apparent, but who cares? Like we're not an error correction court. Four justices had to have agreed to hear this case. I know.

Which means, interestingly, like you lost it basically at oral argument, or at least in your brief, because you got them on the cert petition. You got four of them and then you lost them here. Now, of course, someone could point out just because there's no noted dissents doesn't mean that in fact you had four justices want to take the case five justices vote to dig it right and like that would still be nine yeah and that could all happen I just think that's pretty unlikely well and poor Neil Koch all I mean to be in the position of essentially having to ask, answer the question, why did we do what we did? Because he didn't make the Supreme Court accept cert here.

This was not his doing. I mean, he, of course, you ask for it, but this the court's doing, four justices of the court had to say, yep, we wanna hear this. And then to walk into the courtroom and to have to field just a series of questions about why did we do this, he has my sympathy.

There are every now and then, I will hear an oral argument or I will read a transcript, and I'm just consumed with sympathetic pain because I have been in that position before where you are in front of a court and the court is sort of having an argument with itself and you're just present. And that is not a good feeling, Sarah.

That is not a good feeling. Also, interestingly, this was not, I mean, I don't think it'll shock anyone that this didn't fall along any partisan lines, but the DIG team certainly seemed to have support from Justice Sotomayor. In fact, the general on the field of Team DIG was Justice Sotomayor, Justice Kagan, Justice Barrett, and Justice Gorsuch, whereas team, they probably voted to take this case in the first place, Kavanaugh and Roberts, the chief. Yeah. So yeah, it is possible this was a five-four split. That

is always possible with a dig. But sometimes, you know, you get the oral argument and you're like, never mind. This isn't the case I hoped it would be. Next up, David, we did get incredible dissents from denial in the orders list this week. I'll start with the one that had the most justices attached to it. So this is a dissent from denial that Justice Alito wrote. He was joined by Justice Thomas. And then while Justice Kavanaugh did not join their written dissent from denial, Justice Kavanaugh did note that he would have granted the petition. So you had three votes. And again, this goes back to maybe how the Supreme Court

works 101. But back in the day, you used to have this thing called a courtesy fourth, that you would have a justice. It was often Justice White, for instance, though during the sort of 70s and 80s, different justices would be that courtesy fourth, where when you went around that conference table talking about voting on a case where you go in seniority order, a justice who would

maybe be early in that vote would say, basically, I vote no, except if there's three other votes, in which case, change my vote to yes. Basically meaning if there's three other people, let's just take the case. The courtesy fourth has died. I think that's very clear by just simply the number of cases or lack of number of cases the Supreme Court is taking. So this is like proof of the gravestone of the courtesy fourth, because you have three justices noting

that they would take this case. All right, so what is this case about? Whether a public school district violates parents' fundamental constitutional rights to make decisions concerning the rearing of their children. When without parental knowledge or consent, a school encourages a student to transition to a new gender or assist in that process without telling the parents. David, what'd you make of this one?

Okay, so the lower courts had held that there was no standing here because they said that the petitioners had, their kids either had to be transitioning or considering transitioning. Otherwise, this is just not applicable. And so the three justices that we talked about, I mean, Kavanaugh,

Alito, Thomas, were basically expressing that we're using standing to avoid the merits, and maybe using standing inappropriately to avoid the merits. But the merits here, it's worth talking a little bit about, Sarah, because I think the merits here are pretty clear, and here's what makes it clear. So the policy was that if a person is not open at home, in other words, if someone's not openly transgendered home, the policy contemplated circumstances under which, quote, parents are not involved in creating their child's gender support plan.

And then this is what parents were told in an equity train, and the school personnel were told in an equity training session. Listen to this, quote, parents are not entitled to know their kids' identities, that knowledge must be earned. What? Nope. That's a big nope. That is not that.

I will just tell you right now if they do get to the merits and I and I do think it is a valid argument to say that if my child is not transitioning, is not planning on transition, that do I have standing to challenge this plan? Wait, wait, of course you do. Because the whole point is they're going to hide it from you. The whole point is that you don't get to know whether your child is considering transitioning or even is transitioned at school because if the school doesn't think you've earned the right to that knowledge, they are going to not tell you and actively help hide it from you.

So you don't know, like how could you ever have standing? The whole point is that if you've earned it, then you know, which means you agree with the school's policy. But if you haven't earned it, the school hides it from you. So you could never have standing under this theory. I said valid, I should have said credible. Okay, it's not a laughable argument. Okay, yeah, I just realized as you were talking. I know, as you were talking, I'm like, whoa, whoa,

valid could be misunderstood. I meant it was not laughable. It was not frivolous However, what is laughable is the idea because that's not how constitutional rights work You don't earn them you have them now. There are circumstances in which the constitutional right that you possess Can be stripped or taken from you via due process, right? But this sort of idea that my ability to know, even know about my own child's identity

is something that is earned at the discretion of local public school officials is nuts. It's nuts, I think. You know, it's really hard for me to imagine how that passes constitutional muster. Also interesting because in the dissent from denial, they're citing Troxel v. Granville 2000 Supreme Court case. We have obviously talked a ton about abortion in the context of unenumerated constitutional rights. It's really hard to point to what of unenumerated constitutional rights. And it's really

hard to point to what those unenumerated constitutional rights are. We know they exist, but the whole point is they're unenumerated. So what are they? The Supreme Court has really only recognized two strongly, I guess, strong form unenumerated rights, the right to travel and the right for parents to raise their children. And this 2000 case is really the last time we've ever had sort of a strong form unenumerated right. And that was about grandparents and visitation rights. Interestingly, there was then this wave of state laws passed around the country in many states that tried to statutorily, again, state statute, give grandparents these really outsized rights, I would argue, for visitation.

