Advisory Opinions - Supreme Court Did What?

Episode Date: July 3, 2020

The Supreme Court denies cert to an abortion case, grants cert to a case over Mueller's secret evidence, and the Biden and Trump campaigns are lawyering up for 2020's final act. David and Sarah have thoughts. Show Notes: -Declan’s Dispatch profile on Tim Scott -Hill v. Colorado -June Medical Services v. Russo -Masterpiece Cakeshop Ltd.  v. Colorado Civil Rights Commission -Arlene’s Flowers Inc. v. Washington -Whole Woman's Health v. Hellerstedt -Box v. Planned Parenthood of Indiana and Kentucky, Inc. -6E law on grand juries -“Biden pulls together hundreds of lawyers as a bulwark against election trickery” -“GOP recruits army of poll watchers to fight voter fraud no one can prove exists” Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See home club for details. DQ Presents. How to officially start your summer. Step 1. Head to DQ.

Step 2. Try the new Summer Blizzard menu. And Step 3. Dig into new peanut butter cookie dough party, new picnic peach cobbler, and more. Make it official, only at DQ. Happy tastes good. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger.

And this podcast is brought to you by Dispatch Media. I keep realizing I'm always promoting the Dispatch at the end of the podcast, Sarah, and not at the beginning. And that's a woeful mistake on my part. Especially because Declan had this most amazing long form on Tim Scott this week that I just thought was maybe the best piece we've ever published. So extra shout out to that one. Yeah.

So go to thedispatch.com and read Declan's piece on Tim Scott, which is outstanding. While you're there, subscribe to thedispatch.com. Or if you're not ready for that level of commitment, become what we call a freelister. So you can sign up without paying a dime and you're going to get some of our content. We're just going to... It's like a tantalizing taste of the bounties and the goodness that flow from the full subscription. Or wait, our style guide says membership. We don't use the term subscribe. We use the term join. Right, Sarah? Toby's listening to this and is going to send you angry, angry Slack messages.

Oh, I know. I know. So Sarah. Oh, wait, I have two corrections from our last pod. Oh, okay. Go ahead. One, I said that Double Indemnity was a Hitchcock movie. And it's so embarrassing because I love Double Indemnity. And it's not that I got it wrong as in I just said it wrong. This whole time, I thought it was Hitchcock. It's not. it's Billy Wilder. And a wonderful listener pointed that out to me in the kindest way, assuming that I had just misspoken instead of being, you know, wrong for a couple of decades.

So apologies to Billy Wilder for that. Second, I said, I made a joke about Lucy and the football. And I said that Lucy was kicking the football. Obviously Lucy was not kicking the football. Charlie's kicking the football. Lucy keeps telling Charlie to kick the football. And I said that Lucy was kicking the football. Obviously, Lucy was not kicking the football. Charlie's kicking the football. Lucy keeps telling Charlie to kick the football.

That one was just me being sleep deprived. I did not notice that in the original when we were taping it. Also got an email on that one. Yeah, I didn't notice that when taping. But then when I went, I was listening and I noticed that. Now, I never in a million years would have caught the double indemnity mistake.

I know, and it's so good. So, recommend that movie. But I'll just say, after you dunked on me for two podcasts, not just our last advisory opinion, but also the Dispatch podcast, it's just nice to know that you're not quite the cultural sophisticate. But I've still seen Casablanca, so you know what? Touché. Okay. Please continue. So when we record this podcast, we're located in our respective home offices, as we have been since the onset of the pandemic. And so we're recording remotely, and we have this app that we use called Zencaster.

And so when you log on to Zencaster, you have to enter your name. And I always like to enter a name that's sort of reflecting how I feel in the moment. Uhtred, son of Uhtred. Yes, yes. The Uhtred, son of Uhtred. Yes, yes. The Uhtred, son of Uhtred, back when Last Kingdom season four came out. But today, my name in Zencaster is confused in Franklin. Sort of a sleepless in Seattle shout out, I thought.

Yes, yes. I'm confused and I'm in Franklin, Tennessee. And so why am I confused? I'm confused because the Supreme Court did some really interesting stuff today in abortion jurisprudence that has me scratching my head, quite frankly. So we're going to talk about that. I think it's significant. I've only seen like small blurbs about this in the news. significant. I've only seen like small blurbs about this in the news. I think they don't quite understand what just occurred. And so we're going to, we're going to chase that down. We're going to spend some time on this, chasing that down. And we're going to have to introduce you to some

terms before we do it so that you don't think we're speaking in a foreign language, perhaps Dothraki. And we are going to also talk about a cert grant. The Supreme Court has granted cert in the confrontation between the Trump administration and Congress over releasing unredacted or unredacting portions of grand jury materials or releasing to House Judiciary grand jury materials in the Mueller investigation. We're going to talk about how the Biden and Trump campaigns are lawyering up right now. They're essentially conscripting mass numbers of partisan lawyers into a legion of lawyers ready to contest the 2020 election. We'll talk about what that means. And then we're going to answer reader mail about why did Sarah and I change careers.

And so we're going to kind of dive into that a little bit. So before we start, before we dive into all of that, let's go to why I am confused in Franklin. Okay, Sarah, three things happened today that I think are of some significance. One is the Supreme Court denied cert in a case that was challenging a what are called sort of abortion bubble zones. They are area that would these are relate to laws that prohibit anyone from getting what within about eight feet eight feet yeah eight feet of someone who is going into an abortion clinic seeking an abortion um this is these laws uh were sprang up many years ago uh to protect uh those who are seeking an abortion from being engaged by protesters.

They were upheld in a case called Hill v. Colorado, a case that is really, Sarah, would you call it an outlier in First Amendment law? No, because an outlier implies that it's still within the zone. Hill is like on a different, it's like across the ocean, forgotten about. It's this 2000 opinion that matches with no other First Amendment jurisprudence that basically says that we do protect people from speech they don't want to hear. Private citizens being protected from other private citizens from speech they don't like or that could be upsetting, which is the opposite of all other First Amendment jurisprudence, pretty much. Right. And so that's the case. That is exhibit A, because I've used the term abortion distortion in the past. If someone says, oh, come on, there's no such thing as an abortion distortion. I just say, Hildy, Colorado, mic drop what you got to say about that.

mic drop what you got to say about that. And yeah, it is a completely, it is a unique First Amendment doctrine applied specifically to the abortion context. As you said, it protects citizens from other citizens' speech. And it's content-specific. Yes. As the cert petition in this case pointed out, you can scalp, you know,

White Sox tickets. You can, you know, ask for them to take a survey or all the other things that people say to you on the street as you walk to the Starbucks. But they must stay eight feet away if they are discussing basically abortion in front of an abortion clinic. And that's just wildly unusual. Now, Justice Thomas dissented from the denial of cert and said he would have granted cert. But David, to the conversations we've had before, the cheese stood alone again. Yes, he did. So the Supreme Court denied cert and a challenge to a bubble zone law. And I am surprised by this, quite frankly, because you don't even have to get to abortion doctrine to deal with this law. If the court is tired of abortion cases, you don't have to get to abortion doctrine to deal with this law. What's going on, Sarah? Tell me.

