Advisory Opinions - Supreme Court Picture Day

Episode Date: April 26, 2021

Buckle up, AO fans. There is a lot to cover on the Supreme Court front and David and Sarah talk about all of it on today’s episode. It starts with a definitive breakdown of the new Supreme Court portrait, then goes from a case that the Supreme Court will hear regarding the Second Amendment, to a case having to do with Guantanamo Bay, ending with the big First Amendment case being argued today. Plus, Sarah and David discuss the Netflix documentary about the college admissions scandal, Operation Varsity Blues, and why it’s damaging to tell kids that what college they attend is the most important factor in determining their success. Show Notes: -New SCOTUS Portrait -Chief Justice Roberts talking to Justice Kagan Portrait -Jones v. Mississippi case -Texas v. California case -New York State Rifle & Pistol Association Inc. v. Corlett -SCOTUSblog page on Guantanamo Bay case -SCOTUSblog page on Houston Community College System v. Wilson -SCOTUSblog page on Americans for Prosperity Foundation v. Bonta -Americans for Prosperity Foundation v. Bonta oral arguments -Operation Varsity Blues on Netflix -Sarah’s favorite Onion article Learn more about your ad choices. Visit megaphone.fm/adchoices

Hey, listeners, the dispatch is now offering you a chance to experience a full membership for the next 30 days risk free. There's a lot of information chaos out there. And with the Biden administration on the move, Democrats in charge on the Hill and Republicans going through a wholesale realignment, the dispatch is here to help you make sense of what's really important and worth your time. During this 30 day trial, you'll have access to member only editions of all of our dispatch newsletters. There's more from Jonah, David and me, of course, but so much more too. Plus, you'll be able to join our members-only Dispatch Live virtual gatherings. It's our sincere hope that you find a Dispatch membership to be valuable and something worth sticking with after the 30-day trial. But if you

don't, you can cancel at any time. Join today. This offer will expire after April 30th. To take advantage of this offer, go to thedispatch.com slash free 30. That's thedispatch.com forward slash free and the number 30. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And Sarah, I'm already tired and we haven't even started the podcast. We have so much to cover. It's true. It's unbelievable. I mean, just what, four days ago, we were searching for topics or four or seven days ago, we were searching for topics and now holy smokes okay we've got a lot

okay this sounds trivial but it's somewhat interesting we're going to actually talk about the Supreme Court portrait okay but that's not all a controversial case from the Supreme Court about sentencing children to life without

parole a cert grant in a Second Amendment case. This is going to be very important. A cert grant in a case about Guantanamo Bay, a cert grant in a case involving a censure of a public official, an oral argument that we were just listening to in the Americans for Prosperity Foundation case and Thomas More Law Center case coming out of the Ninth Circuit that is a very important compelled disclosure case. And then at long last, we're going to talk about the Netflix Varsity Blues documentary. And Sarah, I don't know, should we tell going to talk about the Netflix Varsity Blues documentary.

And Sarah, I don't know, should we tell listeners to buckle in for three hours or four hours of a podcast? Wow, if you really want to squeeze it in, I guess we could try to do four. I was thinking it would be seven. Okay, yeah. Well, let's just full Joe Rogan it, an 11-hour podcast. Done. All right, excellent.

All right. Why don't we start with the SCOTUS portrait and build from there? The new Supreme Court photo has been released. This is the first official portrait with the new Justice Barrett. They're all vaccinated. It's the first time they've gathered in person

since she joined the court after the death of Justice Ginsburg. Yeah, David. So the chief justice is not looking at the camera. Everyone else is. And that's nice because that has not always been the case. So when Justice Kavanaugh joined the court, the last official portrait, so the current official portrait up until just a few hours ago, really, the chief is talking to maybe Kagan. Sotomayor is also talking to the chief. They're on both sides, both of his shoulders. Gorsuch is definitely mid-word. Breyer is chuckling and Kavanaugh's like posing for his school portrait, looking straight ahead. I'm just confused. Either it should be a candid shot where they're all doing whatever they want to do, or they should all be looking at the camera. This can't be that hard to get nine people

to look at the camera at once. And yet, if you go back to when Alito joined the court, Thomas laughing off stage, Roberts not looking at the camera. By the way, there's definitely a theme here. The chief is the hardest one to get to look at the camera. I also would guess that he's the one who gets to pick the portrait that like wins the officialness or whatever and is released by the press office. I just think it's weird. Like why are some people facing and smiling and others are chit-chatting? Make a decision. It's either candid or you're all looking forward.

But this is odd. You know, I had never in my entire life thought about a Supreme Court portrait until you posted these pictures into the Slack. And now I can't stop thinking about them because I don't know what's going on. It feels like you've just got them all sitting there and there's a photographer and the photographer just starts taking a giant pile of pictures while they're chatting. Sometimes they're bored. Sometimes they're bored. Sometimes they're looking straight ahead and then they just pick one. It's really strange. We're going to put,

I don't know, can we put links to these and all of them in the show notes? Okay. Yes. I mean, look, I kind of missed the last one, the Kavanaugh joining the court official portrait. It's kind of lovely, right? They're just all chatting. Alito happens to be looking forward. Kavanaugh, like again, school, you know, third grade photo. Thomas is like, I'm just here so I don't get fined. Breyer's chuckling. Gorsuch is weirdly talking and looking at the camera. But the real delight, right, is that Sotomayor and Kagan are on each side of the chief's But the real delight, right, is that Sotomayor and Kagan are on each side of the chief's shoulders behind him, and they're all just having a little chat. By the way, one more thing to note on the new official portrait, the first one without Justice Ginsburg.

The doily tradition has ended, David. Justice Barrett was the last hope. Kagan and Sotomayor have not worn doilies in their past ones. Justice Barrett has worn a bright red, presumably dress, under her robe. It is a lower v-neck than the other women are wearing. Lovely. You know, no particular comment except, I'm going to miss the doilies. I so love that you said that Kavanaugh was taking his third grade picture because that is 100% correct. If you look at it,

if you zoom in on his face, it is, hi mom, I'm on the Supreme Court. It's fantastic. I love it. All right. All right. Well, y'all just look at these portraits and try to figure out what's going on. And one of you, please tell us, please. Okay, next. Sarah, from something light to something really heavy. Yes. So last week, the Supreme Court issued an opinion in a case about whether a juvenile who committed a sentence eligible for life without the possibility of parole could be sentenced to that if the judge did not make a specific finding of incorrigibility, meaning they had no ability, in the judge's opinion, to be rehabilitated in any way.

in the judge's opinion, to be rehabilitated in any way. So in this case, the 15-year-old at the time was living with his grandparents. His grandfather discovered his girlfriend in his bedroom with him. They got into an argument. Later that afternoon in the kitchen, they got into another argument. The 15-year-old stabbed his grandfather. That knife broke. He picked up a second knife and continued stabbing his grandfather. The grandfather fell to the ground outside. The 15-year-old did not call 911. Long story short, of course, he was charged with murder. He was found guilty. The judge sentenced him to life without the possibility of parole while acknowledging that he did not have to, that it was under his discretion, and that he chose to do so anyway. And Justice Kavanaugh wrote the opinion for the court

and basically said, we don't take any position on whether this is a good sentence or a bad sentence, but it is a good sentence or a bad sentence, but it is a constitutional sentence. He says today, and Kavanaugh says this, our holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison, that he is a different person now than he was when he killed his grandfather.