Virginia is one of the states that has those. So for instance, if your spouse dies, it gives your deceased spouse's parents the right to see your children. Now, I think for most people, of course, they would want their children to have a relationship with their deceased spouse's parents, but it's not hard to imagine where that's not the case. It's not in the best interest of the child. And generally, what most states,

when it comes to anything involving children, the first number one thing is what is in the best interest of the child and these state statutes try to override that and say that's a factor, but there's like a thumb on the scale that the grandparents get to visit unless you overcome that presumption with all sorts of evidence like the deceased spouse was already estranged from them

before the deceased spouse died or what the deceased spouse would think now, which is a bizarre standard. Very bizarre. And who gets to speak on behalf of the deceased spouse? The spouse who's now the parent who was married to this person? Or the grandparents, like the parents of that adult who died. So this like the parents of that adult who died. So this is a very live issue still in other non-culture war aspects of what Troxel v. Granville

and what the unenumerated right to raise your children the way you see fit is. And so I always like pointing out like, yep, there's going to be this trans stuff and everyone's going to sort of go into their camps on that. But maybe in the area of grandparent visitation, you can sort of think first principles through what should the rights of a parent be? How absolute should they be? If you know, if you think that grandparent, for instance, is going to take your kid to go get a tattoo and you don't want them to, should you have the right to say,

no, I'm the parent, I get to decide that, or should the state say that the grandparents get to co-step into the shoes of that deceased parent? So David, that one was really an interesting dissent from denial. Also, that lineup of Kavanaugh, Alito and Thomas. I mean, remember Alito has been on this standing kick for some number of years now. He real mad about the court standing jurisprudence. Kavanaugh as well, I think, has been all over the standing issue. So, I wouldn't necessarily read into these three justices which ones are talking about the merits versus which ones are just real mad about the standing aspect of this? Yeah, yeah. No, that's right. I mean, the standing

issue has come up more than once in the last couple of years. And yeah, I think the merits outcome of this particular case is pretty darn clear. If it comes to the court in the right kind of procedural posture that gets the four justices to grant cert. But yeah, the standing issue, how many times, Sarah, have we talked about standing? It's absolutely amazing how often that has come up. And when we started Advisory Opinions,

I did not have on my bingo card that we're going to be the, that this is going to be a standing podcast. Like, I don't know that we would have started it because what's the market for that? And yet. And yet, here we are. Here we are. Okay, next one. This is actually just a statement

respecting the denial assert, and now you're gonna flip the two justices, Justice Thomas Wrights with Justice Alito joining. But David, we talked about this case at some length. This is the not Second Amendment gun case out of Hawaii that was the Spirit of Aloha case, in which we said, yeah, basically, you can make fun of this, et cetera. But in the posture it's in right now, it's going to be what it is. And they get to talk about the Spirit of Aloha

and a state Supreme Court gets to decide how to interpret its own constitution. And they've decided that instead of originalism or living constitutionalism or anything else, the jurisprudential philosophy for reading the Hawaii Constitution is spirit of aloha. Funny enough, Justice Thomas and Justice Alito, again, this isn't a dissent from denial. Although the interlocutory posture of the petition weighs against correcting this error now, I would grant Sir Sheriorari in an appropriate case to reaffirm that the Second Amendment warrants the same respect as any other constitutional right. So just a shot over the bow

at all of you state Supreme courts, when this does hit the Second Amendment, we're taking it, we're annoyed with you guys, we're watching. Yeah, yeah, no, it's pretty clear what happened here, which is, hey, this wasn't a kind of case that we're going to normally take because of the procedural posture. But let me use this opportunity just to say, here's how this thing should come out, the very final analysis.

And by the way, state Supreme Courts don't think about trying to follow this example. You're exactly right, Sarah. This was a shot across the bow statement, very clear, trying to stake out specific ground and issue a warning. And by the way, I think most of the justices would agree with it. Most of the, you know, Clarence Thomas is here on this. And of course he has, it's Thomas and Alito, and of course Thomas has perhaps the most aggressive Second Amendment stance. But Spirit of Aloha does not trump the Second Amendment.

So... But if you remember, the posture of this case was weird. I'm not surprised they didn't take it. If anything, I'm just surprised we even got this statement. This was a guy hiking in Hawaii. He crosses over into someone's land, gets arrested for trespass. They find a weapon on him

that he doesn't have a license for. So he's prosecuted for having an unlicensed firearm on his person, which is a violation of Hawaii law. He challenges the licensing regime as violating the Second Amendment, as being too onerous basically, but he never applied for a license. And what the Hawaii Supreme Court said,

again, in this posture where he hasn't yet been tried, is no, you don't get to challenge the constitutionality of the licensing scheme that you never actually participated in. That doesn't violate the Second Amendment. And again, I think this is probably correct at this point, but whether their licensing scheme violates the Second Amendment,