They did not think they could do it without getting to abortion, David. Yeah, I think you're probably right about that. And on the on the grand scale of First Amendment law, this is not preventing speech in the same sort of dire sense that, for instance, the free speech zones on college campuses and things like that that actually have the effect of ending conversations and ending speech. You can say whatever you want. You can shout. You can do anything.

You just have to be outside that eight feet. And so on the scale of offensive free speech curbing, this is at least not the most offensive free speech problems that the country has right now. Right. It's not a speech code. It's not a speech zone. It's not excluding somebody from, say, an entire campus, for example. You're right. So it's a grand scheme in the grand scheme of American free speech jurisprudence, this is a, as you said, beyond an outlier, but it is not, does not present a material, necessarily a material impact. Interestingly, they had Jeff Harris as the attorney for the cert petition, who is with Will Concevoy's firm, Concevoy McCarthy. And so I was a little surprised. They've had pretty good luck getting cert grants recently. So they certainly thought that they had a good shot at this one.

So it is surprising, but in the grand scheme, the world will continue turning. Yes. Okay. So that to me is the least interesting thing that happened. Oh, but also worth noting, because we're going to end up doing a lot of this. It was a seventh circuit case. Please continue. Right. Okay. so that was the least interesting thing that happened interesting but least interesting this one um what okay two gvrs of seventh circuit cases in the abortion context so sarah do you want to explain what a gv is? I would love to. GVR is when the court grants cert, meaning that they're going to take the case, then immediately vacates the judgment and sends the case back without ever hearing a thing. So it's like a full play on the baseball field without hitting the ball. So it means that the lower court's

opinion is gone and they send it back for the lower court to do it again. They do this in light of a case that they just decided pretty frequently. So if they decide a major case that overturned precedent or super clarified a circuit split. And then there were all these other pending cert petitions on the same question. The court's not going to hear that question over again, but they also don't want to let bad law sit out there for the circuits that were on the wrong side of the split. So what they do is they GVR a whole bunch of cases the next time, which is today. And so that's what happened here is that we have two GVRs in light of June Medical, the Louisiana abortion case. So here's what's weird

to me. Okay. So just to give you a good concrete example of how this GVR process works, let's take two hot button recent cases from the Supreme Court. One is called Masterpiece Cake Shop. A lot of you who follow the Supreme Court and the First Amendment and religious liberty are familiar with that case that involved a baker named Jack Phillips who refused to custom design a cake to celebrate a same-sex marriage. The Supreme Court decided in a 7-2 opinion that the state officials had violated Phillips' rights protected under the Free Exercise Clause by targeting him on the basis of his religion, and there was evidence in the record that they had done so. And so there was also at the same time a case called Arlene's Flowers that was pending coming out of the state of Washington with a very

similar issue. She had refused to do custom floral arrangements for a same-sex wedding. And so that case was hanging out there. And so right after Masterpiece Cake Shop has decided, Arlene's Flowers is GVR'd. And that was something that was not terribly surprising to anybody. They said, we're going to vacate the Supreme Court of Washington's ruling against Arlene's flowers. We're going to send it back for them to reconsider in light of our ruling in Masterpiece Cake Shop, essentially to determine was there evidence that Arlene's flowers was singled out on the basis of religion. All of that was totally normal. I mean, nothing about that was surprising.

So what surprises me about this, Sarah, is that in both of the Seventh Circuit cases, one was involving an informed consent requirement or a notification of parental notification requirements when a minor seeks an abortion. The other one was dealing with informed consent requirements, including ultrasounds. At both of those cases, the state lost the limitation on access to abortion or the restriction on the right of access to abortion or the modification, however you want to describe it, had been struck down by the circuit court, had been enjoined by the circuit court.

Now, in a typical GVR, after an abortion restriction or modification, again, however you want to describe it, has been struck down, my thought, so we just had the June medical case. In June medical, the admitting privileges requirement was struck down. My thought is then what happens to other abortion statutes that have been struck down by the lower courts, that then the normal thing in that circumstance is cert denied. Yeah, because you're saying that the winning side

is the side that also won at the Supreme Court, so there's no need to redo it. The reason you GVR is because the winning side at the Supreme Court was the losing side in some other case. And so they just give the circuit court another bite at the apple. But in this case, everything should be aligned according to June medical. So there would be no need to send it back and make the lower court redo it again, unless there was something in June medical that was beyond simply upholding, striking down these restrictions.

Yes. So I know that a lot of you are listening to all of this and you're scratching your head because this is a really obscure area of Supreme Court law or the practice of law in the Supreme Court. It's an atypical example of how Supreme Court jurisprudence reaches through and ripples through its docket after a case is decided. And so I'm going to do my best to try to present to you my theory as simply as I possibly can. So my theory, and Sarah, you tell me if I'm completely wrong. Okay. Remember, loyal advisory opinions listeners, that we had this really weird 4-1-4 alignment in the June medical case. And that really weird 4-1-4 alignment was essentially this.

The four Democratic nominees, or four Democratic appointees, were voting to uphold this case out of Texas called Whole Women's Health in its entirety, including the framework, the analytical framework called Whole Women's Health in its entirety, including the framework, the analytical framework of Whole Women's Health, which was essentially taking Casey and adding additional balancing tests to Casey. In other words, Whole Women's Health created a balancing test that was more protective of abortion rights than Casey was. Okay. Roberts dissented from whole women's health in 2015. In 2020, he votes to uphold, I mean, he votes to strike down the Louisiana admitting privileges law. But rather than join with Breyer, he essentially says, I still disagree with the

analysis in Whole Women's Health, but because of stare decisis, I'm going to strike down the Louisiana law, which means he was simultaneously upholding Whole Women's Health and repudiating Whole Women's Health. And Sarah and I did not know what that meant. Or at least I didn't. Sarah, I think, had a little bit firmer idea. And I think what happened today vindicated Sarah's idea. And that is that the GVR means that actually admitting privileges laws, let's just set them to the side.

