Advisory Opinions - State Power vs. Parental Rights

Episode Date: July 8, 2025

Could a parental consent law finally be headed to the Supreme Court? Justices Samuel Alito and Clarence Thomas recently declined to take up a case—but their silence may be saying more than a firm ��no.” —Camp Mystic tragedy in Texas—Denial of cert on a case involving minors and abortion—We can't send people to get tortured, even if they're criminals—First Amendment rights and government speech—LA COVID evictions—Not the most sympathetic pro-life protester This episode is brought to you by Burford Capital, the leading global finance firm focused on law.Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control.Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries.Learn more at burfordcapital.com/ao. Learn more about your ad choices. Visit megaphone.fm/adchoices

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur. That's David French. We've got another emergency docket decision from the Supreme Court on those third party country removals. But what was that vote count again?

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Service fees exclusions and terms apply. Instacart. Groceries that over-deliver. service fees, exclusions and terms apply. Instacart, groceries that over-deliver. All right, David, before we dive in today, I wanted to talk briefly about the tragedy that unfolded at Camp Mystic over the 4th of July weekend. This is a camp that's very near and dear to my heart and most Texans at this point. The last time we did something like this was Uvalde, which was also in Texas, also in my backyard in a lot of respects. Camp Mystic is a hundred-year-old camp in Texas for young girls. Draws heavily from the neighborhood I'm from.

I absolutely have friends of friends who are missing or lost girls. One of the camp counselors went to my high school. This is my neighborhood that goes to Camp Mystic. Incredibly hard to hear all of this. I don't know if you saw the video of the girls being evacuated the next morning on a bus over the Guadalupe as it was still flooding. You see some of the National Guard trucks trying to make sure that they're going to get across and the girls are singing hymns and it's just so beautiful. Yeah, yeah.

It was amazing. It was absolutely amazing. And Sarah, we were talking about this before we started. And when I saw that news, I'm thinking about it because we've got a youngest daughter who's a camper who's been at, not at that camp, but been a camper for years and years and years. And your mind automatically goes into that mode of what would I do and how would it, that your mind goes there and then it just shuts down because it's just too hard to really even contemplate

what that community is going through, what the parents are going through. And I will tell you this, yes, there were horrible voices online who were saying horrible things. But by and large, their response to this, and particularly some of the stories of just unbelievable heroism that we're hearing about efforts to save people, have really reminded us that we can actually come together again, that we can actually care.

But this is just, it's gutting beyond gutting. Dick Eastland, who was the co-owner and director of the camp, was found alongside several girls that he was trying to save from that youngest girls camp that was the closest to the water. You know, that's not the only camp in the area, David. There are a lot of camps right there because it's beautiful. The Guadalupe is this incredible river if anyone's ever floated on it.

But I think I wanted to say something larger about camp culture in Texas, which is incredible. Everyone goes away to these camps. I didn't go to Camp Mystic, I went to Camp Olympia, Camp Longhorn, Camp Ozark, Camp of Champions. There are so many of these and I'm not sure that, as I talk to my friends in the rest of the country, they don't get this experience. And there's moments like this where you want to grab your kids

and hold them tighter. So to all my Texans out there, I think the right thing to do is the opposite. I think our camp culture is what makes us Texans. We teach our kids independence and a love of nature and outdoors basically as soon as we can let them go. And if you love being a Texan, if you're proud of our culture, I think this is a real key part of it. And I think the test for us is what comes next. Are we willing to for us is what comes next. Are we willing to maintain that culture and do that? Because I think it's great and I think camp culture is awesome. You learn so, so much and this is awful.

There's nothing good to say about that, but I hope we can sort of rally together. It reminds me a lot of the bonfire collapse at A&M. And there was something so beautifully Texan about the response to it. I hope maybe this can have that as well. I think that's very well stated, Sarah. I know how much camp has meant to my youngest daughter and how important it's been in her development and friendships and independence and resilience and all of the things that you just said. And so I think that that is, um, that's, I feel like that's a really good word. And, you know, there will be time to figure out what happened and what went wrong.

Uh, but I'm telling you just some of the stories I'm hearing of courage. There was a boys camp not far away and hearing some of the things that those, you know, those teenage counselors did to save those kids, it's just, it's breathtaking. All right David, let's go to law. This is our comfort zone. First up, we have this decision from the Supreme Court on the short order docket, emergency docket, preliminary relief docket, equity docket.

This is the DVD decision. If you're like, wait, we already did that. Yes, it's back. A July 3rd order from the court. This is kind of a weird one. So this is that third party removal issue where someone is removable from the country but they can't go back to their home country.

And so the United States finds a third party country that is willing to accept them. And remember in this case actually, it was six men convicted of various crimes, murder, sexual assault of a child for a long period of time. Their home country was like, no, thank you. South Sudan, presumably in exchange for something, was like, yeah, sure, whatever, drop them off. On the flight over, a district court held that you had to give them notice of the country they were being removed to with enough time for them to bring claims under the Convention

Against Torture Act, arguing that if you sent them to South Sudan in this case, they would be tortured and therefore the United States has a statutory requirement not to knowingly send people to be tortured. Basically, like we can't torture them and we also can't let someone else torture them. So if you know what's going to happen, no. We call that a cat finding. Okay, so the Supreme Court removes that injunction on the third party removal. These guys had been, when the plane was in the air, they diverted the plane to Djibouti and they were being held there.

