Advisory Opinions - The 3-3-3 Body Problem

Episode Date: June 7, 2024

No Rahimi decision yet … but Sarah and David have the next best thing: math! The two dive into Sarah’s recent POLITICO piece in which she and Dean Jens used data to analyze the Supreme Court. The Agenda: —The three-body problem —Was Dobbs v. Jackson Women's Health Organization radical? —Moneyballing the court —“Right to counsel” at the 9th Circuit —Racial discrimination in contracting —Test cases are test cases —Judge Newsom’s “unusual” concurrence —Judge Easterbrook on fonts —The health of the Constitution Show Notes: —Truck Insurance Exchange v. Kaiser Gypsum —Connelly v. United States —Becerra v. San Carlos Apache Tribe —National Rifle Association of America v. Vullo —Allen v. Milligan —New York State Rifle & Pistol Assn., Inc. v. Bruen —Creative LLC v. Elenis —Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission —Chief Justice John Roberts’ thoughts on AI —Pacific Legal Foundation Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

What's behind the Dairy Farmers of Canada Blue Cow logo on your favorite dairy products? It's high Canadian standards, which means we meet 42 food safety requirements, we work with animal care experts, and work towards a sustainable future. That's dairy farming forward. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgar. That's David French.

And David, we didn't really get any great Supreme Court cases today. We sure didn't get Rahimi. No, no, we got nothing. Well, okay. I always feel bad about that because I have this feeling, Sarah, that the actual oral art advocates might be listening to the podcast and we're like, the case you just won, we're not going to talk about it. It's so funny that you say that because actually the first case, truck insurance exchange v Kaiser, friend of the pod, Allison Ho argued that case and won. But it was unanimous and frankly, Allison, I mean, congrats, but to held and insure with financial

responsibility for bankruptcy claims is a party in interest under 1109B that may raise and may appear and may be heard on any issue in a Chapter 11 case. Yeah. Cool. Congrats. Congrats. Let's see. We also got Connolly v. United States held a corporation's contractual obligation to

redeem shares is not necessarily a liability that reduces a corporation's value for purposes of the federal estate tax. Good. Yes. Good stuff. Okay. Number three was sort of interesting. This was Becerra v San Carlos Apache Tribe. It was about Indian tribe federal healthcare spending stuff. Not so much the holding that was interesting as the lineup, as we've highlighted these lineups in the past. This is Roberts with Gorsuch and the three more liberal justices to make up a five-four majority with the very rare Kavanaugh dissent and even rarer Kavanaugh author dissent, because Justice Kavanaugh in general

has been in the majority 96-ish percent of the time to have him in dissent at all, rare, to have him writing a dissent, even rare, although if he's in the dissent, you can see everyone else in the dissent being like, I'm in the dissent plenty, I'm already writing plenty of dissents, like you write this one, dude. No, I thought the alignment was interesting. And

the alignment, let's just put a pin in this because you have a politico piece that we're going to be talking about that this align. We can transition right to that. Why not? Why not? Yeah. So look, I think that Gorsuch and Kavanaugh are as close as you're ever going to get to a twin study at the Supreme Court. I mean, they literally are twin-ish in terms of they went to the same high school. Their mothers are both very impressive DC politico-y people. They both go to elite colleges, elite universities, clerk in the Supreme Court in the same term, both become circuit judges under the same president, and then get on the Supreme Court in the same term, both become circuit judges under the same president and then get on the Supreme Court one right after the other. Like,

you know, twin studies. They like will determine like twins separated at birth and all of that, like, except they weren't separated at birth. They followed each other around their whole careers. So to have them on other sides of a case is what got me thinking in the first place. There's something other than ideological stuff at work here. It can't only be ideology. That's where I came up with the 333 Court thesis. Obviously, I've talked about that a ton on the podcast, and we had a listener, Professor Dean Gens from the University of Central Florida, reach out and say, oh, hey, by the way, I ran this singular value decomposition on all of the cases from last term.

As one does. As one does. And lo and behold, it's 333. So of course, immediately I write back and say, tell me anything of what you just said, but like in English and slowly. So, this is a way statisticians use a numerical algorithm to look for the strongest relationship between rows and columns in a table of numbers. So, you've probably seen this table of numbers before, which, you know, how often Sotomayor is on the same side as Alito and how often Kavanaugh is on the same

side as Roberts, things like that. So basically you just take those rows and columns and try to chart the relationship between them using a Y axis and an X axis. And when you do that, you will see the three, three, three, like jump out at you, slap you in the face and like say something mean about your mother. Like it's so obvious. And it's really, it's incredible. Like math actually sort of proved my thesis. But David, it doesn't tell you

anything normative about it, right? So like when he does this, it's just, are you in the majority or are you in the dissent? That's it. That's the only information that the rows and columns have. So there's nothing normative about why the case came out that way, how strong of a majority and dissent it was, or whether it was political or nothing. dissent it was or whether it was political or nothing. So while this definitely proves that it is a 3-3-3 court, it definitely does not prove what the two axes are. You know, I've been calling that X axis on the bottom the ideological axis and the Y axis the institutional axis, but this math doesn't really do anything for that. Although, I mean, I still think that it's a pretty good explanation.

What I think will jump out at you, perhaps, is that there's the Roberts-Kavanaugh-Barrett threesome that's very high on the y-axis, which makes sense. I think of them as the more institutionalist judges. But among the three liberal justices, Kagan, Jackson, and Sotomayor, they're actually, give or take, about as institutionalist as Gorsuch, Thomas, and Alito on that y-axis. Now, Kagan is the highest on the y-axis of all of them, which is exactly what I would have expected. But overall, she is lower than I would have expected. So she's below the halfway point. And that is a little surprising. I would have thought that she would have been closer

to Roberts, maybe not Roberts Roberts, but like Barrett. And she's not really that close. Barrett is far higher on the Y axis than Kagan. So either Kagan is way less institutionalist, consequentialist, et cetera, than I sort of think of her in my head, or my explanation for the Y axis is incorrect, or at least incomplete, or there's a third axis at work here, David. The three-body problem. It's the three-body problem, that's right.