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To discover how, visit bhp.com slash better future. This last one, David, is super near and dear to my heart. Another one where we're missing the courtesy fourth. You have Justice Gorsuch on a statement on the denial of cert, and then you're gonna have Alito with Thomas joining, dissenting from the denial of cert. This is the follow on to the Thomas Jefferson

high school case in Virginia, where the fourth circuit basically said, there's no proof of discrimination because it's a facially neutral admissions policy. They used to have just test scores. Then they moved to something like a county-wide top 10% rule where each middle school got an allocated number of seats at the Thomas Jefferson Magnet School. The board, when they were adopting this at the TJ level in Virginia, here actually in my home county, made all of these anti-Asian statements. But the Fourth Circuit said that was fine,

and the Supreme Court didn't take it, which I was really shocked and upset by, because I had followed that case from the initial school board meetings. It's a school that I would very much like to consider sending my son to, or sons, both, both I don't know whatever. I don't really know the second one that well yet to be honest he's only 15 months old who knows what he's doing. Then they're gonna move to this new one where 20% of the class is

filled with the highest citywide exam scores. Then each zip code in Boston would receive a share of the remaining 80% of the seats Proportionate to its population of school-aged children for those seats The plan would rank applicants by GPA within each zip code and give assignment priority to zip codes with lower median household incomes Okay, like again on its face. That's very facially neutral and I'm not saying that's a bad idea actually for a public magnet school, right? But as they were talking about this, the school board says, one member, committee member says, this must quote, be explicit about racial equity

and increasing those admissions rates, especially for Latinx and black students. They had Dr. Ibram Kendi speak at the meeting who quote, urged the committee to approve this anti-racist policy proposal that would close racial and economic gaps. Later, during the public comment period, the committee called on three citizens whose names suggested they were of Asian descent.

For getting to mute himself on Zoom, the committee chairperson mocked their names. And then the vice chair and another member then texted each other saying they almost laughed out loud at the gaffe. They continued, quote, she expected, quote, the white racist to start yelling at us during the public comment period.

She hates WR, a reference to the predominantly white West Roxbury neighborhood of Boston. The other one agreed stating she too was quote, sick of Westy whites. They all resigned later over their racist remarks, but not before voting to do this policy. So again, the question is, is a facially neutral policy but passed with racist motivations,

violating the equal protection clause. And does it matter then when you have statistics that show that racial rebalancing, the argument from the first circuit, why this was okay, was that Asians are still overrepresented in the school, even though the percentage of Asian students dropped per the racist desires of the people who voted for the policy.

David, we've said this is hard because if you have a facially neutral policy, you should be able to change admissions policies basically. That is okay. And if all you're gonna say is that if you say the quiet part out loud, we're gonna strike down the policy, but as long as you don't say the racist stuff,

we would let the policy go. There's all sorts of problems with that. Generally, conservatives don't like disparate impact analysis. So these are a mess. However, when you have such obvious examples of racism as you do in the Virginia case and here in this Boston case, I'm at a bit of a loss for what we're doing here. Yeah. It seems to me that you're going to end up with a doctrine when all of this shakes out that says racial neutral policies are acceptable, and you can change from one racially neutral policy to another racially neutral policy,

that once you have a racially neutral policy in effect, you're not frozen in place forever, even though a change in one from a racially neutral policy in effect, you're not frozen in place forever, even though a change in one from one racially neutral policy to another racially neutral policy can and almost certainly will result in changes in the racial composition of your incoming classes. But I don't think you're gonna have a scenario that says, okay, racially neutral policies

and they're all frozen in place now. No, you're gonna be able to change. But if there is evidence that the change was executed with racial animus to achieve a specific racial effect that it then does achieve, that kind of record evidence, I don't think is going to be ignored. So far it is.

So far it is. So far it is. So far in the first circuit and the fourth circuit, you can say your purpose is to discriminate against students based on the color of their skin, because that is a disfavored skin color. You can say that and it's fine as long as you are still over enrolling compared to the population, Asian students.

I mean, Asians and Jews, right? You're still allowed to discriminate against. No problem. Yeah, and you are right. So far, what I was saying is the predicted outcome has not been the outcome. Yeah. So you are correct.

And I do wonder the thing, one thing that would kind of cut against my prediction in addition to the fact that it has not actually come to be in spite of now two opportunities for it to come to be, is that there was, you know, if you're talking about some of these individuals who ultimately ended up resigning, is perhaps part of the argument is, well, the political process worked in a manner of speaking.

where the political process worked in a manner of speaking, and by the way, the new policy, there's nothing inherently wrong with the new policy if you're just looking at it as a matter of first impression. And so we deal with this all the time, Sarah, or we've dealt with this many times, which is how much do you look to motivation when you're looking at any given policy enactment? And there are circumstances where you do look to motivation, such as retaliation lawsuits. Retaliation is always bound up in motivation. But you don't always get to look at motivation.

And so, you know, that's gonna be one of the interesting elements here is, is this going to be, as long as something is facially neutral and would have passed muster constitutionally on its own without any racist animus, will evidence of racist animus ultimately matter? Put this in the voting rights redistricting context. Oh, for sure, yeah, absolutely.

If you're redrawing a congressional district and you have people saying what they were saying, but change the racial, actually, you don't really have to change the racial animus in this case, I think, we would throw out that congressional district. Right, true, absolutely, absolutely. So, you know, again, there are areas

where motivation is front and center. You know, you outlined it, voting rights, also first-memory retaliation. So far, not here. All right. Last thing on sort of SCOTUS world, David Lott had a good little write-up of judicial retirement watch stuff.

I've already talked about my complaint about judges who had announced their retirements and then after the election took back their retirements because they presumably did not want their spot to be filled by a president they didn't like. I think that's bad. Bad for the judiciary and for the reputation of the judiciary. Remember, the purpose of the black robes is to make it clear that they don't play for any team.

They're not their individual selves. They are there to implement the rule of law. I think it undermines that. But we've certainly talked about strategic retirements before. Interestingly, David Latt notes that with one exception, all the active justices have hired at least one clerk for October term 2025. That exception, by the way, is Justice Katanji Brown Jackson because of her awesome hiring plan where she basically doesn't hire in advance. You can't lobby her and have judges and professors call her. There's a process. There's an application plan. I love that for her, but she's the one exception. I don't think we think she's retiring. And at least six active justices have hired

at least one clerk for the October term that starts in 2026. So I think, you know, reading into that, you're not gonna have any retirements this June. But of course we never thought we'd necessarily have retirements this June. It was all about next June, that 2026 June where you have the Republican Senate with a Republican president and you don't know what's going to happen in the midterm election. Right.

