Advisory Opinions - SUNCOR Gets Complicated

Episode Date: October 8, 2026

Sarah Isgur and David French discuss the surprisingly complicated Suncor SCOTUS oral argument, Justice Samuel Alito and his AI usage, and circuit cases on child sex abuse material, vaccine exemptions, and racial harassment.  The Agenda: –Suncor Energy Inc. v. County Commissioners of Boulder County –An appropriate use of AI by Justice Alito? –“I don’t think Justice Alito has DraftKings on his phone.” –Justice Barrett, zombie slayer –Will  Ashcroft v. Free Speech Coalition ever get overturned? –Legal traps, religious exemptions, and COVID vaccines  –The DEI-training era reaches the courts  Show Notes: –Sherif Girgis’ Advisory Opinions episode –Jack Goldsmith’s piece in The Atlantic Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. We have got a pod for you today. Our first oral argument of OT 2026, it's the Suncor climate change case. And that got complicated.

We'll get the bottom line up front on who we think is coming out ahead in this case. But we've also got more Alito bookt. stuff, turns out he's used AI. Zombie originalism, zombie slayer. The headlines this week in law world were very zombie focused. And then we've got circuit cases, 7th Circuit, 9th Circuit, First Amendment abounds. We've got child sexual abuse material protected by the First Amendment. We've got vaccine exemption. dissent about the First Amendment. Actually, Title VII. and a racial harassment case under the Equal Protection Clause coming out of the ninth, all this and more on advisory opinions.

David, let's start out the podcast with our first oral argument of the year. OT 2026. This was the Suncor case. I have said that I think this is the biggest case of the year for me. This is Boulder, Colorado suing some energy companies. We have cases like this around the country. Depends exactly what you count, but we're at several dozen now. whatever the number may be.

Boulder's theory is state tort, nuisance, misleading advertisements, you know, state law harm done by these producer companies. They're not emitters. They're producers. So they're getting the fossil fuels out of the ground. And they're saying that that has led to through a chain of events, global climate change. And that global climate change has caused injury to people who live in Boulder, Colorado. just like any other tort, they can sue for that. Just disclosure real quick for those tuning into

this podcast for the first time or not since recently. My husband now works for Chevron. Chevron is not a party to this case, but obviously that is also an energy producer. And like Justice Alito, who recused himself because his wife owned stock in different energy companies, same thing kind of applies here because this will have effects on other producer companies. But unlike Justice Alito, I'm not recusing myself. But I did want to mention that, you know, potential problem. So, David, I think we went into this oral argument, like all Supreme Court cases, Boulder had won at the Colorado Supreme Court. Therefore, they have about a 70% chance of losing at the U.S. Supreme Court just based on the numbers of how

these things go. So you walk into this case, Suncor has the ball, so to speak. They are ahead by, I don't know, a field goal probably. Here's my bottom line. The oral argument changed nothing. Suncor leaves about a field goal up still. What do you think? I'll say it changed a little for me. And here's the way I look at it.

Suncor is lining up for the 55-yard field goal to win. So it's tied. But you'd rather be in Suncor's position. Like imagine it's one second to go and overtime. and who would you rather be on the receiving end or defending the 55-year-old field, 55-yard field goal or kicking it? You'd rather be kicking it because you've got a better chance of winning than losing at that point. But I will say the oral two things changed my assessment of the case,

just both a little bit on the merits, but more on the outcome. One is the recusal of Alito, which all of a sudden, like I could not, it was hard for me to see how before Alito recusal. It was very hard for me to see how Boulder could count to five. How are you counting to five with Alito? And just to be clear, if it does tie 4-4, whatever happened at the lower court stays in effect. So it reverses all the math, basically. You know, if you win at the lower court, you're likely to lose at the Supreme Court.

But if something ties 4-4, you definitely want to win at the lower court because that's just what stands. So Boulder doesn't even have to win now. They just have to get four votes. Suncor has to get five votes. Yes. So we recently had a situation where that was very important, where we had a Justice Barrett recusal in a Catholic charter school case out of Oklahoma. You got an Oklahoma Supreme Court case striking down the Catholic Charter School. That was 4-4. And so the Oklahoma Supreme Court decision stood. So two things. One, if I'm Canon, you know, our good friend Cannon-Shan began arguing the case, there were two things that were kind of like, oh, crap moments for me. Oh, crap moment, number one, before the oral argument, Alito recuses. So all of a sudden, All Boulder has to do is count to four. Oh, crap moment number two was in the first 15 seconds after he stops with his opening monologue and Justice Roberts starts in on him.

And at that point, I was like, oh, oh. And so, you know, at that point, just from a standpoint of handicapping, handicapping is opposed to like, what's my analysis on the merits? I thought, this is suddenly a lot tougher case. then on the merits as both Roberts and Kagan kind of went in on him, I started to think go from, okay, doctrinally on the merits, I think they've got a solid field goal to doctrinally on the merits. They've got a solid field goal attempt. In other words, just it wasn't quite as strong as I was expecting. I still am 100% with Canon that the idea that you could have state, you state, you state, you, state, you, state, you, you, state, and localities all over the country suing producers under state tort theories is a recipe for chaos. I don't think that that is the way we want to regulate things, but this becomes the who decides issue. And the question that is has the Constitution already decided or has the Clean Air Act already decided that this is a matter for federal regulation only?

or I think we should have comprehensive federal regulation, but do we, is a closer call than I thought it was going to be going in. And so that's why I adjust. I've adjusted. I still would rather be in Suncor's position, but I think right now there's maybe a 49% chance this thing ends with a fizzle and not a bang. In other words, it ends with either a 4-4, or it's just punitive. jurisdictionally because that was one of the questions presented was jurisdiction.

