Advisory Opinions - Story Time for Fed Court Nerds

Episode Date: November 28, 2023

Sarah and David return from their Thanksgiving feasts to serve up a very nerdy episode on fed court law. Enjoy: -David giving a lowdown of the Voting Rights Act -Hacking minority districts -Laws created by court precedents versus laws created by statutes -Any standing experts out there? -Undoing the Warren Court -Section Two Rights vindicated in civil court -Reporters: Don’t go to activists for legal analysis -Elon versus Media Matters -Match maker Sarah, make me a match Show Notes: -Eight Circuit two to one opinion -Section Two of the Voting Rights Act -Elon v Media Matters -Video: Hostage reunites with family Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we're going to do FedCourts today. For you lawyers who are listening, sorry for the trigger warning, but we're going to spend a lot of our episode today doing a FedCourts preview, rehearsal, redo. For those of you who are not lawyers listening to this podcast, boy, are you in for a treat, asterisk, footnote, if you're an enormous nerd. Well, I mean, that's why people tune in.

And shouldn't that be basically the disclaimer every time? Yeah, don't listen to this podcast if you're not a pretty big nerd who likes nerd things. Yeah, right. Exactly. Okay, so let me tell you why we're doing Fed Courts today, because we're going to spend a lot of time breaking down that Eighth Circuit two to one opinion, holding that the Voting Rights Act Section 2 does not have a private right of action, meaning that individual groups, voters, et cetera, cannot sue to enforce Section 2's guarantee

of what amounts to non-racially discriminatory districts. We're going to rehash what Section 2 says, and then we're going to do what private right of action is. And in order to do that, we have to put it in the larger context of like really high level stuff on how federal courts work. And that's right. We're going to do some eerie railroad, everyone. Not a lot, but just a little. OK, so, David, do you want to set the stage for what Section 2 of the Voting Rights Act is? We've talked about it before. All of that so that people feel really comfy heading into a Section 2 conversation. Yeah, so the Voting Rights Act, which passed in 1965, really had in recent, what's most relevant to us in recent decades, because what we're not talking about now, we're not

talking about things like physically barring Black voters from polling places. We're not talking about that right now there exists, say, literacy tests or poll taxes or the kinds of things that were very explicitly sort of brutally, physically used to prevent Black voters from accessing the polls. That, thankfully, is not something that is taking place at scale in the United States of America. However, the Voting Rights Act is bigger and broader than simply sort of saying you can't block black Americans from the polls or people of color or people really, you know, on any illegitimate basis from accessing the polls.

So what you have is a statute that's, and we went over this a bit in the Alabama case, but what you have is a statute that is designed to prevent even actions that have the effect of or which result in a denial or abridgment of the right of any citizen in the United States to vote on the account of race or color. So this is section two says no voting qualification or prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, okay? And so what you have is

the statute that prevents the imposition of voting standards that have this effect, which result in the denial or abridgment of the right of any citizen to vote on the account of race or color. The two provisions that have been most consequential sort of in my adult lifetime have been the preclearance provision, not an issue here, struck down in Shelby County decision. The preclearance provision, which said that there are certain jurisdictions that have a history, a record of discrimination in voting rights. And so therefore, if they're going to be making any changes in the future, they have to be pre-cleared. Well, that's gone.

But it didn't really create a crisis in voting rights because there was still this Section 2. And Section 2, which applied everywhere, not just to those jurisdictions that had a demonstrated history of racial discrimination. Section 2 applied everywhere. And Section 2 at least appeared to not only give the attorney general, give the U.S. the right to sue to overturn state or local voting practices. The practice for a long time had been that it allowed citizens also the right to sue to overturn state or local voting practices. The practice for a long time had been

that it allowed citizens also the right to sue. I note I said the practice. It does not say that specifically, clearly, and explicitly in the statute itself. So citizens got the right to sue. And so there was still this sort of broad-based enforcement mechanism, both in the hands of the federal government giving it the right to sue under this statute, but also their practice existed for decades of citizens suing under this statute. And now why Section 2 became particularly salient as we had last term, Allen v. Milligan, where an effort had been, was undertaken to essentially gut Section 2, to essentially take Section 2,

reverse prior precedent that had given it an expansive reading to gut Section 2. Supreme Court said no to that, enforced Section 2 on an Alabama voting map. Big, big, very big decision. said, no, in fact, Section 2 requires something more, more affirmative than that. You do need to take race into account, which was unusual, not what people expected from a quote-unquote 6-3 court, especially with the affirmative action case on the docket, etc., etc. Yeah. Yes, exactly. So the other interesting aspect is when the court applied the test in Section 2,

in an interesting way, Sarah, it's almost like it snuck preclearance back in through the back door. Because what it talked about when it was talking about the Section 2 test, it was talking about a history, one of the elements that would apply, one of the tests involved histories of racially polarized voting. And what are some of the jurisdictions that have some of the starkest histories of racially polarized voting? Some of the same jurisdictions that were under preclearance. So if you have this really stark history of racially polarized voting, that was going to shine a brighter light on you. Okay, so did that mean that under this new court, Section 2 is given a new lease on life? Well, not so fast.

There was also, in this case that we're gonna talk about, in the district court raised the question, and this is a Section 2 case, wait a minute, do private citizens really have a right to sue a Section 2 case, wait a minute, do private citizens really have a right to sue under Section 2? Now you might think, okay, well, if the federal government has a right to sue, what does it matter if private citizens also have a right to sue? Well, it matters a lot because it turns out that Section 2 has been primarily enforced in the past by private

citizen suits, not through federal action, but through private citizen suits. Which could be individual voters, the NAACP, the ACLU. Private citizen doesn't just mean an individual, but largely it's being brought by these groups or at least paid for by outside groups. Yeah, non-governmental actors. And so that's the way the bulk of Section 2 litigation has gone. And quite frankly, given the length of cases and the potential swings in control of the DOJ and the attorney general, you know, it's the ability to sustain multi-year litigation in many of these cases may well depend on whether or not private citizens, non-governmental actors, maintain that right to sue because different administrations have very different views of the reach of Section 2 and they're not going to continue necessarily the same cases that a previous administration launched. So there was a lot at stake here. And Sarah, so that's setting it up.