Admitting privileges laws have been decided. That's what the stare decisis stuff is about. But what the actual test for abortion cases is going to be is not going to be whole women's health anymore. It's going to be just plain Casey. Does that make sense? It does. And especially if you look at what happened in these seven circuit cases, it was just a big seven circuit day today. And for some reason that like has

tickled me. Um, even when we get down the road to some totally different topics, I'm still going to be referring to the seven circuit. And that's funny because if you follow my Twitter feed a couple of days ago, I was working in my husband's office as I like to do some days now that we're all just stuck at home. And we'd been sitting there for a long time, both just sort of plodding away as the baby slept. And he turned to me out of nowhere and said,

the Seventh Circuit has the best fonts. And then just turned back and kept working. And that was like the end of it. So the fact that then my next pod is all Seventh Circuit love is just very funny to me. So anyway, the, uh, solicitor general's office for, uh, Indiana in their cert petition on one of these cases, um, they're both called box, uh, box versus, um, Indiana versus Planned Parenthood of Indiana and Kentucky. So we're just going to call them box one and two,

but it doesn't matter. So on box one, one of the headlines is Hellerstadt is wrecking havoc among lower courts reviewing abortion laws. Yeah. So it's all about how nobody knows how to apply the whole women's health

versus Hellerstadt balancing test. And then you go to the en banc denial that judge easterbrook wrote and he's basically just exasperated with the supreme court and says we have no idea how to apply any of your precedents at this point this is a pre-enforcement action meaning that the law hasn't even taken place yet. And we're not sure whether that's even a thing. There's third-party standing problems. Can the abortion providers sue on behalf of potential patients, even if there's a conflict? And so I think that regardless, the court was going to GVR this because, A, Roberts has gotten rid of the Breyer balancing test from Hellerstadt. That's gone now.

So you're just on the undue burden Casey test. And that normally you're right. That would just be cert denied. Except in this case, you had the seventh circuit saying we're denying, uh, en banc review because we have no clue what we'd be applying if we did review it en banc. Um, so in that sense, I think the seventh circuit more or less told them to GVR it, um, if, and when they decided this June medical case, uh, in fact, Easterbrook says that explicitly, like, I'm sure you'll GVR this when you're ready. So I think that actually the case may not turn out any differently in both of these

cases. It may well end up the same, that the laws restricting access to abortion are still struck down, but they will apply the correct test. Roberts, as we discussed, said that there was third-party standing for abortion providers to sue on behalf of their potential patients. So that's solved. And on the 18-hour waiting period on the ultrasound and on the unemancipated minor parental notification. Yeah, I mean, I think you're right. I think the whole women's health test is gone now. And I think we're in Casey undue burden land. And my, so can I just share with you my boundless cynicism?

So here is my boundless cynicism, Sarah. So here is my theory. The case is GVR. They're going to be remanded. And no matter how the Seventh Circuit comes out on the question, there will be cert denied. Yes. Yeah. So the Seventh Circuit could uphold the ultrasound requirement or it could reject the ultrasound requirement. It will be cert denied.

Oh, that goes without saying. Yeah. But, you know, we had some people out there who either emailed us or in more public forums said that there were votes to overturn Casey on the court right now. You know, we talked about that article that was just, we just need one more vote on the court.

And, you know, I think this is just need one more vote on the court. And, you know, I think this is more evidence that that's not the case. I think you're right about that. I mean, I think that, who was it? Did you say this? I can't remember. There are so many, you know, there's so many words of wisdom that just flow out. It's hard to remember all of your, all of your, all the pearls of wisdom. But someone was saying that there are several sixth votes to overturn Roe on the court. I did not say that, but that's a clever thing to say. Yeah, I think I would modify it and I'd say there's multiple seventh votes. Right.

But remember, it only takes four votes to grant cert. So if you're so sure that there are these four votes to overturn Casey, where are they? Why are they not granting cert on cases like this? Now, you can argue it's because they know they don't have a fifth vote and they don't want to make bad law. Okay. But then I'm not sure you need to GVR all these cases, yada, yada. We'll see how the Supreme Court finds a way to almost reflect sort of American sentiments. If this makes sense, it both shapes and reflects. And I would say that abortion case law is basically exactly as muddled as American public opinion on abortion or close to in the range of. That's just, you know, my thought looking at this giant mess.

So, Sarah, do we want to move to another mess? Let's move to another mess. But don't worry, we'll come back to the Seventh Circuit at the end of the podcast. All right. So, another mess. The Supreme Court granted cert today in the House Judiciary Committee's attempt to obtain grand jury materials related to the Mueller investigation. Grand jury materials are normally secret. There are some exceptions where that secrecy can be violated. One of them is when grand jury materials are necessary in other court proceedings.

And the question is, is an impeachment proceeding a court proceeding? Judicial proceeding, David. This word is going to end up mattering. I'm sorry. Because it's not a court, obviously. You're correct. You're correct. Judicial proceeding. Is it

impeachment proceeding a judicial proceeding? And you might be thinking, hmm, from previous Advisory Opinions podcast, I have meditated upon the word mootness. word mootness. Is an impeachment over? Why are we litigating over materials that would have been relevant four months ago? Sarah, do you want to unpack all of this? That's one of many questions that you can ask about this case. So, okay. Some important things to know about grand juries. One, when we've talked about incorporation of the Bill of Rights against the states, meaning that, you know, the free speech clause is now incorporated against the states where a state also can't infringe upon your free speech rights, even though the amendment itself says Congress shall make no law. as Congress shall make no law. There now remains really only one highly relevant part of the Bill of Rights that is not incorporated against the states, and that is, you guessed it, grand juries. So that's because grand juries exist in this weird world. What is a grand jury? Is it an investigative body that really is there for the prosecution?

Is it a quasi-judicial body that stands in instead of a judge to determine whether there is sufficient evidence to move forward with an indictment? And the history of grand juries is, you know, we need a Justice Thomas concurrence on the history of grand juries, frankly. And by the way,

I am sure we're going to get one in the fall. So, okay. So you have this weird thing about grand juries to begin with, but Rule 6E is about keeping grand jury material secret. And if you've seen any Law & Order episode or followed any court case,

you will know about grand jury secrecy and like so-and-so testified to the grand jury. And they can say what they said, but none of the grand jurors can leak, the prosecutors, the defense attorneys, all of this. It stays super secret. But you're right. There's this exception to 6E material for other basically preliminary judicial proceedings or ongoing judicial proceedings. So what is an impeachment? I have taken a pretty firm view of this before on Twitter because people kept talking about, you know, how the senators were jurors and things like that and making all these analogies to trials, which annoyed me because to me, it's quite clear that an impeachment proceeding is a political and constitutional endeavor, but it is not a judicial one. What with it not being in Article 3, except that the chief justice is involved, I suppose.

And it does use words like try, trial, things like that. So there's some semantic things you can point to. And Chris Hayes and I had a nice little back and forth about it. I don't think that the other side is stupid or so egregiously wrong. I think it's a judgment call. And I think that I win the judgment call that it's not a quasi-judicial exercise. It is a legislative exercise, a political exercise, a constitutional exercise, but not a judicial one. That is going to be the main question that the Supreme Court is looking at. Is this a judicial proceeding for the purposes of 6E grand jury secrecy?