So I'm more, I went from a solid 7030 to more like a 55-45 or a 51-49 on this thing. I'm, I am genuinely stumped, Sarah, as to how it's going to come out. Interesting. So I agree that if Boulder wins, they pick up Sotomayor Jackson Kagan and get the chief. Because again, they only need four votes. Suncor, though, has a few other avenues. they have a 5-3 win where the chief is just over on the other side. And so the five conservative justices rule for Suncor. There's also a six-two win where Kagan moves over. We heard her at the end of the argument sort of offer the very narrow statutory clean air act path. I think I give Suncor higher odds than you. I think Suncor walked in ahead. Suncor left ahead for me.

But I actually found this oral argument for a case that I sort of walked in thinking, was a relatively doctrinally easy case. I thought the oral argument complicated it a great deal, which probably helps Boulder, to your point, complicating this was good for Boulder. So let me walk through everyone's arguments and why it got more complicated than, frankly, we've made it sound so far than I thought it was.

Okay, here's Suncor's argument. Boulder cannot take a quintessentially global phenomenon, greenhouse gas emissions and climate change, and use Colorado tort law to impose damages based on companies worldwide fossil fuel activity. Why? This is where it got complicated. So they had three different theories, I would say. And by the way, because this was so complicated, I'm going to try to make it less complicated

in doing so I may lose some very technical accuracy, but hopefully that's worth it. Okay, one. Interstate pollution is an inherently federal field because one state cannot dictate the rules governing conduct affecting other sovereign states. Almost think of this as the constitutional argument. There's like a structural, constitutional, inherent layer to the constitution that says something like pollution is not something for states. It is for the federal government. So like one, constitutional federal vibes. Two, Colorado cannot regulate conduct outside its borders where the connection between that conduct and the Colorado injury is this attenuated. Think of that as more like sort of doctrinal state, almost dormant commerce clause type stuff, California pork producers. And remember in California pork producers, that was five four saying California could by effect regulate.

the national pork industry because it had a law that said pork that sold in California had to meet these standards. And they were like, yeah, but that means every pork producer is just going to have to meet those standards. Why should California get to set national pork growing that happens all in Iowa when they're in California? And the court was like 5'4, you know, just because it has the effect of regulating national pork production, that's okay. Okay. So number one, constitutional. Number two, state interaction stuff. Number three, three, the Clean Air Act reinforces slash preempts Boulder's effort because Congress created a federal source state regulatory scheme rather than allowing affected states to impose their own rules.

So federal field preemption through the Clean Air Act. But there's problems with all of this. So now let me walk through Boulder's counter, Boulder. The companies are trying to invent a kind of constitutional preemption by silence. The Constitution doesn't contain a general rule saying that courts can identify inherently federal subjects and wipe away state law. If nationally inconsistent state regulation is a problem, Congress can preempt it. Feel free. The older federal common law pollution cases don't establish a constitutional prohibition against state law.

They simply involve federal common law, which Congress later displaced through environmental statutes. Oh my God, I started having eerie flash. and federal courts, and we're going to get to that. Every lawyer knows Erie, except they don't, like, every lawyer knows of the case Erie, but can't really tell you much about it. And every non-lawyer has never heard of the case, Erie. Okay. So Boulder also notes that this isn't an attempt to regulate emissions, which, of course,

is what the Clean Air Act is about. The defendants are fossil fuel producers, sellers, not the emitters, regulated by the Clean Air Act, and the claims include deception about their products. Boulder says the companies can continue producing fossil fuels. They just can't deceive consumers about their consequences. Any problems with causation, choice of law, personal jurisdiction, or the merits can be handled through the ordinary doctrines rather than a sweeping constitutional rule. Okay, so David, I want to just walk through some history real quick, get to Erie, and then we'll jump back into the more complicated version of

this case. Okay, so one state polluting that affects another state is a tail as old as time. Think about like dumping stuff in the river and the river flows down to the next state. So we have lots of law on this stuff. But back in the day, states all had the common law, meaning that judges would create doctrines and then build on those doctrines. Think of it as like precedent, built on precedent, sedimentary fossil layers, if you will. that you can dig through, like on tort law, for instance, who is liable when a contract is unclear and the blah, blah, blah, blahs. Federal judges were doing the same thing.

So have you had a tort case in state court, you would follow one path of common law, Pennsylvania common law. But if you were suing someone in Tennessee, for instance, that would be in federal court, just because you have citizens of two different states. but the federal judges had created their own common law of tort law. And so you would go off on a totally different path. This is the way things work until 1938 when you get to Erie Railroad versus Tompkins. I, if you had asked me, David, like gun to my head, what is the holding of Erie?