The administration went to the Supreme Court and asked them to remove the injunction to allow them to go to South Sudan. The Supreme Court said, sure. So that was the April 18th preliminary injunction that the Supreme Court on June 23rd stayed. But on May 21st, so in between those two, so April 18th is the injunction, on May 21st the court found that the administration had violated its order and issued a civil contempt

finding laying out all the processes they were now going to have to go through to ensure that they were complying with that April 18th order. So when the Supreme Court then stays the April 18th injunction, the district court said, okay, I get it, but my May 21st civil contempt finding is still in place and you still have to abide by all of this process, which of course is the process to enforce the injunction from April 18th that the Supreme Court had just said was unlawful. So the Supreme Court back at it on July 3rd saying, no, no, you can't enforce the injunction

that we said was unlawful through this civil contempt back door. David, while the majority did not write in the initial June 23rd DVD finding and we had that dissent, here we do have the majority writing explaining how all these dates work, how all these injunctions interact, and we have a dissent as well. It's a pretty spicy dissent. Justice Sotomayor, with whom Justice Jackson joins. Now, a couple things, David, that are interesting. One, if it had been a criminal contempt order, you can enforce that even when the underlying order itself is overturned on appeal. But it is an outstanding question of a civil contempt order. And I don't know, that's kind of a coin flip to me. There is a difference in civil contempt and criminal

contempt for sure. And civil contempt is just to make you comply with the order, whereas criminal contempt is to punish you for not complying with the order. So criminal contempt is retrospective, civil contempt is prospective is a way to think about it. So it's a little bit weird to say if the underlying order was unlawful, then a civil contempt order that is forcing you to comply with the unlawful order would still stand. But at the same time,

you shouldn't get to violate court orders willy nilly, just hoping, rolling the dice, that the order itself is unlawful. I don't think we want to incentivize that either. The second interesting thing, David, is Justice Kagan joining with the majority, writing a separate concurrence explaining why, but this was a 7-2 decision. Justice Kagan saying, look, I dissented on that initial DVD decision to stay the initial injunction. I would have kept it in place, Convention Against Torture, notice, all of that. But it is now the Supreme Court's decision that that injunction was unlawful and therefore,

obviously, she would say, the civil contempt order also falls. And it's basically this respect for precedent, respect for sort of the fundamental operation of the courts. And it gets to this huge difference that we're seeing between how Justice Kagan thinks of the role of the dissenters and how Sotomayor and Jackson think of the role of the dissenters. So with that, David, thoughts and feelings?

Yeah, I would say again, because we're going back to a previous decision by the court where we did not have a majority opinion, we are still in this world where we're kind of mysterious about what the majority's reasoning was, but we're pretty clear about where the dissent is on it. And as a general matter, I would say based on what I've read, which is the majority being largely silent and the dissent to being quite vocal, I would put myself in the Kagan camp here. That I was persuaded by the arguments of the dissent without having read a majority on the core underlying issue.

But I agree that once you, if the decision, the underlying decision upon which the civil contempt order has been implemented or issued wasn't valid, I'm with you, Sarah. We don't want willy-nilly disobeying of court orders, but we also don't want unlawful court orders. So I think the way you square that circle is the Justice Kagan way here. So I think the way you square that circle is the Justice Kagan way here. But I really want at some point to see the majority's reasoning on the underlying substantive issue. Here's Justice Kagan. A majority of this court saw things differently on that underlying DVD order. And I do not see how a district court can compel compliance with an order that this court has stayed. Because continued enforcement

of the district court's May 21st order would do just that, I vote to grant the government's motion for clarification." Yeah, David, look, I think this gets to a... If we set aside the facts for a moment, and that's hard to do for what will be obvious reasons. But it's not hard to imagine sort of hashtag resistance district courts from anywhere on that ideological spectrum, by the way, during the Biden administration, during the Trump administration and everything in between, issuing unlawful orders. And I think where you see Chief Justice Roberts and perhaps at least some of the justices of the majority feeling right now, they feel as much like they need to rein in the executive

vis-a-vis Congress as they need to rein in the judiciary because these are their own people who might be going too far outside the bounds of their properly understood judicial role. Here's my evidence for that, David. You have this emergency docket explosion and you have Justice Kavanaugh's concurrence. It's like, we're open for business. The Denny's, the hash browns are delicious. But you also have the circuit court that was overturned the most on the merits docket, the fifth circuit, the most conservative circuit

in the country right now. And so I do think that they want to get their own house in order, especially, and there's this line in the dissent, and the dissent by Justice Sotomayor joined by Justice Jackson basically walks through why they disagreed with DVD in The Descent, and The Descent by Justice Sotomayor joined by Justice Jackson basically walks through why they disagreed with DVD in the first place, like why they believe that these third party country removals should be stayed or at least given proper

notice before removals, but it ends with this. In a democracy, power implies responsibility. The greater the power that defies law, the less tolerant can this court be of defiance. As the nation's ultimate judicial tribunal, this court, beyond any other organ of society, is the trustee of law and charged with the duty of securing obedience to it." That's quoting Justice Frankfurter in a case. This court continues to invert those principles. Today's order clarifies only one thing.