Which I'm only four episodes into, but I'm far enough into it to know that the three-body problem is a problem. And the world, aliens might come. But anyway, keep going. But within each of the threesomes, it's exactly what I would have predicted. So Robert is the highest on the y-axis

and the furthest left on the x-axis, then Kavanaugh next on the y-axis and next on the x-axis, and then Barrett. That's exactly what I would have expected on each of those. Alito is interestingly the highest on the y-axis in his threesome, followed by Gorsuch followed by Thomas. On that x-axis, it actually might surprise people, again, if you think it's an ideological axis, that from liberal to conservative, it would go Gorsuch, Thomas, Alito. So Alito being the most conservative of the conservative justices. Maybe that meets with your expectations, maybe it doesn't.

And then of the other three, Kagan, Jackson and Sotomayor, going right to left this time, it is Jackson by a nose, then Kagan by a hair, then Sotomayor. So they are basically on top of each other on that X axis.

The Y axis, they're far more spread out, Kagan on top, then Jackson, then Sotomayor. That actually is probably about what I expected. I just expected actually there to be even more stretch on the Y axis. And I guess I probably did expect more stretch on the X axis as well. I would have thought that Kagan was actually

the closer to the middle and really closer to the middle. Like I did not think she would be on top of Justice Sotomayor on that X axis if it is an ideological axis. Yeah, that is all so interesting to me, Sarah. And I'm very glad you wrote the piece. More people need to be getting out there and you're the first and there's just not many people behind you who are saying, wait, look.

Who's coming with me? Just me and this fish. You know what it reminds me of? 2015, like Trump is surging ahead, and I'm like, we're not doing this, guys. Come on, we're taking on Trump. Oh, where are you guys? Where is everybody? It's just me and Renee Zellweger and the fish.

So it is just at this point, now two terms past Dobbs and Bruin, et cetera. It's just very, very clear that this is not a six, three court in the way that people think of 6-3 courts. It's just not. And it's just not this sort of activist conservative juggernaut that a lot of people were thinking that it would be as this, quote, 6-3 court. I've got a piece ready to go, Sarah, but I'm holding back on it because I have to wait and see how a couple of cases turn out this term. But what I want to do is I want to pile on to your initial piece and say,

yeah, and this is one of the reasons why a lot of, if you're on the right, some of your hopes are not being realized, and if you're on the left, some of your fears are not being realized. And if you're on the left, some of your fears are not being realized. And that the court is not actually an engine of radical change. And that it is actually, in many instances, frustrated attempts at the right to implement radical change. And so I think it is, the more this gets out there, the better off we all are.

But the problem that we have is the instant, the instant, no matter how many cases you have that are not like the 6-3 breakdown, the instant you have another one in a hot button issue, that tsunami of commentary will come in. See, see, it's just an ideological court. But it's not, and also, also, it's not, it is not the case, which I've had some people say to me that, well, it's not 6-3 until it really matters. And then it's 6-3. Well, my head explodes when I hear that. I know.

I know. I know. I mean, we just had the NRA case, NRA standing for National Rifle Association, one of the most polarizing organizations in the entire United States of America. And we just had a 9-0 decision on the NRA's behalf written by Sonia Sotomayor. We just have seen in previous terms the thermonuclear destruction of the independent state legislature theory, the brushback pitch that people are wanting to further erode the Voting Rights Act. I mean, we've seen this in a number of

cases in cases that really matter. The alignments are not the way everyone thinks they are. So that Voting Rights Act case is the best example to me. So this was the challenge to section two of the Voting Rights Act out of Alabama from last term. And basically everyone put that as a top tier case until it was decided seven, two to uphold section two. And then it wasn't a top tier case anymore. So this raises a couple of things.

One, I am fine if you want to set what your top tier cases are at the beginning of the term, and then we can run analysis on those at the end of the term after we know the results. And I don't doubt that there will be more cases percentage-wise decided along that 6-3 ideological axis if you only look at those sort of top cases that you picked at the beginning. What I will not abide is finding out which cases come out 6-3 and then saying that those are the important cases. Because the Supreme Court upheld Section 2 of the Voting Rights Act, it was no longer an important case. Then it's just circular reasoning. If you define important as the most politically divisive

cases after the fact, then the most politically divisive cases end up being the most politically divisive? Nope. So, yeah. So, like, Rahimi is a good example. We're all agreeing that that's an important case on the front end. Trump immunity. Like, I'm happy to make my list of the top cases, although frankly, David Ladd has a list. SCOTUS blog has a list. There's plenty of good, great court watchers out there who make their list of the top tier cases, but you can't do it after you know the result.

Right. Right. And even some of the cases where you have that were... So Dobbs. Dobbs was 6'3". Not really. It was 6'3", or 5'3", 1", really is what it was. But also, can I just say this?

This is the hill I'm planting my flag on this hill. Dobbs was not radical. OK? I'm planting my, it was contentious. It was polarizing. And we just lost 20,000 listeners. It was nice having you guys. So sorry. Thanks for joining us. There are radical things that have happened since Dobbs, you know, at the state level,

et cetera, et cetera, but Dobbs itself was not radical. And I will also- I think the only way you can think Dobbs is radical is if you also agree that Roe is radical. If you think both of those are radical decisions, then I think you're a pretty consistent person. But I don't see how only Dobbs can be radical. Right. If Roe is not radical, is Dobbs radical? Well, if Roe is radical, this is an interesting question. If Roe is radical, is reversing it radical?

Yeah. 50 years later, reversing a constitutional right, I think is always going to be radical. But I think finding a new constitutional right is also radical. It just depends on like radical shouldn't have, again, like a normative sense to it. It is radical, good or bad. Yeah, interesting. Interesting. Sort of like Heller. Heller was radical. Finding a new individual constitutional right to own a gun for self-defense, that's radical.

Lots of people think it's good radical. Lots of people think it's bad radical. Interesting. But anytime we're like finding a new constitutional right here 200 plus years later, yeah, I think that's radical. Interesting. But anytime we're like finding a new constitutional right here 200 plus years later, yeah, I think that's radical. Interesting. Okay. I think we probably need to have a whole podcast on the definition of radical, but.