If you would ask me on Sunday, I would have said the holding of Erie is there is no federal common law. But like states still do common law, federal judges don't do common law, we're done. But that's not technically what you're doing. Erie says. What Erie says is there is no federal general common law because Erie never made a lot of sense to me. I get that we don't have like tort common law in federal courts, but David, we have, I don't know, the exclusionary rule in the Fourth Amendment. We have qualified immunity. What are these doctrines, if not federal common law, right? They are judicially made. They are built upon. There's rule upon rule. And then there's exceptions. And like it looks a lot like sedimentary

layers like any other type of common law. I still don't feel like I have a great answer to that question. I know there are answers to it. Like, well, it's tied to something in the Constitution. Like, really? Qualified immunities tied to something in the Constitution? Like, what text? What are we talking about? But whatever. Okay. So we're walking through American history, right? We're now in 1938. So keep going. Pollution, to David's point, remains one of those exceptions to Erie, where basically federal common law continues in the pollution world because it is so inherently, well, actually, the because is part of the dispute here. Why? Is it because it's inherently a constitutional federal issue or for funsies or were they not doing federal common law? Okay. So then we have

the Clean Air Act in 1970s. This is really important. If the Clean Air Act applies, and this is Kagan's point. We could just preempt this under the Clean Air Act and all walk away from this, none the worse for where. But if the Clean Air Act doesn't apply, because this isn't about emitters, because the Trump administration has said that the Clean Air Act now doesn't apply to greenhouse gases potentially, whatever, whatever, if the Clean Air Act doesn't apply, then you fall back to federal common law, but the Clean Air Act displaced federal common law. If it displaced federal common law, then you fall back to state tort law, in which case Boulder wins. If that federal common law was not federal common law, but a constitutional federalism of pollution, then when the

Clean Air Act falls away, it didn't displace federal common law. You just fall back to the constitutionality, the constitutionalization of pollution, and Colorado's state tort law does not come back. This is what made the case, I think, in the oral argument really boringly complicated. Well, and it's also, you just explained why law students from across the world, I mean, across the country for all time, have hated choice of law classes because it's just, wow. Which is, so you've just perfectly explained in our march through 250 years of history in 2.5 minutes, why I'm so much less certain about this one than I was before the oral argument. Because, and, you know, this is something that happens to us on this podcast occasionally.

Occasionally we'll walk into a case and think, okay, kind of got this clocked. And, you know, one out of 20, one out of 30 times, you're like, nope, did not have this clocked, exactly. So, David, I walked into this argument thinking this was a preemption case. This is all just, does the Clean Air Act field preempt this kind of lawsuit or does it not? But you have justices Gorsuch and Thomas who are not going to be big fans of implicit preemption, right? These guys are textualist. Either Congress preempted it or they didn't.

And so if your Suncor, you're walking in arguing this case to Gorsuch and Thomas, worrying that you could lose them on some like weird, you know, much larger doctorate. China question on preemption. But to your point, I feel like they probably, that is exactly what happened. They walked in to argue to Gorsuch and Thomas to try to avoid preemption because they worried that they couldn't bring them along on a preemption train. But in doing so, they've opened themselves up to kind of a bit of another mess. Because now, I still think Suncor, we both agree at least that Suncor has the ball in this game. Suncor win. if the Clean Air Act does a implicit field preemption thing. Suncor wins if the Clean Air Act doesn't apply,

but interstate pollution is nevertheless an inherently constitutional, therefore federal issue. Boulder wins only if the Clean Air Act doesn't apply. Interstate pollution isn't a federal issue, and you fall back two layers back to state tort law, or Boulder wins if the Colorado. Supreme Court's decision wasn't a final decision. I think they lost on that, by the way, at the argument. If there was one thing that actually did become pretty clear to me, like, no, that's not a good

theory. So, I don't know, Suncor has two paths, maybe a third. Boulder has one path, but because of the fear about Gorsuch and Thomas, I thought Suncor weirdly opened up that other path more than I thought it was open heading into the argument based on their briefs. You know, I think a great short-haping way of thinking about an oral argument at the end of it is who would you rather be after you've listened to and you've read the entire oral argument who which side would you rather be who shoes would you rather be in and i think it's still sun cores but the shoes aren't as comfortable as they were going in and so i'm going to be very intrigued but if it is a four four it feels like kind of a fizzle because you're really not establishing some sort you're not answering the question

you're just punting back to the Colorado Supreme court which is the law of the case it's not going to be of that meaningfully that's it's just not going to be meaningful precedentially so we'd have to come back and do this again and in the meantime justice alito get all your assets in a blind trust please i think he's told that to his wife and like the flag that he asked her to take down. I think she said no. When we get back, I actually want to talk more about Justice Alito. Great piece in the Atlantic by Jack Goldsmith about zombie originalism. And just a second on an interview he did with the Wall Street Journal. As we continue, Justice Alito's book tour for so ordered. We're getting lots of Justice Alito that we've never gotten before. We'll be right back.

