Advisory Opinions - The Consensus Court

Episode Date: June 14, 2024

David Lat takes over the guest chair and joins Sarah to discuss recent SCOTUS decisions. The Agenda: —SCOTUS bumps bump stock case to Congress —Lily Ledbetter and the last time Congress did their job —Mifepristone decision —Trump too small? Maybe, but you can’t trademark it —Justice Gorsuch and Justice Jackson’s playful relationship —NLRB and defending the administrative state —Justice Alito is secretly recorded —Young Thug’s messy court trial —Predicting SCOTUS decisions —Sentencing and appeals in the Hunter Biden saga Show Notes: —Peggy Noonan’s response to Alito-gate —David Lat and "underneath their robes" 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

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger with special guest David, wait for it, Lat. That's right, David French is out today. So we've got David Lat from Original Jurisdiction joining us. Welcome, David. Thanks. It's great to be here. And boy, we have a lot of cases to get through today. We will try to be extra

efficient as we run through as many as we can. But this might run long. So David, you ready to buckle in? Yep. All right, let's start with Cargill. This is the bump stock case. In 2017, after the Las Vegas shooting that killed over 50 people, injured 600, Congress was debating various bills to ban bump stocks. And the ATF under the Trump administration just went ahead and

did it for them by reimagining the Machine Gun Act, which banned machine guns. So this was a 6-3 decision along ideological lines. Interestingly, fun fact, every Republican appointee was striking down a Trump policy and every Democratic appointee was trying to uphold the ATS actions. This was a Thomas opinion and we'll talk about this a bit, but Thomas seems like he might even be done for the term. He's put out so many opinions in the last couple weeks. Look, this is the short version. Justice Thomas writing, federal law defines a machine gun as a weapon that can shoot, quote, automatically more than one shot without manual reloading by a single function of the trigger.

So the majority and the dissent are really going to disagree over what a single function of the trigger refers to. And it sort of becomes a purpose versus text fight. On the text, function of the trigger is literally how does the trigger function? How does the gun made to work? And of course, a bump stock does not change the function of the trigger, which is you pull the trigger once and one bullet comes out. Whereas you see in The Descent, they're talking about the purpose of the 1934 Machine Gun Act, which was of course to fix these guns where they were spraying bullets so quickly. And a bump stock absolutely has the effect of a machine gun. I'll just read a little bit from The Descent, which

was written by Sotomayor. She says, When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump stock equipped semi-automatic rifle is a machine gun because one, with a single pull of the trigger, a shooter can, two, fire continuous shots without any human input beyond maintaining forward pressure. The majority looks to the internal mechanisms that initiates fire rather than the human act of the shooter's initial pull to hold that a quote, single function of the trigger, end quote, means a reset of the trigger mechanism. But as Justice Thomas points out, by that logic, where you don't look at the triggers

mechanism but instead look at sort of the human use of the gun, then all AR-15s, all semi-automatic weapons that can be bumped using the technique of bumping, would have to be banned under the 1934 Machine Gun Act because they can fire continuous shots without any human input beyond maintaining forward pressure, which obviously doesn't make sense. So you sort of go back to that language in the statute itself. It bans a machine gun that can automatically,

sorry, shoot automatically more than one shot without manual reloading by a single function of the trigger. And here, of course, I am required to read Justice Alito's concurrence, which I think I might have written myself. I joined the opinion of the court because there is simply no other way to read the statutory language. There can be little doubt that the Congress that enacted that law would not have seen any material difference between a machine gun and a semi-automatic rifle equipped with a bump stock.

But the statutory text is clear and we must follow it. The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semi-automatic rifle with a bump stock can have the same lethal effect as a machine gun, and it thus strengthened the case for amending this law. But an event that highlights the need to amend the law does not itself change the law's meaning. There is a simple remedy for the disparate treatment of bump stocks and machine guns. Congress can amend the law and perhaps would have done so already if ATF had stuck with

its earlier interpretation. Now that the situation is clear, Congress can act. And David, I'll just say this has been my paradigmatic case, right, on Congress Do Your Job because I've been predicting for five years, this outcome, yes, but more importantly, the headline that would come after this outcome. And thank you, CBS News, for exactly using my language of what the bad headline would be. Here's CBS's headline today. Supreme Court strikes down Trump era ban on bump stocks for firearms. No! That is wrong. It should have been, Supreme Court says only Congress can ban bump stocks or Supreme Court says