But there are some other things that need to be decided. One, so they just granted cert today. This is not going to get heard until probably November at this point. Like, it may not even be heard before the election. It certainly will not get decided before the election. So if you want to talk about super-duper mootness, David, if Joe Biden wins the election, this is like mootness on steroids

because, A, then you can't impeach Donald Trump. And B, Joe Biden's Department of Justice may have no problem turning over the 6E material. And there's some relevance to whether it's compulsory to turn over the material or simply allowed to turn over the material, but that will all become moot as well if it's a different Department of Justice, potentially. Okay, so that will be weird if they hear the case after Joe Biden wins in that parallel universe, multiverse. So then you have this pretty difficult to parse DC Circuit circuit opinion um with three different opinions from the three different judges so is it a judicial proceeding does this violate separation of powers because now courts have to get all involved in impeachment um because there's all

these other things that courts have to decide before they can say that the Department of Justice needs to turn over the material. Basically, is there a particularized need for it? Time, place, and manner restrictions, all things that the courts really can't do in impeachment. And so the majority opinion basically said, okay, true, but we're going to fix that by having a separate standard that we just created for impeachment grand jury materials, in which case we're just going to turn them over and then get out of it and we won't do any of those other things. The third section is that particularized need. They also decided to change that to simply a relevant standard, which has been rejected in previous 6E cases that dealt with just pure judicial proceedings. So kind of a hot mess legally, David, honestly. But I don't think the Supreme Court's going to get to all of the hot,

messy soup down there. I think this is, you know, my prediction, silly though it is to predict this far out without even heard arguments or the briefing or anything else, is this is not a judicial proceeding. And the courts just back out into the bushes a la Homer Simpson into the hedge. So my prediction is that if Biden wins, we never get an opinion. Yeah. We never get it. Improvinently granted. Yeah. What the Supreme Court just did is it said, pause, let's see how things turn out in November. The pause is a big deal because, you know, the courts have complained or justices on the courts have complained

that certain policies of the administration haven't been able to go into effect over an entire president's term because of nationwide injunctions. And yet what the court just did here was say that Congress now can't use one of its main, if not most important power against another branch, which is the power of impeachment, to look at this grand jury material. That's kind of a big deal. And that gets to an issue in this case, or that gets to my core problem in this case. I think you make a very compelling argument

that impeachment as a political process is not a judicial process within the meaning of Rule 6E. So Rule 6E is, you know, this is a rule adopted by the Supreme Court of the United States, codified in the U.S. Code. It's statutory, and the impeachment power is constitutional. And the impeachment power is constitutional. So the question I have is, does the impeachment power bulldoze this statute?

And there's some evidence from the Nixon years that it might, that the courts have inherent authority to allow the Department of Justice to turn over grand jury material during an impeachment proceeding. But that's where you get into allow versus compulsory. Who owns the grand jury material during an impeachment proceeding. But that's where you get into allow versus compulsory. Who owns the grand jury material, David? Not the grand jurors. They're long gone.

The Department of Justice is the physical holder of the transcripts. But we've statutorily at least said that they're not government records for like FOIA purposes, for instance, that DOJ being physically in possession of them is not the same as being the true custodians of them. Do they belong to the court? Maybe.

Not clear, since the court doesn't really interact with the grand jury at all. It's convened by the prosecutor. The prosecutor presents in front of them, and then the prosecutor gets the indictment. So what is a grand jury? And then who has these records? And is it compulsory? Is it just allowed? Messy, messy. Yeah, you know,

yeah, it's very messy. And then the other thing is once a impeachment, once an impeachment proceeding is concluded, can you do what the House Judiciary did and just essentially say, well, it's over except if we get additional information in theory, we can reopen or we're not really fully formally closing this thing post acquittal from in a Senate trial, is there

an impeachment proceeding? And so that's, again, part of the mootness here. And true. And, you know, when I initially read this, I was like, why is even why does the House have standing for this to begin with? Because if there were a judicial proceeding, it wouldn't be in the House. It would be in the Senate. Nobody seems to take up that argument because of the preliminary language that it can be a preliminary judicial proceeding. And so I guess that the House investigation side is the preliminary side. But there's other standing arguments to this. Judge Rao on the D.C. Circuit dedicated a lot of her dissent to whether the House has standing at all to bring this.

Messy. So messy, David. So Justice French would make this very clean. Yeah, but it wouldn't be clean in the sense that you would just kick it. Well, I would kick it now on mootness grounds. Yeah, but that's not making what any of this is clean. And it does have the capability of repetition and evading review, as the mootness exception would tell you. But my rule would be quite simple.

Impeachment proceedings bulldoze Rule 6E while impeachment proceedings are, while impeachment is in fact proceeding. Once impeachment proceedings are over, Rule 6E kicks in, there is no constitutional bulldozer in effect, and it's moot. That's my framework. Okay, so you wouldn't just dig it, and if you remember listeners from previous digs, dismissed as improvidently granted as moot.

You might actually write an opinion about why it's moot with some nice dicta about 6E isn't controlling here. The impeachment part is controlling, but you also don't have an impeachment inquiry ongoing. Come back to us later. Bye-bye.

Yes, exactly. You know what? You might have, I might be joining as a concurring justice. I might write separately, but that doesn't sound crazy to me. Excellent. Well, doesn't sound crazy to me. Excellent.

Well, doesn't sound crazy. I'll just take that as my best compliment of the day. And shall we move on to armies of lawyers? Oh man, this is like, we were talking about the Battle of Winterfell in the green room. And we are talking some Battle of Winterfell stuff around the country as both campaigns build up their armies of lawyers for election day. And what, because of the virus,

because of the partisanship, because of a whole lot of other stuff, including a consent decree that has been lifted on the Republican National Committee, is said to be a legally messy election day. I am frankly, I have to admit, Sarah, I am actually nervous about the divisiveness of election day. And when I say election day, I actually mean maybe election week, because one thing that we are seeing is that when you have much more widespread vote by mail, vote counts don't come in all that quickly anymore. I'll make you feel worse because you're thinking of the week after. And I think you're right. But let me tell you about how bad it's going to be in the few weeks before because of what you're saying. So in 2012, I spent several weeks before election day in Palm Beach County because they

had misprinted some 10,000 absentee ballots. It was a misprint on them, which means they all had to be counted by hand because the machine couldn't do that because of the misprint. So that was armies of lawyers from the Obama team and the Romney team descending upon Palm Beach to monitor this hand recount ahead of the election. If mail-in ballots increase in the amount that we're expecting them to, there's human error involved. There will be misprints. There will be lost ballots. There'll be all sorts of injunctions. And we need more time to print the ballots. The ballots, you know,

the truck carrying 5,000 ballots fell into the river. Tons and tons of lawsuits filed during early voting, I predict. Well, you know, and I don't want to be too pessimistic, but I wonder if we're sort of peering into our California future. And those who don't follow vote counts that closely may not know that California, races

are called in California quickly because California is not competitive. But vote counts in California are slow. They are very slow. slow and you will see and if you remember 2016 you know by the end of election night in 2016 the vote counts across the united states were five to ten million short of the actual final vote count in the United States, that there were millions of absentee ballots counted after election day,

hyper-concentrated in a state like California, which again was not competitive. So you just sort of watched Hillary's vote total go up and up and up and up as votes were slowly counted in California. That's all well and good when you're winning a state by 20. But if there's a swing state and there's a giant amount of vote by mail and they are ending election night with a five point margin or a four point margin or a six point margin, and there are what, maybe a quarter, a third of ballots still out there. This. I'm just going to go ahead and warn y'all, unless this is an obvious landslide on election night, it is going to get extremely tense and extremely confrontational in the days and weeks after election day.