That was an amazing setup. I was expecting you to be like section two. It's part of the Voting Rights Act anyway. You asked for context. I gave context. Amazing context. I'm wondering whether we could take a quick along the cul-de-sac of the political aspects

of section two as well in the modern era, because where you're going to hear about the politics of this, the terms you're going to hear are cracking and packing. And this is the idea that you pack minority voters together so that you can have the most number of non-minority districts, that would violate Section 2, or you crack minority voting populations so that they only make up a small portion of a whole lot of districts and don't have political power. So Section 2, in theory, is prohibiting cracking and packing for the purpose of diluting minority vote power. But it's really important, I think, to understand this political dynamic. When then Section 2 is enforced to create a majority-minority district, it is the race of the voters that matter, not know, outcome. So as a result, what happens is that a majority minority district

isn't going to be 51% Democratic, it's going to be 51% Black voters, usually speaking, it's going to be 70 or 80% Democratic. And so you end up with these really high sort of wasted, let's call them Democratic votes. And so the Democratic Party doesn't actually necessarily want this, because it probably costs them at least a few seats in Congress after each redistricting season. So I bring this up, David, because for instance, while it may seem obvious that Republican departments of justice wouldn't bring these cases and Democratic ones would, that's not quite the case.

It's why these outside groups sort of are serving this separate function, because there's a real argument, and by argument I mean I could show it to you in numbers, that the high enforcement of Section 2 helps Republicans in terms of sheer numbers in Congress. Because again, it's not a 51% Democratic district, it's an 80% Democratic district that you're creating by having a 51% minority voting district. It's an 80% Democratic district that you're creating by having a 51% minority voting district. I'd also say, David, that I think it's been, here's the balancing act, right? You want to make sure that it is possible for there to be Black elected officials, regardless of racial discrimination that may exist in the state elsewhere, for instance.

that may exist in the state elsewhere, for instance. On the other hand, you also are trying to, as that dissipates, and as overt racial discrimination dissipates, and as sometimes voters, in fact, you know, Tim Scott in the Republican primary, you'll hear voters constantly talk about the fact that they like the fact that Tim Scott is a standard bearer for their

party. And so you're on this spectrum between wanting to make sure that they're, you know, let's say black representatives in Congress. And then on the other end of the spectrum, also wanting to make sure though, that those black representatives, for instance, aren't left in high, these 80% Democratic districts and 51% Black voting districts. Because what ends up happening is then either in reality or as almost like an affirmative action sort of presumption disability, they're assumed not to be particularly good statewide candidates. Now, you can argue that's because the candidates themselves have to win the primary in those 80% Democratic districts. So they're moving really far to the left. So it's

going to be hard for them to run statewide. Or it's simply that different candidates are more likely to run in a black majority district or in an 80% Democratic district than they would be if it were a 53% Democratic district and a 30% Black district. You're going to actually have different Black candidates who could win that primary. And so I think that's what you're struggling with from a political, forget the law for a second, just from a political conceptual standpoint, you may be able to get more Black representatives in Congress under the high enforcement of section two fewer Democrats in Congress with high enforcement of section two but my theory would

be something like but you will have fewer black senators with high enforcement of section two because they will be less likely to be able to move on to run statewide once they've been elected to Congress because they're getting elected in these more extreme, less representative, less statewide looking districts. And if you have fewer black senators, you're going to have fewer black presidential candidates.

There's other trickle down effects. So that to me is the interesting political valence around section two. I don't have a, that there's a right or wrong answer or a morally right or wrong answer, but it's worth thinking about that, I think, as we're talking about section two. Yeah, I think one question I have about that analysis is,

I'm tracking it completely everywhere except the deep south. That's right. And that's where you're going to almost have different sedimentary layers of history. The deep south feels like it's almost have different sedimentary layers of history. The Deep South feels like it's in a different sedimentary level than Illinois, for instance, where Chicago actually is still very racially polarized in terms of neighborhoods, housing. You can look at Boston. But overall, of course, we wouldn't say that the states are. And their voting proclivities aren't. Right. In the Deep South,

you're much more likely to have black equals Democrat, white equals Republican than you are. Because I went in, I actually looked at some of these racial polarization voting statistics when the Alabama case was decided. And every part of America

has racially polarized voting. If you're in California, Texas, Mississippi, New York, white people are more likely to vote for Republican than the whites or white voters are more disproportionately Republican, wherever you are, but by not the same amount. And so in New York, you've got a lot more white Democrats. In California, you've got a lot more white Democrats.

The same in every state. There's going to be a lot more white Democrats until you get down to the Deep South, where it starts to really become a stand-in, where race really starts to become a stand-in for partisanship. And that's not to say in any way that if you live in the Deep South and you're a white Republican, that means that you're a white Republican because you believe that's what white people do. No, no, I'm not

arguing that at all. But it is just a fact, it is just a fact that in some states, particularly some of these preclearance states, the racial polarization is just so extreme that it's just of a different level, a different degree than it is in other places in the United States. It's all to say, I bring this all up because again, that private right of action is gonna become pretty important. It is not necessarily in a political party's interest at any given moment to enforce high section two,

you know, what I'm gonna refer to as high section two enforcement. Whereas section two actually is only about racial discrimination. It's not about which party is going to benefit. It doesn't presume which party a racial minority even supports. So those private actors, and we'll just sort of use the NAACP, I think, as a stand-in for a private actor, bringing those suits is going to be different than a Democratic administration bringing the

suits. Their arguments could be different. Their choice of how high to want to enforce Section 2 and which states to enforce it. You could imagine a state where Democrats are sort of teetering on the edge and a few of these districts think they can pull them off. They're 53% districts. The last thing they want to do is bring a Section 2 action in those districts because you're going to end up with, sure, a Black representative in one of the districts, the last thing they want to do is bring a section two action in those districts, because you're going to end up with, sure, a black representative in one of the districts, and you're going to lose then Democratic voters out of the neighboring district, potentially. And that district will then go to Republicans where otherwise you might have had two democratically controlled districts. Okay. So now we're going to do the Fed courts part all before we get to the decision, boys and girls.

We haven't even gotten to the decision yet. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time.

