Advisory Opinions - Slaughter at SCOTUS: Reaganite Ends by Roosevelt Means

Episode Date: December 8, 2025

Following the Supreme Court arguments in Slaughter v. United States, Sarah Isgur and David French join legal scholar Adam White to break down a session that became a referendum on whether Congress can insulate modern independent agencies from presidential control. SCOTUSblog’s Amy Howe also joins from the steps of the Supreme Court to relay her observations from inside the courtroom.Watch the livestream here. 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 access to all of our articles, members-only newsletters, and bonus podcast episodes click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Hey, everyone, Steve Hayes with some big news from the dispatch. I want to tell you about dispatch hoontoes. Dispatch what? Honto, though some people pronounce it Junto, is the name Ben Franklin gave to the small gatherings he organized in Philadelphia taverns, starting in the 1720s. Franklin's Huntoes, Spanish for assembly or council, consisted of 12 members, each of whom was required to pledge that he, quote, loved truth for the truth's sake, unquote, and that he was dedicated to personal growth for himself and improving his community. These discussions at those junto meetings would contribute to the ideas that built our great country. We launched dispatch Hoontos without quite the same ambition, but with a deep conviction about the need for a place

where people can get together for civil and sane conversations about the issues of the day, without the kind of nastiness and posturing that's so prevalent on social media and elsewhere in our polarized politics. The dispatch has hosted events across the country and I've attended many of them. I've been blown away by the turnout and the enthusiasm. I've enjoyed having a beer or two with our members at each of these gatherings, and I think the real value for them has been the opportunity to meet one another. I remember Nashville lingering at the bar at a great wing joint called party foul with dispatch members after our hour-long program ended. Our group talked for another hour at least, and they were so happy to have met one another, nobody even noticed when I slipped

out. I can't tell you how many times I heard something like, it's so great to be reminded that there are other sane, normal people out here. We're looking for dedicated dispatch members to organize regular meetups in their communities at a local happy hour, restaurant, or coffee shop. We'll help promote and convene the group, but you'll run your honto your way. And if your gatherings grow large enough, we'll prioritize your town or city as we plan our next regional event or live podcast taping. So if you're a member of the dispatch and your interest, you're in your interested in leading a local junto, head to the dispatch.com slash honto. That's J-U-N-T-O. Thedispatch.com slash hoonto. And if you're not yet a dispatch member, this is a great reason to join at the

dispatch.com slash join. We can't wait to build this with you. Hi there. I'm Ross Anderson, editor of of the morning dispatch, and I'm back interrupting your favorite podcast again with some more news. We were blown away by the positive feedback from everyone who tried the morning dispatch for free last month, so I pulled even more strings to work out a special deal. For the rest of December, you can get a month of dispatch membership for just $1. Yes, a dollar. That means you get the full TMD delivered straight to your inbox every morning and unlock access to everything else we have at the dispatch.

That means for just $1, you get unlimited access to our newsletters, podcasts, and stories, plus the ability to listen to audio versions of our articles. You can also join our comment section, where you'll find me most mornings, and ask me questions about TMD for our behind-the-scenes section. Head over to www.thedispatch.com slash join and become a dispatch member for just, yes, one dollar. Happy holidays and happy reading from all of us of the dispatch. You ready? I was born ready. Hello, for those of you who are joining our SCOTUS blog live chat for the Slaughter

argument, welcome to the live episode of advisory opinions. I'm Sarah Isger. That's David French. and we've got special guest Adam White. Now, this is really part three of a three-part series heading up to Slaughter. We did sort of that 30,000 foot-level conversation with Adam about the theories behind the administrative state. And then David and I did our deep dive into the precedent heading into Slaughter, Myers, Humphrey's executor, Sala Law. See, look, I'm going to pronounce it correctly one time.

on this podcast. But today, we have just listened to the argument in Slaughter. And we'll break that down for you as well as, I mean, we have some other big news from the Supreme Court. So if we have time, we'll talk about the birthright citizenship cert grant and how that's all going to come about. And we finally got word on the Texas redistricting case. So let's dive right in. Adam, you are muted. Make sure to undo that before we get going. Adam, a sudden. Adam, a Aside from the guy who interviewed me when I was a one-el, what other titles do you have? I'm a senior fellow at AEI, and I run the Center for the Study of the Administrative State at George Mason. It's even more glamorous than it sounds.

All right. So the administrative state, that's really what this is all about. Let's just take your big picture. How did the argument go? Was there anything unexpected for you? What were the surprises? I was surprised by the dog that didn't bark, to be honest. I came to this case thinking that by and large, the court was likely to uphold President

Trump's firing of this FTC commissioner. They could do it either by saying that the old Humphrey's executor precedent from 1935 no longer holds at all and that you can't have independent agencies. Or maybe a little bit more limited, the court could just say, well, Humphrey's executor is still good law, but it doesn't cover the current FTC. And for that second point, I expected the justices to ask a few questions. about the current FTC and how it really fits Humphries or not. There was really not any of that, though.

I was really surprised that they did not delve into the current status of the Federal Trade Commission. It's still possible that they could uphold President Trump's firings, which I do think they'll do, but uphold it without overturning Humphrey's executor. But they created much less of a roadmap for that in this oral argument than I expected. David, I felt that the oral argument was pretty state, all things considered, and what we might have expected, you know, compare that to the birthright citizenship oral argument from last term in May, where it was about, you know, these universal injunctions. Compared even to the terrace oral argument in November, this felt, dare I say, a little sleepy? It really did feel sleepy to me. I mean, look, I am, I take a backseat to nobody in my Supreme Court nergury, and I felt a little, there were times.

when my attention wandered. I mean, a couple of elements of the oral argument really stood out to me. One is how much time was spent on the competing slippery slopes. So much time was spent on sort of competing slippery slopes. Like how, if we grant this power, how extravagant is this going to be versus if we don't grant the power to fire, could you make a DOJ a multi-member commission? You know, what could you, what could you not do with the multi-member commission? And so a lot of this was slippery slope v. slippery slope. The other thing that was interesting to me was Justice Gorsuch, during General Sauer's argument, made a point that really harkered back the tariff argument, where he was like, wait, we got to jam these branches back into their boxes.

And that's the only way this is going to work, which was reminiscent of your Times op-ed recently, Sarah. like, hey, there's a vision here, there's a plan here, and it's really jamming the branches back into their boxes. That means all of the branches. So those were the two parts that stood out to me, where the competing slippery slopes and then sort of this really interesting and pretty decisive Gorsuch aside about sort of his overall constitutional philosophy, which I thought to me was the most interesting part of the argument. All right, we're going to get to intelligible principal tests in a moment for those who aren't all up on their non-delegation doctrine theory. But first, we have Amy Howe from the courthouse steps, a very cold, Amy Howe.

Yeah, it was not cold for the tariff's case. It's cold today. Okay, Amy, give us everything you were thinking inside the room. We were just saying this did not feel like the exciting case where we're talking about redoing the administrative of state in overturning Humphrey's executor, it felt a little sleepy for those of us listening at home. It felt a little bit, no, it felt not a little bit, like a lot like an argument that they could have done in about an hour instead of two and a half hours. Yeah, I just felt like, felt like we were, and I am not someone who normally criticizes the justices for going on, but, you know, it just felt like we were saying the same things over and over again.

you know so but it was this is this is speaking of slippery slopes this is the slippery slope none of the justices i think like the idea of the long arguments but nobody wants to give up their time asking questions on a day like today and yeah maybe at home you didn't come through but there were definitely times when you it felt like you had four or five justices trying to ask questions at once even with the extended length of the oral argument you know some Sometimes there were these long sort of colloquies, but sometimes you had lots of people jumping in and trying to ask questions. And then it's sort of a seniority. You go first. You go first. Kind of a scenario. Amy, I don't want you to have to stay out there the whole time we're doing this podcast.