president can't unilaterally change gun control law to help political allies avoid tough votes in Congress. But this is my beef whether it's the eviction moratorium, DACA, student loan deferment, EPA's clean power plan. It's all the same problem of the political pressure being taken off Congress by the president, then the Supreme Court coming in a long time later to say the president doesn't have the power to do this, and everyone blaming the Supreme Court. And now the political pressure is gone on Congress because the moment's passed. So you don't get the problem fixed, and the result is enormous attention and pressure put on Supreme Court nominations, confirmation fights, impeachment inquiries, ethics scandals, et cetera, because people feel like the Supreme Court is where

the decisions are getting made instead of, drum roll, Congress. So I have a couple of thoughts on that. I think you're totally right. I think this is absolutely one of those Congress do your job cases. And it's worth noting that Justice Thomas, in his majority opinion, points out that at the time the ATF changed its longstanding position on this, there were actually several proposed bills that

would have addressed this issue that were under consideration in Congress. But why actually take a tough vote when you can just rely on the executive branch to do the work for you? So that's one point, consistent with what you were just observing, Sarah. Second, on the Alito concurrence, what I found most interesting about it was I think it illustrates nicely the difference between original intent originalism and original public meaning originalism. Original intent originalism, which was kind of like originalism 1.0, you could kind of think of that as what would the Congress that

passed this law have thought about this issue, namely bump stocks. And Justice Alito says, oh they would have been troubled by bump stocks. But the public meaning, the original public meaning originalism, which is the current version of originalism really is what did they actually legislate in terms of the words? And if there's a disjunct between the words they actually put into law and what we imagine they might have subjectively done if they had known about bump stocks, the words prevail. You totally nailed the Sotomayor duck quote. That was the newspaper made quote. And she read her dissent from the bench, which is not that usual.

So I think it's something that she feels strongly about. I agree with you that her dissent is pretty policy oriented, focused on the evil the statute was trying to remedy. But let me just quote this language from her opinion that I thought was interesting. This is Justice Sotomayor. The majority is reading flies in the face of this court's standard tools of statutory interpretation. By casting aside the statutes ordinary meaning both at the time of the enactment and today,

the majority of this rates Congress's regulation of machine guns. So it's interesting, even though Justice Kagan sort of walked back her famous comment about how we're all textualists now, Justice Sotomayor is kind of proving that she's not relying on the carnage of gun violence. She's saying, I have the better textual interpretation. Now in the final paragraph, she does get consequential.

She says, and I'm quoting here, "'Today's decision to reject ordinary understanding,' so again, she's all about ordinary meaning will have deadly consequences. The majority's artificially narrow definition hamstrings the government's efforts to keep machine guns from gunmen like the Las Vegas shooter. I respectfully dissent. So again, she is policy focused, but she is also invoking the text. It was so hard for me to read her dissent because that's, I want to ban bump stocks, right? I think that this is an obvious thing

that should be illegal for the exact reason that this was the whole point of trying to ban machine guns. We're trying to ban spraying bullets. And when you look at the types of weapons that Congress was looking at, the Tommy guns and what have you, this was the language they came up with to capture the guns that they were looking at in at the time. And so I think Justice Alito is just spot on if bump stocks had existed, they would have included bump stocks.

Let me ask you this, Sarah, since you are also much more of the politics and Congress expert than I am. Do you think Congress will do its job? Is this going to be like a Lilly Ledbetter situation, where there was that pay case, and Justice Ginsburg in dissent said, we need to fix this gap in the law, and then lo and behold, Congress fixed the gap in the law and remedied this equal pay law? Is Congress going to take action on bump stocks?

So Lilly Ledbetter is the last time that a Supreme Court decision was superseded by statute. To the extent there's been very small ones perhaps, but that is by far the largest recent one. It used to happen, of course, far more frequently because Congress used to do things far more frequently. I think versus the eviction moratorium, even DACA, though that hasn't been struck down sort of technically yet, kind of, but DAPA had.

DAPA was the parents of DREAMers that was struck down. Student loan debt, the vaccine mandate, all sorts of other things that fall into this bucket of the president not having the power to do something that Congress couldn't get their act together to do. I think this one has the greatest potential to be superseded by statute because nobody's in favor of this. The problem is if the ATF hadn't acted when they did, and disclosure, I was at the Department of Justice during this. During the Las Vegas shooting, I got the phone call. I woke up the attorney general to tell him what was happening in Las Vegas. I remember it, I mean, just crystal clear. It was such a searing moment in my mind.