He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or governor. The state avenues for sentencing relief remain open to Jones, and they will remain open to him for years to come. So other words this is not the last word on mr jones fate it is only the word on whether his on the extent of his constitutional rights but what really so there were two things that kind of got people's blood up about this case one was the outcome was just

sort of this hey wait a minute a a life without parole sentence for a juvenile without a finding of permanent incorrigibility, which by the way, Sarah, just a notion, like there's something in me, like sort of in the Christian in me that says a, how can a court make a finding of permanent incorrigibility?

yeah, I would find this, this outcome just as sad if the court had found permanent incorrigibility because, as I think we all know by now and social science tells us, people are actually really bad at those judgments. So even if the court had said, I don't think this person will ever be rehabilitated, I have no particular faith that that's accurate. I would much rather what happened in this case, which is I've taken into account his youth. I've taken into account what happened. I've looked at X, Y, and Z. I'm sentencing him

to life without the possibility of parole. I don't like that outcome, but I actually think that's a far better process than one in which a judge says, I can see a crystal ball into the future and this person will never be rehabilitated based on me looking at them when a crime committed at 15. He's probably charged when he's 17 or 18, sentenced. I'm looking at this 17-year-old and I know that they are never going to be rehabilitated, so they're going to life without the possibility of parole. That, to me, is an absurd outcome, actually. Right, right. And the other thing that was interesting about this, and this is what the dissent pointed out and what also Justice Thomas pointed out in his concurrence, is the court kind of sort of took a blowtorch to two pretty recent precedents. Yeah, very interesting. Yeah, it was very interesting.

A 2012 case, Miller v. Alabama. 2016 case, Montgomery v. Louisiana. And these had together worked to sort of provide these individualized requirements of individualized hearings for these juvenile defendants and individualized determinations for these juvenile defendants, and they had to be retroactive. Sotomayor is pretty steamed about this. It was a very interesting case for the way in which it just really narrowed these very recent court precedents. And so Thomas's point was that he says the court correctly holds that the Eighth Amendment does not require a finding that a minor be permanently incorrigible as a prerequisite to a sentence of life without parole. But in reaching that result, he says the majority adopts a strained reading of these two cases,

Montgomery versus Louisiana with Miller and Miller v. Alabama. And he said they should admit outright it's irreconcilable. And the better approach would be to patently clear that Montgomery, which was a 2016 case, was a demonstrably erroneous decision worthy of outright rejection. So this is something where the court has essentially undone some pretty recent case law, which is not, I mean, it's not unheard of, Sarah. It's just not super common. it's not unheard of, Sarah. It's just not super common. Yeah, agreed. And I think that listeners of this podcast will not be surprised to hear that you and I agree that if you're going to overturn precedent, overturn precedent. It's actually just better for everyone to have that clarity. And I think that overturning precedent should be less this boogeyman thing. Look, I'm for keeping precedent because I think having consistency in the court is really important. And, you know, a new justice comes in and we just start over with what the law is in the country is a really bad

outcome. But if you're going to do it, then you need to do it explicitly because otherwise everyone's left going, wait, what? I don't. So now what do I do? Is this count? Not count? I'm not sure. We have too many zombie precedents moaning and lurching across the land at this point. Yeah. And this was a 6-3 decision. Not surprisingly.

Right. Okay. All right. We're making good progress here. We're doing it. Making good progress. All right. There is a Texas case dissent from, you fill it in because I'm not tracking this. All right. So you and I have talked about original jurisdiction before. We talked about it back in the election cases, right? Well, it was Texas back then too. When a state files against another state, it goes directly to the Supreme Court,

but the Supreme Court maintains its discretionary jurisdiction, which is kind of weird. We have not gone through all of the hooks for federal jurisdiction, but one of them, for instance, is called diversity jurisdiction. It's when me, Sarah, a citizen of Virginia, sues you, David, a citizen of Tennessee, I can sue you in federal court, even if it's a state law problem. Because the theory would go that the judges in your state would be too partial to you and the judges in my state would be too partial to me. But these federal judges, of course, with their lifetime appointment, they will not be partisans at all to either of us. And so the theory would go with states suing each other, that the state courts, even the federal ones, would be too inclined to be natives of their home state. And therefore the Supreme Court hears these cases. But by making it discretionary, it's just weird. So here's the deal. In 2016, the California legislature enacted

Law AB 1887. It prohibits state-funded or state-sponsored travel to any state whose laws fail to meet specified standards regarding discrimination on the basis of sexual orientation, gender identity, and gender expression. The state law authorizes the California Attorney General to identify what those states should be. And as of now, there are 11 states that are included in this. And then let me just run through some of the examples. Iowa was placed on the list because it won't provide Medicaid coverage for gender reassignment surgery. North Carolina was banned, as some of you may remember, because the state enacted a law requiring state agencies to maintain separate sex bathrooms and changing facilities. And then several states that were on the list, of course, have retaliated, placing similar restrictions on their state-funded or state-sponsored travel to California.

So Texas sued, filed its complaint at the Supreme Court to get that original jurisdiction. And Texas, of course, writes, this is the model case for the invocation of original jurisdiction, a dispute between states of such seriousness that it would amount to causes belli if the states were fully sovereign. seriousness that it would amount to causes belli if the states were fully sovereign. And then, you know, I will note this case was denied by the Supreme Court, but you have Alito and Thomas dissenting and Alito in his dissent. The Republic of Texas was an independent nation for 10 years, 1836 to 1846, and the California Republic claimed a similar status for a brief time in 1846.

If they were independent nations today, it is entirely possible that their dispute would be the source of considerable international tension. I just like any time that people talk about how Texas was its own country. You know, Alito writes a pretty lengthy- It's my book, Sarah. It's my book. It's true.

Yeah. Alito writes a pretty lengthy dissent, my book, Sarah. It's my book. It's true. Alito writes a pretty lengthy dissent, and it starts with the example of a federal court denying diversity jurisdiction because it's too busy. It's not really so important. I won't have the time I need to deal with this because of more important matters. Therefore, in the exercise of my discretion,

I am ordering that the complaint not be accepted for filing. Suppose a court of appeals affirmed this decision and the case came before us. What would we do? We would reverse in the blink of an eye. So this long thing is very similar, by the way, to the election case, Texas v. Pennsylvania. It's Alito and Thomas. They're not talking about the merits, folks. They're talking about original jurisdiction at the Supreme Court and that it should not be discretionary. And this once again walks through the history. And without sort of that election dispute hanging over it, it's a far more interesting and I think persuasive history on the court's original jurisdiction and when it started to be discretionary. But only two votes on that. So they've got a long way to go.