So I'm going to throw some extra questions to you here. Did any of the justices surprise you? I mean, surely the justice to surprise anyone the least has to be Justice Gorsuch. He basically wrote a book on this. literally. Yeah, there were not a lot of surprises today. You know, I think my only surprise, perhaps, was, and, you know, it's hard to know how much it was a genuine concern, how much of it was a hypothetical concern, and I don't think we're actually going to get there when Justice Kavanaugh was talking during John Sauer's time about, you know, what he saw as concerns with the remedy question, you know,

whether if the court were to uphold the FTC removal law, which doesn't seem likely, you know, then what happens? You know, can you be reinstated or can you only get back pay? And Justice Kavanaugh seemed to have some concerns about the government's rule, but, you know, I don't think that's ultimately necessarily going to matter. Did any of the justices seem like they're suffering from the forever cold that the rest of us out here in the world have? Like, why is it, you still suffering, Sarah? Yeah, I am still suffering. Why does it feel like we're never seeing a justice mis-oral argument? Like, don't they get sick like the rest of us? That's a good question. I mean, they at least have people bringing them hot coffee or tea on the bench, unlike the rest of us. So that certainly helps. But, yeah, I have finally gotten over the forever cold, but I did have it for well over a month. So I'm feeling your pain. All right. Stay with us just a little bit longer because I do want to talk about question one.

versus question two. Question one, right, is you overturn Humphrey's executor or there's like three paths on question one. overturn Humphrey's executor. Don't overturn Humphrey's executor, but let President Trump fire, for instance, this FTC commissioner, because the FTC of Humphrey's executor, you know, back in the 1930s is not the FTC of today. Or path number three, this is fine. Congress has to be able to have some removal power, et cetera, and that's just what it is. Can I go around the horn just on that question one of how many votes you counted in the different buckets starting with you, David? Yeah, that's a really good question. So I would say bucket one, loving them some Humphreys. We know the three. That's Kagan's thought of my Orange Jackson, going to circle the wagons around

Humphrey's bucket two, Yolo. I mean, we know who's in there, Gorsuch. I think, you know, very clear that he's got an idea. He's got a big idea about where the executive and the boundaries between the executive and the legislative. I would have put Alito squarely in that bucket, but I saw Alito asking some questions that seem to be along the lines of how far do we have to go here? how far do we need to go? So I'm going to put Gorsuch and Thomas in this sort of bucket two. And then bucket three is I, Trump's going to win, but how broad is it going to be? And that's where I'm going to put Kavanaugh, Barrett, Roberts, and maybe Alito in the, okay, he can fire this particular commissioner. However, to go to Adams point, are I think the best possible.

outcome for sort of the Kagan, the Kagan wing would be to sort of have these others say, we don't have to go all the way here and sort of grant this sort of sweeping termination power. What we can say is this is just a very different FTC from the Humphreys executive FTC. And if you're going to give an independent commission this much power, you're going to have to give the president hiring and firing authority over the commissioners. So I would put that is sort of a third alternative here. And that's where I, as I'm counting, that's where I kind of put a plurality of the court. So, Adam, you were surprised that there wasn't more conversation about what exactly this FTC is versus the last FTC, but do you agree that this

shakes out six three one way or the other? No, I don't agree. I think that this could wind up being a badly fractured court. I obviously, Kagan, Sotomayor, and Jackson don't have any real patience for this firing. They think that the statute, the statute is fine and Humphrey's executor is fine. I think that Humphrey's executor is basically irredeemable in the eyes of Gorsuch, Thomas, probably Alito, like David said, I was kind of wondering where he'd be on this. I don't think Alito has a whole lot of confidence in the sorts of line drawing that Humphrey's executor requires. Okay, so that's three on one side, three on the other. Kavanaugh, for a very long time, has been a skeptic of Humphrey's executor. Go back.

Reid, he had a great opinion in a case involving the Nuclear Regulatory Commission, where I think he had the pun, you know, Congress inappropriately split the atom of executive power or something like that. I think, I think Kavanaugh is most likely lined up to see Humphreys' get here to go. He once said that at an AEI event before my time, the worst, the Supreme Court decision he most wanted to see overturned, this was when he's on the D.C. Circuit was Morrison E. Olson. Anyway, what that leaves us with is Roberts and Barrett. I still think Roberts is likely to come out of this case applying Humphrey's executor to uphold the firing, saying under Humphrey's executor, the current FTC has too much executive power

to be independent. And that leaves Barrett. And I want to ask Amy at some point about Barrett. As the further argument went, the more curious I was about how Barrett seemed to see Humphrey's executor. And at one point, in the latter half of oral argument, she said that she referred to Humphreys as a precedent that's been eroded over time. I'm curious how Amy read Justice Barrett's sort of body language and tone and questions, because I could see this being, this going down as do my math on this, three, four, two, right? Four justice is wanting to overturn Humphrey's executor, but two of them saying, no, let's just keep it and go head, especially with the Fed looming in the background. Or I could see Barrett splitting off and

joining the four for a five justice majority. I think in the end, Barrett and Roberts are going to stick together in the middle, but I'm curious for Amy's read. Yeah, Barrett, like the Chief, is one of these justices who does tend to have pretty hard questions for each side. I mean, one of the things that struck me during John Sauer's time at the lectern was that she was actually trying to throw him. some softballs and he was not taking them. You know, she, if you remember, she said, we don't really need to decide where this tower comes from. And he kept insisting that the court did and that it was the vesting tower. And they were just sort of talking past each other. The other thing that I will

note, you know, I am definitely think that the court is going to rule for the Trump administration, but I'm not really sure exactly how that vote count is going to break down. You know, the chief justice a couple of times did refer to Humphrey's executor as a dried husk. So it was kind of hard, based on that, you know, and again, flag ferret, he tends to have the questions on both sides. But if he believes that's true, it's hard for me to see him applying that, you know, to strike down the removal statute, even if he doesn't strike down Humphrey's executor itself. You know, Amy, and just I'll stop getting the way of Sarah on this, but not to make everything like Dobbs, right? there were more Supreme Court decisions in the last hundred years, the Dobbs.