Other litigants must follow the rules, but the administration has the Supreme Court on speed dial. Respectfully, I dissent." First of all, there's been a lot made of when they say respectfully and when they don't. I'm not that interested in that because obviously she's still writing respectfully in July, so it's okay. But David, the idea like other litigants must follow the rules but the administration has the Supreme Court on speed dial. A, it's a great line. It captures a lot. We don't have speed dial anymore, so it's a bit anachronistic. Do you have a landline, David? Oh, goodness, no. I haven't had a landline in more than

20 years, Sarah. Okay, well, that's weird actually. Yeah, 04. 04 got rid of our landline. What? That feels like borderline unsafe to not have a landline in 2004. Cell phones were not that reliable, but okay. That's five years before the iPhone. But David, I think there's this pushback to it, which is yes, but a branch of government is different. When you have an administration that's been elected by the country that's only in office for four years, yes, their lawful policy decisions should get a certain amount of deference. Two, it actually is irreparable harm to not have those policy preferences implemented in a timely manner. I actually am really coming around to the Justice Kavanaugh 24-7-365 Denny's view of

this because I think it is different, even though I don't like a lot of the administration's policies. I didn't like a lot of the Biden administration's policies. God help me, I can't imagine a world in which I'm going to like any president's policies in the near future. But nevertheless, that is a branch of government, elected by the people, lawful orders should get deference and it is irreparable harm when those orders are not

put in place in a timely manner by courts. Like you, I thought that was a good line, but also the administration is just in a different position than almost any other litigant. I mean, the sheer power of an administration, so it's not just speed dial positively for the administration. It has also been speed dialed negatively for the administration so far. There have been some very adverse rulings to the administration around the Alien Enemies Act where things went up very, very quickly. And I'm totally with Kavanaugh. In hindsight, when I think back to my practice before the

emergency docket, I'm sorry, equity docket, created, it was really vibrant. There was a situation where if you were practicing law and you were seeking injunctive relief, really it's a practical matter. You had your immediate appeal to the Court of Appeals. And then it was just, almost no matter what kind of case you were on, the Court of Appeals was functionally the final say. And the Supreme Court was going to weigh in on these issues, but you just didn't have the same kind of speed and play. And in hindsight, I can't kind of speed and play. And in hindsight, I can't really justify that, that the Supreme Court should be stepping up

and holistically performing the role of the court of last resort. Not the court of rare resort, it's the court of last resort, those are different things. And last will often mean rare, but not always. So yeah, I'm much more in the Kavanaugh-Denny's model. And we'll take a quick break to hear from our sponsors over at FIRE. Free speech on campus is under attack and professors are too often among the first to draw administrators or their institutions' attention. FIRE, the Foundation

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Expressvpn.com slash advisory. David, some law to do. I think we should start with the cert denials that we got from the court as they were headed out of town. In past summers, the Supreme Court justices famously go and teach often American law school courses, but in Portugal and Italy and Ireland. You'll note cooler places, both cooler like, isn't that rad, but also temperature-wise a bit cooler. You wonder whether perhaps some of them are staying a little closer to home this summer

as we expect a pretty heated docket applications and stays and injunctions coming their way. Applications and stays and injunctions, oh my. But they did have that like cleanup conference. So the first case I thought would be interesting to talk about was this Montana versus Planned Parenthood of Montana. It was denied. This was a parental consent law about performing abortion on a minor. Justice Alito, joined by Justice Thomas, joined but issued a statement on the denial of cert, basically saying, this is a poor vehicle because some

of the state law claims versus federal law claims got all mushy up. But we would sure love a state parental consent law to come this way, so send them over. David, I thought this case was interesting because, as our friend Andy McCarthy also noted over at National Review, this implicates a lot of interesting case law at the Supreme Court. So the most famous case is of course Troxell v. Granville. This was a case out of Washington state and basically the father dies and his parents want visitation to the children and the surviving parent, the mother,

wants to limit that visitation. Washington state had a law that allowed the grandparents to sue for visitation and it was a weird case. This was decided in 2000. It was a plurality opinion. O'Connor, Rehnquist, Ginsburg, Breyer, that's four in the plurality, Souter and Thomas separately concurred in the judgment. Then Stephen, Scalia, and Kennedy each wrote separate dissents. It was a mess of an opinion, David. We talk about the fracturing court now and all these opinions we get. This was really unusual at the time to have one, two, three, four, five, six opinions

and no majority opinion coming out of this. But short version, in the plurality, there is a substantive due process right to raise your children and a fundamental liberty interest in raising your children as you see fit. This Washington law violates that, so sorry grandparents, the surviving parent has that interest. It relied on this previous case, Pierce versus Society of Sisters. That was 1925. In that case, Oregon,

right next to Washington, you will note, used to have a compulsory education act that's going to look a lot like what we have today. Basically like, yeah, your kid needs to go to school, but they can go to home school, they can go to private school. Obviously, if they have a mental disability that prevents them from going to school, okay. Then they amended it and eliminated the exception for private schools. The purpose behind this, David, was they thought the immigrants and Catholics weren't inculcating their children properly in these private schools. If we can force them all to go to state-run schools, we can acclimate them would be the positive term, brainwash them, whatever term you want to use. That went to the Supreme Court and it was unanimous striking down that law saying that

there was a liberty interest in raising your children. So why is that interesting for parental consent laws for abortion? Well, first of all, notice how I said substantive due process. That's a problem right off the bat for the conservatives because they're not going to want to say that the 14th Amendment has a, like the due process clause has a substantive element. This was a fight for the first 20 years of the conservative legal movement.