Well, you know, and the underlying issue is of real consequence. I mean, this is something where you essentially have, and, you know, as they talked about it being a justification

for armed conflict if these were two nation states, that'd be a little extreme. That would be a little extreme. I think the UN Security Council would disagree with that. But it is a serious matter because what you're talking about are economic sanctions of one state against another. And it's definitely the kind of action that ramps up the culture war. of one state against another. And, you know, they are definitely,

it's definitely the kind of action that ramps up the culture war. So it's not like this is an inconsequential dispute. The Supreme Court is just saying, y'all work it out. I did think the diversity jurisdiction comparison was fascinating, was interesting. But yeah, this is an actually consequential dispute it is

actually a source of real anger um particularly within some of these competing state legislatures uh and the they are economic sanctions i mean there's just no other way to put it it's one state imposing economic sanctions on another state uh and so I'm disappointed the court didn't take this case. I wish they had taken the case. Yeah, and I think that I am pretty convinced on the discretionary jurisdiction after reading this that it's a bad idea. Because in this case, Texas didn't even get to file its complaint. And to your point, David, this would have been brought under the Privileges and Immunities Clause, the Article 4.1 Commerce Clause, Equal Protection Clause. This is real

stuff. This isn't Texas didn't pay its parking meter. Right. This would be lit, as you kids say. So, you know, nothing's going to change. Only Alito and Thomas. And also nothing's going to change. We will continue having economic sanctions going both ways. California having its economic sanctions and those states that it targeted sanctioning California right

back. It's just not a good way to run a railroad. No, it is not. Okay. Are you ready, Sarah? Is it time? Buckle up. The second amendment is going to have its day in court. This is a big cert grant. So this is, and the case is called New York State Rifle and Pistol Association versus Keith Corlett in his official capacity as superintendent of the New York State Police. And here's the basic issue. When you have the Second Amendment and it says that you have the right to keep and an individual right to keep and bear arms, does that mean that you have a right to carry a handgun outside the home for self-defense? This is the question presented. It's quite simple. Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense. law-abiding citizens from carrying handguns outside the home for self-defense. New York right now prohibits citizens from carrying handguns outside the home.

It denies a license. You can get a license, but you have to convince the state that you have a proper cause to carry. So in other words, it's a may-issue state for a concealed carry permit, not a shall-issue state. So you don't have a right to carry. This is a very interesting new development because longtime AO listeners will remember the day many months ago when the Supreme Court summarily denied a pile of Second Amendment cases, just a stack of Second Amendment cases, just denied cert on them including cases questioning whether you had a right to carry a gun outside the home and you know whether most

the vast majority of states not only grant you a right to carry their shall issue but a number of them have joined my homes my state of tennessee or my state of tennessee just joined my state of Tennessee or my state of Tennessee just joined a number of others and having something called permitless carry or constitutional carry where you don't have to have a permit at all. The Second Amendment is your permit. If you can own a gun lawfully, in other words, you're not a felon and you haven't been adjudicated and you're not in any of the categories that prohibit gun ownership, you can carry a gun outside the home without a permit. So you have the shall issue states, the constitutional carry states, and the may issue states. And as Stephen Gutowski points out today, California, New Jersey, Massachusetts, Maryland, Delaware, Hawaii, and Connecticut,

these are all may issue states. They make up 25% of the country's population. So one quarter of the country's population lives in a state where you don't have a right to carry. And Sarah, I would be really surprised, really surprised if the court granted cert with the addition of Barrett to uphold May issue. That would surprise me. I'm not saying it's impossible, but I would be surprised by that, that the court would grant cert at long last after all of these years of just sort of, as you've put it, allowing the lower court jurisprudence to mature, to mature, and grant this case only up to uphold may issue. I would be surprised by that. Your thoughts? Yeah, it's interesting. If you think about a constitutional right and what restrictions can be imposed on it, I think there's a few ways to think about it. And the Second Amendment has provided this actually really clear way because of the constitutional issue, as you said,

may issue and shall issue, which is, is it that it's a constitutional right that you have, issue, which is, is it that it's a constitutional right that you have, but then the state can take it away for certain reasons? Or is it a constitutional right that you have, but only if the state finds that you need it? Or is it a constitutional right that you have, and the state has to affirmatively come in and take it from you. And that's sort of what's at stake here. I agree with you that by virtue of them taking it, by virtue of them waiting for Barrett to join the court, I think how this comes out is pretty set. Now, of course, the Second Amendment will set a floor, not a ceiling. So what's most likely is that the May issue states are chucked out as unconstitutional restrictions, that the state can impose all sorts of restrictions

on your ability to use your Second Amendment rights, but that it cannot be that it's a right that you have, but that the state will only let you exercise that right if it deems that you've met some additional requirement, as opposed to a restriction where the state says, you have this right, but if you have violated certain things or acted contrary to our laws in a variety of ways or something like that, then we can take away that right. It's just a floor versus ceiling issue that I think this is a done deal. I agree with you. I think so, you know, if the Supreme Court right now, the Second Amendment, the individual right that is protected under constitutional jurisprudence by the Second Amendment is the

right to keep a handgun in your home for self-defense. It's dealt with the part of the Second Amendment that says keep. This deals with the part of the Second Amendment that says bear. What does bear mean? So I think what we're going to end up with is a ruling that says that you have a right subject to regulation, but a pre-existing right to bear in arms outside the home for self-defense. Subject to regulation and limitation. So what you'll have then is phase one of this litigation battle will be the end of May issue. So then what the states will do is they will then go and draft laws that will say, okay, we will issue it to you. If you have 3,000 hours of training.

Exactly. That's going to be it. It's going to be how burdensome can you make the permitting process. And I think actually the answer to that is going to be very, very, very burdensome. I think you're going to be right about that. I mean, when I got my back in the day before Tennessee became permitless carry, it doesn't actually kick in yet, even though the law has been passed. But so right now, Tennessee is a shall issue case, shall issue state.

And when I did it, I had to get fingerprints. I had to go through an additional background check. I had to take a course. And then the course involved shooting a certain number of rounds. It was all pretty simple, but it was time-consuming. It was a little bit expensive. You had to pay for the course. You had to pay for the fingerprinting.

You had to pay for the permit. So it all added up to several hundred dollars. Took a little bit of time. So, you know, what I would imagine is that California says the permit is $1,000. The course is a week long. You know, you just go through and you expand these requirements and you're going to have litigation about it. And I think you're right, Sarah. They're probably going to grant some pretty large degree of flexibility on these states to how difficult, how many hoops can you jump through.

And then this leaves the other question. So there's sort of two kinds of, broadly speaking, two big kinds of gun control questions. One is, under what situations can you possess a gun inside the home, outside the home, et cetera? The other one is, what kind of gun can you possess? Or what kind of magazine can your gun have? And that, so far, the Supreme Court has been just totally silent on other than Dicta in the Heller case. And that's going to be the next shoe to drop. And that's going to be another kind of case that, as you said, establishes a floor, not a ceiling. And so what I'm expecting similarly there is that those who are expecting the Supreme Court to kind of come in and protect the kind of Second Amendment rights that people exercise here in Tennessee as a national floor.

No, probably not. But I could be completely wrong about that. But I think that the court views itself as establishing a floor and the floor that it's going to establish might not make anybody super happy. I'm not sure where the idiom, the other shoe to drop, comes from. I imagine a kid sitting with their legs dangling over a bridge and then one shoe falls in the river

and then you're just waiting for that other shoe to fall in the river. If that's the idiom, I think that other shoe is going to stay on that kid's foot for another decade, at least. I don't think that shoe shoe is going to stay on that kid's foot for like another decade, at least. Like, I don't think that shoe's dropping anytime soon in terms of what guns, what capacity magazines. There has not been enough percolation below on any of those. Unlike this, where there's actually been a fair amount of percolation.