Okay, David, Justice Alito on a podcast with the Wall Street Journal's Kyle Peterson, is at asked about his foray into AI and says, I did ask my clerks just as an experiment to ask one of these, either Claude or ChatGBT, GBT, to give me questions to ask at a student moot court. And they were very good questions. There we have it, David, the use of AI by a Supreme Court justice. I think this one's like the first documented use. That was very interesting, very low stakes use, you know, with human oversight. You know, and I know that some listeners are going to react volcanically to this, but that strikes

me as an appropriate use of AI. I think we do have some who are like, no use of AI in the legal context is appropriate, but an appropriate use of AI. And I've told my students, I've said, I'm going to allow you to use AI as a research tool, as a, in aiding you in your research. but if I find a, and I literally wrote this on the board of the class as my AI policy, Sarah, and I would urge other teachers to use it verbatim. If I catch you using a single syllable of AI in your written assignments, I shall nuke your academic career from orbit and warm myself on its glowing remains. Justice Alito has been giving all these interviews,

and that has caused a whole lot of our favorite people to come out and discuss exactly what, what is Justice Alito's jurisprudence and what it means for this entire experiment? Because Justice Alito sort of comes of age in a lot of ways during the rise of originalism in the 1980s. Like, you know, Justice Scalia is older than he is. So he is an acolyte, if you will, of that sort of original Bork, Scalia-Meese world. He's a young kid at DOJ at that point. So we expect him to be that second generation of originalism in a lot of ways. Thus enters Professor Jack Goldsmith's piece in the Atlantic called zombie originalism. Alito's nominal adherence to originalism, even as he struggles to revamp it, is but one indication that the doctrine is becoming a zombie

creed that functions more as a shibboleth than as an actual guide to conservative constitutional decision-making. Oh my gosh, I totally agree with this, but had not thought of it, that way. We talk about zombie precedent, but now when people say they're originalists, it tells you nothing about how they approach cases. Is it judicial restraint? Is it judicial activism? Is it archival originalism? You know, digging through all of these laws in the 13th century? Is it vibes originalism? So this is how the piece kind of ends. It's talking about this new right that has come up that also claims, well, maybe, to be originalists or post-originalist? Even as the conservative court has moved right, it has managed to anger the much more right-wing

second Trump administration. Then he goes through all the losses of the Trump administration. Federalist society lawyers and originalist judges are blamed for trying the president's hands, tying the president's hands during his first term, for inadequately unwinding progressive constitutionalism, and for disloyalty and not backing Trump when he challenged the 2020 presidential election results. The president himself has denounced the Federalist Society. In their attacks on the court and its moderate conservatives, the Trump administration and its allies are articulating a new right idea of conservative judging. That view despises originalism's value neutrality, prizes conservative results, admires judges with the, quote, courage and quote loyalty to uphold Trump's program, and views adverse decision as evidence of timidity, establishment capture, or betrayal. Alito claims no association with the new right, but his essays and work on the court make plain why its legal camp venerates him. Alito, along with Thomas, has supported the Trump

administration in every second-term case of importance, including with dissents in every major Trump loss. Yet it would be a mistake to read Alito's attempts to articulate a judicial philosophy as mere camouflage for a hard-right jurisprudence. So ordered, the book that we're talking about, leaves the clear impression that he sees himself as a serious lawyer adhering to principles. If the principles are not as coherent as they might be, that does not distinguish him from most justices now or in the past. What is curious is that Alito has articulated a semblance of a judicial philosophy at all, given his weariness about theory as a guide to judging. In the end, his essays serve as a marker of our bitterly fractured constitutional moment, and

Alito himself remains an elusive yet powerful presence, the face on the court, however unintended. of the Trumpian legal agenda. David, what say you of zombie originalism? I love everything you read so much that I want to marry it. Like, it was so well stated. It was incredibly well articulated. And also, if I can just go ahead and toot our own horn for a minute, engage in a bit of advisory opinions self-promotion,

none of that would be surprising to read or to consider or to think about if you've been listening to this podcast for months and now years. And I've put it like this for a long time because I think there's a lot to this, that originalism grew up in the Roe era. Originalism was often in many ways centered as a guided missile. It was often advanced to sort of the guided missile to take down Roe. And then once the missile hit its target, then it became, okay, wait a minute, now we're all of a sudden the dog that caught the car.

we're all a bunch of originalists now in charge of all federal, constitutional jurisprudence in all contexts, and what does that look like? I do think that one thing that was particularly helpful in that Jack description, which connects with something we said last podcast, is this way in which parts of the new right argue that is essentially this. We have figured out the right answer to the question. And therefore, if you're not reaching the right answer,

the only logical explanation for your failure to reach the right answer is you just don't have the guts for it. You're just not courageous enough. You're too timid. You're too establishment. You hear this all the time. But if you think about it for less than three seconds, it just completely collapses as an analysis of judicial outcomes.

Because think about the breathtaking arrogance of that position on the new rights, Sarah. Think about how arrogant you have to be to believe that contrary results to your philosophy can only be due to the coward. of the dissenters because you're so self-evidently correct that contrary results are only due to their cowardice or timidity. It is the common good constitutional version of a far-left view that says contrary results to me are only due to your racism or your transphobia or your homophobia. It is the same phenomenon. We are so self-evidently correct that if you disagree with me, you're a coward. And you just see this everywhere.