It was the basis of a lot of what they didn't like about judicial activism, that like you can just find these fundamental rights and then you have a substantive due process to these fundamental rights as we've made them up. So one, substantive due process problem. Two, an unenumerated rights problem. The conservatives don't want to find new unenumerated rights

because then you can find even more unenumerated rights. And there's not really a good limiting principle for how we define unenumerated rights, how we find unenumerated rights. Two, okay, number three, how we find unenumerated rights, two. Okay, number three. Are we about to see the return of the privileges and immunities clause, David? Because that's where Justice Thomas certainly wants to go. You know, he would sort of, I think, do a text history and tradition to go find some of those

unenumerated rights. They would be very narrowly defined and then say that those were one of the privileges and immunities of citizenship and therefore untouchable. The right to control the upbringing of your children is a right that belongs to the parents and that children have a much more limited, much more limited if you're Justice Thomas, liberty interest in everything to do with themselves. We've certainly seen that in the free speech context, for instance, that basically if it comes between the parents versus the kid, the parents win under the law, barring some unique circumstance. So David, right off the bat, Montana versus Planned Parenthood of Montana, this is setting up a big fight to come and a really interesting one within the conservative legal movement. Yeah, Sarah, I'm so glad you laid it out that way because I would put it like this.

I would say that the conservative legal movement has always understood that parents have rights, that this is, if there are any unenumerated rights, if unenumerated rights exist, which they clearly do because the Constitution says they do, it's got to include parental rights to some degree. But then the question is, what's the vehicle for this? How are we creating? I would say creating is the wrong word because the whole concept of unenumerated rights is the idea that the right already exists. It just has not been articulated yet.

And so, yeah, I would say there's broad, broad consensus that there are and there is an unenumerated right to direct the upbringing of your child. But what's really interesting to me, Sarah, is how, if you look at the scope and the sweep of American Supreme Court case law, how little there is on parental rights compared to multiple other areas of extreme interest. And I think that this is a product of a couple of things. One is that in actuality, the interests of parents are so strong that the democratic process has been by and large pretty capable of protecting

parents' rights. It's very hard to have a democratically enacted code of laws or set of statutes that steamroll parents. That is very hard to sustain democratically. So I think that the democratic process means that a lot of these parents' rights disputes never even really make it to court. That parents get what they need out of the democratic process. But there are areas where it breaks down

and those areas where it breaks down almost always tend to circle around these big culture war issues. And particularly around sex and sexuality. And what I have seen happen in that context around abortion, around pronouns, around many other things is there is the law encroaches on parents' rights by in essence creating like a presumption of abuse that in this area of sex and sexuality, we're going to kind of presume that if you require parental consent, if you require parental

notification, et cetera, you're going to be enabling abuse. But that's not the way that rights tend to work. You don't tend to lose your rights on an anticipatory basis based on the idea that in the aggregate, some people in the position you're in may engage in abuse. That's not how you lose rights. You tend to lose rights only by an individualized assessment that you, you have violated or have harmed your child.

You have done something to your child and then your rights are precarious. However, an anticipatory revocation of constitutional rights based on the anticipation that some undefined percentage of people will respond badly to this information, to me, I'm not sure how that's constitutionally sustainable. David, do you see any tension in the parental rights jurisprudence of the court? Just this term, let's take. For instance, you have a strong parental rights when it comes to opting out of school curriculum books, for instance, that violate one's religious tenets and the liberty interest of bringing

up your children, although it was found to be a First Amendment interest, there was certainly a parental rights overlay, let's say, to that as well. On the other hand, you have scrimmety, where the rights of the parents could not overcome the interests of the state in banning certain medical treatments or procedures for gender dysphoria as diagnosed. No tension there? Well, there's some tension there, but they didn't even really deal with the parental rights argument in Skirmetty. So that was sort of just left on the table, which was interesting to me, because as we've talked about many times on this podcast,

I think the strongest argument against the bans on gender affirming care is the parental rights argument. That's the strongest argument. However, we do have a long history in this country of saying, well, we are going to defer to state determinations regarding the blanket propriety of permanent interventions with children or medical interventions with children such as no tattoos in Tennessee under 18. Even with parental permission, because certainly in Texas, parents can give you alcohol. Parents can give their permission for you to sign up for the military, at least back in the day. Parents can give their permission for you to marry under the otherwise what would be the age of consent.

So there is like this parental opt out for a lot of other things that would normally have the state would have an interest in barring children or minors from engaging in. It's like, unless your parents say it's okay. No, I know there are different approaches from different states. I do think that when you're talking about medical care and you're say talking about is a drug effective treatment, is a, you know, is a drug an effective treatment

for a condition, we have long deferred to state authorities for determining who can take which drugs and for which maladies. For a lot of very, very, very good reasons, among them, like you and I, for example, are not very well qualified to assess the effectiveness of drug treatments, to assess the likelihood of side effects, to assess the likelihood of side effects,

to us that there's an awful lot that's just beyond us. And so I don't think there's ever been really a doctrine that says I as a parent get to choose any kind of treatment I want to choose for my kids' medical condition. We have long deferred to state regulators on that point. Now, should we have deferred as much as we have? I mean, yeah, that's certainly an open question, but in approving medications for specific use is a traditional state function, not one that's unbounded, but it is a traditional

state function. By the way, can Ied, but it is a traditional state function. By the way, can I just do a footnote on grandparents' rights? This is an area of interest to me, not my own, by the way. All our grandparents are doing fine. But in 2025, there was a case in Virginia that struck down Virginia's grandparent law or interested party law. This is 2025, David. Troxel was decided in 2000. This was still going on in Virginia. In this case, one of the parents died, same as Troxel. The widow continued to allow his parents to visit the kids, but then started noticing they were saying inappropriate things in front of the kids, but then started noticing like they were saying inappropriate things in front of the kids

about how she was a bad parent. They were criticizing her parenting. Like all of the things that you can imagine would go really wrong with parents who are in huge amounts of grief over the loss of their son. So she starts cutting back on their visitation. I think at some point cuts it off entirely. So they sue her,

arguing that under Virginia law, they step into the shoes of the deceased parent. If they can show that he would have consented, slash did consent when he was alive to their visitation, then they're good to go. It's kind of a crazy law because the whole problem is, let's say he died 10 years ago. Well, yeah, 10 years ago, everything was good. She was allowing you to visit the kids too. In the intervening 10 years, some stuff has happened. You guys have been toxic to her kids.