I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off plus free shipping on their best selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay, so a long, long ago in a not far away place, federal and state courts were both creating common law. David, do you have a good definition for common law? It's not legislative. It's not statutory. You know, property law is a good, you know, thing that has sort of moved through common

law. Judges sort of discern the sort of what the wisest choice should be and then create law on top of law. I call it, I guess a good way to describe it would be law created by court precedent as opposed to law created by statute. Yeah. So all the courts were doing this, state courts, federal courts, etc. And obviously there were also statutes, state statutes, federal statutes. So all the courts were doing statutorily created law and court created common law. And then comes along this eerie Pennsylvania case. And then the Supreme Court came along and said, no, no. In where the federal courts have jurisdiction because of the diversity of the people coming to court, meaning that on one side of the ledger is someone from one state and on the other side of the V is

someone from another state. That's diversity. And the federal courts have jurisdiction when people from two different states are suing each other. That no more federal common law. The federal courts are not in the business of court created law anymore. They are simply going to have to figure out which state's law should apply. And then they have to discern the state common law or statutory law in that case. And they apply state law. So federal courts are out of the business of common law. So the only way you get into federal court is that diversity jurisdiction. You have people from two different states or a federal question. So that's a jurisdictional issue.

Another jurisdictional issue would be do you have standing? And David, Lord knows we've talked about standing. We still need to bring a standing expert on. I know, but injury in fact, right? This idea that you yourself were injured. Now that gets really fuzzy. What about a third party bringing it on your behalf? We see that in the abortion context a lot. Or what about someone who has sort of an aesthetic injury? They went to the park to go see the butterflies, but there's fewer and fewer butterflies. That's all in that standing thing. Okay. And standing is part of jurisdiction. Federal question is part of jurisdiction. The courts cannot hear your case, federal courts, unless it is a case or controversy. That's jurisdictional. Okay. So once you've

checked the jurisdiction box, you're in court. Congratulations. Now you need a cause of action. That's what this whole case is going to turn on. It is separate from standing. It is separate from a federal question. So to use the Section 2 example, there's no question that there's a federal question involved here, right? It's a federal statute. And the question is, does that district violate Section 2 of the Voting Rights Act? That's a federal question. You have standing because you're a voter who was potentially harmed if Section 2 was violated. So you have an injury in fact. There's certainly a case or controversy. The controversy is, are those districts in violation of federal law? So like everything is satisfied on that ground, but that's different than a cause of action. Okay. So we're going to skip cause of

action for a second. Cause the other thing you need is a remedy that the courts have to have some way to fix this. And we've seen problems in recent Supreme court cases where the courts are like, look, I don't know, man, but regardless, we can't fix this. For instance, in that immigration case about the Biden immigration policies, they were like, yep, boy, the language sure says shall detain, but Congress hasn't appropriated money for the Biden administration to detain everyone.

So even if you have standing and even if there's a cause of action here, there's no remedy because we can't conjure money. Only Congress can do that. You have no remedy because we can't conjure money. Only Congress can do that. You have no remedy. Bye bye. Okay, so those three things. So cause of action for me, David and fed courts was really hard to understand. I got real stuck on this. I never was very good at it. And I actually feel like this case is helpful in explaining and distilling the cause of action as being different from jurisdiction and remedy. Because Congress, when it wrote Section 2 of the Voting Rights Act, just described what the violation of your rights would be.

It's a violation of your discriminated against in intent or in effect. I'm paraphrasing the law, obviously, and summarizing it. Okay, so Congress says you cannot be discriminated against for voting in intent or effect. There's no cause of action. Like, you have a right, but what's your cause? So later in the statute, it definitely says that the attorney general can bring a lawsuit.

So the attorney general has a cause of action. Congress has given the attorney general the right to enforce section two, but it just doesn't say anything about whether a private party can enforce section two. And that's what this entire case is about. Well, that's kind of a mess, David. So enter the eighth circuit, two to one,

all Republican appointees, if anyone's curious. They say that no, in fact, basically by specifically mentioning the attorney general as having a cause of action, it at least implies that there isn't a private cause of action. So despite there being 40 years of litigation, assuming a private right of action, including by the U.S. Supreme Court, where they just assume a Section 2 private right of action, the Agate Circuit's like, actually, nobody's decided this, and it ain't in there.

And private rights of action are disfavored if they're not explicit. Like, we don't read them into statutes, that's up to Congress. So they're like, no, sorry. I know this feels harsh, but is what it is. Now, if you're listening this far, I just want to asterisk. We're going to get to 1983 and whether there's another way into the courthouse after we finish this. So let's spend a little more time on cause of action before we get to what happens if there isn't a cause of action. But this doesn't end at the, does section two have a cause of action conversation? So David, what'd you make of the opinion?

Very interesting. It's, so I thought the opinion was very well done in explaining, okay, wait a minute here. We're just going through this statute and don't actually see where in the text itself, it creates a private right of action. Like this is not there. And we also know that Congress knows how to create private rights of action because it's created private rights of action elsewhere. All of that I thought was very well explained. The problem that I had with the opinion was it paid such short shrift really and truly to the idea that, wait, this case, these kinds of cases have been litigated for decades, including to the Supreme Court. decades, including to the Supreme Court. And also, there's previous court authority, that Supreme Court authority that assumed the existence of the private right of action even more explicitly than by merely taking cases brought under a private right of action.

And so, in a way, the way I would look at it, Sarah, is in a vacuum without all of those decades of history, this was right, of course. Yes, I'm persuaded that there isn't a private right of action, that if Congress wanted to create one, it knows how to create one. But this isn't decided in a vacuum. knows how to create one. But this isn't decided in a vacuum. It's decided in the context of decades of Supreme Court precedent under Section 2. Again, yes, of course, it was not deciding whether or not there's a private right of action. It was assuming that one existed and adjudicating cases under that assumption. And Sarah, what was interesting to me was,

no, there wasn't sufficient explanation from my satisfaction as to why all of that doesn't matter. Because that's the Y-axis, David. That's the institutionalist axis. Right, right, yep. And it just sort of goes unspoken of why we're going to be high institutionalists or low institutionalists. But that sort of practice Right, right. Yep. and that there's all these things outside of precedent, outside of the actual claim or text of the statute

that also go into consideration. Or do they? Or do they? So for instance, and again, this is about who gets to sue. When you think private right of action for this case, think who gets to sue. So section two only mentions the attorney general. There is literally a Supreme Court case

about a different section of the Voting Rights Act where they're trying to decide whether there's a private right of action in that section of the Voting Rights Act. And they're like, so for example, section two obviously has one. But section two's private right of action wasn't at issue at that point.