But with Roberts, I keep thinking in terms of that, his famous line, right, you know, if an issue is not necessary to decide the case, then it's necessary we not decide the case. I kept thinking, could Roberts uphold the firing without getting rid of Humphrey's executor? And that's why I still, even though he had the line about the husk, I still think he would be the last to join the majority to overturn Humphreys, but maybe not. Yeah, I mean, I think he would want to do something, you know, particularly he was definitely concerned about, you know, the Fed is, is, I think, off the table, but about the tax court and the court of claims and the, what was it, the court of, or the armed forces, and then there's the D.C. courts, the Article I courts. And, you know, is there a way to write this opinion in a way that strikes down the federal, the FTC removal provision, but leaves those. for, you know, a later time, I think he would be inclined to do that. I think you're right that he may try to write to decide this as narrowly as possible, but, you know, may not have the votes to go along

with him. Amy, I want to move to the question, the second question presented. Before I do, are those credentials you're wearing? They are. I have both a Supreme Court press pass and a congressional press pass. So exciting. Good to know that there's a separate Supreme Court press pass. very official. You know, as people enter the courtroom now, I feel like there's a few different ways that someone can go see an argument themselves. One, you can, of course, be a member of the Supreme Court press like Amy. That's going to be your hardest pass to get, really. Two, you can be a member of the Supreme Court bar, although you have to then wait in line outside. You get to wait in a different line, but it's nevertheless waiting in line. Three, you can join the lottery to get to see an argument

that if you win the lottery guarantees you a position so you don't have to camp outside, though they are still allowing some waiting outside, right? Amy, you can still line up to potentially get in to see some of the argument. That's right. I don't know exactly how it breaks

down. I've been told and it would make sense that it's a 50-50 split of the 50 seats that they set aside for members of the public that for each argument they allow 25 people to get seats via the lottery and then another 25 from waiting in line and maybe a few more after that.

But that is not something that I have independently confirmed. And then, of course, there are some seats of the clerks can come in and watch the argument. The justices themselves, their spouses have reserved seats, but they can give away those seats to someone else, a VIP in their world, an aunt and uncle, et cetera type person. And Amy, I was wondering you could give us just a little color from, inside the room before we get your take on QP2, question presented number two. The lectern, this came up in the Bloomberg documentary about Ramon Martinez, that lectern is much lower where the oral advocate stands than the justices are. Does it feel like a big height

difference, you know, like they're sort of talking down to the Solicitor General, or does it, does it feel like they're in close communication? What does that feel like? It feels like you're in close communication because I personally have actually never noticed the height difference. You know, what always strikes me is how close that arguing lawyer is to the justices. Because as in terms of the number of feet, it's not very far. And then if you haven't been to the Supreme Court before, the bench is sort of not quite semi-circular, but it's curved. And so, you know, you're kind of surrounded by the justices for better or for worse. All right. Question presented number two. This is on whether the district court was proper when it reinstated Rebecca Slaughter as an FTC commissioner after President Trump had fired her because Humphrey's executor, for instance, Mr. Humphrey was dead, remember, he was only suing for back pay. So do the courts have power to reinstate someone who's been fired? Amy, I felt like I heard basically nothing. Yes, it came up.

up once or twice, but in terms of being able to count to five or even two, I have no idea where we are on that, which makes me wonder, are we not getting to question number two? And if not, why was it included? Whenever there's a remedy question and the remedy question doesn't come up, that's usually a bad sign for one side. And in this case, as I mentioned earlier, Justice Kavanaugh did bring it up because, you know, what he said was that if the remedy is only that you can get back pay that you can't get your job back. There's not a lot of incentive, even if you have these for-cause removals, you can just fire somebody whether or not you have cause to do that and get them back pay, but you still get rid of them. But nobody else really raised anything about

that. Interestingly, the liberal justices didn't really spend any time on it. I think they saw where the chips were lying. They did spend a little bit of time. This came up every once in a while. you know, what happens if the court, you know, if the court were to decide that the FTC has too much executive power so that this isn't like Humphreys executor and, you know, is the remedy for that to invalidate the removal provision or as Justice Sotomayor suggested at least once, you know, get rid of whatever executive power sort of puts you over the top so that you've got too much executive power. But that too didn't really seem to get much traction. All right, Amy Howe. David, Adam, any more questions for Amy before we let her go warm up? She actually, you've put on a really brave face.

I know how cold it is out there because during the argument, I tried to cover some patio furniture and I gave up and came back inside. Well, thank you. All right. Talk to you soon. Bye, Amy. Thank you. year, sure, singing works, but gifting an aura frame might be even better. It's the gift that keeps families feeling close, no matter how far apart they are. This year, I'm trying to convince my sister-in-law to come hang out with us for Christmas. And you know how I did it? I sent her an aura frame stocked full of pictures of her two nephews. How can she resist their faces of Christmas's past, knowing that she could be a part of this year's festivities?

With Aura Frames, you can share unlimited photos and videos for free all through the easy-to-use ORA app, and before it's even delivered, you can personalize your gift with a message that makes it truly yours. You can't wrap togetherness, but you can frame it. For limited time, save on the perfect gift by visitingoraframes.com to get $35 off or as best-selling Carver Matt Frames, named number one by wirecutter by using promo code advisory at checkout. That's a-U-R-A-Frames.com promo code advisory. The deal is exclusive to listeners and frames sell out fast. So order yours now to get it in time for the holidays. Support the show by mentioning us at checkout. Terms and conditions apply. I'll report back on what my sister-in-law chooses to do.

A quick word from today's sponsor, the Foundation for Individual Rights and Expression, fire. As more people grow afraid to speak their minds, fire is standing up for students, teachers, journalists, parents, anyone being silenced. This season, join fire in protecting the First Amendment by making a donation at thefire.org slash dispatch. As a nonpartisan, non-profit organization, fire relies entirely on supporters like us. And every contribution, no matter the size, helps protect the free speech rights of all. If you're listening to advisory opinions, you know why free speech matters.

Support fires fight to protect it at the. Thefire.org slash dispatch today. Hey, everyone, Steve Hayes with some big news from the dispatch. I want to tell you about dispatch hoontoes. Dispatch what? Hoomto, though some people pronounce it, Junto, is the name Ben Franklin gave to the small gatherings he organized in Philadelphia taverns starting in the 1720s.

Franklin's Hoontos, Spanish for Assembly or Council, consisted of 12 members, each of whom was required to pledge that he, quote, loved truth for the truth's sake, unquote, and that he was dedicated to personal growth for himself and improving his community. These discussions at those junto meetings would contribute to the ideas that built our great country. We launched dispatch hoontos without quite the same ambition, but with a deep conviction about the need for a place where people can get together for civil and sane conversations about the issues of the day, without the kind of nastiness and posturing that's so prevalent on social media and elsewhere in our polarized population.

politics. The dispatch has hosted events across the country, and I've attended many of them. I've been blown away by the turnout and the enthusiasm. I've enjoyed having a beer or two with our members at each of these gatherings, and I think the real value for them has been the opportunity to meet one another. I remember Nashville lingering at the bar at a great wing joint called party foul with dispatch members after our hour-long program ended. Our group talked for another hour at least, and they were so happy to have met one another, nobody even noticed when I slipped out. I can't tell you how many times I heard something like, it's so great to be reminded that there are other sane, normal people out here.

We're looking for dedicated dispatch members to organize regular meetups in their communities at a local happy hour, restaurant, or coffee shop. We'll help promote and convene the group, but you'll run your junto your way. And if your gatherings grow large enough, we'll prioritize your town or city as we plan our next regional event or live podcast taping. So if you're a member of the dispatch and you're interested in leading a local HUNTO, head to the dispatch.com slash hoonto. That's J-U-N-T-O. Thedispatch.com slash hoonto. And if you're not yet a dispatch member, this is a great reason to join at the dispatch.com

slash join. We can't wait to bill this with you. Okay, so Adam and David, I want to dive in a little deeper into then question one, unless you guys have any remedies thoughts. But I think Amy's right. The fact that we didn't get to it tells you that everyone thought that the fight here was really on number one and really between those first two options of is Humphreys executor just gone and there's complete removal authority or does it live on as kind of a zombie precedent in the sense that no, we're not overturning Humphreys, but also no agency today looks anything like the agency in Humphrey.