If we just keep saying it, it loses all meaning to me. Yeah, I know exactly. No, that's interesting. It's interesting. So for example, I would say, when I think radical, I'm thinking of the reasoning. So I would say that Roe was radical and Dobbs is not. I would say Bruin, the outcome was not radical, but I would say the reasoning was.

Because if you're gonna look at a text of a constitutional right that says you have a right to keep and bear arms and you have a right to keep and bear arms and you have a court decision says you have a right to bear arms outside the home in certain circumstances, I don't read that as radical. However, if you then go on and say, and oh, by the way, here's the new way we're interpreting this specific constitutional right, that feels more radical to me. I can get on board with that. Okay.

That can be like, so in our Merriam-Webster, we have like definition number one of radical. Anytime you find a new constitutional right, definition number two of radical. Anytime you are interpreting a constitutional right with a new methodology. Okay. I can be convinced. Okay. So follow up on this Politico story. And I run through the stats. Again, my favorite stat from last term is that the two justices most likely to be

in the dissenting side are Thomas and Alito. It just blows up everyone's version of what they think is happening at the court. But I got this amazing email from a math teacher and she's having her students do this for this coming term. They're going to do the singular value composition decomposition for this coming term. Because again, it's actually really easy to do at home.

This is like DIY SCOTUS experiments because you don't need to read the opinions. You just need to find out who's in the majority in dissent. But I do have a recommendation for some law students out there, maybe some law professors. I don't know. Math isn't really a thing that lawyers necessarily love doing, but I think there is a great law review piece to be written for someone to go back and do the work, going back to the Warren Court, of doing the singular value decomposition for every term. I'm all for it and I have no idea what a singular value decomposition is, but I'm happy.

I'm happy about this. To map the nine justices every term and how they move and change, especially individual justices each term, using this technique, I think would elucidate where I'm right and wrong on my personal definitions or hypotheses of what that X and Y axis actually are. Because if you're going to go back from the Warren Court forward, I think you'll see quite a bit of movement. My prediction is you don't see a lot of movement between terms, but I could be wrong about that. And that it will sort of, I think, show us whether, roughly speaking, I'm right, that it's roughly institutionalism, consequentialism, and ideology, or whether I'm just like way off and it just happens to be recently that it looks like

that. I think you make a really cool law review article. I know that lawyers, again, don't love the moneyballization of Supreme Court, but if there was ever a time for moneyballing something, I think this is it. Absolutely. A, I love moneyballing, both in baseball and in basketball, and in basketball. Moriball, which was the basketball version of it. Yeah, I'm all about it. Threes and layups, Sarah, threes and layups. I know you're saying, like we've been doing this so long together. I know you're just saying that

because you think you were a three-point shooter in high school and like missed your moment because if it was moneyballed back then, like you would have been more valuable on your team. I'm so glad you said that because that's all true. If we had only used math. But what does it say David about your nostalgia for your high school basketball days in the multiverse that I know this so well that I can explain the whole thing. I know, I know, I know. It's, you know, I'm 55. It was 37 years ago.

Like it was yesterday. Like it was yesterday. I was not appreciated at my time. Before we move on to our next topic, an email from Eugene Meyer, who's the president of the Federalist Society went out this week saying that he has announced the search for his successor, quote, I have loved my 40 plus years helping to launch and then preside over this extraordinary organization. I remain in good health, but I'm convinced that it is important to get this process underway

while that is the case so that we can do this search expeditiously and carefully, but without undue pressure. This should also allow time for a smooth transition. This search should also allow time for a smooth transition." So very interesting. I mean, the Federalist Society is still basically all run by the people who founded it. So lots of scuttlebutt tonight around the interwebs as to who a successor might look like. Okay, here's some buckets that I'm going to suggest. The outsider prestigious lawyer bucket, I'm thinking here of the Rachel Brands.

Rachel Brand was the associate attorney general. She was on P-Club. She was the head of the Office of Legal Policy during the Bush administration. She's now at Walmart. I mean, this is sort of the ideal outsider to run something like the Federalist Society. Brian Fitzpatrick, I've also heard his name in that sort of bucket. There's the insider bucket. Here there's clearly a front runner.

It's Nick Rosencrantz. He is on the board of the Federalist Society, also a Georgetown law professor and fun fact, a Broadway producer. on the board of the Federalist Society, also a Georgetown law professor and fun fact, a Broadway producer. He is a big donor to the Federalist Society. That Rosencrantz lecture that they have every year. Yeah, that's that Nick Rosencrantz. Okay, the last bucket is sort of interesting because in theory, if Trump were to win again, you would have a wave of retirements from some of those Bush-appointed judges and maybe one of them as head of the Federalist Society, like a Jeff Sutton from the Sixth Circuit, sort of

ideal universally respected. Anyway, we'll keep following this, but the scuttlebutt is running amok in the Federalist Society. All right. We have some circuit decisions to talk about that are interesting. Yes. So let's start with the most serious of these. This is the descent out of the Ninth Circuit from Judge Patrick Boumete and disclosure. I have known him since I was in law school. He had graduated right before me and we worked together at the Department of Justice. I consider him a wonderful friend. But this dissent, spicy boomatee. This case is about the Sixth Amendment. The Sixth Amendment is the right to counsel amendment, that speaking of the Warren court.

Here you have the majority saying that one has a Sixth Amendment right to have counsel in these early stages of your detention. So seven days, basically, after you've been held, the right to counsel attaches. And if you did not have counsel after seven days, you must be immediately released from jail. Except if what you've been arrested for is murder. This is again according to the majority. So Judge Boumete, I will read here. I do not say this lightly. The injunction the majority affirms here is both reckless and extreme. It orders the state of Oregon to release from jail all criminal defendants not appointed state-funded counsel within seven days of their initial appearance.