You're undermining her parenting. You get to use his consent from 10 years ago where he doesn't know what's happened in these 10 years and she has to kind of show that like he would be on my side. He was my husband. Anyway, the Virginia Court of Appeals just a few months ago invalidated that law as unconstitutional. You have to show that the lack of grandparent visitation would cause actual harm to the children. It's not even a best interest of the child standard, but an actual harm standard, so even higher than that.

Troxel is alive and well and still being applied. Parental rights, still a very fuzzy area in a lot of states, and especially, of course, where you have the worst thing that can happen to a family, right? A parent dies and the grandparents are in grief and maybe not acting their best. Here's how I would, you know, I realize as we've been walking through this it probably sounds pretty confusing, but here's how I describe roughly the state of the law, particular when it's surrounding medical treatments and things like this. I do not have a That's how I describe roughly the state of the law, particularly when it's surrounding medical treatments and things like this.

I do not have a parental right to demand access to any particular form of treatment. For example, whether it's gender affirming care or say a child has been diagnosed with the disease, my parental rights do not extend to drug treatment determinations to drugs that are not already legal. But once a treatment regimen is legal, my parental rights should include the determination and decision among legal treatments. So for example, if you are in the state of Texas and Texas say, bans gender, well, Tennessee, Tennessee bans gender affirming care,

that is a determination that the state can make. However, if I go to say, if I'm living in Tennessee and I go to Ohio with my child and receive gender affirming care, which is legal in Ohio, so I've received a legal treatment, I really doubt under the current case law and under the current understandings of parental rights that Tennessee could then take your kid away from you because you went and received a legal treatment in another state. And so that's how I would kind of talk about this, that you have what is legal on a drug determination is generally state in the state sphere. Deciding

between legal treatments is generally within the parental sphere, if that makes sense, and with edge cases that will complicate that, but it's a general matter. When we get back, we'll talk about all of those social media posts you made before you accepted that job. Imagine a delicious ring of dough with a sweet mouthwatering spread on top. Sounds like a donut, right? Well, if you spread New Philadelphia blueberry or new Philadelphia pineapple on top of your bagel, your bagel almost becomes a donut. It becomes a bonnet. Turn your bagel into a bonnet with new Philadelphia blueberry and Philadelphia pineapple made with real fruit. The white chocolate

macadamia cream cold burp from Starbucks is made just the way you like it. Handcrafted cold foam topped with toasted cookie crumble. It's a sweet summer twist on iced coffee. Your Cold Brew is ready at Starbucks. All right, David, next up we have another cert denial, McCray versus Matthew Matos. Here we have a statement, again, from Justice Thomas, respecting the denial of certiorari, meaning he agreed that this should get denied cert but is, you know, flagging it.

I'll tell you why in a sec. Here are the facts. The Hanover Public Schools fired Carrie McRae for her pre-employment political expression on the social media platform TikTok. Through her personal account, Mc McCray had liked, shared, posted or reposted six memes, images or other items that are spread widely online. Love the definition of memes, Justice Thomas,

thank you for that. Expressing her views that immigration laws should be enforced, that an individual's sex is immutable and that society should be racially colorblind. Again, she was fired. She had posted these before she got the job. They went back and found these. It was not during her employment.

She gets fired, then she sues for retaliating against her for exercising her First Amendment rights. All right, David, I'll just read you a couple of these because as you can imagine, they're memes. They're not like the most thoughtful, nuanced, however you want to say it. For instance, it's a picture of a muscular man in a sports bra and it says, hi, my name is Megan. I'm here for the girls track meet.

Equality doesn't always mean equity. There's another one that shows like a young man on like a college campus and a hoodie and a backpack, smiling, you know, crunchy leaves, brick, all of that. It says retirement plan. One move to Mexico, two give up citizenship, three come back illegally,, set for life. Picture of a panda.

Dude, racism is stupid. I am black, white, and Asian, but everyone loves me. You get the gist, right? These are not particularly thoughtful memes, not particularly funny ones either. But the question, as Justice Thomas wants to talk about it, is this Garcetti versus Sibalos framework, David, that we've talked about before. It's balancing the First Amendment rights of a public employee against the sort of rights

of the government not to be associated with that speech. That case was about a prosecutor and it was sort of like, look, if you're giving the press conference as the prosecutor talking about the case, no, you're not going to be First Amendment protected in that. But if you're at home talking about how the patriots suck, that has nothing to do with you being a prosecutor. So that's probably protected. That's a 2006 case and boy has it spawned a lot of confusion since then. Here, Justice Thomas says that the appellate court discounted the value of McRae's speech interest because her posts, which are produced below, at times spoke in what the court described as a mocking derogatory and disparaging manner. In contrast, the First Circuit explained that

respondents who fired McRae out of concern about the potential negative impacts her social media posts would have on staff and students had a strong interest in avoiding disruption and that they made a reasonable prediction of disruption. So like there's your balancing test, right? Her speech wasn't particularly interesting to us and didn't seem to have a lot of value because it was dumb. Their interest was strong because they could imagine the potential for a negative impact and disruption on staff and students. Justice Thomas again, the First Circuit's analysis strikes me as deeply fraud.