And that may not mean... Well, let me read you two headlines from the last few weeks after election day. And that may not mean- Oh, let me read you two headlines from the last few weeks. So today, Reuters had a headline, Biden pulls together hundreds of lawyers as a bulwark against election trickery. That is the Reuters headline. A couple of weeks ago,

this is the NBC headline, GOP recruits army of poll watchers to fight voter fraud no one can prove exists. That's a completely unbiased headline. I don't know why anyone has complaints about the media, Sarah. That is the most neutral headline. Indeed. But what they're talking about is sides of the same coin, pretty much.

Worth noting, though, in 1981, there was a federal consent decree put in place against the RNC for, allegedly, sending armed off-duty police officers to patrol minority neighborhood polling places. And so from that point until 2017, So from that point until 2017, this curbed the RNC's ability to use poll watchers. Now, campaigns could still do so, Republican campaigns, but the RNC couldn't. So this consent decree is gone now. And so this will be the first presidential election where the RNC can recruit and send out lawyers for poll watching. It's not going to be some huge change because, again, the campaigns were doing it, but the RNC as a central figure here will make a difference. And then the Biden campaign,

of course, will have lawyers. You also, and here's where we're getting back to the Seventh Circuit, in 2016, a lawsuit was filed about some Wisconsin voting rules restrictions. The Seventh Circuit has taken three and a half years, but they finally issued their opinion this week. And it was unanimous, including Judge Easterbrook and Judge Kahn. K-A-N-N-E. I'm actually not sure how to pronounce that. Sorry. Someone will, I'm sure, email me and let me know.

Which is called Kahn-ay. Kahn-ay. Kahn-ay. Kahn-ay. They were on opposite sides of that box one, by the way, on whether to take that abortion case on bonk. So that's sort of fun. But they were unanimous in this one.

And they said that there could be limits on the time available for early voting and that Wisconsin residents could be required to be residents of Wisconsin for at least a month before an election. There was some photo ID stuff. There was some absentee ballot stuff of whether the absentee ballots could be emailed or faxed lots of decisions and what they said and what was pretty funny uh this record does not support a conclusion that the legislators who voted for the contested statues cared about race they cared about voters' political preferences. If one party can make changes that it believes helps its candidates, the other can restore the original rules or revise the new ones.

So that's where the Seventh Circuit came down on that. You're going to see more cases like this. There's one pending in Texas on absentee ballots as well as these states realize the snowball that is rolling down this hill. So lawyers are about to become a very big part of the 2020 election. So, oh yes, indeed. So this reminds me about, speaking of poll watchers, can I tell you a do not mess with Nancy French story? All stories are do not mess with Nancy French. tell you a do not mess with Nancy French story? All stories are do not mess with Nancy French. So 2004, we're living in Center City, Philadelphia. I'm president of FIRE at the time,

Foundation for Individual Rights and Education. And Center City, Philly is very, very, very deep blue, 85, 90% Democratic vote. And if you're going to win Pennsylvania, and Sarah, you know this better than anybody, you got to turn out, and you're a to win Pennsylvania, and Sarah, you know this better than anybody, you got to turn out, and you're a Democrat, you got to turn out votes in Pittsburgh and Philly. Was it James Carville who described Pennsylvania as Pittsburgh and Philadelphia with Alabama in between? Which I think is just a great description. So you got to turn people out in Philly if you're a Democrat to win the statewide elections. And most of the time, or often Democrats do, especially in presidential elections,

not in 2016, but for a long time they did. And so my wife goes into our polling place, which was at the ground floor of our apartment building. And there was two people who were obviously the poll workers at the desk and one person who was obviously not at the desk. And they all had voter registration data in front of them. And so Nancy walks up to the first person and he says, and he's not wearing the button that identifies who he is. And he says, your name, please. And she said, and who are you? And he

said, your name, please. And she said, I'm sorry, I'm not going to give you my, you're not a poll worker, are you? And he said, I need your, it was very insistent. And so she said, well, I'll tell you what, I'm not giving you my name, but you're giving you, you're giving me your name, as she began to dial the election fraud hotline and told him she was dialing the election fraud hotline, at which point the guy gathers up his papers and flees the scene. So apparently what was happening is that was a it was a move on. I believe I'm not positive that this has been many years, but it was a representative of a progressive activist organization may have been move on dot org. and was just taking advantage of friendliness with the election workers to sort of pose as one of them to go through his own election rolls to know who to call and who was coming out and who wasn't coming out. And so this was part of the turnout machine in 2004 was putting people right there at the polling place, gathering data about voters who were showing up and not showing up. That's so interesting because I mean, I've been in campaigns where we have people there to listen to voters names and mark them off on their voter rolls as well. But it's really weird

to be the one asking for the name. Yes. Yeah. And normally there's a rule about how close you can stand and the poll workers are supposed to enforce those rules because, you know, you're not supposed to have campaign paraphernalia, intimidate voters, all sorts of things that can sort of get dicey if you're that close and or confused for a poll worker. Yikes.

Like what if she had asked for help with her ballot? What would he have done? Right, exactly. So that was the objection, not someone standing silently back, you know, scratching things out on a clipboard. That's, you know, kind of normal to see stuff like that. But so anyway, yeah, there is a shenanigans, shenanigans, shenanigans. It's shenanigans, shenanigans. And the interesting thing is, you said something about the 1981 story about armed poll workers, allegedly. Yeah, it's pretty bad if you want to dig into some of that. Can I digress for just a moment?

Isn't that what this whole pod is? Well, yeah, sure. You're right. So let me further digress. This is, we are living at a time where social media is both a blessing and a curse. So the curse of social media, everybody knows and understands, which is, I think we sometimes have an artificial sense of fury and polarization in this country because any single incident anywhere in the

country can become immediately a national issue. So a kid gets his MAGA hat knocked off his head in a Burger King in Des Moines and it trends nationally for 18 hours. And it contributes to the sense of 62 million or however many Trump voters that they're under siege because of this one dude with a hat in Des Moines. Or you have the quote unquote Karen videos that contribute to this notion that we're in the grips of this sort of out of control snitch culture or whatever it is. So social media, that's the obvious curse. Well, here's the blessing. well here's the blessing can you imagine armed poll workers showing up and staying at a polling place when they would be immediately filmed immediately filmed by 19 different iphones and immediately uploaded into twitter which would then result in immediate responses and removal of

those individuals. There was a lot. Yeah, I mean, they were putting up signs that said, this area is being patrolled by the National Ballot Security Task Force. It is a crime to falsify a ballot or to violate election laws. And the people putting up that sign were armed off-duty police officers wearing armbands that said, you know, National Ballot Security Task Force. That's unbelievable. I mean, that's unbelievable that that occurred. And so you... It won't shock you that they were doing it in polling sites that were in predominantly