Yeah. And pointing out, for instance, in the 1964 Civil Rights Act, which Congress, of course, wrote but a year earlier. So beforehand. So it definitely knew how to do it. It's not like it learned after. In the Civil Rights Act of 1964, a civil action for preventative relief can be instituted by the person experiencing discrimination. Hmm. So why didn't they do that later on? Yeah. Okay. So can we just talk about the real politics version of why a case like this had never been brought before? Because you're right, David,

that it was always just assumed. So why had nobody who wanted to not like to, to, on the defending side of section two, our districts are not discriminatory. Why hadn't they raised their hand and say, and also you don't get to sue me. Right. Because justice Kennedy. Because justice Kennedy. Okay. Right. So when we're talking about that other case where they presumed that there was a right of action in section two, Justice Kennedy, Sandra Day O'Connor, you had these really high institutionalist judges, justices, like the highest, much higher, frankly, than any justice we have on the court right now, are Kennedy and O'Connor. There was not only no point, there was a point in not questioning whether there was a private right of action in section two, because you knew how it was going to come out. They had already assumed there was one. What's interesting, I think, here is that, in fact, the party still didn't raise it.

In this case, District Judge, friend of the pod, Judge Rudofsky asked whether it was a jurisdictional question about the cause of action. And there's, you know, I talked about how cause of action is different than whether the court has jurisdiction. That's because it is under Supreme Court precedent right now. This is why I now feel very justified getting hung up on it in Fed court to not understand the difference. Because I don't know that there should be a difference. But the Supreme Court says there is a difference. And I know a lot of you are going to write and then tell me why it's good that there's a difference and how they're totally different. I get it.

But still intuitively to me, maybe there's not. So none of the parties raised it to Judge Rudofsky. I might also note that I would consider Judge Rudofsky a high institutionalist judge, generally speaking. So Judge Rudofsky is like, wait, do I even have jurisdiction here? Where's the cause of action? And so then the parties litigate this cause of action. And by the way, at the Eighth Circuit,

and again, we're just going to go on a little cul-de-sac, the private party arguing that there was a cause of action was like, and by the way, Judge Rudofsky can't sua sponte raise something that's not jurisdictional. To which the Eighth Circuit was like, look, you're right, it wasn't jurisdictional. But the remedy for that would be that we would find for you, send it back to the district judge, the defendants would raise it now, Judge Rudofsky would find the same way

and we'd be back here. You've already fully briefed it. Like we're not just gonna do formalism for the sake of formalism and do this all over again. You've briefed the case. Maybe it shouldn't have been raised the way it was raised, but it's sort of harmless error at this point. And we end up in exactly the same place we'd be anyway. Okay. So I want to get to the dissent here because the dissent is going to argue something like congressional acquiescence. You're exactly what you're saying, David. And I want to read just a little piece of that.

what you're saying, David. And I want to read just a little piece of that. Well, first of all, he lists all the cases where the Supreme Court has considered numerous Section 2 cases brought by private plaintiffs. It takes up about half a page. Yeah, it's a lot. It's a lot. Yeah. Oh, and then there's a footnote that lasts for a full page of both the Supreme Court and this court have assumed implicitly and explicitly that such a private right of action exists. Full page of cases, more or less. Yeah. Why have federal courts largely assumed

that Section 2 gives private plaintiffs the ability to sue? The implication of a right of action is rooted in the Blackstonian principle that where there is a legal right, there is also a legal remedy. But boy, that feels pretty common law-y, doesn't it? Yeah. That feels like that's what Erie Railroad was kind of meant to stop. Okay. So in the end, here's what the dissent's, you know, purpose is. In sum, this case presents

two paths. The first is to adhere to the extensive history, binding precedent, and implied congressional approval of Section 2's private right of action. The alternative path taken by the majority attempts to predict the Supreme Court's future decisions by conducting a searchingly thorough examination of Section 2's text, legislative history, and an analysis of its previous precedent. Holding that Section 2 does not provide

a private right of action would work a major upheaval in the law, and I am not prepared to step down that road today. As a result, I favor the first path. So congressional acquiescence, this sort of canon of interpretation of sorts, is the idea that maybe the courts made this all up, but if Congress had 40 years to correct the courts

that they had misread a congressional statute and the courts haven't corrected the courts, sorry, Congress hasn't corrected the courts, then we read that congressional acquiescence as a sort of textual editing function. A lot of people will tell you that's silliness. There's a lot of reasons why Congress might not have changed the statute, even if it's not what the statute actually says. including, for instance, a committee report around that amendment where it talks about how Congress definitely intends to create a private right of action, which almost highlights the fact that

they didn't in the text and that the sort of majority member getting to write that congressional committee report and its staffers wanted to put it in the committee report because they couldn't get it into the statutory language. I thought that was an incredibly strong piece of evidence against there being a private right of action was that committee report language, in fact, David. But yeah, the idea of congressional acquiescence, all of the history, the precedent that assumes it, and you've got these two choices, or you create this chaos. And I've just never seen a better explanation of that Y-axis institutionalism, high institutionalism, or text leads to chaos, Justice Gorsuch, not my problem. You know, what's interesting, there are so many things that are interesting about this, but another one that is interesting to me is you have ever since

the rise of the 6-3 court, which we all know, Sarah, it's a 3-3-3 court, but since the rise of the six Republican nominee court and three Democratic nominees, we've seen this process unfolding, which is exactly as we've described, which is how much of this court is really gonna be undoing, is how much is this court is really going to be undoing, how much is this court going to be an originalist court

that is sort of modest in its ambitions versus how much is this court undoing the Warren court? In other words, how much is this court going to be sort of a judicial revolution in reverse? And where you've seen some of that question raised, or you've seen those questions raised, are in these voting contexts. So for example, the independent state legislature theory, which not exactly sort of trying to undo the prior court, but is absolutely saying, hey, with a new court, new theories may work. When it comes to the Allen v. Milligan case

in Alabama, aha, with a new court, this new theory might work. Turned out it didn't. I think with Rahimi, you're getting a bit of that, and we'll probably talk a little bit more about that as the podcast goes on. But Rahimi, this is again the case of the Fifth Circuit where an individual who had an agreed protective order, still possessed a domestic violence protective order, still possessed a firearm. And the question was, constitutionally, can he be prosecuted for possessing a firearm with an agreed civil domestic violence protective order? And that's again, how far is the court willing to go? You get a big sense of that here as well. How far is the court going to be willing to go? And both in Rahimi and in this case, I feel like you have a circuit court sort of maybe anticipating that the court's current composition is going to lead it down a direction that I'm not sure