Given the complexities of the situation and the shortage of public defense counsels, the result of this order is that more than 100 criminal defendants will be immediately released from jail, and those being released are not sitting there for some petty offense. Just look at the charges of the named petitioner here. They are accused of rape, kidnapping, strangulation, assaulting a police officer, public indecency, and burglary. All will now be released into Oregon's communities. And this is not the end of it. Countless others will be released on an ongoing basis because the injunction applies prospectively. To avoid the inevitable chaos, our court wisely paused the district court's extraordinary order pending appeal, but that wisdom has run out. The majority

now endorses the reckless scheme, lifts the stay of the injunction, and lets it take immediate effect. By doing so, the Ninth Circuit is now complicit in a judicial jailbreak. I fear the coming disorder." Well, first of all, if there were ever an opening paragraph that really is a consequentialist paragraph, I mean, I fear the coming disorder is the banner of consequentialism. David, I do find this to be odd. Yeah. Well, let's do the steelmanning of the majority opinion here briefly. And the steelmanning really is in the facts.

So here's the opening. The state arrests a citizen and incarcerates him pending trial. Days, weeks, and months, months pass without any legal representation. He seeks relief from the authorities. Surely a lawyer should help him. In response, he gets a shoulder shrug,

a promise they are working on it, and nothing more. He remains in jail without legal counsel or any relief in sight. You might think this passage comes from a 1970s State Department report on some autocratic regime in the Soviet Bloc. Unfortunately, we do not need to go back in time or across an ocean to witness this Kafka-esque scene.

This is the state of Oregon in 2024. So you have two very spicy, well, you know, I don't know, passionate, passionate openings here for the majority and the defense. And they both have a powerful point to make because it is unconscionable that somebody could be in jail for months, months, I can see days, but weeks, months without access to counsel is remarkable. It's remarkable. And I agree with the majority that it is a violation

of Gideon B. Wainwright, the right to counsel case from 1963. But the question is, Sarah, what is the right ripety here? That's right. This is a remedy question. I don't think anyone thinks this is okay. Judge Bumate certainly doesn't seem to think it's okay. But as he puts it, this doesn't cure the Sixth Amendment violation.

I'll read some more. Petitioners complained that Oregon has failed to appoint them their state-funded counsel. But under the order, not one defendant will receive appointed counsel. Whether in jail or on bond, petitioners will still be left unrepresented. Sure, the injunction may inflict so much harm on Oregon that it may push the state to work harder to fix the problem, but it doesn't directly remedy the supposed Sixth Amendment injury for any defendant. So this reminds me a little bit of the exclusionary remedy, right? That if

there's a Fourth Amendment violation and they search your car when they're not supposed to and they find the drugs and it turns out they needed a warrant but they didn't have one that they can't use the drugs against you in your trial. So it doesn't mean you weren't guilty. In fact, it means that we let a lot of guilty people go and the remedy doesn't fix the Fourth Amendment violation. You don't get a time machine and not have your stuff searched. But the hope was that the exclusion of that evidence would create better incentives. This is clearly the same thing.

They're hoping by releasing rapists and kidnappers back into Oregon, that Oregon will get its act together to get enough public defenders to represent folks. Okay. I'm very skeptical of that. But again, this is an interesting remedy issue because, for example, I don't believe that the federal judiciary can commandeer the public fisc in Oregon and appropriate funds for more defense attorneys. So we're in a situation where really the answer here is an outlay. And the majority says, for several reasons, there are insufficient number of public defenders.

So that- Yes, but one of the reasons is that they made it worse, the state, not the judiciary, because one of the previous complaints about sort of a Gideon-esque, whether you have actual counsel or it's just ineffective counsel, was that these public defenders were being way overburdened. So, let's say a public defender can handle 100 cases at a time, and you give them 300 cases at a time, do you even have counsel at that point? If we know for a fact that they do not have the time to review your case or give it the attention that an actual counsel,

you know, being represented by counsel would mean. So in 2021, state officials limited the number of cases public defense attorneys may take. So then there were even fewer councils available. As Judge Bumate writes in The Dissent, the number of indigent defendants without state-funded counsel skyrocketed. The state responded by seeking to overhaul the public defense system and by allocating $100 million in new funds to it. Still, as of the district court's hearing on the matter, roughly 106 criminal defendants remained in jail without state-appointed counsel. That's unacceptable. Yeah, that's totally unacceptable. But does the judiciary get to come up, speaking of originalism and text history and tradition, what's this seven-day thing? Where's that coming from? Where's the exception for murderers and aggravated murderers to still stay in jail without counsel.

This is completely judge-made remedy. It's based on no constitutional text or even Gideon v. Wainwright text. Right. It is a complete judge-made. It's stretching the equitable powers of the court to the breaking point, I think, with little question. And you know what it reminds me of in an interesting way, Sarah? I know this is Oregon, state of Oregon, and not Congress, but we're seeing this malady exist in our legislatures. Here's a state, we've seen it federally, where there are legal mandates that the legislature just doesn't allow, doesn't create, doesn't facilitate any ability to keep them. And I'm thinking in the immigration context,

remember we had this case where Congress writes a law that says you have to detain immigrants who are, while their asylum case is pending, and then they- Shall detain. Shall detain, but then do not fund the detention facilities. Shall detain with your magic unicorn wand. Right, like in the prison of your mind

that you are now detained. What are you talking about here? And this is the kind of thing that is plaguing American democracy right now, a sort of abdication of basic responsibility. This is basic stuff, guys. Oregon, this is basic stuff. You should have access to counsel. And by the way, when somebody is a danger and a threat to the public, they shouldn't just be released. These are two things that should not be difficult for an advanced liberal democracy

and the wealthiest, most powerful nation in the history of the world to accomplish. Guys, get her done. But, and then you put the federal courts in this position where how can they solve this? Truly, how can they solve this? You have dropped the ball completely. How can the court solve this?

All right. Good luck, Oregon. Next. I like that. Next we're gonna do- That's a good title for this podcast. Good luck, Oregon. Good luck, Oregon. I don't know, man. This

sounds like bad turtles all the way down. Next up, we don't have a concurrence from Judge Newsom. We have a majority opinion from Judge Newsom. We'll get to the concurrence in a minute. Don't worry. We actually talked about this case before it was a case, David. I can't believe it. Time really flies when your baby complaints grow up to be appeals. And here this one's even graduating. It actually has an opinion. So this is a two to one out of the 11th circuit.

And this is about the fearless strivers grant contest in Georgia. You may remember this from the previous episode, but in short, this group wanted to give seed funding to black female-owned businesses. $20,000 you'd apply. You must be a black female owner of a business. And obviously there were lawsuits because Section 1981, now we talk about section 1983 a lot, but section 1981 prevents racial discrimination in contracts. So the question here was, is this a contract?