To start, I do not see how the tone of McRae's posts can bear on the weight of her First Amendment interest. Speech on matters of public concern is at the heart of the First Amendment. And the inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. Talks about humor and satire and the importance of that. The First Circuit analysis of respondents' countervailing interest in avoiding disruption is similarly questionable. Although this court has consistently given substantial weight to government employers' reasonable prediction of disruption, the key word here is reasonable. The First Circuit accordingly should have discarded factors whose disruptive potential was purely speculative, such as the fact that some students and staff were aware of the posts or that students were

overheard discussing her social media activity. Even worse, the First Circuit compounded its reliance on speculative factors with consideration of illicit ones. We have made clear that the core First Amendment principle of viewpoint neutrality applies in Pickering. So for instance, in this case, it undermines our core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day. Here it was the core values of respecting human differences, which the First Circuit said this was in conflict with. So he's saying on the one hand, you have the employer have an institutional viewpoint

faced with a dissenting employee and portray that disagreement as evidence of the disruption in the balancing test. David, I found that pretty persuasive, but there's this other part that I find very interesting, which is McCray's petition focuses on the discrete question whether the Garcetti and Pickering framework balancing test applies at all in the context of a public employee's unrelated pre-employment speech. But he's not interested in that question. He wants to talk about the first circuit sort of application of the Pickering-Garcetti test.

So David, one, there's the substantive part of this. Balancing tests in general, right, give a lot of discretion to judges. And here you have one Supreme Court justice like laying out why that balancing test and the potential disruption analysis was pretty messed up in my view. I take the point about the viewpoint of the school

being evidence of the disruption like sort of compounds the problem. But two, when you're trying to get review at the Supreme Court, trying to get them to grant cert, the world's like a very open place. Do you go for the broadest possible review or do you create this like really narrow circuit split issue? Generally, a good lawyer would tell you they picked a really good question presented for the court. The applicability of this balancing test at all to pre-employment unrelated speech.

But here you have Justice Thomas saying he didn't even dissent from the denial because meh, he's not that interested in that question. So it's like, man, seriously, we had the other question. It's not like they had waived it. They could have done that question instead, but you've got to divine what four justices on the Supreme Court are interested in on any given day. So like sort of bad luck here more than anything. Yeah. And you know, this, in reading Justice Thomas's statement, I was, I just had its deja

vu all over again feeling because this is in a different context. There are only two genders, cert denial, in the sense that what you're talking about is a legal standard that is going to limit free speech rights based on a judgment of disruption and anticipated disruption. So, would this speech cause a disruption? When you're talking in the school setting in particular, in Tinker, the way I read Tinker was the disruption analysis is related to the nature of the speech that you use in that particular setting, in the school setting. Is the speech itself disruptive? So, for example, a black armband is quiet. The black armband does not speak. The black armband, that was the form of speech at issue in Tinker, black armbands protesting the Vietnam War. Except I can make a great case of why that's disruptive, right? It's a message to these other students that you don't support them signing up or whatever.

They may come up and punch you, right? The captain of the football team who supports the war is going to punch the kids with the black armbands and they see that as potential disruption because it's the nerds wearing the armbands and the hippie kids and the jocks are going to be against it. That seems like what these schools are now using as the potential for disruption. Right, which I think is a perversion of Tinker, because what I think Tinker is looking at

is the nature of the speech disruptive versus the response to the speech. So for example, a black armband, because it's quiet, the nature of that, that's not disruptive. But a bullhorn in the middle of math class saying, you know, end the war now, that's disruptive because the speech itself disrupts the event. I think that's morphed into the disruption that we're going to guard against isn't just being allowed in the hall so that people can't study or using bullhorns or using means and mechanisms that block people from the educational experience. And now it's moving towards, well, is this going to hurt people's feelings so much that they're going to respond and lash out angrily in class or in the workplace. Whereas my preference is to say, look, you know, let's quote the Pico case.

One of the purposes of public education is to prepare students to live as adult citizens in a pluralistic, often contentious society. So one of the things that part of the purpose of education, and that includes for students and teachers in the Hanover schools Is to teach students that you're going to be exposed to lots of points of view that you disagree with and how you respond to that Is a big is a good measure of what kind of citizen you're going to be in this pluralistic republic And so you may find those memes dramatically offensive but unless this person comes into the workplace and engages in harassing conduct in the workplace, there is a requirement to set aside whatever feelings

you have about their political perspective. One of the ways in which we engage in viewpoint discrimination in this country is by subjectively deciding what form of provocative expression is super offensive and what is not. So I wonder if the school district would have the same view if somebody had prior TikTok posts that said, say, globalize the Intifada or from the river to the sea, Palestine shall be free. Is that going to be so disruptive that all that's left for that person to do is run for mayor of New York? Or is this the kind of thing that you have to learn to absorb as a citizen and a free

nation? I feel like we're really putting our finger in public employment and particularly in schools on the thumb that, on the scale that says we're going to protect people from viewpoints they don't like as opposed to putting the thumb on the scales that says we're going to teach people to absorb disagreement as part of living in a pluralistic society. And again, you just don't know which question presented you're supposed to go to the court with. Man. All right. You just don't know which question presented you're supposed to go to the court with.