it wants to go, that the Supreme Court wants to go. And so I do think it's very interesting to see this dynamic play out, which is, aha, new court, how revolutionary is this going to be? And certainly in the Dobbs circumstance, a lot of people who are listeners on the left would say pretty revolutionary. I don't look at Dobbs as revolutionary, Sarah. I look at Rowe as revolutionary. Dobbs was not. Bruin, I will say, was not on the ultimate outcome. I would say it was in the text history and tradition test,

but it was not on the narrow outcome. It was kind of in many ways, in my mind But it was not on the narrow outcome. It was kind of, in many ways, in my mind, a slam dunk on the actual outcome on striking down the precise New York statute. So this is one of these cases fitting in with that how revolutionary is the new court going to be kind of testing of the frontiers and boundaries. And I'm not so sure, Sarah,

that the Eighth Circuit is going to be upheld here. Okay. So there's this little paragraph on page 22 at the very end. And it says, the final loose end is the advocacy group's belated request to add a Section 1983 claim to their complaint. Their theory is that voters can enforce Section 2 of the Voting Rights Act as a, quote, law of the United States under Section 1983. They never requested leave to amend, as they admit, but we've occasionally excused pleading failures when the proper resolution is beyond any doubt. The problem is that, as we've pointed out, very little in this case is beyond any doubt, and complicating matters is the fact that the parties have barely scratched the surface in

their discussions of 1983. Even now, we have only a single footnote in one of the briefs mentioning the possibility. Given how little we have, we decline to say anything further about what would have happened if the advocacy group had acted sooner. Oh, well, well, well, David. Now we have a whole nother way to get in to get your section two rights vindicated in federal court, even if you can't sue under section two of the Voting Rights Act. Section 1983 of the Civil Rights Act of 1871, Congress created a private right of action to any individual who suffers a, quote, deprivation of any rights secured by the Constitution and laws of the United States. Well, golly gee willikers, the Voting Rights Act Section 2 is a law of the United States. So, David, has this entire case been much ado about nothing?

And interestingly, of course, Congress, or sorry, the Supreme Court, boy, it hasn't said a whole lot about how we know whether a statute can be enforced under Section 1983, but there was a case that was decided in the heat of a whole bunch of other cases coming out in June

called Health and Hospital Corporation of Marion County versus Talavski. It was decided last term. It was a 7-2 opinion written by Justice Jackson, Alito and Thomas dissenting, for those who are curious. And it found that there was a Section 1983 right to bring private action to enforce the Federal Nursing Home Reform Act of 1987. Congress passed that act under its spending clause powers, not under its commerce clause powers, a la the Voting Rights Act, making it a weaker case in many, many ways for Section 1983 enforcement for a private cause of action. Nevertheless, they found that there was one. David, how strong, just spitballing here, because again, this actually is going to be a long, litigated, complicated question that will

probably get to the Supreme Court. How likely is this all about nothing about whether there's a private cause of action in 1983? Because in fact, the NAACP can sue under 1983 with Section 2 as its federal right that was violated. Well, Sarah, now you're going to get to my little rant about the media reaction to this case. Oh, I was hoping we would get that because you'll note that the media is just like, oh my God, Section 2 is dead. Nobody can bring claims anymore. the media is just like, oh my God, Section 2 is dead. Nobody can bring claims anymore. Oh my gosh. Yeah. So, you know, once again, here is a common failing that I am seeing on the part of reporters and when they're reporting on legal matters. Constantly, they go to activists for their take on a case. Or they'll go to sort of this favorite Rolodex of the most activist law professors, right? People who are, they might not be involved in the case, but they're sort of known to be in the cause. And unfortunately, they themselves, unlike political

reporters who often have worked in the Hill or been on campaigns, they themselves are not lawyers. They didn't take Fed courts and they don't immediately think of 1983 being sort of this catch-all private cause of action. So they don't know the right question to ask. Exactly. So they don't know the right question to ask. They're going to activists to function as authorities. Okay. And that's a huge problem in the reporting of law in this country. Constantly, you see reporters going to activists acting as sort of authorities. And so, naturally, the activists who lost this case are going to be saying,

this is horrible, this is terrible. And look, there is a scenario I could see unfolding that would seriously diminish voting rights enforcement if it unfolded all the way, but we're not even anywhere close to that yet. Because as soon as I was looking at this case, I was thinking, okay, what about 42 U.S.C. Section 1983, which gives me the right to sue? Now, here's what's really important. If you can argue that the voting rights changes violate the Constitution,

in other words, the actual amendments to the Constitution, 14th, 15th, et cetera, you have your right to sue under Section 1983, no question. And you may also have a right to sue under Section 1983 for No question. And you may also have a right to sue under Section 1983 for violation of the Voting Rights Act itself. It's just never been fully articulated because as we've noted before, for decades, it's just been assumed that a private right of action existed. It's never really been a subject of litigation. So, Sarah, I would put it this way. I would say it is not impossible that the sort of doom scenario of very few private, very few Americans will actually have the ability to file private rights of action

or no real private right of action existing under Section 2, only federal enforcement, and the federal government won't really enforce it because of administrative changes, et cetera, that is a scenario that could play out. It could. It is not the most likely scenario. It is more likely that either Section 2 will be found by the Supreme Court to include a private right of action,

or the Supreme Court will say 42 U.S.C. Section 1983 encompasses Section 2 of the Voting Rights Act. I think that's the more likely outcome by far than some sort of ruling that says, if I'm a private citizen and my voting rights have been deprived on the basis of race, I'm out of luck unless... Only the Attorney General can bring it. And if the Attorney General doesn't feel like it, for whatever reason,

we just don't have Section 2 anymore. Right, exactly. I think it is by far more likely that you will have a private right of action either under Section 2 itself or under 42 U.S.C. Section 1983, applying Section 2. That's by far the most likely outcome.