That's the one to look at. But David, this gets to a thing that I'm not sure people have fully thought through, which is President Trump isn't going to be nominating anywhere near the number of judges that he got to nominate in his first term. Because of the staggered terms, if you will, there were a whole lot of backed up seats, perhaps after eight years in Obama of people who were then ready to retire. They all retired in Trump's first term. And then you only had four years of Biden. So what you're really looking at is people who were maybe nominated in the early Bush administration didn't retire from 2016 to 2020,

but now in the last four years, they're kind of getting, you know, a little groggy. I mean, I just looked at the Fifth Circuit. Getting a little groggy. What does it say if I'm getting a little groggy every now and then, Sarah? I looked at the Fifth Circuit and the Sixth Circuit just randomly. There were six nominees to the Fifth Circuit during Trump's first term. I think you're looking at Max 3. That would be Jones,

Owen, and Smith. So that would be a drop in half. And by no means is he getting all of those three. Those are just the three that are even really just possible. On the Sixth Circuit, I found one. one. So I think that the Republican slash conservative legal folks who are interested in this kind of thing, I think you're looking at maybe a third of the seats that you got to fill last time. And I actually think that's going to be an overestimate. Yeah, I think you're right about that. And I was thinking this through as well, because one of the results of the judicial confirmation spree that happened in both the Trump and the Biden terms, because there's been a bunch of judges confirmed in the Biden term, and now there is a majority of Democratic nominees who are at the courts of appeal,

after the spree of both of those two terms, there's not as much low-hanging fruit, in particular because one of the things that both Biden and Trump and before that Obama were very good about is nominating younger people. This is not a judicial nomination now. Yes, it's a capstone to a career in the sense that it's, for most judicial nominees, it's their final position.

Like this is the last job that they have, but it's not as much a capstone in the sense of the conclusion to the career. Right. It's much more, this is your bulk of your career now. And so that means that, you know, if you're nominated in your 45, you're in there 20, 25, 30 years. And so beginning, it was really in Bush two that you began to see that youth movement really considered

continued in Obama, amplified in Trump and Biden. So it's going to be a while before we have large scale vacancies on the federal bench. I mean, take Chief Judge Sutton, my number one judicial circuit crush. He was a 2003 W appointee. So fits my category, right? He's an early Bush appointee. He's only 64 years old. Yeah.

He's way too young. He just became, not just, but he is now Chief Justice. That goes in seniority rank. The other two, Judge Griffin and Judge Kethledge, Judge Kethledge is even, is six years younger than Judge Sutton. Judge Griffin is eight years older, so he's 72. He's the one that I'm talking about that might retire in the next four years.

Again, Trump got six circuit nominations, confirmations to the Sixth Circuit, and we're talking about really one potential retirement on the Sixth Circuit. And we're talking about really one potential retirement on the Sixth Circuit. So yeah, this may not be much of a watershed of anything for four years. Yeah, you know, it does raise the question of, okay, if you are a conservative leaning federal judge, and you're not really ready to retire, but you also have no idea, because Trump is a one-term candidate, I mean, a one-term president this time.

So he's not really ready to retire, but also he doesn't know what's coming next. There might be some additional people who in their mid-to-late 60s might say, okay, enough is enough. I'm going to step aside. But that's not the general judicial pattern. The general judicial pattern is not, at the same time that someone retires from working

in a factory, you know, that they retire. No, these are jobs that you can continue as long as your mind is sharp. And your mind can be sharp well into your 70s and sometimes your 80s and there are even people in their 90s. And so these are not jobs that you tend to see the age 65 retirement in at all. And so that's- Remember, like in terms of the brass tacks here, money-wise, once you've served 20 years, you basically are paying the government to hold this job. You're going to make no additional money in your salary for continuing as a judge, which makes it kind of interesting from that sense.

Number two, you could always take senior status and you can still be as active as you want as a judge, but here's the reason they don't do that. One, you can't vote in en banc cases in most circuits unless you were on the panel. And en banc stuff is the stuff that really, and a vote in that can really matter. So it can feel like you're not really part of the team anymore. And two, once you're a senior judge, you can take as many cases as you were taking before,

but you tend not to be able to pick what the cases are about. So now for those who are like, wait, I thought they were all randomly assigned. They are, but they try to give you a mix of topics so that like you don't just get all the FERC cases, for instance, or some other miserable type of statutory case. But once you're a senior judge, you get the really boring stuff. Oftentimes, this is not a rule. Anyway, that's why they don't want to take senior status, because that would

free up their seat for someone else to take it, but they don't want to be senior judges. Then, of course, initially when former President Trump won the election, I talked about how he would potentially get to fill both the Thomas and Alito seats and that that would make him the first president since Eisenhower to have filled a majority of the Supreme Court seats. Alito is 74 years old, turning 75 in April. Justice Thomas is 76 years old, turning 77 in June. Age-wise, they're sort of on the early end of Supreme Court retirements, but they're at least in the window. We'll see, David. There's lots of people

in the know or in the know adjacent who will tell you that Justice Thomas is not leaving this job. Not now, not ever. He doesn't care who the president is. He doesn't care who the top of the short list is. Notably they won't really say that about Justice Alito. I think there's a sense. Yeah, no, I've heard exactly the same, Sarah.

Exactly the same. That of the two, Samuel Alito is far more likely to step aside than Justice Thomas. Justice Thomas has sort of that Ruth Bader Ginsburg gene. Feet first. Don't tell me what to do. How dare you tell me what to do? I will stay here as long as I want.