So Humphreys is hypothetical. It could apply to some future agency, but it doesn't apply to any of these agencies, Adam. Well, you know, again, with the Fed looming in the background, with Article I courts and other entities out there in the background. And just to be clear, Article I courts here, we're talking about magistrate judges and my specialty bankruptcy judges. What is an Article I court, you ask, meaning a congressional court?

Who knows? And I think the tax court is Article 1 also. Right. So I think I had a little quip in the live chat right before we started that it seemed to me less plausible that the court would overturn Humper's executor and then just drop a footnote saying, you know, this, we're not trying to cast doubt on the Fed or these other things. That's for future cases. I thought that would be a little bit sort of glib might raise more questions and answers. I don't know. after oral arguments, that seems a lot more plausible, right, that they could overturn Humphys

executor and then say in a footnote, you know, as we said in our order in Wilcox, the Federal Reserve seems to have a different historical pedigree, and they had a couple more sentences about Article I courts. I, you're saying that out loud, I still think it's more, it seems to me simpler to just say, look, we don't need to overturn Humphrey's executor. It's like the lemon test. We don't want to talk about it that much. We're going to decide other cases with a little bit more realism and newer standards. We're not saying we overturned lemon, but then just over time, it kind of passes from the scene as the court creates an entire kind of intellectual architecture around it. Maybe that's what they do here. Maybe Humpf's

executor becomes kind of a zombie precedent. After oral argument, that seems a lot more likely to me at the very least, and maybe it just goes away altogether. David, originally, history played a big role in the argument today. Everyone kind of battling over that founding era history or, you know, there were agencies at the founding era, but were they actually independent? Were they anything like these agencies? At the same time, these agencies have been around for a hundred years. A long time. Yeah. And so if you were suddenly getting rid of them as they are currently constituted, are you fundamentally changing the way that U.S. government has worked for a hundred years? And I thought Justice Barrett's question,

at the end about liquidation were sort of fascinating to me because you know she's making this pretty nerd argument about basically what something has been liquidated can it be unliquidated as in take her history for a second once the founding generation says there's none of these quasi legislative quasi judicial agencies you can't reliquidate it in the turn of the century by the progressives. But my pushback to that is, yeah, but they did. Like, even if you take her history and even if she's going to argue that it can't be done, like, it did get done. And so now the question seems to me to be, again, if you buy into the anti-Humfrey's history, we had a hundred years or so of one type of separation of powers, we've had a hundred years of another type of

separation of powers. And what's the court's duty here when it comes to starry decisis and reliance interests? I mean, David, you and I kind of have said that the government doesn't really have a reliance interest the same way that private individuals do. But at some point, we all have a reliance interest because this is the way our government has worked for our entire lives and our grandparents' entire lives. I mean, my grandfather was born in 1898. So not actually my grandfather's entire life, but very close. Well, I'm, okay, a couple of things. One on the reliance, yeah, we've kind of poohed the government's reliance interests, but we have not poohed the fact that huge amounts of the private sector rely on a certain

kind of governmental structure for predictability, long-term contracts, for example, all kinds of relationships that you enter into in the world of economics are dependent on a particular kind of legal environment. And so if you do disrupt the legal environment, you are disrupting the commercial environment as well, just to take one example. However, however, I do think we're really exaggerating the length and strength of the Humphrey's executor precedent. So, you know, there's been a lot of talk of 100 years. Well, but the modern administrative agency, but the modern administrative power is not a 100-year-old thing, because all you have to do is look at Humphrey's executor and read the

agency, the power of the agency that they are ratifying there, compare it to the power of agencies now. And so I don't know that it's 100, 100. It feels more like maybe 150 and 50, where you have, you know, a sort of a lower degree of administrative power for years and decades after Humphrey's executor. And then maybe around the Nixon era, when you start to have a lot of the big government Nixon, you know, alphabet agencies, et cetera, that's when you begin to see this modern era of the administrative state. And we are actually, maybe one of the arguments is that we're actually, rather than making all these slippery slope arguments, we've already slipped down the slope. And that this is, we are in the slippery slope right now. And this is why there's

the necessity for the corrective action, because in our lifetimes, including your lifetime, including Adam's lifetime. Y'all are very short lifetime. Yeah, y'all are, you know, so young. You can't predict the weather yet by your bones aching. So that's how young you are. But in your lifetimes, my lifetimes, we have seen the dramatic expansion of the legislative power of the executive and the dramatic diminishment of the legislative action of the legislature. So in some ways, I would say, maybe one of the better arguments against Humphrey's executor is we're not in Humphreys' executor land anymore. We've slipped down the slope. And that's why we need the sort of Gorsuch imagined, Gorsuch articulated, rejiggering, reordering of the constitutional order to reflect back to an actual separation

of powers. All right, Adam, you have some grand pooh-bah title about the administrative state. Yes. What do you think is the fairest history? And how would you steel man, you know, either side that you think is weaker in this case? Well, the history is really hard to apply here because when you go back to when they started creating agencies like this, the late 1800s of the Interstate Commerce Commission, and I can't remember if we talked about this last time on the podcast or not, but the whole point of creating that agency was to create something basically like a court after the Supreme Court had knocked the state courts out of railroad regulation. Right? They said, okay, we want,

this federal body that isn't just federal courts acting like a court to settle disputes about railroads services. What's fair? What's just and reasonable? What's fair and so on. Right. And so they're created to look and act like a court. And then it changes over time. That's why by the time you get to Humper's executor, FDR is saying, come on, this is just like any other agency. I'm supposed to have constitutional power over this. And then ironically, 50 years later, FDR's argument becomes the part of the conservative critique of the administrative state, right? It was sort of Reaganite ends by Roosevelt's means. This is a, this is, this is all executive power. That should be the title of this podcast. Reaganite ends by Roosevelt means because in some ways that, to me, that summarizes

so much about what the court has to deal with these days. Like people think it's right, left. And somehow that translates into Republican versus Democrat. It's like, no, everything that this means has changed and shifted by which party it is helping, which. president it's helping, et cetera. But also, go back even further. You go back to the very founding where there was a lot of mention at oral arguments today about a thing called the sinking fund, right? This body that was outside of the Washington administration that was responsible for making

sure the payments were received to pay off reliably and steadily the debt that was incurred when the federal government assumed the state debts from the Revolutionary War, from that history correctly. Right. That was, you know, some people would say that was the first independent agency, except to David's point, it really didn't wield anything that we would consider regulatory power in the current sense. And in my line of work at Scalia Law School and at AEI, I read, I get to read, I was about to say I have to read. I get to read a lot of papers about what happened in the first Congress and what it tells us about the structure of government today or about the amount of power that could be delegated. to the executive branch today.