And I think every circuit at this point has weighed in on this question. So we've talked about sort of the fundamentals, right? What does bear mean in the Second Amendment? And what will this mean in terms of your ability to carry a gun outside the home under the Second Amendment? What regulations will be allowed under the Second Amendment? But there's this legal doctrine sitting under all of this, which will determine that there's this process thing of what level of scrutiny applies. You know, strict scrutiny is, as we've said, strict in theory, fatal in fact, applies to a lot of your constitutional rights. Rational basis is that floor just means the government needs to have some reason why they did this it can't just be like oh we made it up um we have never really gotten what the level of scrutiny is for the second amendment some folks have said that it

is intermediate scrutiny which they have also called exacting scrutiny. And yes, at some point, these words lose meaning, the difference between strict and exacting. And by the way, even if it is exacting scrutiny, oh, we don't actually know what exacting scrutiny is. We'll get to that. Really sad. Yes. Which is, of course, the topic for the case that was argued today that we'll talk about in a minute is how we're going to define exacting scrutiny. But it's really, really important because I think there's a good chance that the Supreme Court, in fact, uses exacting scrutiny over the Second Amendment.

So we kind of need to know what exacting scrutiny means. Right. Right. So we don't really know the level of scrutiny. And I tend to agree with you. I think that they will wait a while on the exact kinds of weapons, unless you have something that is such a outlier kind of state rule. For example, outlier kind of state rule. For example, let's imagine a state said, you can only possess a revolver or a bolt-action rifle or a double-barrel shotgun, something that takes gun technology back to maybe 1875 or 1890 or something like that, I'm going to bet that they're going to leave a lot of that alone. I think one of the hopes that the Second Amendment advocates have long had

is that this dicta from the Heller case that talked about the Second Amendment is going to protect guns that are in common use for a lawful purpose means that if you can show that a particular kind of gun or a particular kind of gun and magazine combination is commonly used and lawfully used. For example, an AR-15 is, by most accounts, the most popular rifle in the United States. So a ban on an AR-15, that's common use for a lawful purpose, or a 30-round magazine or a 20-round magazine. Tens and tens of millions of those things are

in existence. So it's common use, lawful purpose. I'm not sure the court is going to read it quite like that. I tend to think what the court will do is say, here's the level of scrutiny. It's going to be some version of intermediate. And when it's some version of intermediate, let me just put it this way. My own view when I was litigating is the absolute last thing I ever wanted to see in print was strict scrutiny does not apply.

Because if I saw that strict scrutiny does not apply. Because if I saw that strict scrutiny does not apply, I'm thinking, it's over. It's over. Because it's not always over. It's not always over. But as a litigator, that is the last thing you want to see. Because most well-drafted state laws are going to carry with them,

and there's going to be an avalanche of sort of testimony presented in hearings before the you know adaptation of the law that is going to give them at least a substantial there's going to be at least a substantial government interest there's going to be um at least the kind of of evidence into the record that gives them the ability to make the argument, to make it very difficult for you to say that they haven't met that burden. So I am optimistic as a Second Amendment supporter. I'm optimistic, pessimistic. I'm optimistic that the New York is going to lose, that May issue is going to be gone. Newark is going to lose, that May issue is going to be gone. I'm pessimistic that you're going to actually see some sort of wide-ranging revolution in Second Amendment jurisprudence.

All right, we have two more cases that were granted cert today. The first, remember that we're still holding people at Guantanamo Bay. And this case involves one of Osama bin Laden's associates who is still being held in Guantanamo. He wants to file a lawsuit about his alleged detention in Poland. And he wanted to be able to basically depose some CIA contractors about the United States' cooperation from the Polish government, locations of facilities that the United States may have in Poland, etc. And the Ninth Circuit, well, sorry, the CIA director at the time, Mike Pompeo, asserted the state secrets doctrine. The Ninth Circuit said like, um, nah, we're looking at it and we don't think it's a state secret

and so the supreme court is granted cert on this um let's see director pompeo explained that he asserted the privilege to prevent compelled discovery from the former cia contractors on the central issue that underlies this entire matter whether the cia conducted detention and interrogation operations in Poland with any assistance of the Polish government. Among other things, the director stated that it is critical to national security to protect the location of detention facilities and the identity of foreign partners who stepped forward in the aftermath of the 9-11 attacks because those partners must be able to trust our ability to honor our pledge to keep any clandestine cooperation with the CIA a secret. Even, and this is very much the

case as time passes, media leaks occur or the political and public opinion winds change. And basically what has happened is that a whole bunch of people have speculated that which countries and services assisted the CIA program, media, non-governmental organizations, and former Polish government officials have publicly alleged that the CIA operated a detention facility in Poland. So on the one hand, like that cat isn't just out of the bag. The cat's been like lounging in its now nice cat bed

far, far away from the bag. The bag's gone. The bag was thrown out like months and months ago in the trash, and the cat is very comfortably living in your house. On the other hand, it is true that the United States has never confirmed any of that. The United States thinks that the cat is like Schrodinger's cat. It's in the bag and it's out of the bag all at the same time.

And so the question is, who gets to decide, really? Does the Ninth Circuit, the district court in this case, really get to decide? Or is it just entirely up to the federal government's discretion? And why this case is interesting to me is that there is no question that the federal government abuses the privilege of classification and keeps things classified that it does not need to, classifies things in the first place that it does not need to. At the same time, who gets to decide which is which? And it's that decision maker that we're deciding here. And I'm not totally comfortable with it being, you know, a random judge in the Ninth Circuit either. Yeah. No, I think you hit the nail on the head. We overclassify. And the executive branch should address that. That's a role that's for the executive branch

to address. And you are so right that we overclassify. Oh Oh my gosh. I mean, when I was in Iraq, we had two computers on the desk, SIPRnet, Secret, NIPRnet, non-classified. any question in your mind whether the email that you were about to send contained any kind of secret information you would email on your super computer and what ended up happening is and so everything that every email auto populates classified i mean the two networks don't even communicate so it's not like you can even email to your non-classified computer from your classified computer. And so at least this is the way it was circa 07, 08. And so all kinds of things got classified. Birthday greetings, casual observations from the field. I mean, personal communications, just because it was sent on that in that system that automatically classified its contents or were automatically classified.

Now, a thorough review later on would result in a lot of wholesale declassification, but that's not really something that would happen. So we had this giant mix of information on this platform that was, yeah, lots of it was legit secret. Battle damage assessments, things like that. And then a lot of it was not. But it was all still classified. And the problem is there's not much incentive. If you're concerned something might be classified, you would never take the risk and not classify it.

And so it is a one-way ratchet, the phrase that Justice Scalia hated. Everything that could possibly be classified gets classified, and it's really hard to unclassify stuff later. At the same time, when I was at the Department of Justice, I had a TSSCI clearance, which is top secret, sensitive, compartmentalized information. I spent a lot of time in skiffs. Those are those rooms that are impenetrable by everything except if you accidentally bring your cell phone in them, which people do regularly, I would hazard to guess based on no personal information. And there were lawsuits happening looking to declassify or to argue that the information should not be classified about information that absolutely needed to be classified. So again, we just come back to

who is the decision maker in that? The person who has the final authority with the lives that are out there in the field that could be hurt by that information becoming public? In this case, of course, it's foreign partners. Or is it judges who are weighing the equities of a litigant against the purported interests of a state actor? You know, the interesting, there's a whole lot to be written about how information gets classified by category. So I was in the field where we were receiving a volume

of information in and then we were making on the fly determinations about which category to classify it as it then went out into and up into higher headquarters which was a fascinating process like a fascinating process to figure out and so you had a lot of what was interesting is you would get information that was clearly TS coming through soldiers, specialists, sergeants, who didn't even have a secret security clearance. But they're the ones who've actually captured the detainee. They have the information. It's all really interesting and fascinating. And maybe when we're back with dispatch live events over drinks one evening, we could have a bunch of interested dispatch members

chat about their own experiences with the whole classification system. It'd be fascinating. chat about their own experiences with the whole classification system. It'd be fascinating. Well, regardless, in this case, I have bad news for Mr. Hussein, a.k.a. Mr. Zubediah. He's going to lose. Yes, he's going to lose. Okay.