But you know who's a coward, Sarah? It's the person who veers for what they know to be correct because they don't want to be seen as a coward. Okay, that, that's cowardice right there. So let's just be a little more all-encompassing in our definition. But I'm glad we're going back to this because I still, you know, in reflecting on our conversation with Sharif, I'm still in the same place of being, I'm very great. that Justice Alito articulated his philosophy at such length and volume. And I'm more, I'm more alarmed by the quote unquote insecure originalism point that he made than even when we were talking to our good friend Sharif.

Because that whole frame is rinsing through this, even the very name, insecure, imputes a motive. It imputes a state of mind, right? And I strongly object to that. In the absence of compelling evidence of cowardice or insecurity or timidity or whatever, just address the arguments, guys. Just take the arguments and address the arguments. You don't get to go around it by saying, well, he's insecure or she's insecure. And it was very difficult for me to read that portion as anything other than, well, when I run the traps and I get a result that completely,

ports with what I think is right and fair and just in sort of in the larger world, oh, originalism's working. If I run the traps and it comes to a result that I don't think is right and fair and just in the wider world, then we need to rerun the traps, perhaps. And it's hard to escape that conclusion from that reading. I thought Sharif did a very good job in his role as Justice Alito's defense counsel and saying, no, it's much more like if it's like manifestly unjust because, you know, I believe Alito was in the majority in the Murphy, NCAA, the sports gambling case. I don't think that Justice Alito has got draft kings on his phone. You know, he's not, he's not doing that. However, so I don't, I think it's just unfair to say that he never

reaches results he doesn't like. But right there, you have that formula for twisting originalism. Oddly enough, in decrying twisting originalism, he creates a formula for, for twisting originalism that is rooted in your subjective assessment of how you would sort of like the world to look like versus trying your best to do an objective analysis of the statute or constitutional provision in front of you. Yeah, David, I guess my bigger takeaway is that the word, again, it's like zombie originalism. The word originalism has now fractured into so many pieces when someone asks, are you an originalist? That's a pretty useless question now. I agree. I agree. I think it is a useful.

question, well, not entirely useless. It is becoming mostly useless. And that's why, you know, we had, when I was going back to, you know, our SCOTS blog term preview, and I talked about our AR-15 case is the most important case of the term, because I think it will be most illuminating of the different versions of originalism held by the six conservative justices. That's why I find it most interesting, not necessarily because of the actual substantive issue around the AR-15, but much more about the how will they decide the substantive issue around the AR-15? Speaking of zombies, by the way, I just wanted to highlight this piece that was over on SCOT's blog, Justice Barrett, the zombie, parentheses noun, Slayer. I don't know how zombies have ended up

in all these headlines, but basically if you put zombie in your headline, I read it as the main takeaway. Kendall Gray, who is a great friend of the pod, wrote this, and he compares these two Supreme Court decisions. Watson versus Republican National Committee, And the famous one-person-one-vote case, Baker v. Carr. Justice Barrett writes Watson. Justice Brennan writes Baker v. Carr. The first opinion, Watson, opens with a yarn about election laws and elections in the early United States, including absentee ballots for Civil War soldiers.

Justice Amy Coney-Barrins this yarn by choosing great verbs. Baker v. Carr, not so much. Even when protecting voting rights, Justice William Brennan, its author, drains verbs of all their life by adding suffixes and turning them into nouns. Dive into the opinion and you'll question whether you'd rather stop reading and just, he opens with this bet, pay a million bucks to someone instead. So how does Barrett do it? Like the chief in learning resources v. Trump, she often builds her sentences around a character as the subject and gives them a great verb to reform. Thus we read, Congress may override most of the state's choices on elections. State legislatures may direct how electors

are chosen. Congress may determine when electors are chosen. Congress allowed leeway to the states. Congress enacted an election day statute. Congress intervened in the election day schedule. As for ballot deadlines, states at first imposed an election day deadline, but later states began counting ballots received after election day. We read that the election clauses empower state legislatures. Certain responsibility for matters belongs to the states. The Constitution lodges power in state legislature. Lawslaut, fraud ran rampant, then continued to plague elections, but Public Assembly helped ensure voters were qualified, unlike in Baker v. Carr. Let's just read some of that. Dysenennial reapportionment was affected. The 1871 reapportionment was preceded. There were both an

enumeration and an apportionment. The injury which appellants assert is that this classification disfavors them. Brennan unleashed a horde of zombie nouns to lumber across the scene without a conscience agents directing their motion. Anyway, if you're interested in legal writing or really any good writing, Kendall Gray's your guy, first of all, he's a professor over at Duke, but also Justice Barrett, the zombie noun slayer, is a great guide to good legal or any writing, in my opinion. and I wouldn't have known why Justice Barrett's writing was easier to follow, David.

But he's right, you can turn verbs into nouns and it makes it really dull. Very interesting piece. I'm so glad that we're highlighting it. But it also goes to sort of the professionalization that we've talked about, that, you know, if you go to many law schools now are much more emphasizing the craft of legal writings than they used to. I was when I was in, when I was starting in law school, we had a legal writing class, but it was not a letter grade. And so people, if you make a class pass fail, students are going to pay less attention to it. You make it a letter grade, students are going to really lock in. So then when I taught at Cornell Law School and I taught legal writing, it was a letter grade and the students were locked in on this thing.