Yeah, so that's the scuttlebutt that we're passing along to you. It is nothing more than a rumor and innuendo. Your team requested a ride, but this time not from you. It's through their Uber Teen account. It's an Uber account that allows your team to request a ride under your supervision with live trip tracking and highly rated drivers. Add your team to your Uber account today. How often can you say a gift is truly unique? When you gift a loved one an Ancestry DNA test, you're giving them the keys to unlock their own personal journey of discovery.

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All right, David, we promised we would talk about debanking, and I do want to talk about it because it's a legal issue that has come up sort of under the radar but repeatedly, and it's getting talked about a lot right now in the various transition teams. So Operation Choke Point was this idea from the Obama administration that they could send banks letters kind of noting their disfavored industries that they thought could be a risk to banks. And of course banks are highly regulated, so much so that I feel like I need to have a major malpractice disclaimer right here that I am not an expert on all the statutory and regulatory requirements on banks. But banks are not really private entities,

as you would think of a private entity, because they are so enmeshed in government regulation from the types of people they're allowed to give accounts to. You have to know who it is, all sorts of regulations around that, all the way to risk assessment and how they're supposed to do that. That's also highly regulated. So the Obama administration, and I'll just use this one example,

basically says, you know what, payday lenders, that could be a risk for you to bank with payday lenders. And so what happened was a bank with payday lenders. And so what happened was a bunch of payday lenders were debanked, quote unquote. They had their corporate accounts closed because of that guidance letter. Even though I think David, you'll agree, they may not like payday lenders, which was the point, right?

They think payday lending is predatory. But these were not illegal operations in any sense. And from the financial markets and industry, they're not riskier, I would argue, than any other small business. All small businesses have some risk, of course, but payday lending itself was not a risk to the health of financial markets or any individual bank. So this is why it was called choke point. You sort of choke off these disfavored industries, and the right kind of freaked out because what then prevents you from choking off any other disfavored industry. So indeed, that takes us to choke point 2.0 as the right has dubbed it, where they feel that the Biden administration has done something similar to crypto companies and individuals

who hold a lot of cryptocurrency or have founded crypto type companies, that they're all being debanked, their accounts are being closed, or their crypto companies are not allowed to bank with them. Yeah, I was just gonna say, there at the heart of all of this, Sarah, is a phrase that is sort of the root of all debanking evil. And that phrase is reputational risk. Because yes, absolutely, federal regulators

have the ability to come in and say, especially after the Great Recession and, you know, the instability in the banking system created by irresponsible lending practices during the real estate boom in the late nineties and early two thousands. We all know that there is a role for federal regulators to manage risk in the banking system. But when you think of them managing risk,

what you're mainly thinking of is risk, the way we think of risk is what is cryptocurrency? How stable is this thing? So that would be an example where when I'm looking at crypto, I'm saying, oh, it's a little bit different than payday lending. Payday lending is an established business. It's a legal business.

We know what the use case is for payday lending. Cryptocurrency is something else. It's a currency that's largely mainly used as an investment and its main use case in real world is criminal activity. So there's some issues there with crypto where you could say, wait, we're not talking about reputation risk, we're talking about risk risk with crypto where you could say, wait, we're not talking about reputation risk, we're talking about risk risk with crypto.

But that phrase reputation risk actually is quite relevant to a Supreme Court case that we talked about a great deal. And that's the National Rifle Association case where after the Parkland shooting, there were banking officials in New York that issued letters to banking institutions to warning- Insurance in this case. Yes, insurance, I'm sorry, insurance institutions and other financial institutions,

warning them of, quote, reputation risk, if they are engaged in business with the NRA. And that was sufficient, that warning of, quote, reputation risk issued by a regulator was sufficient for the Supreme Court to say, hey, wait a minute, this might be coercive in violation of the NRA's constitutional rights.

And so that's when I worry about debanking, I worry about the phrase reputation risk. That's the red flag. That's so amorphous. What does that even mean? Reputation with whom? You know, so that's the source of the problem. And what's implied is reputation with us, your regulators.

Yes, exactly. Not reputation with your customers. And this is why I think the payday lending thing is a really good example of reputational risk being used for a political end. I don't really mean partisan here, obviously. I mean, political like we, the left, don't like payday lending, so you have a reputational risk with us. If one of those payday lender small businesses fails, we are going to come look at you and

say, hmm, I guess you shouldn't have taken that and maybe you're not assessing the risk properly for your different clients. Again, I'm speaking at sort of a very high level of generality of how banking works. Remember also, these banks have a lot of regulations where they must report suspected criminal activity and all terrorist activity, all sorts of other things that they're supposed to flag. Banking regulation is wild. It's like the full Lawyer Employment Act. Whereas crypto, you're right, David, I think could have more actual financial risk. But again, if they're sending letters on reputational risk, that makes no sense, really.

The problem with banking crypto clients is not a reputational problem. It's a solvency problem. It's a stability problem, all those things, which frankly, the bank is in a far better position to judge than the government regulators, I would argue. And if the government regulators thought that it was a stability issue, they wouldn't be citing reputational risk. So it almost is similar to the like neutral, facially neutral admissions policy, but then you have them saying all this racist stuff as to why they want the facially neutral policy to change. Similar, right? You can give this facially neutral reputational risk thing, but if in the background you're like, screw these crypto guys, they're all right wingers and libertarians and we hate

them, then that doesn't really work. Now, it's also worth noting like debanking for quasi illegal activity. So for instance, marijuana is the number one example of actual debanking that is okay. It's not about the financial risk, for instance, to the institution. There's no real financial risk in banking someone

who's a little local marijuana grower in Oregon, let's say, or let's say you're running a legal brothel in Nevada. But it's illegal, federally. And so they're not allowed to bank. A federally insured bank cannot bank with someone who they know is doing something illegal federally, even if it's legal at the state level. It's been a huge problem for those states that have legalized marijuana because there's still nowhere for these people to bank, so then they're working in cash and that just is going to, by almost definition, lead to more illegal activity that is illegal both at the state and federal level.