Wow. We're dealing with cert grants and dispositions at the same time. It's so efficient. The efficiency here. Okay. All right. Last one that was granted before we get to the argument today is the Houston Community College Board censured one of its members. And that member claims that he cannot be censured because that is state action that is abridging his freedom of speech. So he sued under the First Amendment. And the Fifth Circuit actually held that he was

correct, that the Houston Community College system could not censure him. It was state action abridging his freedom of speech, retaliatory. The Supreme Court has granted cert in this case. It is an interesting case because this guy, so when I, you know, David and I first talked about this, he was like, well, what'd the guy say? And I was like, oh, he didn't say anything in particular. This isn't like the cheerleader case where there's like a Snapchat with middle fingers up. It's like a lifetime of having your middle finger up. He was an unpleasant guy to work with. Oh, yeah. In reading through the cert petition, it's really... Let's see. After a controversial campaign, not fully described, respondent David Wilson was elected to the board

in 2013. His tenure was marked by immediate and constant turmoil. In a span of three years, he filed multiple lawsuits against the community college, helped others to file additional lawsuits, was accused of leaking confidential information, publicly denigrated the community college's anti-discrimination policy, and sparked media attention for a laundry list of controversies. sparked media attention for a laundry list of controversies. Footnote, Wilson's activities prompted one local newspaper to provide a compendium of Dave Wilson controversies. Yeah, so this guy, without opining on the merits of his lawsuits, which I've not read, let's just say extremely contentious. The interesting thing to me about this is so censure, so long as it doesn't carry with it another concrete penalty like expulsion from the board or limitation of your general rights as a board member, it seems to me that that's going to function as a kind of government speech, that there is a government speech doctrine.

The government does have an ability to proclaim about particular issues. And so it's interesting to me that, and my general thought would be that censure would be deemed to be a form of government speech so long as it didn't carry with it additional penalties. So I don't know. I'm leaning in that direction. I can be persuaded of the opposite. So let me just say from the advisory opinions court, cert granted disposition pending. Well, for those of you who are listening and are like, wait, but Congress censures people all the time.

Right. Yeah, they do. I agree with you, David, that if this came with some sort of reprimand with teeth, if you will, yeah, if he was removed from the board for his First Amendment activity, which he would argue was shining a light

on corruption on the board, illegal activity on the board for his First Amendment activity, which he would argue was shining a light on corruption on the board, illegal activity on the board. By the way, illegal meaning against the bylaws, not criminal. In this case, I think he's arguing that they allowed one member to vote by proxy or over the phone and that that was against the HCC bylaws. So he sued about that. You know, that one person's illegal activity is another one's over litigiousness. Regardless, censoring a member of a body has a pretty long history in the United States. And as long as you are not retaliating against the speech by removing him from the board or fining him or who knows what else. I find this really strange as a case, actually. Yeah, I'm going to dig into this sucker because it is very interesting to me. And because when you do free speech work in universities,

like I've done for a very very long time uh you you come across this phenomenon you will have let's say a professor does something a student does something that gets the community outraged well if the school retaliates formally against the professor denies a promotion fires um fines or expels a student or otherwise penalizes a student, you've got your First Amendment retaliation case just right there. And I've had a number of those cases, won those cases. It is well-established that if you engage in a concrete act of retaliation that impairs the ability or punishes someone in a concrete way for speaking, impairs the ability, or punishes someone in a concrete way for speaking, you're in a world of hurt as a public university. So they've learned this lesson. So what they will do now is this.

A chancellor, a dean will put out a statement that says something along the lines of, we fully respect the First Amendment rights of our students and our faculty, and we fully respect academic freedom. However, this statement by so-and-so in no way reflects the values of this community. And in fact, it is directly contradictory to the values of this community. In other words, the chancellor sort of speaking in his capacity or her capacity as the head of this public institution will condemn the speech in substance while prohibiting any punishment for that dissenting speech. And if you get rid of a censure, does that then mean a chancellor can't condemn speech that he or she doesn't like,

even if they're not punishing it? I mean, this, this is a very interesting, odd case. So what's also really important here, as opposed to the example you're giving is that this is a body determining its own rules and bylaws.

And so this isn't a professor who is an employee of the university. This is a member of the body. Yes, exactly. Which would seem to me to be a stronger case that censure is acceptable. Yes, agreed.

Huh, okay. Plowing on. All right, we made it to today's argument. Whew. Boy. So we've talked about this case before. This is the anonymous donor case. It's consolidated, but Thomas Moore Law Center versus Rodriguez. And Derek Schaefer argued on behalf of Thomas Moore Law Center. And yes, David, I did work for Derek back when I was a 1L.

Of course you did. I'm so glad you asked. Yes. Derek's a wonderful attorney. I thought he did a nice job at oral argument. And look, can I just give my very big picture assessment? Because there's a lot of weird stuff in here. There's two big questions. One is, what level of scrutiny is going to get applied? Second is, is it a facial challenge or an as-applied challenge? And did we reset the factual setting?

No, we should do that. Yeah, so the facts here, what this case is about is whether or not there is a California attorney, the California Attorney's General Office requires all charities that want to operate in California, including C3 nonprofits, you know, nonpolitical nonprofits, to submit a copy of their tax return. That tax return is going to include Schedule B that reports the names and addresses of major donors nationwide. So what's happening is that the California Attorney General's Office is requiring these nonprofits to provide and

disclose information about donors. Now, a little bit of additional factual background. donors. Now, a little bit of additional factual background. Not long ago, there was an inadvertent leak of this information in which I believe about 1,800 non-profit Schedule Bs were publicly disclosed on the Attorney General website. Not a great factual setting for the case for the California Attorney General. And so the question was, under what circumstances can California sort of compel this donor disclosure? And as a bit of background, one of the most important cases that will help determine this case is a 1958 decision in NAACP versus Alabama, which challenged Alabama's rule requiring the names, disclosure of the names of NAACP supporters. Supreme Court struck down that requirement.

There have been other cases since 1958 trying to determine under what circumstances can you be compelled to disclose name or personal identifying information as part of mainly political activity, political activity. But this is disclosure for all nonprofits. All right. So, Sarah, go. So some high-level observations. One, I was surprised how little the NAACP case came up.

It's like we have just moved on from that part of history and now we're in this part of history and the one isn't that relevant to the other. Two, this got very much in the weeds about what level of scrutiny applied, what exacting scrutiny means, something I mentioned earlier on the podcast. And more specifically, what exacting scrutiny means, something I mentioned earlier on the podcast, and more specifically, under exacting scrutiny, what level of tailoring must the government

follow? So in strict scrutiny, it has to be narrowly tailored. So what does it have to be tailored at to meet exacting scrutiny? And look, there's some that it's like, no, it needs to be substantially related. Okay. Or does it need to be sort of narrowly tailored to meet their stated goal? So that's an interesting question. I also was surprised that the answer on why this isn't simply a backdoor into overturning campaign finance disclosure requirements, the answer was, well, this isn't that case. Well, the government would have a really strong argument in that case. It's just different from this case. But as you noted, David, the Schedule B that they're being forced to turn over to California, it's the IRS Schedule B, as in they've already done it and it's going to the federal government already. Now, one big difference is that the IRS does not post anything from your stuff online.