African-American and Hispanic neighborhoods in Newark and Trenton. Stunned. I'm shocked. I'm shocked that there's gambling in this establishment. Oh my God, said the guy who hasn't seen Casablanca. stunned i'm shocked i'm shocked that there's gambling in this establishment oh my god said the guy who hasn't seen casablanca um so that that is something that you know can't happen or or it won't happen for very long now in part because of this social media explosion and when i talk about and i this goes back to the conversation you'll have the social media army meeting the lawyer army, and the lawyer army will take the social media posts and run to a courthouse and get that injunction in 2.5 seconds, and those guys be out of there. immediate trend on Twitter and junction 2.5 seconds later, campaign press released three seconds after that. I mean, and the polls stay open for an additional hour because that sign was up for an hour. Exactly. Exactly. So, um, yeah, you know, I often think about things that

occurred when I was in law school, um, which was all pre Twitter, all pre social media. Uh, it was so toxic there, like Harvard would have trended for days at a time under the current standards. But anyway, that's a digression. Anything else on our Army Lawyer Armies? No, but speaking of Harvard Law School, you went to law school and you practiced as a lawyer for quite some time. You were in big

law. You were in issue advocacy, let's say, law. And now you're doing this. Why the change? Do you enjoy the change? How are you doing, David? A rolling stone gathers no moss, Sarah. How are you doing, David? A rolling stone gathers no moss, Sarah. I like to do different things. No, I'll be honest with everybody. And I think that to say that I ended my law school career with a plan would be a gross mischaracterization of the arc of my career. I ended my law school life with a job.

And so I went into law school. I didn't even really know anything about it. As I said in a previous podcast, when I went into law school, I was graduating with a political science degree, undergrad. And I kind of viewed my options as like flipping burgers or grad school or professional school. So I chose law school as an option expanding choice. Kind of sort of learned a little bit about what the practice of law was during law school, loved law school, had a great time in law school in spite of a lot of the hostility. And then kind of went into my career thinking, I want to do something I like and be happy. Like that's, I didn't have a big grand plan

and I wanted to get new experiences and I wanted to, and if I did, in the face of uncertainty, the one really good decision that I made was in the face of uncertainty, I made option expanding choices. So I didn't know what I really wanted to do. But going to big law is an option expanding choice. It gives you good,

it gives you a good experience. It's a resume builder. So I went into big law and I liked some of it and I didn't like some of it. The stuff that I didn't like started to dominate my mind. And so I started to get restless and I thought, hey, you know, it would be fun teaching. And I didn't like some of it. The stuff that I didn't like started to dominate my mind. And so I started to get restless. And I thought, hey, you know, it would be fun teaching. And so I went through the purgatory of trying to get a teaching job. So I sent out CVs as far as the eye could see. And I got exactly one interview, Sarah. I got exactly one interview at Cornell Law School.

Got the job. Loved loved to teach, loved it. But at the same time, I realized I missed litigating. And then also I realized that it's another thing. It's cold in Ithaca. And hilly. I mean, you're like walking uphill in the cold. Yeah. And so I'll never forget April 15, 2001. Nancy walks into our apartment with one infant

baby in one arm and a toddler and the other arm with snow up to her knees. This is April 15th and says, hell froze over. And it's like, okay, we'll go. So then I went back into big law, went back to my old firm that I'd left to go teach. And the interesting thing that began to happen as I was doing all these different things is all along the way, I started to build up a pro bono first amendment practice. So I would do pro bono work for churches, I started to do pro bono work for religious student organizations, to such an extent that by 2004,

I was doing so much pro bono work, I had to make a choice. Was I going to be a big law commercial attorney, I just made partner at my firm, with a First Amendment hobby, or was I gonna jump into First Amendment work full-time? And so I decided that's where my heart was. That's what I really wanted to do with my life. And so I jumped into First Amendment work with both feet by becoming president of FIRE, and then did that from 2004 for the next 11 years at FIRE and ADF, where I was a full-time defender of the First Amendment, defender of the

Bill of Rights, due process, First Amendment, etc., and loved it. But as I did it, one of the things I noticed is I noticed that earned media was often mischaracterizing our cases. So what I wanted to do was write about my cases and write about our issues. So we had a big communications effort at FIRE. I wrote a ton at FIRE. I kept writing. I started writing for National Review.

And then I started writing so much that I began to reach another crossroads, which is do I want to continue to be a litigator with a writing hobby or do I want to be a writer? do I want to continue to be a litigator with a writing hobby or do I want to be a writer? And in 2014, in 2015, I had two really good big cases that came out very well. And I thought, this seems like a good opportunity to see transition out of, I've been litigating for 20 years. Let me do more writing. And so I called Rich Lowry at National Review and I said, Rich, I'd been contributing to National Review for more than 10 years at that point.

And I said, Rich, would you like more stuff from me? And Rich said, I was just thinking I wanted more stuff from you. And that one thing led to another. We had a conversation and I jumped from litigating into writing full-time for National Review. And I joined National Review in May of 2015, one month before Trump came down the escalator. And I haven't had a vacation since. How have you, you know, each step along that way, you picked the non-risk averse choice. Except for Harvard Law and except for big law, I would say. That everything else was the higher risk choice. Do you think you're just that type of person?

That you have a high risk tolerance? Or do you think there was something you told yourself of like, no, this is the type of person I want to be? How did you evaluate that? Well, also in the middle of that was joining the military at age 37 and going to Iraq when I was 38 years old. So yeah, that was not a risk averse choice either. Look, I mean, the short answer to it is that I have a strong belief that you walk your talk. That if you really care about something, you know, if you care about the First Amendment, if you really care about this country, if you really care about the ideas you espouse, about the ideas you espouse as much as you can.

And I was blessed to have, you know, one of the reasons going back to our discussion of which law school you go to, and we had said, you know, sort of go to the best law school that you can because it's an option expanding choice. I was blessed by being able to go to Harvard and for some other reasons to be able to make choices. And so I chose to to put sort of my money where my mouth is on the things that I value and the things that I believe in.

Well, that's my other question is that you also in picking the higher risk option, you also noticeably pretty much each time we're picking the less money option. Yeah. Often at the worst possible time. So, but I mean, you really were, I mean, if you had stayed a big law, you know, a lot more money would be coming your way. So that presumably also was a decision that you and Nancy were having to make together on behalf of yourselves, for sure, but on the opportunities you'd be able to provide your children, for instance, of how much of their educations you could pay for, how many, you know, skating rink hours they could have, whatever. Well, you know, so there's a couple of things there, which I think is, this is going to veer into one of our favorite topics, relationship advice.

Yeah. Mary. Well, that's Nancy. Yeah. Nancy and I only dated six weeks, but through sheer, but by God's incredible providence, I ended up with somebody that was very much aligned, not just in my values, but also in temperament. And so she's not remotely risk averse at all. And her basic point of view is we need to do what we think is right, period.