And the, you know, the transition from passive voice to active voice, the influence of books like plain English for lawyers. the gradual shedding of sort of legal, legalisms that really don't serve any purpose, like beginning everything with may it please the court, you know, kind of the sort of language, the de-latinization of the language that we use around law, all of those things have made it more accessible. And I welcome it. I'm glad for it, because I just got to say some of these older decisions, it's like reading early translations of the Talmud, if I've ever done that, that we, just I'm imagining as,

wait a minute, this sentence is subject to three different valid readings here. It's not very clear. I thought that's a great, great piece. We should put it in the show notes. Absolutely. And so we shall. David, when we get back, we've got some circuit cases piling up. Weirdly, they're all from the Seventh or Ninth Circuit, but they all are A.O. important. Child sexual abuse material protected by the First Amendment, vaccine mandate, religious exemptions. Those cases percolating everywhere. Two of them recently were denied cert from the long conference, but one of them's going to get it. Could it be this one? Ninth Circuit on racial harassment and is anonymous speech protected by the First Amendment. We'll be right back. All right, David. We don't. We don't.

need to get into the legal specifics of all of these cases, but I did want to just talk about a few of them. Ashcroft v. Free Speech Coalition is a 2002 case about virtual child pornography in which the Supreme Court held that virtual child pornography is protected by the First Amendment. This has been a case that has bothered people for a long time, and no surprise then that we get this decision from the Seventh Circuit that holds that child sexual abuse material that's created by AI is therefore protected by the First Amendment. It is, I mean, to me, it seems very, like, it is the Ashcroft holding. I don't see how the Seventh Circuit could have departed from that. What is AI, but virtual CSAM material? But David, I guess my question to you is,

do you see this getting overturned at any point? Is this case still a good holding when like virtual child, you know, sexual abuse material in 2002 is pretty different than 2026? The lower court obviously can't overrule the Supreme Court. Even though it was a different internet era when this was decided, it's you still don't get to say, well, that was a different internet era. I'm going to just presume they would not rule the same way and then rule against the. them. So I agree with the circuit court, its hands were tied. But I feel very similar to if an AI child pornography case gets to the Supreme Court, very similar to the way I would feel if the way I felt when the age verification cases, the got to the Supreme Court, the Paxton case, where if you looked at earlier internet era precedent, it was very clear that they were decided on the basis of the state of the technology at that time. And it was even more explicit in those circumstances, age verification technology was primitive, the way that it would work.

If you allowed those kinds of restrictions earlier in the Internet era, they would sweep really broadly and or be largely ineffective because the lack of technology. I have a very similar feeling about this, Sarah, that if you'd gone and rewound the clock 20 plus years, they were not dealing with absolute photorealistic, virtually indistinguishable images here. They were not. And to be clear, in 2002, if you used a picture of a real child to create virtual CSAM, you could still, that was not protected by the First Amendment. It was completely virtual CSAM. Same here, by the way.

You can't use the real picture of a child and then have AI create CSAM and say, oh, protected by the First Amendment. But if AI just creates a child, you know, a picture of a child and then creates the CSAM, that's what the Seventh Circuit is saying. their hands are tied by the 2002 Ashcroft case. Yeah, and I should use the term CSAM. That's one of those language changes that's actually really good, I think, because it is just sex abuse that you're talking about here.

And if you're talking about absolute photorealism, at that point, it's just really hard. I mean, we just went through talking about originalism. It's just what's the originalist argument for that. We know what the compelling governmental interest is. How is that not overcoming even strict scrutiny at that point? what's the value of the speech being protected? I mean, I sound like Justice Alito at this point in the Crush video dissent. This is where I wish that strict scrutiny wasn't fatal in fact. I actually think that sometimes the government interest does overcome the speech interest.

This seems like that to me. I don't know if the Supreme Court's going to take this case, because we have so many of these AI cases that are going to come up. But I don't feel like Ashcroft v. this free speech coalition has a lot of legs to stand on in 2026. You know, it's interesting. I kind of wish, like, I'm glad that Paxton came out the way it came out, but I kind of wish it had come out that way under strict scrutiny. You know, when you read, I believe it was Kagan's opinion in the Paxton case, it's very clear, it was very clear for me to reading that, that she thought strict scrutiny should

apply and it would pass strict scrutiny. I could not agree with you more. And there are contexts where I don't think that there would be much. controversy about something passing strict scrutiny, say a ban on publication of sailing schedules of warships in wartime. You know, that would, they would apply strict scrutiny, it would pass strict scrutiny, and nobody would think the sky was falling. I think it's time for something to pass strict scrutiny, and this would be an ideal kind of case to pass strict scrutiny. Speaking of which, let me take you to another Seventh Circuit case. This one I particularly

want to highlight the dissenting opinion by new Seventh Circuit Judge Tabelson. friend of the pod. Let me just open with her dissenting paragraph here. For more than 10 years, Brooke Mason worked as a hospital pharmacist for Cook County Health. She showed up for work through the uncertain early days of the COVID-19 pandemic in 2020 and 2021. She masked. She socially distanced, and she tested. When COVID-19 vaccines became available, Mason declined to receive one citing her religious beliefs. For that, she was fired. They reasoned that vaccines were the best method to avoid COVID-19 transmission and declined to grant religious exemptions to any in-person employee, and that was that. She sued Cook County under Title VII, and in my opinion, her case should proceed to trial.