Does it violate 1981? And is there a First Amendment exception? So Judge Newsom held, yes, it's a contract. And the way we know is because initially on your website, you wrote, this is a contract in all caps. And then after the lawsuit took off that language, but the contractual obligations still remain in exchange for the $20,000. The fearless fund gets to use your business's idea for publicity, etc. So yes, it was a contract.

There was consideration and both sides giving something. Second, yep, 1981 prevents racial discrimination in contracting. You couldn't apply if you weren't a black female. So it definitely violates 1981. But this is the part that got really interesting for me, David, because the district court held that all of that was true, but that under the creative, 303 creative Supreme Court decision that held that a website designer could decline to make a website with a message that she disagreed with that perhaps there was this sort of First Amendment exception to 1981 if you were expressing a message. And obviously by giving money to black female-owned businesses, that was a

message. So that's what the district court held in saying that they weren't violating 1981 because the First Amendment trumped. Judge Newsom and the majority in the 11th Circuit panel disagreed. So I wanted to read a part of that. The First Amendment of course broadly prohibits the government from abridging a private party's freedom of speech and the Supreme Court has extended the First Amendment's reach to protect even so-called expressive conduct. But—and it's a big but—which effectively controls our analysis here, the Supreme Court has clearly held that the First Amendment does not protect the very act of discriminating on the basis of race.

So in 303 Creative, he distinguishes this by saying, no, it wasn't that she was allowed to not serve clients who were gay. Right. It's that she didn't have to put their preferred message that was not her message on the website. But in fact, the whole point was she very much still had to not discriminate against people who wanted her business. It was the message itself. Here, if they had some sort of grant that was called, you know, we love black women and support black women, that'd be fine. That's not racially discriminatory, but they literally

will only give the grant to someone who's black and female, as in, if you are white, you can't get this grant. That's the equivalent of saying, if you're gay, I won't make you a website. You know, Sarah, it is amazing how much both 303 Creative and Masterpiece Cake Shop continue to be mischaracterized. Neither one of those cases was about a person saying,

I won't serve gay people, or I have a religious freedom or a free speech right not to serve gay people. Both of those cases, the plaintiffs in the cases, Jack Phillips and then the 303 Creative plaintiff, both of these individuals very clearly specifically said, we serve everyone, We serve everyone. This was part of the stipulations in 303 Creative. So this was not trying to create a First Amendment exception

to non-discrimination rules requiring service of people in places of public accommodation, for example, in Master B's Cape Shop or 303, or here when you're talking about contracting, this was, they were not saying, we want a free speech or religious liberty right not to do business with individuals. It was purely, we have a free speech right

not to say a message that we don't agree with. That was it, those cases are very limited. One of the reasons why the 303 Creative Case is just this really short opinion relative to kind of the controversy of the case by Gorsuch is once you make it crystal clear that this is not about discriminating on the basis of status,

but rather it's about not compelled speech, then it's just West Virginia v. Barnett. Then it is just straightforward application of First Amendment law. So this is a case where, you know, if the district court was thinking it was sort of helping out black women by creating this sort of First Amendment argument, that's really a bad idea.

It's a bad idea because actually in the civil rights era, there were these discriminatory business owners who tried to use First Amendment arguments to maintain their segregated workplaces. Newman v. Peggy Park is the most salient example where he tried to use a religious freedom argument to engage in racial discrimination. And the Supreme Court said, I believe the phrase they used was patently frivolous, patently frivolous. And so this case is actually reinforcing in many ways,

the strength of non-discrimination law. It is not undermining, it is reinforcing. So to read a few more lines from Judge Newsom's majority, with respect, the district court missed the critical distinction between the two decisions, namely the distinction as the 303 Creative Court described it between status and message. 303 Creative doesn't recognize and in fact expressly disclaims a right to refuse to serve members of a protected class.

While the Supreme Court there recognized the web designer's First Amendment right to refuse to express messages with which she disagreed, it clarified that she didn't even claim a right to refuse to serve gay and lesbian customers. To be sure, the line between pure speech that arguably entails discriminatory sentiments and the very act of discrimination itself may at times be hard to draw. And to be sure, Fearless characterizes its contest as reflecting its commitment to the black women-owned business community. The fact remains, though, that Fearless simply and flatly refuses to entertain applications from businesses

who aren't black females, who aren't owners who are black females. If that refusal were deemed sufficiently expressive to warrant protection under the free speech clause, then so would be every act of race discrimination, no matter at whom it was directed. And on fearless's theory, the more blatant and rampant the discrimination, the clearer the message. To take just one particularly offensive example, surely a business owner who summarily fires

all his black employees while retaining all the white ones has, at the very least, telegraphed his perspective on racial equality. For better or worse, the First Amendment protects the owner's right to harbor bigoted views, but it does not protect his mass firing. Fearless's position that the First Amendment protects a similarly categorical race-based exclusion risks sowing the seeds of anti-discrimination laws' demise. Well said. Well said.

No notes. 10 out of 10. And before we leave this one, it's worth mentioning, because I said it was a two to one, what the dissent was about. The dissent was arguing that the plaintiffs in this case were soccer floppers, and in fact makes that comparison repeatedly, that they were flopping on the field. They weren't actually interested in getting this grant. They just wanted to sue to make the point about anti-discrimination laws in 1981 and that this wasn't a real case or controversy.

I think there's something actually a little bit fair about that, but as we've talked about before in this podcast, David, test cases are test cases are test cases. What's good for the goose is good for the gander. The idea that a business owner wouldn't want $20,000, I find a little silly as compared to, for instance, the Atchison Hotel example, where she said she didn't have any interest in visiting the hotel. She was just sort of going through websites, trying to find ones that violated the ADA. These are at least business owners in Georgia who would be eligible for that grant, but for their race. So soccer flop or not, I think at the point that judges start trying to determine who's soccer flopping and who's not, we're in a really dangerous place.