The California does, which is how that inadvertent disclosure happened. California does, which is how that inadvertent disclosure happened. So I guess I went into this case thinking that it would be more of a slam dunk for the Thomas Moore people. And I left thinking, eh, you might have six votes. uh yeah i would concur with you that i i went in thinking this might be an eight one i bet you don't know i do not think it will be an eight one now i think maybe more of a six two one perhaps um in this perhaps? But I would agree that I was thinking 8-1. After the oral argument, I'm still thinking that

Thomas More and AFP win. But, you know, it is interesting that this distinction between political and nonpolitical. So this exacting scrutiny, and after a while, I mean, you know,

so you have rational basis review, you after a while, I mean, you know, so you have rational basis review, you have intermediate review, you have strict scrutiny, and longtime AO listeners kind of know the contours of that. Well, there's this exacting scrutiny thing that's more in the electoral context. And this is, you know, in the court below the Ninth Circuit called it, it's a standard that requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest. To withstand the scrutiny, the strength of the government interest must reflect the seriousness of the actual burden on First Amendment rights. What? It's literally in between. That's intermediate.

What? It's literally in between. That's intermediate. It's like, well, we don't think it needs strict, but it's too important for rational basis. So what if it were just somewhere in between and we don't really define what it is? And that's what we have. Yeah. And I do think the difference here between political and non-political is interesting. So this is something that sweeps very broadly, all C3s. I think right at the beginning, Thomas began with, what did he call it? What about a dog bed charity? Yes. And I thought Derek's answer was pretty funny. He's like, actually, PETA's on our side. They filed in our favor. And even PETA can be controversial. So even the most non-controversial sounding charities can run into problems given the span of time and the change of culture, which I don't think

was what Thomas was getting at, but there you are. Yeah. And I, you know, I think what's interesting about this case is that, um, that political, as you mentioned, was sort of hovering and looming in the background. And the distinction between the political and nonpolitical is, if you're going to look at the interests that were sought to be advanced by NAACP versus Alabama, that distinction isn't that logically stable. Okay? And so there's sort of this sense that people, there's sort of this understanding that, wait a minute, if you're going to be involved in the political process, greater transparency.

But if you're not in the political process, greater privacy. And, you know, there's sort of this, like, instinctive idea that people have that that might make some sort of sense because we want to know who, you know, who's writing the checks to politicians, etc., etc. But Sotomayor was, you know, interesting in talking about this requirement to for signers of like petitions to get people on the ballot. It requires a disclosure of name and address. So that's not really

disclosing the shadowy figures who write checks. It's like everyday ordinary people who are participating in the political process through ballot referenda type activity. And so this non-political political distinction starts to get a little blurry. And then when you look at NAACP versus Alabama, and you see the justification for the decision depends upon, in many ways, the toxicity of the time and the consequence of disclosure. And I'm going to read from NAACP versus Alabama. Petitioner has made an uncontroverted showing that on past occasions, revelation of the identity of its rank and file members, this is NAACP, has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public

hostility. Under these circumstances, we think it is imperative that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort certain categories of the political sphere, because we just ended a we just ended an election cycle where people had armed armed protesters show up at their house. Yeah, and this is why I don't think the NAACP case is was mentioned much in argument. Yeah, and this is why I don't think the NAACP case was mentioned much in argument. I don't think, I think that has been, it's not a zombie precedent by any means, but it is now a relic of its time. So this will be decided on different grounds. Now, the interesting thing to me, and tell me what you thought about this, but the conflict between whether you can challenge this on its face as applied, the state and the solicitor general seem to be saying, well, if you're sufficiently controversial, you may be able to make some sort of showing that this is dangerous. Court didn't seem to be

buying what they were selling on that point. Barrett in particular shot it down with sort of a withering question, but just to run through what that means. So facially means

that it is invalid and unconstitutional in all of its possible applications, which means that once a law has been found to be facially unconstitutional, it's just gone. As applied, leaves it a little more up in the air. It is as applied to obviously the petitioner in front of the court, but who else falls into that bucket is sort of a yet to be determined down the road. It depends on the opinion, et cetera. And so the

U.S. Solicitor General was arguing that this should be an as-applied challenge, applying only to Thomas More, and that despite what the Ninth Circuit found, that Thomas More has clearly met that burden, and that this should be remanded to the Ninth Circuit to try harder, Ninth Circuit, and that Thomas More would be excused from this requirement moving forward, having met the burden that this law is unconstitutional as applied to their case. But she argued, the U.S. Solicitor General, that is, that to be facially unconstitutional, you look at the typical case, the typical charity, and whether they are subject to reprisal. And that's where the dog bed example came in. Because Derek for the Thomas More Society was

arguing that like, look, even PETA, even something that's just like for the ethical treatment of animals, how non-controversial is that? Well, they're on our side because it is controversial sometimes. And so California and the U.S. Solicitor General's office was arguing actually in the vast majority of 501c3 and charitable organizations, nope, there's no threat of reprisal. There's no fear of reprisal. And so this should be cabined to only those who can meet this burden that there is some fear of reprisal. And when the justice is sort of pressed on like, okay, well, how would that work? You'd have to like show that there has been reprisal. You just have to sign an affidavit that you have fear of reprisal. Do your donors

have to sign that? There was some flim-flamming around, I thought, on that question, David, of what it would actually look like in practice to have this be an as-applied challenge. to have this be an as-applied challenge. No question that the ACLU, PETA, as I mentioned, all of these organizations that joined as Amici want this to be facial because they are not confident in what that process would look like. And another fun note on that was that California, when you file with them, you have to file your Schedule B each time. But if you actually do come under audit for fraud, which is the purpose that California claims that they want the Schedule B, they send you a letter asking you to file your Schedule B, which I did think was weird.

That is weird. That is very weird. So can I, so I have two things. One, may I say that the argument was whether it shall be shall issue privacy or may issue privacy. That's true. It's true. And the other, the other thing about the privacy. So three things, one shall issue privacy or may issue privacy. And I think the court's going to say shall issue privacy. Two, I think one of the flaws in the, well, I have to show you that I'm probably going to be controversial, is that you and I both know that sometimes things become controversial only in hindsight. Right. How many times has a five-year-old joke suddenly become a thing? Or a current hot button issue wasn't a hot button issue five years ago, but people were involved in that same thing five years ago can suddenly be in hot water for their involvement. of say, yeah, there's the easy cases like Thomas More, we're religious liberty, we're pro-life. Those are the easy cases. You can walk in there and you can say that we have an issue.

There's an awful lot of people. They don't know. They don't know. It requires them to sort of see the future. The other thing on NAACP versus Alabama, I'm going to dispute a little bit that it's a zombie precedent. I think it's such a- I said it wasn't a zombie precedent. I just said it's been cabined to its time.

Okay. All right. I think it's different than that. I think that it's so strong that neither side is really, that even the Solicitor General in California don't want to come near trying to touch it. And that's this as-applied element, which is saying, wait a minute, when you can show these things, like in NAACP,

and I'm pointing at my computer screen. Listeners, that's really helpful. When you can show the conditions that were in play in NAACP versus Alabama, yeah, sure. We're backing off. We're not going to require disclosure. But you've got to make that showing.