Title VII does not demand mere neutrality with regard to religious practices. Instead, it gives them favored treatment, affirmatively requiring employers to accommodate their employee's religious practices. To prevail, the county must show that accommodating Mason's request would have been an undue hardship, meaning an excessive or unjustifiable burden that would result in substantial increased cost in relation to the conduct of its particular business. And to prevail at summary judgment, the county had to make that showing so definitively that no reasonable jury could conclude otherwise. The county has not made that showing. Indeed, it hasn't really even tried. Instead, the county has explained the reason why they adopted a broad

vaccination policy, that public health officials recommended it as the best means of limiting COVID-19 transmissions. That's a start. But when it comes to religious practices, Title VII requires employers to make exceptions to their generally applicable policies, even to policy supported by public health guidance, unless doing so would be an undue hardship. The record contains no evidence that Cook County Health seriously considered doing so in Mason's case, although alternatives to vaccination, like masking, testing, socially distancing, and partial remote work were available, the county has not shown that permitting those alternatives would have been an unjustifiable burden, and it is the county, not Mason, that bears the burden of proof on the underlying undue

hardship question. David, every single circuit court right now is flooded with versions of this case. That's about how long these cases took to reach circuit court level. We had two that were up on cert petitions to the Supreme Court that were on the long conference. Both of them were denounced. Both of them were denied cert, maybe the Supreme Court can just not do COVID cases, right? There's going to be this blip. And the blip will go away if they just deny cert on all of them. But I do wonder if we're going to get one that they're like, yep, this is teed up exactly right. And I kind of think this Tabelson descent one is a nice, the ball is on the tea, you know? Yeah. So I have two thoughts about this. One that's sort of like political slash philosophical slash moral with legal

implications and one just legal. Okay. So the political slash moral slash philosophical slash philosophical with legal implications is religious liberty jurisprudence was not designed around a worldview that essentially says, I'm a Christian, therefore everything I do, I do because I'm a Christian or whatever, you fill in the blank. And so whenever I'm asked to do something I don't want to do, that's a violation of my religious liberty. Like this, there's this sort of like, I made a decision and I don't want to do this and I'm a Christian. And so that means I made the decision and don't want to do this because I'm a Christian. It is sort of opening up the world of religious liberty in a way, I think, that was far beyond its bounds. And part of the analysis

of religious liberty cases has had at least in some sense this idea that what I'm saying, is a substantial burden. It's a substantial burden on my religious beliefs. And courts have largely not tried to adjudicate that because what is a substantial burden, what is not a substantial burden, because they, they quite frankly don't want to be making that kind of, like, quasi-eclesiastical decision. But David, wait. So, but you're not saying that would apply here. I mean, just to read from the case, she said, I am unable to comply with Cook County's health COVID vaccine mandate as it runs counter to my Christian beliefs and request an accommodation. My beliefs are an all-encompassing guide leading my daily life and central to these beliefs is the

requirement to keep my body and soul pure. Although I am not perfect, I strive to honor the Lord, our Savior and all I do, God's word tells us to keep thy body pure. My body is the temple of the Holy Spirit and shall not be defiled. I am fully immunized as the good Lord intended. Thank you for your consideration. And then, I mean, this went on with like 90 days where she had to look for a new job. She couldn't find, you know, they wouldn't offer her one. And then they fired her. Like, clearly she believes something if she's willing to be fired over it. Interestingly, Sarah, that's exactly what I'm talking about. Because what that basically says, I believe my body is a temple. What I do with my body, therefore, is derived directly from my religious beliefs. What's the

limiting principle here on the assertion? It's sort of I, my desire equals my religious belief. And I think that, you know, what you're, when you're talking about traditionally, when we're talking about religious exemptions and religious liberties, often what you're talking, when these things were crafted, you were talking about things like there was a teaching of my church that I had, that your regulation conflicts with the teaching of my church. And therefore, you're going to be, you're placed with this conundrum where it's, my church tells me one thing, the state is telling another thing, how do we harmonize that? If you have essentially a belief system that is what I want to do, because I am taken all of everything captive to Christ, and therefore what I then do is because I'm a

Christian, then everything that somebody tries to do to limit your behavior becomes a religious liberty issue if all of your behavior is allegedly because you're a Christian. That's where, you know, you originally had a limiting principle that had to be a substantial burden on your religious beliefs. It's not just you're being asked to do something you don't want to do. It has to be a substantial burden on your religious beliefs. And traditionally, courts have sort of pulled away from that because they don't want to get into this ecclesiastical scenario is a way to think about it. And so, but if these, if as religious liberty grows, there are greater and greater and greater protections for religious liberty, you begin to have, and you have a movement in which, quite frankly, you know, and I'm sad to say this, and this

wasn't everybody, so don't freak out. I'm not saying this was everybody, but I saw it during a COVID where there was a movement where people didn't want to take the vaccine because maybe they thought it was dangerous, realized or because they were, you know, they, you know, how everything got so turned into an ideological battle in COVID. And the question became, well, how do I get out of taking the vaccine. And you begin to have things like, oh, if I'm a pastor, you can just write me and I'll write you a letter to get you out of it. And it was, I saw this all unfold before my eyes. This was, I don't want to take the vaccine. Now I'm going to find the reason why I legally don't have to take it. And a lot of people fixated and fastened on the religious exemption and the religious

idea. I'm not in any way, shape, or form going to say that every one of them was this kind of process of a of an impulse looking for a rationalization. But a lot of them were. And I, but I agree with Tabelson, Judge Tabelson, on the actual legal merits. It doesn't seem that the defendant ran through the legal traps here. There's a process you're supposed to go through when you get a religious exemption request. And it seems to me that they gave, as Judge Tabelson maps out very clearly, it just seems as if they didn't do what they should have done statutorily.