And on the one hand, the ideas are very eloquent. On the other hand, you look at it and said, this is crazy. This is crazy to look at a government that was not regulatory in the way we think of modern government. The early government was about defense, taxes, and customs, and a few other things, all very important, but it was not really a policy state in the way we think of modern government today. And so it's very, anytime anybody starts to draw sort of a direct line analogy to something from 1887 or 1793, I immediately start like keeping a hold on my wallet. We're accustomed to the line

about being wary of law office history. I think we also have to be wary of law school office history. There's a lot of good scholarship out there. I'm a fan of the originalist critique of modern independent agencies, although I think Professor Nelson's new paper, sort of pouring some cold water on unitary executive is very interesting and worthwhile. I just, I don't think you can take any of these historical analogies too tightly. The past is too much a foreign country on these things. David, I want to talk about the bundle of sticks a little bit here, because while they didn't use that analogy, I was very disappointed, it did come up. And so there was a, there were a ideas here. One, you've heard from Justice Kagan, for instance, that how can you take away the

removal power and not destroy the whole agency? As in, why not get rid of the power the agency has and say that's the separation of power's problem rather than the removal power, for example. That's a bundle of sticks argument, right? Is this really severable from Congress's intention? You also heard Justice Kavanaugh potentially talk about the bundle of sticks. With, and sorry, Justice Kavanaugh brought this up a little. Justice Barra brought it up specifically in the Chata context in that legislative veto that, you know, yeah, basically this whole thing was such a spider web where you had Congress giving these executive branch agencies, sorry, over, Congress giving these agencies over to the executive branch while keeping all of these webs intertwined like for cause removal power. like the legislative veto where they could have said, like, we don't like that regulation if a majority of House members don't like it. Like, it's gone. And that as you just keep severing away

these little pieces of it, you're now left with something quite bizarre, which is Congress giving away huge amounts of power to the executive branch that it never, at least in the beginning, thought it was giving. And I felt like you had justice. Kavanaugh, Kagan, Barrett, and then, of course, Gorsuch bringing this up, but then I felt like the plane never really landed. You had Justice Gorsuch, for instance, raise the non-delegation doctrine and sort of the point, I would say, of my New York Times piece, which is like, these have to go together. If you're going to do unitary executive, you have to do non-delegation of major questions doctrine because you basically will have a president more powerful,

and you want a presidency less powerful. And that perhaps, I mean, I suggested we stop calling it the major questions doctrine and start calling it the unitary legislative doctrine and the unitary executive doctrine. And he said, you know, under non-delegation, we had this idea that Congress had to give an intelligible principle for that agency to be executing. And that we basically just said, like, nah, anything we'll do. We're not going to look too closely at that intelligible principle. And he was like, if we're going to do this, if we're going to follow the law,

of unitary executive, don't we have to then beef up, intelligible principle, beef up major questions doctrine? And I was sort of shocked that the solicitor general was like, no, don't worry about it. Just give us all the power. Oh, I know. Yeah, I know. Well, first, let me just say, this is why you listen to advisory opinions, because we talked about the bundle of sticks beforehand. We talked about legislative veto beforehand. We talked about all of these things. And I feel like it really helps at the stage for the holistic view of this situation, that what was intended here, as you said very well, Sarah, was we're going to give you some things, but when we give it to you, we're giving it to you with kind of retaining some of our own oversight. And then the Supreme Court has said,

nope, nope, you don't get that oversight. And then all you have left is the gift. And Sauer's like, we'll take all of that gift, all of it. But how, how. constitutionally valid and viable is that to strip out any kind of legislative oversight, leave all executive authority, which by the way, part of what Congress gave the executive was legislative responsibility. And so now we're in a world where just to, you know, sort of put the historical context back into this, where, as we've talked about before, with changing administrations, you can have certain acts become crimes or not crimes without Congress changing the law. You know, think about the bump stocks, for example. You know,

you have a world, we've created a world where you can now create crimes without a legislative enactment. It's wild. Or to talk about one of the most contentious political disputes and legal disputes of the whole 20 teens was the Obamacare contraception mandate, which was only a regulatory mandate. It wasn't actually in the Obamacare statute itself. And so that's what I'm talking about when I'm talking about sort of the way the administrative state has grown, slipped its bounds. And there is one other thing, though, I thought that was very interesting about the history. And I would actually love to, you know, I would love to get, and I've talked about this before, an originalist who believes the unitary executive theory isn't originalist would be very interesting

because I think what we're beginning to see is that when originalism becomes the dominant philosophy of the court, you're now seeing a lot of liberals doing originalism. And when you see liberals doing originalism, it's going to be results in maybe some different arguments and potentially some different outcomes as, you know, Achille Lamar, the original liberal originalist can demonstrate. But it's very interesting because the reason why it's fascinating to see liberals do originalism is because it really does illustrate how no one faction of American life has a truly holistic view of American history. We don't have it all in. And conservatives by nature and sort of we'll be drawn to a lot of the elements of history that really kind of

affirm our view. And conversely, that means we often don't know what we don't know, because we're drawn towards the answers that confirm our view. And here come liberals who've not been doing originalism. And they come in and they're drawn to particular elements of history that we may not be as aware of. And that's why you need the whole body politic participating in these debates and disputes because it expands the sphere of knowledge. And so I did find that interesting.

I didn't find the originalist arguments for Humphreys executor back convincing. I did find it interesting to hear originalist arguments for Humphreys' executor. Canada's Wonderland is bringing the holiday magic this season with Winterfest on select nights now through January 3rd. Step into a winter wonderland filled with millions of dazzling lights, festive shows, rides, and holiday treats. Plus, Coca-Cola is back with Canada's kindest community, celebrating acts of kindness nationwide, with a chance at 100,000 donation for the winning community and a 2026 holiday caravan stop. Learn more at canadaswunderland.com. Hi there. I'm Ross Anderson, editor of the morning dispatch, and I'm back interrupting your favorite

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join and become a dispatch member for just, yes, one dollar. Happy holidays and happy reading from all of us of the dispatch. Adam, can we actually just back up for a second to David's point? Because it's something that I've thought a lot about. We talked about it when you look at the statistics, for instance, for the interim docket decisions. They could look very partisan that, you know, these justices were always voting in favor of President Biden, these justices are always voting in favor of President Trump, except, of course, the cases aren't created equal. President Biden was trying to do different things than President

Trump has been trying to do. And so we've argued that really, if you break that down, it falls very much along the legal ideological spectrum. But my question to you is, why is that? Why are legal liberals more likely to favor this current administrative state? When, as you say, FDR didn't want this administrative state. He wanted more power over it. And the idea that conservatives don't like this administrative state, why is that true even when they're in power over this administrative state? Well, that's a great question. That's a great question. I don't know that I can give you an easy answer as to why, what we should read into modern progressives' departure from FDR's constitutional theories. I mean, it's been about a century, so they're allowed to change their minds.