And then we'll make it work from there. And then the other great blessing is I happened to marry somebody who's also really talented and has a thriving career in her own right, which really began to blossom along the same time that I started to make that downward income trajectory, which really does help. So we were a team. And I have said that to any number of people who ask me questions like, okay, so I want

to join the military. I want to deploy. What's your advice about marriage? And I say, make sure it's a joint decision and make sure it's not a joint decision where she is or he, if I'm talking to a woman who wants to join the military, where your spouse is begrudging because it's harder than you think it will be. Every, you know, when you make a choice, often we make choices about an I and we imagine idealized versions of the next step. We should never do that. We should assume that each next

step is going to be harder than we think it's going to be. And so make sure there's a real commitment on both parties to making that step. And if there isn't a real commitment, I have seen it happen a million times. It causes immense strain in a relationship. So speaking of other career things, though, you also have a book coming out shortly. Yes. That'll be sort of

the next career step. Yeah, it's coming out in September. It's called Divided We Fall. And if anyone who reads anything I write or listens to this podcast

knows I'm really worried about polarization. And what the book basically says is we just cannot assume that we can keep hating each other and stay together as a country. And a lot of people are really worried about our national unity and I'm really worried about it. And that's sort of the theme of the book. And the book says, here's why I'm worried,

here's how we could divide, and here's what we can do about it. And that's sort of basically in three simple sections. But that's really an extension. Yeah. Are you done with the book? Like has it been put to bed? Yes, it's all done. It's all done. Are you nervous? For instance, if you had finished the book in February and then all of a sudden a virus hits and George Floyd is killed and like all these things happen. I'd be like, oh man, I want to redo my book. So I would have this like nervousness between now and September that like, I don't know,

something could happen that you'd want to include in the book. How are you dealing with that? Yeah. So it is not, the theme of it is not a quickie book in the sense that it's based on immediate current events. It's based on more like long-term trends. And all of the things that are happening lately are exacerbating a lot of those trends that I already identify in the book. And so the one thing that did happen is I turned in a whole draft of this, Sarah. And then the whole David Frenchism thing blew up.

Like just detonated last summer. And so my publisher calls and says, redraft. Oh, fun. Yeah, so to sort of reflect all of that. So that took me a while to do it because I'm also writing a lot in my full-time day job. But that was important to do

because it clarified and sharpened a lot of the issues that are at stake in sort of the long-term battle of ideas in this country, as opposed to, hey, this new cycle happened. What does that mean? This was more about like, what is the American idea now? How do we envision our system of government? How do we envision the vision of the founders? What's the vision of the founders and its applicability to the United States today, which is really core to my book? Okay, last question. As an attorney, what part of your current job has been most helped by your legal education and legal experience? And two, what part of your current job do you like the most? Oh, those are great questions. I didn't know you're going to be interviewing me, Sarah.

I didn't either, but now I've just sort of gotten into it and like, yeah. So what helped me the most is the incredible rigor of both complex commercial litigation and constitutional litigation where you are taking on opponents who are the best. So every brief you write, you know, is going to be picked apart by incredibly intelligent people. Any argument you make is going to be exposed to the microscope by incredibly intelligent people. In fact, that's one of the things I loved about litigation was that battle of wits where you had your team, they had their team, and you were just working incredibly hard. Is the poison in my cup or did I put the poison in your cup? Am I the type of man? Okay, Princess Bride, thank you.

So what that does is it really, it really going into a lot of problems that occur in journalism and commentary and punditry occur when people are so convinced of the rightness of their cause, they write sloppy crap. And so one of the things that is always in my mind as I make an argument is what's the best counter argument to this? And what I need to do is to write something that if it can't rebut it to

the satisfaction of a political or ideological, somebody who disagrees with me politically or ideologically, at least deals with their argument fairly and robustly. And if you can't do that as a litigator, you're toast. You're just not good. And I think that that's a skill that was absolutely necessary to enter into the battle of ideas as opposed to sort of the battle of law and facts and litigation. So that was the thing that I thought helped prepare me the most. As far as what do I most like about the current stuff that I do? Oh my gosh. It's hard to think of a most. Well, I mean, you writing a book,

you speak at places, not recently, but in theory. You have your newsletter. You have the podcast. you have the podcast, you have the legal podcast and the political side podcast too. There's not one thing that like a little bit extra you like get bound to your microphone or computer? I would say, that's a really good question. I'm going to punt and I'm going to say this. I'm going to say, there are aspects of everything that you just said that I really, really like. So I love podcasting.

It's got aspects of it, the ability to do this, to sort of say, hey, we're just going to have a real conversation and we're going to expound on these ideas and to have sort of the way we've developed this community at the dispatch where it's a it's a feedback loop we have thoughtful people write us you and i get to have hopefully a good conversation about things that really matter and do it in real time i love that that's awesome that's an awesome aspect of my job here's another

awesome aspect of my job is that uh in awesome aspect of my job is that in the newsletter, it's a very different kind of writing than the daily sort of op-ed thing that I was doing at National Review. You can really explore an idea and you do it in a sort of a community, again, a community type feeling where people have signed up for this and they want to hear from you and they begin to understand and know your voice and you can really kind of explore those ideas. And then I do really miss speaking. I had so much and it wasn't so much giving the speeches. It was after the speeches. It's after the speeches where you sit down, you've done your Q&A, and I love to just hang out. And it's funny, you would sit there

and there'd be a line of people. They just line up to ask questions and have conversation. Then after a while, it turns into a gaggle. And you just sit there sometimes for an hour, sometimes for two hours, just having great conversations with people over ideas that matter. So it's like each one of those aspects of my job,

whether it's podcasting or writing or speaking, has a part to it that is just special. And that's why I say- And engagement-based, it sounds like. You like engaging. Oh, yeah. I love it. I love it.

And as I say to me- Because this whole conversation we're having was based on, I think we've gotten two or three emails asking some of these questions that I'm just throwing at you. Yeah. So as I tell people all the time, although this job is stressful and if you can't handle a lot of people hating you viscerally, viscerally and personally, and really actually trying to hurt you, like people try to hurt us. And you've experienced that.

I've experienced that. Jonah has experienced that. Steve has experienced that. If you're going to say, what's the worst part of it? That's a pretty big negative. Most people don't walk into their offices knowing that there are people and not a few who want me to be either physically harmed emotionally harmed or professionally harmed like that is one of their fond desires yeah it's a strange i mean we maybe save this for another conversation um it is uh very strange the first time that you really reflect on people you don't know hating you. Yeah. And it was almost stranger for me when I got to a place where I knew I couldn't care about that anymore.

Yeah. And to not care about people hating me was, that makes it sound like it's cool, like I'm so thick-skinned, but like there's something actually kind of concerning about that as well. Well, let me ask you a question because you've been in these crosshairs and this is something I struggle with. I want to not care, but I also want to be open to legitimate critique. Yeah. How do you balance that? to legitimate critique.