You've got to make that showing that you have some kind of legitimate concern that you're in NAACP versus Alabama range. And so in that sense, it felt like what they had done is they've retreated to a position that is, yeah, absolutely, if there's reprisals, you're not going to have to disclose. But you're going to have to show us, you're going to have to prove to us that there's a possibility of reprisal. And the majority of the court is just not going to go for that. I agree. And like the ACLU's brief said, the purpose of this is to protect speech that is currently out of vogue. And we don't know which speech that will be five years from now or five years ago, et cetera. All right. Two quick notes that do not have to do with the substance. One, Justice Breyer pronounced, I think he pronounced it a Mikey briefs.

Really? Surely he misspoke. Maybe, maybe, but now I'm going to go back and try to find other times in the transcript and then go line it up with the oral argument to see if he pronounces it a Mikey. Has he ever issued a pronunciation of voir dire? I don't know. I bet he has. All right. Second issue is that there was some sort of like kerfuffling on the outside that Justice Barrett should recuse herself from this case because Americans for Prosperity had spent money supporting her confirmation in an ad campaign. Yeah, that's not the way recusal works. And I just wanted to

let people in on that. Recusal, first of all, is up to the justice. You're never going to know why they recuse themselves unless they choose to offer it, which at the Supreme Court, they tend not to. Second, it is reserved for something where you have a prejudice that you cannot overcome. It is reserved for something where you have a prejudice that you cannot overcome. It's a family member. You have a pecuniary interest in the outcome of the case. It is not a friendly relationship. You know, Justice Sotomayor, we believe, recused because someone was such a close friend who had a pecuniary interest. We think that's why she recused from a case. I think it was last term. Oh, it was the elector's case. So it wasn't

pecuniary interest. Anyway, but like someone who's nice to you or says something in your favor or even supported your confirmation, not even close to being in recusal territory, let alone in the heartland of recusal. And if you think the contrary, if you think, wait a minute, if I spend a million dollars trying to get somebody on the court that absolutely they should recuse,

what you would end up with is a rule where every advocacy group could select its court. I'm going to run it before this oral argument i'm gonna run an ad campaign saying that the six republican nominees should be all be impeached and i'm going to spend seven million dollars to do that and then i'm going to file a motion of recusal to say you can't possibly rule be unbiased in this ruling because I just spent a ton of money opposing you. That, not how it works, not how it works. And these, you know, this kaleidoscope of activist

groups that exist, they spend an enormous amount of effort supporting or opposing various nominees throughout, you know, throughout each and every presidential term. And then there are also litigants in cases. And one of the reasons why they spend that money and spend that effort supporting or opposing is, yeah, they are trying to shape the judiciary in a certain way, but this has never been held to be grounds for recusal. It's a frivolous recusal motion, or it's a frivolous recusal argument because we don't allow litigants and we don't allow activist organizations

to shape the composition of the court by their advocacy. So the two things that we'll be looking for when this opinion comes out, one, how they talk about disclosure and how that lays onto campaign finance disclosure laws. And two, the scrutiny that's applied, how they define that scrutiny, and how that would sit on the gun case, the New York gun case.

And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame.

This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus

free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Yeah, this is good stuff, Sarah. My goodness, this has been a lot. But it's not over because I finally watched Varsity Blues. Yes. So this is the documentary folks about the Department of Justice's case.

Operation Varsity Blues was the name of it, where they basically did a sting operation to take down folks that were, uh, bribing colleges to accept their children and just high level. If you donate money to a college, that's not bribery. That's okay. If you give money to an employee of that college and the school doesn't know about it and the employee pockets that money, it's off the books in any respect, that's bribery. And that is illegal. So a lot of folks went to jail over this, but the main guy, the one who was the conduit for the money and where it went, hasn't been sentenced yet because he's still a cooperating witness.

and where it went hasn't been sentenced yet because he's still a cooperating witness. And so we're just sitting here in limbo waiting to see what happens when Hollywood celebrities have been going to jail, mind you, for what? I think it was like five weeks, seven weeks, like relatively short amounts of time. But jail is jail, folks. It's not fun. And the guy at the center of it, we still don't know what's going to happen. But I thought the way they did the documentary was interesting because all of the language that you're hearing comes from wiretaps. But then they have actors reenacting the wiretaps interspersed with interviews with some of the folks involved. What do you think, David? Oh, so many things. Okay. So first, what is fascinating to me is, so the lead guy, the one who had created

what he called the side door, which was this bribery path into these colleges, he turned on his clients. So fast. With such speed and vigor, it's remarkable. It's just remarkable. And he started to sell them. He started to basically sell them out to prison as enthusiastically as he brought them into his business. And that's one reason why he hasn't been sentenced yet. He's still out there right now working as hard as he possibly can to put as many people who worked with him in prison. It's unbelievable just how quickly this guy flipped. Number two, all of these people, many of them who are quite sophisticated attorneys, who were quite accomplished,

were quite accomplished, in many cases brilliant, holy crap, they did their criming explicitly. When you're listening to these transcripts and when you're listening to these conversations, it's, shall we crime today? Yes. May the criming commence. Will the criming be effective? Yes, my criming always works. Well, then crime away then. You think that's an exaggeration, but it's kind of not. Because I think that the conduit guy in this case was really effective because of what you said. You called it the side door, right? The front door is you get in on your application. The back door is you donate $20 million so that they can build a new basketball arena. And then there's

the side door, right? The whole thing is rigged. He made his clients believe nobody's getting in through the front door except the like uber weirdo, crazy, smart, you know, accomplished kids. Your kid's never going to get into college to the front door and you don't have $20 million. And even then it's not a guarantee that you'll get in through the back door and you don't have $20 million. And even then it's not a guarantee that you'll get in through the back door. So look, there's this other door. It's on the side. You have a side door to your house, right? Of course you do. Yeah. It's not like how most people enter the house, but it is a door. And so I think that people really convinced themselves that the system was so rigged that this wasn't a crime. It just more clever well but you know some some of it

you could tell that they knew that this wasn't kosher because are we gonna have a problem here with this i'm paraphrasing well only if somebody tells right which is a weird like one of the guys was a lawyer and i was like so you know that you're entering a conspiracy if you're asking that. And you know that he has other clients. And all it takes is one of them to tell, which, by the way, is exactly what happened. One of the guys, you know, out of hundreds of these people using the side door who are all wealthy and have, you know, a low ethical bar. One of them gets pinched for I think it was fraud, tax fraud, tax evasion, something like that. who are all wealthy and have a low ethical bar. One of them gets pinched for, I think it was fraud,

tax fraud, tax evasion, something like that. And he's like, well, wait a second. I don't want to go to jail. What if I tell you about this other criming that I've been doing that all these people are involved in? And they were like, we're listening. So he turned in the conduit guy and the conduit guy then flips on all the other parents. This was the most predictable thing to happen when you enter a conspiracy

that this hub and spoke conspiracy with hundreds of other sketchy, unethical people. Yeah. But my favorite thing about the exchange, well, at least one of the, well, only if somebody says anything was the person responding that their kid knew.

And their kid, their kid would, of course, keep his or her mouth shut. I can't remember if it was a boy or girl. And I'm thinking, have you met a college student? Like, it was, it was absolutely amazing. Then the other thought that I had was, in addition to just how brazen it was, and I think one of the sort of talking head experts said, that's not uncommon in white-collar crime. It's actually remarkable what people will say right up front on a phone call.

And then the other thing, as they said, was how unsophisticated these very sophisticated people were in sensing when their guy turned on them. Yes. And that he would have been made as a police asset instantly in the mafia. And they played some of the tape. And it was again, I'm just going to caricature it a bit, but I'm only caricaturing it a bit. Do you remember when we crimed? Huh? You remember you agreed to crime. Yeah. So you're confirming.