Man. All right. Next up, David, this one can be a little bit shorter, but this was GHP Management Corporation versus City of Los Angeles. During the COVID-19 pandemic, the City of Los Angeles enacted an eviction moratorium that effectively precluded residential evictions. Among other restrictions is policy barred landlords from evicting tenants due to COVID related

non-payment of rent. 13 owners of Los Angeles apartment buildings and their shared management company sued the city arguing that the moratorium affected a per se physical taking in violation of the takings clause, prohibition on taking of private property for public use without just compensation. You had Justice Thomas again with Justice Gorsuch joining because of course, on something like this, dissenting from the denial of certiorari. So this is a real descent, David.

A, Justice Gorsuch joining is the least surprising thing in the world under your bully analysis, also under the libertarian Justice Gorsuch analysis, no matter which way you cut it, Justice Gorsuch is going to be all over this one. I got to tell you, David, I was sort of shocked that the city was arguing that it wasn't a taking. Like you told people they couldn't get money for their property and that they couldn't remove people for their property and that they couldn't remove people from their property.

Like that's the most physical taking I can think of aside from bulldozing the building. Yeah, I'm with you completely. I mean, this seems, if I do not have control over who is in my home, you begin to say, is it even, or who is on my property? Can you even begin to use the words my and property together in a sentence?

And look, I probably would not have voted for such a moratorium, at least as we were a year or so, several months into the pandemic. But there's also no question this would have been for public use, right? They're arguing that a lot of people can't pay, we don't want them on the streets because they lost their jobs.

Like it's sort of the quintessential physical taking They're arguing that a lot of people can't pay, we don't want them on the streets because they lost their jobs. It's sort of the quintessential physical taking for public use to me also. But yeah, you have to compensate people for that and trying to get out of that. What a hot mess. But the Ninth Circuit said it was not a taking and the Supreme Court denied cert. Yeah. I don't know what else to say about this, but I, like you, found that interesting and we're just sharing it with you as an interesting thing.

All right David, two most interesting grants. One from West Virginia, the other one from Idaho. Both of these involve states banning transgender participation trans-gender participation in women's sports. The West Virginia one involves a junior high person who identifies as a girl and wanted to play on the girls track team. According to the cert petition, the injunction that was put in place allowed this person to participate and many girls were displaced in the competition as

a result. In the Idaho case, it involves college club sports. Again, I think it was track in this case. The argument from those, the ACLU by the way, same lawyer who argued the Scrimetti case is a signed on to the brief in that Idaho case. But their argument was, these involve two specific people. This isn't some facial challenge, but in this case, it's not a contact sport. We're either talking junior high school or club sports at college, not NCAA stuff, not college admissions stuff.

This isn't some national emergency going on. Don't worry about it. But the court did grant cert in both of these cases. David, I'm curious what you think the suspense will be about in this because I got to tell you the fact that they've granted cert, of course, and we have the Ninth Circuit and the Fourth Circuit, both of whom enjoined the laws as applied to these two athletes. Just the fact that they granted them, of course, means it's about a 70% chance that they would overturn those cases no matter what they're about,

just because that's how it works when the Supreme Court grants cert on any case. But here in particular, David, do we have much doubt left? Yeah, I had to laugh when you said, is there any suspense? Because that's not something we typically don't look at cert grants and think foregone conclusion, right? I mean, it does happen. It does happen, absolutely, but this one feels like foregone conclusion. Look, I think that this is a case where, and this could be a case, Sarah, where they go ahead and apply intermediate scrutiny. That's part of the suspense potentially is what level of scrutiny.

We certainly had justices in the Scrumetti case saying that they did not think that identifying as transgender was a protected class. We'll see whether there are five votes for that. That's one thing that we can look for. Whether they're a protected class, whether you get intermediate scrutiny and how exactly that's going to be applied, what it looks like when the rubber hits the road when it comes to sports. I'll tell you, my third one is just are they granted both of these cases? They could have just granted one held the other one sort of

in its place and then GVR'd it, meaning grant, vacate and remand in light of how the other one turns out, which makes me wonder if perhaps there will be some distinction between either junior high participation or club level at college. I mean, I got to say, I'm not sure. I think the state has a particularly strong interest in club sports at college. I actually do think they do in junior high to protect girls sports, especially in public schools obviously. But, I mean, David, also, can I just have like a historical moment where I remember

in my time in public school, the fight from the right against Title IX equality in girls sports, that it was outrageous. And remember, I'm growing up in Texas. It was outrageous that if you spent X amount on the football team, that you would need to find some way to spend X amount on the girls teams of all, these other meaningless, stupid sports. An argument that I think now,

even just 30 years in hindsight looks really bad and dumb. How many dads now in Texas especially are insane about their girls' sports careers? But that was the right who was fighting Title IX and now Title IX is the very means in which they're arguing that it, I mean, both sides actually argue. The one side says that it violates the Title IX rights of someone who identifies as female, and the other side argues it violates the Title IX rights of the other girls who want to participate in sports and no longer really have the right to compete because obviously if they were thrown into the boys boys team, for instance, they would

not have the ability to win. But it's not, you know, there's like this one person in junior high or this one person in the club sport. So I don't know, David, what you think? Yeah, you know, I think to understand this case, you have to go back and look at the difference between Title VI and Title IX. So Title VI bans discrimination on the basis of race and federally funded educational programs. Title IX bans discrimination on the basis of sex and federally funded programs.

Now as a result of Title VI and Title IX, we have integrated sports in education and sex-segregated sports. So how can you have, with two statutes with virtually identical language, one of them mandates integration, that's the race one, the other one has long been deemed to mandate not just segregation, but equality of funding within sex segregation. And the reason for that goes back to the fundamental elements of what is equal protection to begin with. And equal protection to begin with is not everyone is treated the same. That is not equal protection. So for example, if you had that kind of radical equal protection environment,

you'd have to give a driver's license to a 10-year-old because we're all treated the same, right? Or a six-year-old, which is absurd. No, the principle of equal protection is that similarly situated people are treated similarly. And because there is no meaningful distinction between white and black, there's no reason to race segregate.