Yeah. How do you balance that? Legitimate critique to me is substantive. You know, I don't take snarkiness as a legitimate critique. Right. So it's a... Or malice. Yeah.

And like, for me, I guess, and this is probably different for you because people really are engaging on some of your ideas more often. Most of the really high profile stuff that I've dealt with is not particularly substantive. Right.

You know, whether I had an affair with Ted Cruz, according to the National Enquirer, like was not a substantive critique I needed to worry about. Right. It was an interesting conversation to have with my parents. But, you know, the various emails or tweets and phone calls and stuff, you know, related to that, I did not need to balance that.

Right. As just one example. to balance that as just one example. Uh, and I, you know, women certainly, I do think get different non-substantive critiques than men. I think you get plenty of non-substantive critiques, but it's easier to some extent as a woman because they don't mask themselves very well. Some of your non-substantive critiques may masquerade as substantive on the front end. You're a whore is not going to be hard for me to figure out which bucket that falls into. Right, right. And I would say that if you're listening and you think, okay, well, it's so obvious that stuff is malicious and it's so obviously malicious and non-substantive

well you know you should um be able to brush it off you know just be able to brush it off i would say this that is a learned skill in my experience it was for me oh absolutely for me i i can i will never forget the first time because when you sort of come, grow up in a ideological bubble, like let's say you're in a Christian conservative legal organization, you're not a big public figure. All of your, all of your speeches are to other Christian conservatives, et cetera, et cetera, et cetera. You tend to get used to people liking you. Well, and you want, it's a human nature, right? We all want people liking you well and you want it's a human nature right we all want people

to like us and we don't you know think back to junior high when you found out that someone that you didn't even really know very well you know said something mean about you behind your back regardless of the fact that you didn't know them very well it's hurt your feelings because that's human nature

and there's something still to that, that part of you still exists as an adult. Yes, for sure. I will never forget this, Sarah. So I'm in, I'm in Iraq, meant Ford operating base Caldwell, and this is, um, late oh seven and in the surge and Nancy and I had dipped for the first time into politics as opposed to law um and i was a sort of a uh i was volunteering to help mitt romney and i in his first run and we had a little organization informal organization we called evangelicals for mitt and lots of people in the gop did not like mitt romney. They had this, and you know this,

they had this visceral distaste for him. And they began to turn that on anybody who also believed Mitt Romney should be president. And I'll never forget getting an email sent to my army email. I don't even know how they found it. Vicious, lacerating me while I'm deployed, saying they used to respect me. They have zero respect for me now. I'm not even a patriot. I hate this country. And if I got that now, I would laugh. And when I got it then, it really wounded me. Yeah, because you sort of think about that person and that's a real person and like you imagine them being your peer.

Yeah. But to your point, one of the things I love about The Dispatch is I love when our listeners, at least my 100% experience so far, I get things wrong on this podcast all the time, like Lucy and the football or the Billy

Wilder directed Double Indemnity. And I get the nicest emails from folks that are like, by the way, it's one of my favorite movies. And you probably just misspoke and basically making excuses for me. That's awesome. And the community that The Dispatch has been able to build and our listeners to this podcast and just all of it has been such a wonderful and very different experience that I find myself spending so much less time on Twitter because it appears even more toxic in comparison to what we've built here at the dispatch. So I'd much rather spend time in our comment section, talking to our members, responding to emails from listeners, and engaging with them. Because again, I get lots of emails you're cc'd on, disagreeing with things we say. But it's always like, here's how I think about it. And I think this is how you think about it. Is that accurate? And what about this? And it's, it's an engagement. And that's, you know, when you describe the favorite parts of your job and each one was a different type of engagement. Um, I find that that sincerely held and, and come to the table type engagement. It's just so much more rewarding with my now much

more limited time than Twitter. Um than Twitter, I find myself not engaging very much on other platforms. Yeah. I've actually pulled back a little bit from Twitter because I actually enjoy engaging here infinitely more. Yep. Yep. So thank you, guys.

Yeah. Y'all make it really fun and better and neat. So this was more me-centered than I thought it would be. So I need to interview you because you have had, we're going long. So in future podcasts, I need to interview you because you've had an interesting path to get to this point.

And I think a lot of people would be very interested, fascinated by that. I mean, because you, you did the classic, I'm fixing to dominate big law course when you went to the clerkship. And then you were ending up on political campaigns. Yep.

Which is not, not the typical path. So I need to interview you, Sarah, in a future podcast. So, you know, risk aversion and risk tolerance are something I'm very into right now because I think, particularly as I like look at this little baby,

he already has all this hard wiring, I think, in him, but I don't know what it is yet. So when I look at him, I'm like, how risk-tolerant are you, baby? And how can I make you more risk-tolerant? And so that's why I thought this was a really interesting conversation for me because it's like, what were those triggers for you along the way? He's very risk-tolerant when it comes to eating all the food. Yeah. Well, that's a really, because your career does not scream risk averse. No. Not at all. But you know, you raise a really interesting point with kids. So when I was

considering joining the military, and I promise you this is the last bit. When I was considering joining the military, one of the biggest things in my mind was I knew that if I did it and I knew I wanted to volunteer to go to Iraq, that was going to mean between training and deployment a year and a half minimum away from my family. And my kids at that point were eight years old and six years old. We had not yet adopted our youngest. And so I sat down with a good friend and I said, you know, should I do this? Is this irresponsible parenting? Is this being a bad parent?

I would, at best case scenario, I'm missing every game. I'm missing every birthday. I'm missing Christmas. I'm missing Thanksgiving. I am the ultimate absentee father. Worst case scenario, I could die and then I would be an absolute absent father and it would cause an incredible amount of trauma to the family.

And is this being a good parent? And my friend, you know, we were part of the Law School Christian Fellowship together and we're dear friends to this day. And we'd often talk about sort of like what was our calling on our life. And he just said, what is a better example for a kid? Is it being at every soccer game? Or is it that a kid knows that their father seeks to know and to do what God wants him to do in life, regardless of the cost?

And I said, well, when you put it like that, it seems like the answer seems pretty clear. But again, this has to be a unified sense of purpose. If you go and you inflict that on your spouse as opposed to sharing it with your spouse, that's a whole different thing. sharing it with your spouse, that's a whole different thing.

So anyway, that's the final story of this podcast anyway. Well, on Monday, we'll get more opinions. So we've still got a lot of outstanding big ones. So we'll take a break on the side jaunts, probably for Monday and maybe Tuesday too, and see if we can't wrap up the Supreme court term in short order. Yeah, we were going to do some Supreme court predictions,

but we're going almost Rogan length. So nope, nope. We're out. We're out. We're done. We're done. The,

the, the, the listeners are crying for mercy. Thank you so much for listening. It is very appreciated as always. And please go rate us on iTunes, not iTunes, Apple Podcasts. And please subscribe and please become a member of the Dispatch and join the community that Sarah and I have been waxing eloquent about for the last, I don't know, 45 minutes. Thank you all for listening.