Can you speak louder, please? You agreed to crime. Yes. I mean, it was clearly, repeatedly inducing confessions about past activity, past criminal activity. It was amazing, just amazing to hear it. But then the other thing, Sarah, and look, I have a whole album side about college choices, and these folks put such an emphasis on these college choices and these college admissions so far beyond any reasonable relationship to the ultimate sort of like health and well-being and prosperity of their kids.

well-being and prosperity of their kids. Like, you know, if you're a super elite parent, you know, you're not super elite parent, as these guys were. Their parenting was problematic if they're doing this. If you're a member of the super elite, if you're a member of the super elite, it's not like Harvard is a make or break for your kid.

I mean, really now. Harvard can be a Harvard or some of these other schools, Stanford, etc. They can really propel somebody, especially somebody who's coming from a lower income background. If they're coming from a situation where they don't have any other, don't have a lot of inherent advantages, you throw that Stanford degree in there and boom, it can really do something. But if you're the child of a fashion designer and an actress, and you already have your own independent Instagram presence that's creating enormous amounts of income for you usc is not a usc degree is not the

thing that's going to propel you one way or the other i mean that was the thing that was so remarkable to me yeah it reminds me of my favorite onion article i think of all time a kid like me didn't have a lot of options growing up. From the day you were born, you knew the deal. If you wanted to make something of yourself, if you wanted a better life than everyone else in the neighborhood, there were just two ways out. Basketball or whatever else you wanted to do.

That's all there was in Cherry Grove. You either played ball or cultivated some other interest and eventually made a career out of it. If you couldn't dunk or didn't have a jump shot, all you had left was finding another rewarding path to professional and personal fulfillment. I love it. It's sad for these kids though. You know, their parents, um, some of the kids knew it sounded to me like most of the kids did not know. They thought they got in on their own merit.

You now have wiretaps of your parents talking to another adult saying that they don't think you're smart enough to get into college, that this is what they have to do because you're just not that talented. You know, their other kid is talented, but this kid, not so much. Um,

and what a, um And what an awful family situation this has no doubt created because of the parents' very selfish choices, I think. Well, and the other thing that really stood out to me, and look, I know that there are kids that get their hearts set on one particular kind of academic institution and they're crushed if they're not admitted. That's life. That is something that happens all across the country. But what struck me is it did not seem in most of these circumstances that the driving factor here was parents trying to fulfill their kids' dreams and wishes. In fact, in some of them, it was quite clear that that was not what was happening. But it was almost as if the parents were putting together their own personal resume. And their own personal resume was, not only am I incredibly successful, but my kids got into

Stanford. It's sort of a family package of awesomeness that they wanted to create. And somebody said, for some of these folks who didn't go to Harvard, for their kid to go to Harvard, this was how they got to go to Harvard. So this puts them in the Harvard community. And it just was so, it was sad. I mean, it was just sad, this obsession with credentialing. And, you know, one of the things that I've said, I get lots of people ask me questions about, I mean, it was just sad, this obsession with credentialing. And one of the things that I've said, I get lots of people asking questions about college choices. And my answer about college is really pretty simple.

My answer about college is go where your kid and choose to go if you're the kid where you're going to flourish as a person. Those are key years of your life, 18 to 22. Go where you're going to flourish as a human being. Because look, the college credential is not make or break. I mean, the ranking of your college is not make or break. It is not. And to try to tell these kids that it is, you're doing them a disservice. And everything in our culture right now, though, David, is telling them that it is. These videos that kids post when they get in, I don't blame these kids for having their hearts set on a specific college. And then when they don't get in, they're heartbroken. It reminds

me a little of when everyone made fun of the students at Yale or Harvard, these sort of famous schools, when Donald Trump won in November of 2016. And there were all these kids crying and everyone's like, ha ha, look at these snowflakes. They're so dumb. Yeah. The reason that that was happening was not because of the kids. It's because of the adults around them who told them if Donald Trump gets elected, which will never happen, they were told. But if that were to happen, it would be the end of the United States as we know it and all the people who you cherish and all the rights and world that you know will come crashing down. They were told that at 18 years old. And then when the impossible happened,

they cried about it. Do not blame the kids, blame the parents. And at the same time, these kids who have their hearts set on a college, they don't know anything about the college. They've never attended the college. That's not the kid. That's the parents.

That's the culture. That's allowing your kid to think that their self-worth is tied up in a specific school. Bad, bad, bad, very bad. Oh, I mean, let's just keep going on this because it's parents and also it's school administrators, guidance counselors, et cetera. So you have a category of high school in the United States of America that is sort of known, and there are some are public, many are private, that are known as feeder schools to the elite. And so if you're a faculty member, if you're an administrator, if you're in one of these

feeder schools, there is enormous pressure on you, enormous professional pressure on you to make sure that X number of kids from your high school are going to get into one of these elite schools. from your high school are going to get into one of these elite schools. And so that pressure is placed on the kid. A lot of these parents are sending those kids to those schools for the purpose of going to that elite institution. So the parent parental pressure, not always, obviously, but a lot of the time is really intense on these kids. And if you've been getting it at home and in your academic setting, that this is the ultimate goal of your engagement in academia. And there is no wonder that you see these YouTubes of people with like they're sweating as they're about to open that, that, you know, go to the website to look at their admissions portal to see if they got in.

And it's sad. It's incredibly sad. And I just wish I could reach through there and say, look, if you don't get into Stanford and you go to UC Davis or you go to a Cal State school, you're going to be fine. You're going to be fine. Your destiny has not been set by this. It has not. And in fact, in some ways, the more pressure you put on somebody to be like that, the more in many ways you're actually harming them over the long term by creating actual mental health issues. going to college with mental health issues because they've been put in a pressure cooker. They've not been allowed to be children, to have fun in life. I remember when I was growing up, my dad, he limited my extracurriculars. They limited how much I just dove in and grabbed everything. And he said to me, when you're a kid, I want you to be a kid. And that was so wise, I think, from him to limit this sort of idea

that I have to be 100% redlining the effort all of the time. And it helped me have a great childhood. And I had a great college experience. And I did not go to a college that was an elite college. But I had a great experience. And I would not change that for anything. Now, my college, in its defense, has gotten a lot more known nationally than when I was there. But I would not change one bit about it.

All right, David. We did it. Under seven hours one bit about it. All right, David, we did it. Under seven hours. We did it. Well, we're still straining towards our longest AO ever. I don't know what it is. Producer Caleb, do you know what our longest advisory opinions is? It is an unknown statistic.

Okay, well, it was a real treat being with y'all as we, I'm not going to say slogged through, sprinted through some really interesting Supreme Court issues. And we will be back on Friday this week. On Friday, we've got a cheerleader oral argument at the Supreme Court,

a First Amendment. We've talked about this case before. We had a long discussion about this case before. A cheerleader who expressed extreme displeasure at her status on the cheerleading squad, and it's turned into a Supreme Court case. We're going to talk about that on Friday because there's going to be an oral argument and it's going to be really, really interesting. I'm especially interested, Sarah, in Justice Thomas on this because he has a dim view of student free speech rights, but he has a high view of free speech rights for non-students.

And is this going to be categorized as student speech or not? It's going to be a really interesting kind of question here. So come back on Friday. Thank you for listening. Rate us on Apple Podcasts. Subscribe on Apple Podcasts and check out thedispatch.com. We will talk to you on Friday. Thank you.