So I don't exactly know, but to your broader question about this, I do think that really does exemplify the ways in which the two political parties have polarized around how we think about the Constitution. It's not just in terms of who they want to see a point into the court and sort of superficial sensibilities about originalism versus non-originalism. You know, you listen to a lot of the questions today coming from, say, Justice Jackson, where she's characterizing the Federal Trade Commission and other agencies is basically just bipartisan, expert-driven, independent agencies. And with all due respect to Jackson, and I, listen, I'm obviously, this is like a hobby horse of mine. I'm not a big fan of a lot of modern independent agencies. To look at the Federal Trade Commission of the last 10 years and say this is just like nonpartisan expert, is crazy. It's totally crazy. And not just because I wasn't a fan of Chairwoman Kahn's approach

to it. The Kahn FTC was deeply knitted into President Biden's overall agenda on antitrust. And by the way, as I was listening to Justice Jackson's questions, I kept thinking, I wonder what she would say if this were the Federal Communications Commission under Brendan Carr that we were talking about. is this just like a non-partisan expert commission? I think my one of this is I think instinctually a lot of thinkers in the modern progressive or democratic coalition still feel in their bones of the default setting for administration is that it is expert and at its best that is nonpartisan, non-political, happens to line up well with the overall policy agenda of, say, the Biden White House, but that just reflects

the sensibility of how these agencies ought to go about their work and what the White House wants. I think a lot of the questions here did reveal a lot of latent assumptions about other parts of government. I just, while I'm ripping here, I would just add, think about the ways we talked about Congress today, right? There were some questions that suggested that Congress will never pass another law again to change these agencies, right? And then there were other questions suggesting that Congress is on a slow march through the executive branch to just constantly little by little claim more territory. When the transcript comes out, I'm going to go back, that's one of the first things I'm going to look back to, is how the justices kind of revealed

a lot of their latent assumptions about Congress and its relationship to the presidency at a given moment in time. You know, there's real fast, there's two things here where I think you've got sort of conservative fantasy land and liberal fantasy land. And liberal fantasy land is the technocratic. We've got the nonpartisan technocratic experts who are going to do all of this in the public good and it's going to be apolitical. And, you know, every time I hear that now, I just, it's almost like I think, oh, you sweet summer child, we've, we've been through all of this. This is not the, technocrats are not like that. They're, politics is an inescapable part of

government. And then I hear on the converse, well, we're going to have political accountability for the acts of the FTC or the FCC or the SEC. And I'm like, oh, really? Yeah. I mean, I can't remember the last exit poll that didn't have regulatory actions of the FTC as issues one through three on the top of the mind of American voters. I mean, come on. That is not what's happening here. So I want to shed these fantasies. This is not moving the FTC to the world of political accountability. No. And the status quo is not technocratic apolitical expertise. No. Those are not, that's not what neither one of those things is realistic on this earth. What we've got to focus on is constitutional structure. That's the core. That's the core. These fantasy land idealized versions of what

federal agencies are or can be. I just strip them from your mind, please. What about the federal election commission, for example? This is an agency that Congress created with all sorts of strictures, both on removal, but also appointment. It needed, you know, certain numbers of people who identified with each party, which by the way, I always felt was pretty weird that it had to be Republicans and Democrats. If you're not one of those, you're not welcome on the federal election Commission. Okay. And you wonder why the debate parameters and everything are set the way they are. That's not the FEC, but rather, like, that's how these things are set up through the whole country is for a two-party system. It will be hard to unwind for those who are third-party curious. But okay,

brass tax right after this decision, the president now has complete control to appoint the FEC he wants. The current FEC has not made any major decisions because it has been unable to establish a quorum under those rules. schools. So now the president has an FEC that'll just, you know, say his team good, that team bad. I guess Adam, I fear that Justice Gorsuch, like there's only one vote for my world where it's a bundle of sticks. You're going to do unitary executive. You have to strip out huge, wild chunks of power from the executive branch. Otherwise, like Solicitor General's Sauer suggested. No, no, they just want the FEC. They're very happy with a federal election commission that says, my team good, your team bad. It is funny how just 40 years ago,

kind of the default assumption of the early originalists was that, you know, in this era of broad delegations of power to the executive branch, the president should have total control over firing the heads of agencies and the courts should defer to the president's policy judgments, right? That's the Chevron deference, basically the Chevron deference doctrine, right? They thought they saw both of those things rowing in the same direction. And then you'd have political accountability up to the president to the voters. And now, and I wanted to make this point in my Scotis Blanc column in the run into this case, where I kind of fleshed out some of the points I made in our last episode about thinking about the who questions versus the what questions. In our modern era,

the conservative justices have sort of the diametrically opposed assumption. They still believe in unitary executive when it comes to the removal power. That's sort of the core of unitary executive theory. But now they've led the charge in the other direction on the substantive questions, saying, no, we need to be much less deferential to legal interpretations from the agencies. We do need to rethink a non-delegation doctrine. So that's one place where you've seen conservative shift enormously, I think, in response to reality of the last 15. years, about since the basically the second half of President Obama's second term, where you've got

this outpouring of huge new projects like the Clean Power Plan and Net Neutrality and the integration policy. This is a pen and phone era where he says if Congress won't do what I want, I have a pen and a phone and I'll rally the American people to my cause. He is the year of executive action, he calls it. I agree that like a lot of this, there's, it's a slow uphill anyway, but there are moments. That is one of the moments where you're going to see. exponentially take off. It's not a 100-year slow progression. There have been, yeah.

Okay, I want to make sure we leave enough time to talk about the two other things that happened this week. There was actually a lot. We'll talk about some of the other oral arguments in the next episode, but we had the biggest cert grant, certainly of this term. I would say, I'm curious if you guys disagree. I think this is the biggest grant since Dobbs was granted in terms of, you know, its potential to change people's perceptions of the Supreme Court. Maybe not of the law itself. Okay, what am I talking about, of course? The actual birthright citizenship case was granted. This is whether the president through executive order can change the definition of who is a citizen at time of their birth, either based on the 14th Amendment's language or the subsequent statutory

language that Congress passed to put the 14th Amendment's language into effect. They've granted it now in December, which means like 80, 20, right? 80% chance this would get argued in March. About a 20% chance of this could end up getting argued in April. We won't know that until at least into 2026 at this point. We're not going to get those calendars most likely. But, Adam, I'm curious to start with you. Is this cert grant as sort of important as I'm saying it is? Or because we have this sense that the Supreme Court is going to gnaw dog the president here, it's important until they rule against him, in which case nobody will remember this happen.

And I'll be the one screaming from the rooftops. See? See? Look. that's i love i love that version of sarah by the way that's that's the one on the rooftop yeah you guys said this was a big case when it was granted and then as soon as they ruled against trump it wasn't a big case anymore so stop telling me that the big cases all go six three yeah i the way you framed it really struck me and i hadn't thought about it in those terms but i think you're right that this is the most politically and morally salient case the court has heard since dobbs no matter which side of the issue you're on, right?

I think that's key that whether you believe in the version of birthright citizenship that we've had for over a century and a quarter, which, for what it's worth, I agree with, or whether you believe that that was a mistake and that birthright citizenship is much more limited along the lines that the Trump administration is sketched out, no matter where you're on that debate, you agree that this is the legal, political, moral issue of our time when that case gets argued. And as I start to wrap my head around, what that will look like, what the political activists on both sides will do, what President Trump will do to ratchet up the temperature.