Now, for those listening, you may be thinking, ah, Section 1983, don't you get damages? You can actually be better off. That's not really going to happen here, though, because of qualified immunity and sort of by definition, if you're bringing a Section 2 right, it's not going to have been clearly established in these contexts. It would have to be kind of a crazy district line to overcome qualified immunity. I can't

really imagine it happening, at least in reality, it could happen in theory, I'm sure. So you're not going to get damages. But under 83, you can get injunctive relief. You're going to end up in the same place with different district lines, which is the whole point of the Section 2 cracking and packing prohibition. Yeah. So, I mean, I think it is overwhelmingly likely. Now, I'm not fully acknowledging there's a chance I'm wrong, but overwhelmingly likely that at the end of the day, if you are a citizen aggrieved by a violation of Section 2, you're going to be able to get in court. Yeah, the way you're going to lose on the 1983 argument

is if they find that somehow Congress quite explicitly intended only for the Attorney General to have a private right of action. So by mentioning the Attorney General at all, it becomes less likely that you have a private right of action under Section 2 because the attorney general is mentioned and you're not. But under 1983, that presumption almost flips. Well, now, unless they explicitly excluded you from having a private right of action, we're going to think that you have one under 1983. that you have one under 1983.

So again, it's possible that there's no private right of action under 1983, but even looking at this case from last term where the Supreme Court, again, 7-2, found one with this spending clause piece of legislation. And by spending clause, I mean, federal government agrees to give money to the state government to do a thing. That's spending clause power.

And so you have Justice Thomas here, why he was in dissent. He says, for nearly all of our nation's history, it was understood that there is a fundamental difference between the exercise of Congress's sovereign legislative powers on the one hand, and the exercise of its powers to spend money and to attach conditions to the receipt of that money on the other. Only the former sort of legislation, which imposes obligations on regulated parties with the force of law, directly secures by law the rights corresponding to those obligations. By contrast, an exercise of Congress's spending power, whether it comes from the so-called spending clause or elsewhere in the Constitution, is no more than a disposition of funds. I read

all that to point out that under that theory, even Justice Thomas is going to say, I think that Section 2 is enforceable through 1983 because it is under that legislative power. It's regulating the state. It is not simply a sort of contractual obligation attached to money. And, you know, one of the things about congressional silence is that you can read a lot into it. You can say, well, they were silent because of this favored reason, or they were silent because of this reason that works in my favor. Here's the argument about congressional silence regarding Section 1983, which is, why would Section 2 include an explicit right of action? It didn't have to. That was already granted years and years before by 1983. If you're going to create a right of

action, the right of action we had to create was the Attorney General. That's the one that had to be created. Correct. The Attorney General couldn't enforce Section 2 under 1983 because 1983, in fact, very much excludes the attorney general from bringing that action under 1983. Exactly. So it's amazing how how silence can speak in such contradictory ways. And it's amazing how the media can just get these cases wrong and always in the same direction, David, which is pretty frustrating. in the same direction, David, which is pretty frustrating. Because it always undermines the institution of the court as being, you know,

as taking away people's rights. And it's like, nope, just please read the opinion. Please listen to this podcast. Same thing applies in the, you know, to circle back to some of the law of war discussions we've had in Israel-Gaza.

I'm begging reporters who listen to this, don't go to international advocacy groups to adjudicate whether Israel is complying with the laws of war. Look, I'm not saying that Israel has complied. I don't have visibility into targeting. There's been a lot of bombs dropped.

I'm not gonna sit here and say that all of them have complied with the laws of war. But I will tell you, the last people I would go to, to adjudicate Israeli compliance with the laws of war are international NGO, advocacy NGOs. They, they are trying to, many of them are trying to not interpret the law as it is, but to actually push the law in a particular direction. And that's much more attainable in international law because there's this entire concept called customary international law. And like what are these guys are trying to do is change custom through advocacy. And by changing custom, you change the law.

custom through advocacy. And by changing custom, you change the law. And a lot of people in the media are not aware of this dynamic at all. And I don't think anyone begrudges the fact that a member of the media who's not a lawyer isn't going to grasp all the nuances of these decisions. That's why you do your job as a reporter and you reach out and you ask intelligent questions of intelligent people. What I'm questioning is, who are your sources? And if your sources are activists, then get better sources. Activists are not good sources for analysis. They're going to be excellent sources for their opinion. They are not good sources for analysis. Speaking of that, by the way, did you see the incredibly just, I don't know, glorious yet heart-wrenching video? One of the hostages released, I believe he's four years old, the little boy with the dinosaur Kippa as he's in the hospital saying a prayer with his father to keep the nightmares away.

Oh gosh, no, I did not see that. He's in the hospital saying a prayer with his father to keep the nightmares away. Oh, gosh. No, I did not see that. Just, again, glorious that he's home, heart-wrenching, but his little dinosaur Kippa. Okay, can we just spend a few minutes on this lawsuit that Twitter has brought against Media Matters? Yes. And to set it up basically real short, right? Media Matters writes this piece that says, hey, we found that Twitter places ads for these companies next to anti-Semitic content. And Twitter has sued Media Matters

saying that, you know, their facts are that Media Matters had to work really, really hard to make that happen. They had to create a whole bunch of accounts. Those accounts had to be older than 30 days. They had to scroll past 15 times the amount of ads that a normal user would see in a normal hour. They only followed basically the companies that they were trying to get the ads for and only anti-Semitic posters. And with all of those things combined, one time out of 5 billion, Twitter says,

they were able to get an ad to appear next to anti-Semitic content. In one of the cases, there are some other examples that are in the case as well. Okay, so David, on the one hand, you have a lot of people saying like, wait, didn't you just agree that then the story's true? So your ad did appear next to anti-Semitic content. And they're saying, no, no, no, it's so misleading as to be defamatory. They didn't find it. They created it. And I guess, David, I want your overall reaction to the lawsuit,

although I think the facts in this case really, really matter. And we only have the facts according to Twitter. And yeah, there's some other people who are on Twitter or thread saying they could have recreated it, whatever. Like that's outside the case at this point. It's going to matter what Media Matters responds. So it's hard to do this without the facts being agreed upon or a judge at least finding

what the facts actually are going to be. But David, I also want you to weigh in on my theory here because this has come up in the last term, of course, the one that we thought would be the tech term where Justice Kagan says we are not the world's nine foremost experts on the internet. All of this is going to turn around. Who is the publisher?