This has been a real issue in multiple administrations as they think about, you know, during the end of the Obama administration where they had the coal memo, where they basically said, we can't change the law on whether marijuana is illegal, but we're not going to prosecute anyone for marijuana violations, but you still couldn't bank.

And so then was treasury gonna have a coal-esque memo where they were like, it's still illegal, but you can bank them also? And they never ended up doing that, which was interesting as well. Yeah, you know, that's one of the reasons why people go to dispensaries, use cash, is that the credit card process involves a banking transaction. And the banking transaction is no bueno for a controlled substance and marijuana is still a controlled substance. And already, Sarah, I'm getting those warning flashes. All right. So we already talked, there are certain communities that when you intrude upon their turf,

they know this subject so inside and out that it gets dangerous. So gun owning community, if you use the wrong terminology, God help you if you say clip when you mean magazine, for example. The weed community, God help you if you get some of these details wrong about weed. But my understanding is that the cash transaction is because of the debanking. Also, if you talk to banks, what they'll tell you is, I mean, talk about a theme for this podcast. We just want Congress to step in and actually set an even playing field so that there's no more of this debanking for disfavored reputational risk stuff.

But only Congress can do that. Otherwise, we're getting whipsawed back and forth for each administration because, you know, the reputational risk for the Biden administration is different than the reputational risk for the Trump administration, but these are our regulators. And so we have to listen to it

until Congress fixes this problem. So, hey, Congress, do your job. You can fix the reputational risk debanking issue very easily. And if you're on the right and you don't like reputational debanking, stop looking to the Trump administration to be the ones to fix it

because he's only in office four years and nothing they can do from the executive branch will actually fix this problem. Yep. Don't do it. Don't rely on it. It's very annoying. Same with third party settlements and sue and settle. Congress, you can fix this.

Trump administration, you cannot. Well said. All right, David, here's how we're ending this fun episode. First of all, with a correction. Always fun, right? Yes. ending this fun episode, first of all, with a correction. Always fun, right? Yes. On the last episode, I accused, nay, I just said it was fact that Attorney General Jonathan Scrimetti was so ill-informed on the state of Missouri that when he heard there was a wedding in Missouri, he didn't even think there might be two airports, and booked a plane ticket to St. Louis instead of Kansas City, missing the wedding.

That was false and defamatory, David. My goodness, Sarah. It was not Tennessee Attorney General Jonathan Scrametti who did that. It was Night Circuit Judge Patrick Bumate who did that. Funny enough, they were both invited to the wedding. They did both miss the wedding, but Judge Bumate fest up, which I think says a lot about him, right?

We weren't gonna look any further and Scrimetti didn't remember why he missed the wedding. And he thought that was totally plausible for why he might've missed the wedding. So I think it says a lot both about Judge Bumate that he fessed up to something that was his mistake and the humility of Attorney General Jonathan Skrimetti that he didn't even dispute it because he was like, sounds like something I could have done. What wonderful people they both are. Next up, David, another friend of the pod had an amazing order that he sent out.

This was Chief District Judge David Proctor down in Alabama. I'll just, I'll read it to you, David. Plaintiff's Council's opposition is meritless. For these reasons, defendant's motion is granted. Defendants answer a responsive pleading, shall be filed on or before January 6th. Further, the court orders that on or before December 31st, counsel for both plaintiff and defendants

are to go to lunch together. Plaintiff's counsel will pay the bill. Defendant's counsel will leave the tip. The parties will discuss how they can act professionally throughout the rest of this case. Within 10 days of the lunch. The parties will discuss how they can act professionally throughout the rest of this case. Within 10 days of the lunch, the parties shall, this is all caps and bolded, file a joint report describing the conversation that occurred at lunch

and the amount of the tip. That was ordered on November 26th. So they will now spend at least one lunch of their holidays having lunch with someone they really clearly have contempt for. Sarah, we need the backstory on this case. Well, David, funny you should say that because I've done a lot of reporting for this episode,

I guess, because I have the backstory on this case. You've got to be kidding me. You have, you, you journalismed that one quote. That's fantastic. Here's the backstory. And this will sound very familiar to you, David. Basically, one side asked for an extension of time, something that basically every lawyer

and every litigation asks for. And the judge, in this case, Judge Proctor has said, look, if itctor has said, look, if it's contested, please note that. Cause if it's uncontested, he's just gonna like let it go. Right. And so the attorney had to note that it was, in fact, contested because the other attorney had said, I'll give you the extension of time

if you promise not to file a motion to dismiss about this case. Again, this is becoming very common where it's like, oh yeah, I'll give you the extension of time, you just can't move for summary judgment. It's like, well then obviously, I can't have an extension of time, just saying no. And so the judge in this case thought that it was particularly uncharitable given that it was the holidays. This order went out on November 26th, as you may remember, David. He has often done this, not often, but he has done this order before, which made it a little surprising that this one went viral.