I would say this was more of a basketball flop than a soccer flop. Like most basketball flops, there's an actual charge there. So there's an actual infraction and they're just highlighting the infraction with hysterics. Many soccer flops, there's no infraction at all. There's one, and it is, if you're ever really totally bored and you have literally nothing else to do, but you want to laugh a little bit, look up some of these soccer flops, they're his.

Like no one's even in the vicinity of the person. Nobody's there. And they just fall on the ground and start writhing in pain. look up some of these soccer flops, they're his. Like no one's even in the vicinity of the person. Nobody's there. And they just fall on the ground and start writhing in pain. But yeah, no, this is more of a basketball flop. Actual charge, actual infraction. But yeah, absolutely. I, you know, it struck me that what you're dealing with

is it's a test case. It is absolutely a test case. Judge Rosenbaum, no one, this is the dissenter, no one doubts the sincerity of Arsenal's players desire to beat Tottenham, but he can't be allowed to try to win by flopping on the field, faking an injury near Tottenham's goal. For those not in the know, the object of flopping is to manufacture a foul that the player hasn't actually experienced to manipulate the referee into inappropriately exercising his power to award a penalty kick in the box where it's likely to result in a goal. Referees' vigilance prevents players who have a sincere desire to defeat their opponents,

but who try to do so through manufactured fouls from commandeering referees to improperly exercise their adjugatory authority to award unwarranted penalty kicks." Yeah, again, I just don't think I want judges in the business of determining, you know, who's genuine and who's not. Judge Newsom answers that by saying, let us not forget we're talking about real live flesh and blood individuals who were excluded from the opportunity to compete in Fearless' contest solely on account of the color of their skin. Respectfully, victims of race discrimination, whether white, black, or brown, are not floppers. Yep. Once again, no notes.

Let's move on to the Judge Newsom concurrence in a case that actually has not much to do with his concurrence. So again, I will read from Judge Newsom. I concur in the court's judgment and join its opinion in full. I write separately, and I'll confess this is a little unusual, footnote, even for me, simply to pull back the curtain on the process by which I thought through one of the issues in this case, and using my own experience here as a backdrop to make a modest proposal regarding court's interpretation of the words and phrases used in legal instruments. Here's the proposal, which I suspect many will reflexively condemn as heresy, but which

I promised unpack if given the chance. Those like me who believe that, quote, ordinary meaning is the foundational rule for the evaluation of legal texts should consider. Consider whether and how AI-powered large language models like OpenAI's ChatGPT, Google's Gemini, and Anthropix Claude might — MIGHT — inform the interpretive analysis. There, having thought the unthinkable, I've said the unsayable. Now let me explain myself. Okay, so he goes on to say that this case, in particular, they waged war over whether James Snell's installation of an in-ground trampoline, an accompanying retaining wall, and a decorative wooden cap fit within the common understanding of the term landscaping, as used in the insurance

policy that Snell had purchased from United Specialty Insurance. So, now we're going to go on this textualist ride through Judge Newsom's mind really of how he decides cases like this. And David, this part actually I thought was more fun than the AI part. Like how a sort of textualist judge like Judge Newsom is gonna start thinking about whether

an in-ground trampoline is landscaping. Okay, so from the get, David, did you think it was landscaping or no? No, I did not trampoline is landscaping. Okay, so from the get, David, did you think it was landscaping or no? No, I did not think it was landscaping. I thought of it as construction. I did not think of it as landscaping. And the reason was more instinctual. It's not like I went and looked

at the Oxford English Dictionary, but I thought quite obviously, installing an in-ground trampoline is a construction project. And then if you're going to surround it with trees and shrubs, then that's the landscaping project. So my blink-gut reaction was, that's not landscaping, that's construction. Would it matter if you could call your landscaper and ask, hey, I want to redo my backyard.

I want to have some beautiful trees and some shrubbery and an in-ground trampoline. Can you do all of that for me? Like if the landscaper was like, yeah, yeah, we can dig that out and install that for you as part of our services. Yeah, I would still think of it as a construction component in the landscaping. There is a landscaping component and a construction component.

And the landscaper was doing both. Okay. So, reading again from Judge Newsom. Accordingly, I spent hours and hours and hours laboring over the question whether Snell's trampoline installation project qualified as landscaping as that term is ordinarily understood. And it was midway along that journey that I had the disconcerting thought that underlies this separate writing. Is it absurd to think that ChatGPT might be able to shed some light on what the term landscaping means?

Initially, I answered my own question in the affirmative. Yes, Kevin, that is positively absurd. But the longer and more deeply I considered it, the less absurd it seemed. But I'm getting ahead of myself. I should tell the full story from beginning to end. In what follows, I'll first explain how my initial efforts to pinpoint the ordinary meaning of the term landscaping left me feeling frustrated and stuck, and ultimately led me, initially half-jokingly, later more seriously, to wonder whether chat GPT and other AI-powered large-language models, LLMs, might provide a helping hand. Next, I'll explore what I take to be some of the strengths

and weaknesses of using LLMs to aid in ordinary meaning interpretation. Finally, given the pros and cons as I see them, I'll offer a few ideas about how we, judges, lawyers, academics, and the broader AI community might make LLMs more valuable to the interpretive enterprise. David, how is this different than corpus linguistics? That's a really good

question and something that I was wondering about. Isn't this just corpus linguistics that you've like sent out to Google? Yeah, you've outsourced your corpus linguistics to the LLM. And you can't see their algorithm, which I think is a problem. Yeah. Like with corpus linguistics, you'd really want to know what you're inputting and what it's learning from and what you've told it, how you've told it to learn. So I do think that's a problem here. But otherwise, this is corpus linguistics, right? Yeah.