What is the platform? Who is the content provider, content creator? So we know, for instance, when you write a tweet that you, David, are the content creator and Twitter is the publisher of that tweet. They're providing the platform for that tweet, but you created the content. the platform for that tweet, but you created the content. I would like to make an argument that the feed is in itself visual content that you created, David. You chose who to follow. You chose, you know, which posts to linger on, stuff like that. I couldn't recreate the visual ness of your feed if I wanted to. It's created by you. And yes, there's an algorithm you're working with, but it's the same as you working with Microsoft Word,

you know, sorry, not Microsoft Word, your keyboard, let's say, to create the tweet. You created the tweet using the letters on the keyboard and zeros and ones needed to write on that screen and the code that Twitter created so that you could type it into the little box and hit publish. All of that is you working with artificial intelligence of some kind. Same thing with you creating your feed. And I mentioned all that because of course,

I can't think of another context where it would really come up. But here the question is, who created the feed? Did Twitter create it by, you know, it put the ad next to the anti-Semitic content and Media Matters simply found it? Or did Media Matters create the feed itself? So David, what's your thought? Yeah. So the first thing I thought of, I thought of a, you know how my mind is always going to offline analogies. One of the first questions I had in my mind was, is this an exploding gas tank scenario? So what do I mean by exploding gas tanks?

It's one of the most famous media malfeasance cases in modern American history. It's Dateline NBC rigged gas tanks to explode. When, I kid you not, I kid you not. So essentially, so this is a 1993 case. In an extraordinary public apology, NBC said Tuesday, so this is back in February 1993, that it aired in staging a fiery test crash of a General Motors pickup truck for its Dateline NBC News program and agreed to settle a defamation suit filed by the automaker. We deeply regret that we included

the inappropriate demonstration in our Dateline report. So in its apology, NBC admitted that it had used incendiary devices to ensure that a fire would erupt if gasoline leaked from the truck being hit by a test car. The 15-minute segment was addressing critics' charges that GM's full-size pickup trucks built between 73 and 87 are unsafe because their gas tanks are on the sides of the trucks outside of the frame. And so essentially what happened is NBC was trying to recreate this problem and decided to give it a little boost and rigged the test subjects. So why did I think of that? I think the parallel is pretty obvious here. Did Media Matters pull a Dateline NBC? Did it essentially rig the test in a way that is misleading, defamatory to Twitter?

And I think that's an interesting, viable question to which we do not know the answer. Because as you were noting, Sarah, all of a sudden, a bunch of people took to threads, took to Twitter, and more or less purported to, because you never know, you're looking at their screenshots or whatever, and purported to replicate what Media Matters had done. And so, look, if I can replicate what Media Matters did with my own feed, the Twitter lawsuit's done.

It's just done. But if the only way to create what Media Matters did, the Twitter lawsuit's done. It's just done. But if the only way to create what Media Matters did, if the only way to replicate what Media Matters did is by rigging the test in that highly specific way, then honestly, Sarah, they might have a Dateline NBC problem. They might. It's not exactly the same.

That's so funny. I was expecting you so much to like not think that and to say that the lawsuit was stupid, that I was coming in being like, I don't think the lawsuit's stupid if the facts can back that up. Right. And then we find ourselves in agreement. This is the worst. I know. I'm so sorry. You're really disappointing me. But we say we have an A.O. hive mind for a reason, but we do disagree pretty frequently. But this was one when I read the Twitter claims, Dateline NBC popped straight into my mind.

And it's not a one-to-one because in Dateline NBC, Dateline, they obviously had an incendiary device. I mean, that's a rigging right there. There is a way to be so misleading and to rig the test so much that you can sustain a defamation claim even if literally what you wrote was true. That's the point.

Correct. This is not... That's the point. This is not crazy on its face if the facts back it up. And that's just impossible to know sitting here right now. Right, exactly. Exactly.

All right. Well, we have interesting Supreme Court arguments coming up this week and next week. We're going to get the cases argued on the Purdue Pharma bankruptcy, that 16th Amendment. Is it income under the income tax? Sorry, personal income tax amendment, the 16th Amendment. So, income tax amendment, the 16th amendment. So, oh, the SEC, the jerkacy case, lots happening at the Supreme Court these two weeks. We'll be here to cover it. But David, I had one other thing to note. We had a fun discussion on dating at the end of our last episode. Yes, we did. Good comments too. Good commentary about it. Great comments. I've been working on my feminist manifesto,

but I think the highlight is that we had one listener write in and say, all right, Sarah, you say you have all of these quality men, bring them. And I got to tell you, she's got two blind dates coming up. So you set her up. I'm not saying I can do this for all our listeners. And I'm not saying AO now runs a dating website. You're making this known. I know. But we'll see how this one goes. This will be our test subject. Okay. But yes, I am now setting up AO listeners with each other. And not for the first time, right? No, not the first time. Not for the first time. Okay. Just want that out there. Just want that out there. This is, there is precedent.

It is part of AO common law. I'm just, I'm a fan of love, David. And look, I don't guarantee love and I don't set people up based on that. I think there'll be compatible or fall in love. I only set people up in the sense that like, Hey, I don't think this person's going to murder you and stick you in their freezer. Um, maybe you'll have a fun time at dinner and an interesting conversation. Maybe you'll fall in love and get married and have 20 babies. Probably it'll be something in between. I guarantee nothing. I do try to guarantee that not being in their freezer by the end of the night. That I do hope to guarantee. That is a low bar. I try to keep it low. Exceed expectations. I like it. I like it.

Well, that's hilarious. I cannot wait to hear how these blind dates turn out. We'll see if I even get a report back. I don't require one. My job is just to have the, you know, it's like a super collider, you know. I build the tunnel and I hurl the particles at each other. Very fast speeds. Right. And some would say this is reckless.

Some would say. Yeah, for sure. Yeah. But like the cost is going to be a miserable night. That's it. Like you're going to have a miserable hour and a half. Like what's the quickest that you could leave a bad blind date, David, without it just being so rude.