It is sort of horrifying. But like the upside of that, Sarah, is I don't know if the Supreme Court does gnaw dog this thing and says, yeah, the Trump administration's wrong and Wong Kim Ark, which I believe was 1898, the same year of Sarah's grandfather's birthday. What a year? He was not born in the United States either, so. You know, I do wonder if by the time we get to these oral arguments and the decision and the political stakes have been racked up so high, you know, in the early months of the midterm elections where political energy will be ratcheting up constantly through 2026, I don't know. The Supreme Court turns Trump away on this. I think it's going to be a pretty significant decision in the public's mind, even if, you know, whichever way they can. go. David, I've been torn on this because on the one hand, I could see the court just

gnaw dogging it. That is not like, here's the interpretation of the 14th Amendment and that's that. But I think they included that statutory language for a reason. And I've been saying from the beginning, if they want to have the narrowest decision here, it's just like, we don't have to decide what the 14th Amendment says because the president acting alone can't do what Congress does, which is liquidate, if you will, the language of the 14th Amendment. So yeah, the president can't do this alone. Feel free to go to Congress. Maybe Congress can't do it either because maybe that's not what the 14th Amendment says. But we don't have to answer that because we don't have an act of Congress here. I think that would take this huge issue and potentially

make it a very small one, which is you control both houses of Congress, dude. You didn't even try. Yeah, yeah. No, I think I love the way you put this because on the stakes of this, which really goes to who is an American. It's really kind of, it's, it's hard to think of bigger cases. I mean, as far as like, what, what are the stakes? As far as the outcome, I think you're exactly right. I think there's a way this is a 90 little case. A 90 little case that says, well, we don't even have to really deal with Wong Kim, Mark, etc. Mr. President, you cannot do this by executive order. You just don't have that authority. You just don't have that authority. It's just not within this realm of your authority. And I think that you could have

a small version of this case that tables the constitutional question. I think that's entirely possible. But there's also a really interesting question here regarding text history and tradition. You have an 1868 ratification. And you have an 1898 Supreme Court decision. Okay. That's some of the people who are ratifying are still, lots of the people who are ratifying are still alive in 1898. I mean, this is, this is not a super close to 1868, but it's a pretty close to 1868 court precedent, not ongoing and looking at what the Kentucky legislature did or what the town council did in Tombstone, Wyoming, or whatever. This is 30 years after the amendment, 1898, pretty

definitive 14th Amendment ruling. How does that land and text history and tradition land would be a very, I think a very interesting question if we're going to be sort of more fleshing out history and tradition as an element of the court's jurisprudence. So that's one thing that's very interesting to me. And by the way, that statute, A U.S.C. 1401, the following shall be nationals and citizens of the United States at birth, A, a person born in the United States, and subject to the jurisdiction thereof. So that's what the president's going to argue is that. he gets to sort of decide what exactly part A means in that.

But what I guess I think is going to be really tough is it has parts A through H. If Congress intended to be more clear about what, you know, an illegal alien was if it's not subsumed into Section A, they had the chance to do that. This was originally done in 1952. It was amended a gazillion times most recently in 1994. And I just think a president's going to have a hard time saying that Congress didn't cover the world here in liquidating, so to speak, the 14th Amendment. Okay. If a regulation cannot change the criminal law regarding bump stocks, how can an executive order change the statutory law regarding citizenship? Well, Gargneux is it.

It never did, right? It's just been misinterpreted by other executive branches because these people were never subject to the jurisdiction thereof. Kim Wanark doesn't count. It doesn't touch this at all. We're going to be arguing in two different worlds, basically, really talking past each other, I think, which will be itself kind of fascinating. I'm just really amazed and impressed that David just took the case that, again, I think is not just the most legally significant, but morally significant case of the last several years and said, this is going to be really interesting for the mythological debates around text history, history, and tradition. I thought I'm able to take, like, really, really big questions and make them really technical

and boring. But I'm amazing. All right. Last up, we did finally get the decision in the Texas redistricting interim docket case. Now, remember, Texas does this mid-cycle redistricting. doing makes 2025 maps. This goes directly to a three-judge panel that basically sits as a trial court. That three-judge panel, two to one, said, no, no, these maps were racially gerrymandered. You have to use the 2021 maps. That goes directly to the Supreme Court. This is technically not

an interim, well, it's interim docket in terms of what the maps are going to be, but the Supreme Court must take this case also, so it doesn't go through the normal cert process either. We were expecting a decision on that, David, like Thanksgiving-ish. And instead, we got an administrative stay from Justice Alito. The administrative stay basically would have undone, did, undo the three-judge panel's decision, putting back into effect the 2025 maps. But then we're all sitting around because the filing deadline was that first week in December. So, as each day went by, you had a good idea that they must be keeping the 2025 maps in place. Otherwise, we were literally running out of time to have any sort of map or other decision

go into effect. And lo and behold, that's exactly what happened. It was a 6-3 decision, or, depending on how you want to look at this, a 3-3 decision. We had a dissent from Kagan, Jackson, and Sotomayor. We had a concurrence by Thomas Alito and Gorsuch. And then we had the three not writing anything separately at all. all, David, I will say that, on the one hand, the outcome didn't surprise, right? We said that we thought it was incredibly likely that these 2025 maps would be in place for the

2026 midterms for all the reasons we talked about in that episode. But here's what did surprise me. I thought that they would decide only for the 26 midterms. They would decide it on Purcell grounds, meaning that it was simply too close to the election for the federal courts to be able to change up the maps. that's not really what this read like. It does start with, with an eye on the upcoming 2026 midterm elections, comma, several states have in recent months redrawn their congressional districts in ways that are predicted to favor the state's dominant political party.

Texas adopted the first new map. Then California responded with its own map for the stated purpose of counteracting what Texas had done. North Carolina followed suit and other states are also considering new. maps, Koffoff, Indiana, which is looking like it may run into some roadblocks, but here yet to see. Based on our preliminary evaluation of this case, Texas satisfies the traditional criteria for interim relief. Texas is likely to succeed on the merits of its claim that the district court committed at least two serious errors. Now remember, when it says the district court, it's talking about that three-judge panel and the two judges that were in the majority that got

the, you know, what for from the dissent? First, the district court failed to honor the presumption of legislative good faith by construing ambiguous, direct, and circumstantial evidence against the legislature. Second, the district court failed to draw a dispositive or near-dispositive adverse inference against respondents, even though they did not produce a viable alternative map that met the state's avowedly partisan goals. David, these are very substantive reasons to keep the 2025 maps. They are not just like, we ran out of time reasons. They're not Purcell. The alternative, the viable alternative map is one of like the hardcore parts of redistricting law, basically. And they did that on an incredibly short timeline. That's, by the way,

basically the end of the opinion. And then you get the concurrence written by Justice Alito, but only with those three justices that seems to simply repeat most of that. And I am a little bit confused. Why the other three justices didn't join that, where they are on this? Maybe they were more of a Purcell vote. This is one of those interim docket decisions like so many. I've got a lot of questions left. Yeah, I have a lot of questions left as well. You know, I think point one to me was the most interesting, which is first, the district court failed to honor the presumption of legislative good faith by construing ambiguous, direct, and circumstantial evidence against the legislature. This, to me, is pretty clearly talking about the infamous DOJ letter, that the DOJ letter wasn't

enough. It was just not enough to overcome this incredibly strong pro-legislative bias and this incredibly strong inference that, well, the absolute conclusion that partisan jury is not what the Supreme Court's going to get involved in. And this is what we talked about at infinitum is that's why it's so hard to lose a partisan gerrymander case. It's really hard to do it. And the DOJ tried to pull it off. But judging from this SCOT's decision, that DOJ letter, which seemed to direct Texas to do a racial gerrymander, wasn't enough that the Texas legislature's action is what is at issue here, not the DOJ, Jay's action, the Texas legislature is entitled to that presumption of good faith. I thought that was the most interesting element of it.