And therefore, that means that this is much more of a triable issue. So that's why I'm saying on sort of this sort of philosophical meta issue, I'm really worried that the explosion of religious liberty claims that are sort of connected to like, I don't want to do this and I'm a Christian, therefore this is a violation of my religious liberty, is ultimately going to be harmful for religious liberty. but on the narrow issue of this case, I think Judge Tabelson's correct. Okay, well, speaking of cases that are flooding the circuit courts at this point, I want to move to one of the Ninth Circuit cases,

and I want to save my free speech campaign finance anonymous speech case for our next episode because I really want to dig into that one with more time. But here we have a Ninth Circuit opinion about the 2021-era DEI training, which classified employees based on race, made them sign things, sit in trainings, et cetera, and whether an employee is able to sue claiming violations of the Equal Protection Clause, hostile work environment, constructive discharge, disparate treatment, retaliation, in violation of state and federal civil rights laws. David, this was the city of Seattle,

and their mandatory race and social justice initiative. The employee lost is the punchline here. So, David, this was like a mixed outcome for this defendant. Why are we talking about this Ninth Circuit case? Yeah, why we're talking about this Ninth Circuit case is because it really connects with a lot of arguments that we discussed in this podcast several years ago when the anti-critical race theory bills were coming up and things like that. And one of the questions was, wait a minute, do we need sort of bans on speech because don't existing civil rights laws already prohibit hostile environment discrimination? And that hostile environment discrimination prohibition applies to white people just as much as applies to people of any race. And if what they're doing, if they're actually discriminating on the basis of race and they're actually creating an environment in the workplace where white people are made to feel unwelcome,

where it's essentially a term or condition of their employment that are subjected to this sort of anti-white rhetoric, you already have existing statutory tools. And a lot of people are like, no, we do not. They don't help us. They don't protect us. And in fact, they do. They do. This is a case where you had an employee subjected to the kind of training that was very much directed at against whiteness. and it was very much directed and racially based in a way that was extremely and repeatedly

derogatory towards quote unquote whiteness. And now I know there are academics out there who will say that quote unquote whiteness doesn't actually refer to a race or ethnicity. It refers to a mindset, et cetera. But spare me that one. If you're a normal person and you're hearing whiteness, you're hearing whiteness. And so what this is an example of is how in the, in this woke 1.0, peak woke, whatever you want to call it, it was plainly obvious to many of us that the extremely race conscious steps that were being taken during the 2020, 2021, before then,

that this was going to flounder on Title VII grounds, Title VI grounds, Title IX grounds, you name it, depending on the specific issue. And this demonstrate, this case demonstrates exactly, why, that in fact, you can't import these exotic whiteness-based academic theories into HR training and expect employees who are white to think, oh, yeah, I suck. I mean, that is going to be every bit as problematic legally, ultimately, as it would be if you started importing a bunch of stuff about blackness that was extremely derogatory. And so I thought this was worth highlighting

on that grounds. It's also worth highlighting on the grounds that when you actually read the case, you realize how difficult it is to actually succeed on a hostile environment claim. Once you're in a court of law, it is a pretty high bar. And a lot of the restrictions you live under in workplaces are these prophylactic restrictions that are very, very, very strict to prevent someone from even getting close to hostile environment harassment. So for there to be actual hostile environment harassment potentially found here, that it had to be bad. And when you read through these, the case, it was actually quite bad.

All right, David, on the next episode of advisory opinions, I will be reading from Judge Patrick Bumete's dissent in Americans for Prosperity versus Meyer. I'll just, I'll give you a little taste right now. Speaking anonymously on matters of public concern is deeply rooted in the American story. Publius, Brutus, a citizen of the state of New York. Common sense. A Colombian patriot. The Pennsylvania farmer.

Helvidius. Pacificus, a friend of the union. The list could go on and on. Without the powerful words of the founding generation's anonymous pamphleteering, who knows if this nation would have achieved independence, ratified the Constitution, or enacted the Bill of Rights. Ha, ha, ha. So David, we're going to talk about anonymous speech and campaign finance disclosure laws next time.

As well as we had more oral arguments this week. We have more coming next week. And frankly, David, we're back into the swing of things, right? Oral arguments are upon us. My showers have gotten longer, you know? It's our time. It's not quite our peak time like when decisions are being handed down. This is more like our NBA regular season.

and then decision, the last day of decisions is like game seven of the finals. Yeah, but like I like it. I like regular season. This feels good. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. you can sign up at the dispatch.com slash join, and if you use promo code A-O, you'll get one month free and help me win the ongoing, deeply scientific, internal debate over which dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium

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