But are there meaningful distinctions between male and female, particularly when it comes to sports? Yes. Yes. So when it comes to sports, men and women are not similarly situated. So because they're not similarly situated, if you brought everyone in and treated them the same, to a large degree, you wouldn't have female sports anymore.

If you just sort of said, okay, the basketball team is for the 15 best basketball players in this school, you wouldn't have any women on the team. And so, under the equal protection analysis, if you want women to have equal educational opportunities, then that's going to require sex segregation. And so then, let's drop the gender identity debate on top of this. The reason for this, it is a sex segregation for physiological reasons. It is not that distinction in Title IX is a sex distinction. It is not gender identity.

And so if you're going to be talking about the reason for the men's sports versus women's sports, you really have to go to the reason for the distinction and it is rooted in sex, not gender identity. And so it seems as if you're walking in and saying, well, Title IX requires accommodation of the gender identity, you're missing the entire purpose of the distinction and reason for the distinction here, which is why I think it will be intermediate scrutiny and why I think it will survive intermediate scrutiny. All right.

There was one other case, David, that was granted that I thought you in particular would be interested in. This is a case called Oliver versus City of Brandon and it involves a pro-life protester who was going outside the City of Brandon amphitheater that had been newly constructed and well doing a protest. Think of it like our McCray lady and her memes like this was not the best most persuasive oriented protest. It was like pictures of bloody dead fetuses yelling at people, all sorts of, you know, that they were bad in various ways. So the city passed an ordinance saying you

couldn't protest within, I think it was 250 feet of the front of the amphitheater. And there was like a designated little protest zone. Okay. Olivier continues to protest in front of the door, so ignores the ordinance. He is cited and convicted and pays a fine. Actually he pled no low, meaning like he didn't contest the citation. Okay. But he still wants to go protest, not in little protest zone. So he wants to bring a challenge about the ordinance, arguing it violates his First Amendment

rights. But he's been convicted of violating the ordinance. So there's this weird sort of legal precedent and no man's zone that basically you can't challenge your conviction by saying later that it's unconstitutional. It's like a collateral challenge problem. This has come up in habeas, meaning you're in prison and you can't do both routes at the same time. It's not an end run around your criminal appeals.

But here, David, he's not trying to get his money back from paying the fine or overturn his plea deal or anything like that. He's getting prospective relief, meaning he just wants it declared that this law is unconstitutional. It violates his First Amendment rights. But it's really iffy as to whether you can do that under the 1983 statute. The Fifth Circuit said they were bound by circuit precedent and that he could not challenge, prospectively, this ordinance because he, uniquely, had been convicted under this ordinance. So the Supreme Court granted cert on that. Again, David, 70% chance right off the bat that they're going to hold that while

you can't use it to collaterally go back to challenge your conviction, that yes, you can still prospectively want to challenge it because of course, you don't want to get convicted again, which is exactly what would happen in this case. But David, two things unresolved in the country. One, that prospective challenge, and two, whether even that, if you hold that it's all sort of in the same bucket, prospective, retrospective, whatever, he was never in custody. So there was never like, you can never file federal habeas because he just pled no low and paid a fine. So he never could have filed a 1983

of fine. So he never could have filed a 1983 claim about the unconstitutionality of this or federal habeas when he was not in custody. So I actually think this is pretty interesting about how people, you know, civil disobedience in practice in the law. Yeah, it is a very interesting case because essentially the argument seems to be that, well, he could have mounted a constitutional defense in the state prosecution, rather than pleading no contest, which he never contested. So he could have mounted the, or just go do it again and then mount a constitutional defense and then take that all the way up through the state appeal system and then appeal to the Supreme Court of the United States. If the state Supreme Court rejects your argument.

But then you're in the criminal side and not in the civil side, which in Texas is going to make a big difference. You're going to go up through a different court. Yeah. And so I'm with you. It feels as if they've taken this case to sort of say, wait a minute, I don't know how broad the ruling will be, but there are cases where your constitutional rights are implicated, but the actual state level proceedings don't provide the right kind of mechanism or sufficient

mechanism for vindicating your constitutional rights. This feels like a case taken where Gabriel Olivier is going to win in a very, very, very narrow decision. I think that's probably right because what you don't want is to have everyone who is currently held in prison be able to file their appeal to their conviction and also to have a separate civil challenge to the constitutionality of the law that they were convicted under. That's the needle you're trying to thread. It honestly doesn't seem like that difficult of a needle to thread. Prospective relief versus retrospective relief. And maybe some indication that you intend to violate the law again.

So like if you're sitting in prison on a life sentence, you probably don't intend to violate that law again. You're not going to be out to be able to violate it. Whereas here, like he clearly goes every week to do this. All right, David, we have lots of interesting AO episodes to come in the coming weeks, but most of all, we're collecting all those interesting circuit decisions that are coming out this summer. We're just going to give you highlights when we have episodes like this because hopefully

the Supreme Court's calming down and we can highlight some of those really interesting circuit cases along with our live events that we're doing this summer and David, hoping for a little podcast crossover in August. So getting some of our most interesting favorite podcast hosts to join us for August. So lots to look forward to on advisory opinions this summer. Ooh! Yeah! Ooh! Ooh!