But I'm with you, Sarah. This seemed like a much more substantive short opinion than I expected to get. With Purcell, Purcell's mentioned at the end, but was clearly not the dominant factor here. Adam, thoughts on Texas? I have a lot of thoughts on Texas, but that's more than I can handle this podcast. I do, too, Adam. I need to do. The eyes of Texas are upon you.

I mean, man, it's been a real Texas, like, a couple weeks from me. I called A&M a cult, but in like a good way. Like, it was a compliment cult. And, of course, we are at University of Texas family here. I picked up on that. I'll just say what struck me about the concurrence on the Abbott order is it reminds me a lot of some of the recent opinions we've seen in Kasa. and I think it was in the National Institutes of Health in our mortar opinion

with the number of the justices expressing their frustrations with the district courts. This, like you said, the Justice Alito's concurrence in the Texas case really does just sort of echo those earlier standards from, what was the case, Alexander, on how the district court should review these. This reminded me a lot of parents just sort of saying,

as I said before, and then repeating it, like in a slightly sterner register, this short couple of, the short couple of pages from Justice Alito with Gorsuch and Thomas, who also expressed their frustrations with the lower courts, seems to be the latest volley in that. I mean, that's the subtext, not the text, but it strikes me as pretty clear subtext. This is, this really is one of the timeless fights we're seeing in the judiciary now. It is between the Supreme Court and the district courts. I would not expect to see it coming out of Texas, right? You'd think this would be a Massachusetts case or a state of Washington case.

Or you have district judges who the Supreme Court majority believes are simply micromanaging the political branches of government in ways that are really causing a few of the justices to grind their teeth. There is this line from Justice Kagan that I think will go down and get re-quoted quite a few times from the dissent. We are a higher court than the district court. court, but we are not a better one when it comes to making such a fact-based decision. Really on that question one, David, on the presumption of regularity, the dissent really arguing that the effect that that letter from the Department of Justice had and whether that letter was the animating cause of the redistricting, which would have made it an unlawful racial gerrymander, was a fact-finding question. That was a question of fact for this district court.

They found that it was. And here you have the Supreme Court saying, we actually don't think that it was, that's a question of law or at least a clear error by the district court. They don't quite get into the weeds of how exactly they're deciding otherwise. I guess the presumption is a question of law, but the, yeah, David. Oh, oh, you're muted. Or you're gone. There we go. You're about it. I felt like the, is it right to say the ghost, the spirit of Calais, not the ghost, because the Calais is not gone. It's still hovering out there waiting for an opinion. The spirit of Calais hovering around this, which is, look, if the core element at the district court's opinion was essentially of the three judge panel's opinion, sorry, was that, like, this is really a racial gerrymander.

We have the smoking gun. We have the proof. And hovering in the background of Calais is this, how do you discern between partisan gerrymanders and racial gerrymanders? And they just kind of sweep that aside in this very short opinion, you know, it feels like we're getting to a world where when the racial gerrymander and the partisan gerrymander become difficult to pick apart, they're just going to go that it's partisan. And I feel like that that's where this seems to be heading. But again, I say that with all due humility because of the last two to three years, the most surprising outcome that I have seen is Alan B. Milligan. That is the most surprised. that's the most surprised I've been by Supreme Court outcome, other than parts of Trump

the United States, I would say that that's the most surprising. So I say this with the spirit a calais with, I could be totally wrong about this. I still don't know how that's going to come out. And I just want to say, Sarah, a very, very smart AEI column I pointed out a couple months ago. Justice Jackson loves, loves to point out how big the record was or how many pages of factual findings, the district judge made. And now you're seeing this in Justice Kagan's opinion here. This is becoming a very familiar sort of move in these cases or these shadow docket, sorry, interim docket, trademark.

Equity docket. Equity docket. Energetic docket. Whatever we're calling it. One judge called it the bling docket as opposed to the boring docket. And I did like that. Yeah, but this is becoming sort of a regular feature of the, of the liberal justices dissents to point back to how hard the job of the district judge is

and how these factual decisions are uniquely the province of district judges because they're so fact sensitive, so circumstantial and trying to ring fence these district court judges. Again, to my earlier point, we're going to see this constant push and pull of what's a factual question, what's a legal question, and who sets the rules and who really decides where the rules are being followed about the legal questions about the factual questions. All right. That'll do it for us on advisory opinions. On the next episode, though, we've got some really fun things to talk about that are maybe more advisory opinions, weedy stuff that we're into.

Two other cases will have been argued since the last time we got to talk about, you know, the not big ones. One, Olivier versus City of Brandon. Okay, so you've been arrested and convicted for a crime. but you want to go commit the crime again. Can you challenge the constitutionality of it if you've already been convicted? It was really interesting. Okay, and then number two,

we have that NRC versus FEC case about whether parties can be limited in their contributions to their own candidates and what the corruption interest is there. All this and more on the next advisory opinions. Thank you, Adam. Thank you, David. Hey, everyone, Steve Hayes with some big news from the dispatch.

I want to tell you about dispatch hoontoes. Dispatch what? Honto, though some people pronounce it, Junto, is the name Ben Franklin gave to the small gatherings he organized in Philadelphia taverns, starting in the 1720s. Franklin's Huntoes, Spanish for Assembly or Council, consisted of 12 members, each of whom was required to pledge that he, quote, loved truth for the truth's sake, unquote, and that he was dedicated to personal growth for himself and improving his community. These discussions at those junto meetings would contribute to the ideas that built our great country. We launched dispatch Huntoes without quite the same ambition, but with a deep conviction about the need for a place where people can get together for civil and sane conversations. conversations about the issues of the day. Without the kind of nastiness and posturing that's so

prevalent on social media and elsewhere in our polarized politics. The dispatch has hosted events across the country and I've attended many of them. I've been blown away by the turnout and the enthusiasm. I've enjoyed having a beer or two with our members at each of these gatherings, and I think the real value for them has been the opportunity to meet one another. I remember Nashville lingering at the bar at a great wing joint called party foul with dispatch members after our hour-long program ended. Our group talked for another hour at least, and they were so happy to have met one another,

nobody even noticed when I slipped out. I can't tell you how many times I heard something like, it's so great to be reminded that there are other sane, normal people out here. We're looking for dedicated dispatch members to organize regular meetups in their communities at a local happy hour, restaurant, or coffee shop. We'll help promote and convene the group, but you'll run your hoonto your way.

And if your gatherings grow large in our, if we'll prioritize your town or city as we plan our next regional event or live podcast taping. So if you're a member of the dispatch and you're interested in leading a local hoonto, head to the dispatch.com slash hoonto. That's j-un-t-o. The dispatch.com slash hoonto. And if you're not yet a dispatch member, this is a great reason to join at the dispatch.com slash join. We can't wait to build this with you. Hi there. I'm Ross Anderson, editor of the morning Dispatch, and I'm back interrupting your favorite podcast again with some more news. We were blown away by the positive feedback from everyone who tried the Morning Dispatch

for free last month, so I pulled even more strings to work out a special deal. For the rest of December, you can get a month of Dispatch membership for just one dollar. Yes, a dollar. That means you get the full TMD delivered straight to your inbox every morning and unlock access to everything else we have at the dispatch. That means for just one dollar, you get unlimited access. access to our newsletters, podcasts, and stories, plus the ability to listen to audio versions of our articles. You can also join our comment section, where you'll find me most mornings,

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