Yeah, it seems to be. So we don't need to spend a whole lot more time on this. This is pure Judge Newsom. It includes pictures by the way of the in-ground trampoline, which yes, there's like a hole in the ground and they make the retaining wall for bricks in that hole to then hold a trampoline that is flush with the sod. And of course, as it turns out,

the ordinary meaning of landscaping turns out to be irrelevant to the outcome of the sod. And of course, as it turns out, the ordinary meaning of landscaping turned out to be irrelevant to the outcome of the case. But here's what chat- Because there was a controlling law. Here's how chat GBT defined the landscaping. And see, because chat GBT, I think, disagrees with me. So landscaping refers to the process of altering the visible features of an area of land, typically a yard, garden, or outdoor space for aesthetic or practical purposes. This can include activities such as planting trees, shrubs, flowers, or grass,

which I'm on board with that part, or installing paths, fences, water features, and other elements to enhance the appearance and functionality of the outdoor place, or the outdoor space. So, okay, I'm in board with, you know, installing things like fountains and things like that. So am I changing my mind now? If you're making the in-ground trampoline look good, is that, is that landscaping? But it turns out the question that you ask matters because that was an answer to the question, what is the ordinary meaning of landscaping? But then Judge Newsom asked,

is installing an in-ground trampoline landscaping? And ChatGPT responded as follows. Yes, installing an in-ground trampoline can be considered part of landscaping. Huh? Yeah, and then it says landscaping involves altering the visible features. Yeah, it's very interesting. I don't know, what do you think of this, Sarah? Because I don't even have chat GBT on my phone.

Like I don't go anywhere near it. And somebody asked me that a reason why, and I said, I feel like at the present iteration, it's just more dangerous for somebody who's in my position. And the reason why it's more dangerous is because it's spitting conclusions out to you without showing its work. And I have to see the work. I have to see the substantiation.

I have to see all of the backing for the conclusion or that conclusion is fun even if it sounds great, really rolls off the tongue, makes a lot of sense, then that conclusion isn't that relevant to me. It is I need to see where it's coming from and that's where ChatGBT loses me. Now if that was an answer that was very link rich, that ChatGPT provided the background, I would have more confidence in it. But at the moment, having these large language models

spit conclusions at me, I view as more dangerous than helpful. And he walks through what he sees as the upsides, and of course, the downsides, and ends with, which brings me to my final question, if I'm not all wet and it's at least worth considering whether LLMs have a role to play in the interpretation of legal instruments, how might we maximize their utility? He walks through some of his ideas on that and ends with a quote from Chief Justice Roberts, who cautioned that the use of AI requires

caution and humility. "'I wholeheartedly agree,' he says. "'Importantly, though, I also agree "'with what I take to be the report's assumption "'that AI is here to stay. "'Now, it seems to me, is the time to figure out "'how to use it profitably and responsibly. "'It's in that spirit that I've offered

"'these preliminary thoughts about whether "'and how LLMs might aid lawyers and judges "'in the interpretive enterprise. "'Plenty of of questions remain, and I'm sure I haven't even identified all of them. But, and this is my bottom line, I think that LLMs have promise. At the very least, it no longer strikes me as ridiculous to think that an LLM like ChatGBT might have something useful to say about the common everyday meaning of the words and phrases used in legal texts. Just my two cents. So first of all, I guess law review articles are dead because Judge Newsom, this probably would have been a law review article for most people. But when you're a judge, you can just make it a concurrence. Second, I think this

really highlights the correct usage of M dashes in colloquial writing. A lot of M dashes here, and I like them. Next, I don't think we're there yet because, like David said, there's an instinct with us to be lazy. On the first question you ask Chat chat GPT, it gives this answer that kind of confirms your priors. You go on to ask the next question, but I guess that's part of the problem. Like what if the next question had still sort of confirmed your priors? Would you have asked the third question? You know, like at some point we just sort

of become lazy and you're like, Oh, this looks good. And it's the, what's the, the drunk looking for his car keys. It's always under the lamp. I fear that that's what, uh, I mean, frankly, that's a problem with textualism as a whole and originalism as a whole often is that when you're looking for history, you find the answer you want, you stop looking. Same with textualism. This makes it easier to stop. It makes it easier to find your friends in the crowded room. And I think that's, it's putting the already big problems with originalism, textualism on steroids. Yeah, that's interesting. No, I tend to agree with that. And, you know, when you talk about originalism and the light, you know, finding your keys under the light, I go back to our gun rights cases, where literally before the Bruin case, I had one impression of the history.

Then after I read many of the amicus briefs in the Bruin case, I realized, whoa, this thing is so much more complicated, so much more complicated than I thought. It is not as straightforward. And what the large language models often do in the current iteration is they will often flatten some of these differences. They will sometimes not even be aware of some necessary information.

I have told my students before they write a paper, if you want to write a paper that makes a legal argument and you use ChatGPT, good luck to you. Because as we've talked about many, you know, a few times on this podcast, ChatGPT makes legal mistakes. These AIs make legal mistakes. And we've had some attorneys who found that out the hard way, quite frankly. So it's not there yet, may not be there for a while, but it's definitely worth highlighting.

Next up, a similar-ish sort of extrajudicial opinion coming from Judge Easterbrook. This starts by dismissing someone's case based on claims processing rights. This is Judge Easterbrook out of the Seventh Circuit. Still, even non-jurisdictional rules must be enforced when the beneficiary stands on its rights. The Supreme Court calls these requirements claims processing rules. The need for bar membership to act as another person's agent in court is a claims processing rule. CBL asserts the benefits of this rule and ASMA Design has not contended that it waited too long to do so. ASMA Design's sole argument has been that anyone may represent an Illinois corporation in federal court. That argument is misguided, so the appeal must be

dismissed. We are publishing this opinion not just to make these obvious points, but also to urge all lawyers to read and follow the circuit's Practitioner's Handbook for Appeals, which is available on the court's website at www.ca7.uscourts.gov slash rules procedures and handbooks. The handbook discusses the use of reply briefs and docketing statements, subject on which asthma designs lawyers may need a refresher. And more important for the sore eyes of judges who must read copious legal materials, the handbook at pages 170 to 177 contains some important advice about topography. That's right, we're doing fonts again, everyone. So, Judge Easterbrook, continuing. Jason Epstein, who represents asthma design, did not heed our advice.