I have heard that from his previous lunch orders, there have been such responses as, wow, we are now lifelong friends. Thank you so much. It turned out it was a silly, you know, one of those misunderstandings that happens over email, but when you meet in person, you realize, you know, you are best friends in waiting. I've also heard that he has heard from Dees

that in fact, they are lifelong enemies. They almost came to fisticuffs during the lunch. And that in fact, it just confirmed all the horrible things they thought about the person. So we'll see how this one goes. As far as the tip, it is actually not to punish each side. Of course, he thinks the side that refused the extension of time is just in the wrong here. But for the side that asked for the extension of time, who's leaving the tip, it's just

because he likes servers, is what I've heard. And so yeah, he thinks that when someone's watching, the person's more likely to be generous. And he thinks that, you know, a server could have an extra nice day. Though now that it's gone viral, it's like guaranteed that that server is going to have a really, really good day. Oh, that server is going to have the best day. I think Judge Proctor will be just fine with that. Also, interestingly, David, in researching this,

my source tells me that this is all relevant to a long ago story. Do you remember when we visited Judge Newsom's chambers? Judge Kevin Newsom down in Alabama. Yes, yes. Yeah, and I mentioned the ping pong table on this podcast. Yes, yes. And that he and his cler ping pong table on this podcast. Yes, yes. And that he and his clerks play ping pong.

And he said, yeah, one time the marshals were like called up on us. It turns out Judge Proctor, of course, is the chief judge of the Northern District of Alabama, which is where Judge Newsom's chambers are. And I have it on good authority that it is in fact Judge Proctor who called the marshals on Judge Newsom's ping pong game game that he was in the middle of a criminal trial that it sounded like there was a prisoner disturbance and where they hold like prisoners before their criminal trials start. So that he called over his CSO and said, you know, you need to go see what that is and take care of it. It's actually like really disturbing this

trial. So went up, found out it was Judge Newsom playing ping pong with his clerks. And the Judge Newsom sent Judge Proctor an email forthwith with the body, dude, I am so sorry. Oh, that's, that's noble. That's noble. I was singing to be like, dude, WTF question mark. and be like, dude, WTF question mark. But no, dude, so sorry. That's classic. I love it. So this is the backstory that everyone needed on the Judge Proctor motion.

Sorry, the Judge Proctor order to go to lunch. Love it. Next up, this was making the rounds and it is a delightful case name. United States of America versus approximately two terrier mix type dogs. And, I mean, the comments have all been great. My favorite one was, good luck finding an impartial jury. But I thought we could use this opportunity to explain NREM actions, David.

So this is going to be, I don't know all the details of this case, this is going to be a criminal forfeiture against someone who was building a dog fighting ring. So there may or may not be criminal charges against this person, but you can take the things that are being used or the profits from a criminal activity, but you can take the things that are being used or the profits from a criminal activity, but you actually bring the lawsuit against the things. Yeah. So it's why in law school, you know, you'll see these funny case citations to, you know,

United States versus one red Chevy pickup, approximately 1964 model or something like that. Nevertheless, I was confused about this, David, because again, you'll see approximately $30,000 or something, or approximately 64 dogs, and I get it. Maybe you don't know exactly how many dogs there were. Approximately two though, like, if you can't look down and see two terriers

versus one terrier or three terriers, I was pretty confused. So I called an assistant United States attorney, a federal prosecutor. Journalism, you practiced journalism. Yes. I did. Love it. And I said, what's up with this?

And he said, I have no idea. But he said, my guess is this is an overly cautious prosecutor and that it's similar to how, even if we know the exact date and time that something happened, you will always see an indictment start with on or about January 1st. They know what happened on January 1st, but it always says on or about because that's

how lawyers talk and they like to cover all their bases because what if it actually happened at 1201 as we later find out, even if we know that it happened at 3 p.m. And he said, so that's my guess. And I said, is it possible that they use the approximately because perhaps they don't know whether one of the dogs could be pregnant. And he said, sure, but honestly, I think this is just an overly cautious, perhaps young prosecutor who's done this. So there's your explanation for US versus approximately to terrier mix type dogs. I hope they are adopted by a loving family. No dog deserves to be in any sort of dog fighting practice or ring. It's disgusting and I'm so glad that the department actually really does focus on animal crimes as I've mentioned in the past. Well and also you know I was

stumped by the approximately because there are other cases where there's no approximately such as United States of America versus 53 eclectus parrots. That's right. In the old case, United States versus 144,774 pounds of blue king crab. No approximately there. It's 140. And that one probably did need an approximately,

by the way. Yeah, it probably did. Another one, because I'm reading these from some of the responses to the tweet about this case. And it's just, my nerd humor is I love these case names. Another one, because I'm reading these from some of the responses to the tweet about this case. My nerd humor is I love these case names. United States versus one Tyrannosaurus Batar skeleton. Oh, that's a very important case. I will admit to you that I know all of the details of that case. That's a huge one. That one went on for years. My other favorite one is, and this is somebody brought up, 62 cases of jam versus

United States. And as this person says, it's fun because it's the jam that is suing. I mean, in-room cases are the best because they make no sense. This is an old throwback to English common law, but we still do it. Okay, you've got another one, David, you're giggling. The United States of America versus approximately 450 ancient cuneiform tablets

and approximately 3000 ancient clay bouillets. What even is that? So I just, I could do this all day, Sarah. I could do it all day and laugh every time. It's great because these are all either wildlife cases or antiquities cases. You can actually see what these are about. People illegally trafficking animals or dog fighting in this case or people illegally trafficking antiquities, which violates the Antiquities Act. Yes. This is all the sound of justice, Sarah. That's right. Well, except when we're talking about civil asset forfeiture,

we got some problems with the preponderance of an evidence standard. But still, there is a place for forfeiture, and these case names are just priceless. All right, David, our last one, you are going to walk through. This is Ohio lawmaker wants to make All right, David, our last one you are going to walk through. This is Ohio lawmaker wants to make flag planting a felony after the game brawl.