And you've guaranteed that the cost does not include, potential cost does not include freezer time. I think I've guaranteed that the cost does not include, potential cost does not include freezer time. I think I've guaranteed that. So, okay. But David, you're on a bad blind date. On the one hand, it's kinder if you know that you're never going on a second date with this person, you'd be better off leaving after 15 minutes. But on the other hand, that would be so socially awkward and unacceptable. How quickly can you leave? Well, that's a really good question. You have to play out all of the planned events of the date. If it was just dinner. Yeah. Assume it's a meet up for dinner. Just meet up for dinner. You have to sit through all of dinner. I think it is acceptable

to say no to after, no to dessert. Okay. No to an after dinner, cup of coffee or whatever, or, you know. But you can't just order an app and leave cannot just or you got to do the dinner like whatever the event is you got to do the event okay but what if it's just drinks how many drinks do you have to stay for do you have to finish your drink what if you weren't going to finish it anyway because you're not a big drinker was the invitation to drinks or to drink. So if it's plural. Oh my God, David. Email just says like,

hey, can I take you out for a drink? Okay. You know. How long do you have to stay? Yeah. Well, I would say one drink and a decent amount of real conversation. Yeah. That sounds like 30 minutes to me.

Yeah, 30 minutes. I think it'd be hard to leave after 30 minutes. But again, I think it's actually the smart like the better thing the more efficient thing for all parties involved i just don't sure i could do it i think you really have to have received some major negative vibes to to cut the you know to cut it off after a mere 30 minutes did i tell you about my worst not worse that's not fair i've had really bad dates but like my funniest one where it was like, is this, is this good enough to now leave? So the guy, first of all, is like really good looking, really kind, like all sorts of positive qualities. I won't list them all for fear of,

uh, you know, someone identifying who this is. Um, picks me up in a car. This is in law school. So that was a big deal. Takes me to dinner at a nice restaurant. That's not like next door to my apartment. Awesome. And so we're like sort of trying to make small talk. And I'm like, so what do you like to read? And he's like,

Oh, I don't really read books. I was like, okay, fair enough. Like fiction or nonfiction. He's like, yeah,

I just don't really have time to read books i was like you know what we're all in school that's fair i was like where do you get your news from he goes um mostly usa today i was like can i leave the date now not because that shows some sort of like moral failing but like we're not going to get married you're not that's why i laughed was just because the lack of compatibility is like leaking from those two answers it's a sheer compatibility question i was like usa today and me this isn't going anywhere which is such a shame because i cannot tell you how good looking this man was like way outside my league in terms of looks and but i was like i should go home

that's why you got to read the room, man. Like, you know, with Nancy. You can name another paper. It's not like I'm going to quiz you on who the op-ed writers are. Yeah. You know, Nancy, when our, like on our first or second date, she said, hey, let's watch a movie. Great. What kind of movies do you like? And she goes, Woody Allen. Do you like Woody Allen? And I was like, yes. So you just lied. Oh my gosh. At least he didn't lie to me.

I was terrible. And then, and then she, at another point, she said something scornful about guys who are like really into sports. I was like, oh, no, man, the worst. And then the first weekend after he got home from our honeymoon, Nancy was like, I said, Nance, I'm not going to be around Saturday. What are you doing? My fantasy baseball league draft. That's how you, that's how you introduce. Once you had her locked down. That's right. That's right. And then you should have ended it with, and there's nothing you can do about it now. And literally within a few weeks of that, the guy that she thought was a Woody Allen fan got her to stand in line three hours in advance

for Independence Day tickets to see the movie Independence Day. Oh yeah, good movie though. Yeah. So it's like, dude, there are ways around this. Like what kind of books do you like? Think of a book. Think of the book. I would say that good, like if you wanted to impress me in just your ask, asking me out

instead of for drinks or coffee, which frankly I think are generic terms. You don't even really, you're not even really referring to anything like specific. It's sort of like saying I want a Coke if you're in Texas. You could be talking about a Dr. Pepper or God only knows Gatorade maybe is when you were like, hey, can I take you for milkshakes or hot chocolate, like something that is an equal situation of sort of casualness, you both show up separately potentially, but like really specific, like you've thought about this and decided that what we're going to do together is more interesting than just generic drinks or coffee. So that's my tip of the day for asking someone out on a first date.

So can I modify my answer a little bit? The more I think about it, now again, you're talking to somebody who's not been on an actual date since 1995. So it's been a while. But the more I think about it, the more I think of a dinner invitation to get a drink or coffee, you both arrive in the ejection seat.

So that's a casual ask. So I think that that 30 minute, you know, it's possible because you remember you're both arriving you can just reach down and pull the handle and eject i know but i feel like men ask that because they want they don't want the woman to feel like she's being locked in but like just do it lock her in but make it interesting it doesn't need to be dinner to be like hey i'm taking you to putt-putt i don't know but come up with something real and not just like a generic ask that then you have to be like, okay, well, what kind of food do you like? Or, um, should I make

reservations somewhere? Like, Nope. Come with a plan. Yeah, no, I, I agree with that. I agree with that. And if they are just coming with the ask for coffee or drink, you know, they're coming in in the ejection seat. That's right. Then yeah, it just sets up the whole thing. You're on this tone already of like, why should I stay instead of, I'm going to have an interesting conversation for two hours. Let's see where it goes. And by the way, the image of two people rolling in and an ejection seat. And then imagine like you're reaching for the eject handle and then he says something interesting and you, you yank your hand back away, that would be an interesting social dynamic. Your hand is just inching further, closer to or further away from the ejection seat handle.

I also feel like people try to shy away from holiday first dates. Don't. Lean in. Valentine's Day can be a great first date. Don't make it more than it is. I had a blind date on Valentine's Day and it went really, really well. And just because it's the holiday season, all the more reason to ask someone to come to you, come with you to like that party or that new restaurant you want to try. Or again, maybe I'm just really in the mood for a milkshake,

but it sounds really good right now. Milkshakes always sound good. Yeah, hot chocolate, milkshake, something to that. Maybe milkshakes during the summer, hot chocolate milkshake something to that maybe milkshakes during the summer hot chocolate during the cold season all right david i'll see you next episode we're still waiting on that gag order ruling from the dc circuit we have laid down our markers that we don't think the gag order survives in its current form. Donald Trump definitely testing that in the New York civil gag order up there with his Thanksgiving 2.03 a.m. tweet

attacking court personnel by name. But I'll tell you, I'm more interested in the D.C. Circuit ruling, which is a different gag order. Yeah, absolutely. And we have a fascinating Judge Ho to dissent that we need to talk about at some point. Concurrence.

Yes, concurrence. Sorry. Yes. Yeah. Concurrence. Yeah. We'll get to that next episode. Thanks for joining us.

Hope you liked FedCourts. We'll talk to you next episode. Bye. you