His brief is set in Bernhard Modern, a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show. Wikipedia explains, quote, a somewhat decorative text typeface. It is distinct for its low X height, elongated ascenders and relatively short descenders, giving it an appearance of height without requiring excessive leading. Seraphs are wide and splayed. Those are not characteristics that

conduce to easy reading of long passages. And then he starts writing the rest of the opinion in Bernhard Modern. He says, most of this opinion was in the Seventh Circuit's normal type, 12-point Palatino Linotype. We said this paragraph and the next in 16-point Bernhard Modern to give a sense of what Asthma Design's brief looked like and of how much harder it is to read a display face than a typeface design for books or legal briefs. A passage of 12-point Bernard Modern such as this sentence requires a magnifying glass because the X height is so low. So, he continues, judges are long-term consumers of lengthy text. To present an argument to

such people, counsel must make the words easy to read and remember. The fonts recommended in our handbook and topography for lawyers promote the goals of reading, understanding, and remembering. Display faces such as Bodini or Bernhard Modern wear out judicial eyes after just a few pages and make understanding harder.

We hope that Bernhard Modern has made its last appearance in an appellate brief. The appeal is dismissed. I love it. I love it. Two thoughts. One, either Judge Easterbrook really has a B in his bonnet about this or B, he's got some spare time. He has some spare time. But I will say, I will say after reading it and looking at it, I'm persuaded, Bernhard Modern is an abomination. He's 75 years old. He has read decades of briefs. And if I had to read a whole brief in that typeface, I also would have lost it.

And if I had Judge Easterbrook's respect and seniority, perhaps I would have dedicated an opinion just to that pet peeve. So yeah, I'm like 100% on board. It wasn't snarky. He is showing why the font is not fun and pleasant to read as a judge. And it's clear that's not why he dismissed the appeal. It's for other things that the lawyer ignored, like being a member of the Illinois bar. But nevertheless, it was a good time to use this as an example in what otherwise would have been an unpublished opinion. So, yeah, all snaps to judge Easterbrook over there in the Seventh Circuit.

So, Sarah, we don't have time for you to answer my question, but it's a fun question. At least tell me the question. Okay, so here's the question. Because I don't know if you followed this, but on the right, on the MAGA world, especially in the Christian nationalist world, there's been an explosion of commentary around the notion that the Constitution is dead. The Constitution is just broken.

It's just in shattered shards. And it hasn't been just the Christian nationalists. Charles Murray from AEI sort of jumped on that bandwagon as well. This is kind of an extension Catholic integralists don't like the constitution as a general matter, but a lot of sort of Christian Nationalists have a view, a high view of the constitution, but a low view constitutional law.

So my question to you is going to be, what do you think is the health of constitutional law in the United States, the overall sort of health check of the Constitution? Because I have concerns. We've talked about Chevron, Congress receding, and some structural issues. But my overall assessment is that in many ways, the Constitution is healthier as far as giving meaning to the text of the provisions than it's been in a long time. And so you don't have to answer now because it's a big answer and it's a big discussion,

but just ponder it. And listeners, give us a preview of some of your thoughts, because I would love to have this conversation, because I think it's a fascinating question. I obviously do not think the Constitution is a death letter. Otherwise, why would I do this podcast? But... Just to waste our time.

Yeah, just to waste our time. But that's the question. Okay, I'm gonna ponder it. I have a quote, a movie quote in mind already that I will be using. Okay. It's from A Fish Called Wanda, one of my favorite movies. Oh, that is a speck. That's a great movie. Okay, two show notes, verbal show notes. A middle school government teacher, Mr. Schenck, reached out because he used the, is a burrito a sandwich or is a taco a sandwich, in his seventh grade government class. And I just thought it was so delightful that he used this as a way to teach his students about judicial interpretation. But as he said, the results were not good. Here's what he writes, I presented each case and the decision that each of the judges

made to my classes. Then I had them try to create a judicial rule that could be applied to any set of facts to ascertain if the target object was a sandwich or not. We spent the rest of class throwing sample fact patterns at the rules and seeing if they delivered a desirable outcome. Bad facts do indeed make bad law, I have to tell you. My seventh graders deemed slices of ham between two sheets of cake a sandwich. An impeachable offense in my opinion, but nonetheless they had a blast. Throughout the discussion, my students were willing to accept a dangerous results-oriented judicial philosophy. The most interesting part of the discussion

for me was what they were willing to exclude to get to the results they wanted. Most of my students entered the conversation from the word go, locked and immovable on the position that a burrito and or taco could not possibly be a sandwich. So they were willing to write off whole classes that would conventionally call sandwiches

in order to make the point. They are used to me dissecting their logic and breaking down the beliefs they bring to the table. So they evaluated the possible consequences of their answers in order to make sure I would not be able to box them in to acknowledge that a burrito could indeed be a sandwich. For example, large majorities in all classes were willing to exclude submarine sandwiches

and anything built on a hoagie roll from the classification. They felt that if they opened the door to one large slice of bread that was folded over, it would be game over for excluding the burrito. Justice Scalia would not have been happy with this results-oriented exercise. On the one hand, one might be able to make an originalist argument for why they could not be sandwiches. Maybe this is how we fix text history and tradition. Have a wonderful night. I love it, I love it. So Mr. Schenck, you clearly are an outstanding

middle school teacher and I hope all of your seventh graders appreciate your awesomeness in bringing this discussion to class. Lastly, David, Pacific Legal Foundation, which has brought many of the cases that we've talked about here. They do property rights and they've been bringing some of these race-based admissions cases lately. They sent Nate, my oldest, a Lego set of the house in the 1987 Nolan case. This is the beach house and the eroding property lines. And it now sits on my mantle, pride of place.

That's fantastic. I love that. So thank you PLF for that. And a good pick on this Nolan case, because I don't think we've actually talked about this. This was a rule that the California Coastal Commission required private homeowners to dedicate a public easement along their beachfront property as a condition to get a construction

permit. So PLF sued, arguing that this was an unconstitutional taking. It was a 5-4 decision. The Supreme Court ruled that a requirement by the CCC was a taking and violation of the Takings Clause of the Fifth Amendment as incorporated against the states by the Fourteenth Amendment. So, congratulations to PLF on that 1987 win and this awesome Lego house I have with palm trees. That is fantastic. I love that. All right, David. So next time we'll talk about whether the Constitution is dead on advisory opinions, a constitutional process. Well, it's a constitutional checkup because we both know it's not dead.

We're just... The health. The health. The health of the Constitution. Okay. Yeah. Okay. Next time on Advisory Opinions. Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,