Now, we used to spend a lot of time in our culture wars over flag burning. I would argue that flag planting is the opposite of flag burning. It is showing a lot of respect for the flag. So can you explain why we want to make flag planting a federal crime? A felony, a state felony. Oh, but I thought, oh sorry, Ohio lawmaker. I thought it was Ohio congressman. Okay, state felony, I'm fine with it. Go for it. Yeah, so essentially this is rooted in a rather dramatic incident that occurred at the end of the Michigan-Ohio state game. And if you're not a sports fan,

you may not know that there is developing a practice. If I go onto a visiting, if I'm a visiting team and I win on the visit, especially if it's an arch rival, there has been a practice of the winning team running to midfield, stomping, jumping up and down on the logo, sort of claiming it as your own. And the ultimate way to do that, of course, is if, like, you're some sort of Spanish conquistador and you bring the flag of your school

and you symbolically plant it in the middle of the field. Well, that led to a massive brawl after the Ohio State-Michigan game. Police used pepper spray to break it up. It was bad. It was bad. And then kind of compounding it as the Ohio State coach seemed to be pretty fine with his players assaulting the Michigan players who were planting the flag.

Now, this is a, you know, I don't know how you feel about it, Sarah. This is a moral gray area on violence and provocation. If I was an Ohio State player and Michigan's planting the flag, I don't know what I'd do. But it created a brawl. So here comes the lawmaker to step in and say, no flag planting.

So that immediately made me have a First Amendment analysis that, wait, isn't flag planting expression? Yes. Same as flag burning, right? Same as flag burning, right? Same as flag burning, but is the football field a limited public forum? Is that what is the football field? And so, and that's... I certainly think you can have time, place, and manner restrictions, and this would be

an easy manner restriction. It would be an easy manner restriction. You're allowed to go on the field and scream, Ohio State sucks, but you are not allowed to plant a flag. Right, right. And it's also- Or burn a flag for that matter. I mean, they might as well make both a felony because otherwise I don't know why you wouldn't go to the center of the field.

Burn the Ohio State flag. That's right. Yeah. Yeah, yeah. So that's one of the reasons why I was raising the public forum aspect of it. Not a public forum, not, is it a limited public forum for purposes of football expression? I don't know.

Hey, listeners, let's break this down. Educate us about weed and also about the public forum, do a forum analysis of a college, a publicly owned college football field. Okay, I do have one more thing to mention, because y'all heard of Kickstarter, where people can like, crowd fund different projects that they want a lay person who's like this isn't their career, not a lay person, they might be an expert, but they have a day job to do. This often comes out for Kickstarter board games, at least I hear it a lot in Kickstarter board games. And David, do we have a cool one? This is called First Monday in October. First of all, I think the game should be called First Monday, but whatever. This game revolves around

a tug of war over four judicial philosophy tracks that represent how the court has interpreted key provisions of the US Constitution, Commerce Clause, Executive Branch, Free Speech, and Equality and Liberty. Each player represents a long standing institution or school of thought attempting to gain renown by shaping the composition of the high court, taking sides and landmark cases throughout the history of the United States, and determining the governing laws of the land. The crowdfunding campaign runs through December 20th. This was brought to us by a listener who has no connection with this project,

other than as a customer. And David, I am pleased to report that with nine days left to go, they have more than met their goal. But it sounds kind of awesome. And they've got their prototype. You can look at the pictures. It's super cool. They've got a whole video of live play, how it works.

I mean, this is well thought out. You can be William Taft, Pierce Butler, William Cushing. You can give it as a holiday gift. And it even comes with... While the game will not ship until summer 2025, you can give the receipt, this... Sorry, you can give the recipient this printed writ of habeas ludum,

which is Latin for a command to have the game. And you will in fact get said thing. Now, they did reach their minimum goal, but they have not reached their stretch goal where they could add six bonus justices. You can have all of the current members of the court. So they are $13,000 short of that stretch goal where we could have members of the current court. So they are $13,000 short of that stretch goal where we could have members of the current court.

I am not recommending, we're not recommending for listeners to do this, but it is kind of cool. Kickstarter first Monday in October does seem very much AOs, up AOs alley. And David, I mean, I feel like we have to play it once the game comes out. Well, it's interesting, Sarah,

because I feel like as you were talking, I learned, I feel like we have to play it once the game comes out. Well, it's interesting, Sarah, because I feel like as you were talking, I learned something about myself. And that is, previously, if someone had asked me, how much of a nerd are you? I would have said, ultimate. I don't know that there are limits. But as you were explaining the game, I realized I do have limits.

No, David! I applaud the effort. I realized I do have limits. No, David! I applaud the effort. I applaud it. I love the concept. But as you're explaining it, I did realize that I do have limits to my law nerdery and my limit is a Supreme Court board game. I have limits as well. They tend to involve Lord of the Rings, but it definitely encompasses

this. Also, previously, the same publisher made a game trying to ratify the 19th Amendment. I don't know who this person is, but I'm pretty sure we should be friends. So yeah, first Monday in October, again, I'm going to be calling it first Monday, comes out this summer. So you'll have to wait until probably the first Monday in October for me to give you a full report on gameplay. But 100% David will be playing this. I will play it as a public service. Oh, good. I mean, yes, you work here. So actually can be part of your employment requirement. That's right. Exactly. This is the host of the podcast directing me to play the Supreme Court board game. This is the flagship podcast, David. We can't get lazy.

That's true. You are correct. You are correct. All right. Thank you, everyone. We will have episodes next week. Our plan is to take two weeks off for the holiday season, but we are going to have a bonus episode for you so you don't get lonely and you don't miss us too much. I'll tell you more about it next week. The bonus Christmas episode this year is gonna be lit, as the kids say, as David says the kids say.

Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,