And I was there when the ATF did this. But if that hadn't happened, I am absolutely certain that a bump stock ban would have passed Congress. The question is whether there will be any political pressure left. And I hope there will be. The biggest problem is that it's an election year. And I don't see it happening between now and November, but I would hope that this is maybe something to be taken up in the lame duck in December.

You know, again, I really liked Sotomayor's dissent. I found it very persuasive in several respects, but I thought it was just the killer response from Thomas that's like, yeah, but by your definition, all semi-automatic weapons that can be modified with a bump stock therefore also fall into the machine gun ban, which of course doesn't make sense.

I have to confess. I'm glad you went through the stuff about the mechanism, because as original jurisdiction readers know, I'm not a gun person. I'm so not a gun person. It's too bad David French is not here, since he is much more of a gun person than I am. Guns make me squeamish.

Even though we live in the suburbs, I'm still a New Yorker at heart on this. I find guns scary and icky. Even though my husband has multiple guns in our house. So they're in a safe, of course. Don't try and rob us. But I personally don't like guns and all of this back and forth between the majority and the dissent about the mechanism of the gun.

It was like Charlie Brown's teacher to me. But Thomas included pictures for you. No, I know the diagrams and thenotomayor threw shade at him. Yes, he includes the six diagrams. And she responds, you need six diagrams to do textualism? Well, I will throw out a challenge to the AO commentary yet, because I know from past posts, they are all up on this.

Tell us who has the better of the argument from people who actually know about guns, Justice Thomas or Justice Sotomayor, because I am not equipped to decide this one. All right. Next case. This is the Mifoprestone case. Mifoprestone is a drug that induces abortions. The FDA loosened restrictions both on who could get Mifeprestone in terms of age, in terms of number of weeks

pregnant, etc. A group of doctors and a trade group of doctors basically challenged this law. The court unanimously rejected that challenge, which had come up through the Fifth Circuit and the challenge had been sustained both by the district court and the Fifth Circuit and the challenge had been sustained both by the District Court and the Fifth Circuit, and then a unanimous slapdown from the Supreme Court, Kavanaugh writing. And it is a law school class on Article 3 standing. So I'll walk through it somewhat the way he did. To establish Article 3 standing, a plaintiff must,

one, show that she has suffered or likely will suffer an injury in fact, two, that the injury likely was caused or will be caused by the defendant, and three, that the injury likely would be redressed by the requested judicial relief. Here, he's gonna focus a lot on causation. Says causation is ordinarily

substantially more difficult to establish when, as here, a plaintiff challenges the government's unlawful regulation or lack of regulation of someone else. And he cites to Lujan versus defenders of wildlife. This is that old-ish case from the 90s where a group of environmentalists old-ish case from the 90s where a group of environmentalists sued, arguing that international money that was going to build dams, etc. in foreign countries could affect endangered wildlife in those countries. At that point, the administration said, no, the Endangered Wildlife Species Act doesn't apply internationally. And the Supreme Court said, no, I'm sorry, you don't have standing because there's no injury really,

aside from like your warm fuzzy feelings about animals. There was an interesting concurrence there where Justice Kennedy said if you had bought a ticket to one of those places to go see those animals, maybe you would have had injury. I don't know that the current court would necessarily agree with that. But Justice Kavanaugh is going to go on to explain why a doctor who themselves does not prescribe Mifoprestone and who doesn't perform abortions, et cetera, is not actually injured, right? Their theory of injury was that they're emergency room doctors. And if Mifoprestone causes more complications, they could be called on to perform an abortion in an emergency situation.

The government said, no, we actually have protections in the law. You're never going to be called on to perform an abortion. And then their fallback was, yes, but we're having to take time away from our other patients to deal with Mifoprestone complication patients. And this is where, of course, I thought Justice Kavanaugh was his most persuasive about why

we can't have doctor standing. EPA rolls back emission standards for power plants. Does a doctor have standing to sue because she may need to spend more time treating asthma patients? A local school district starts a middle school football league. Does a pediatrician have standing to challenge its constitutionality because she might need to spend more time treating concussions? A federal

agency increases the speed limit from 65 to 80 miles an hour. Does an emergency room doctor have standing to sue because he may have to treat more car accident victims? The government repeals certain restrictions on guns. Does a surgeon have standing to sue because he might have to operate on more gunshot victims? And by the way, that case, I believe has been brought. The answer is no. The chain of causation is simply too attenuated. Allowing doctors or other healthcare providers to challenge general safety regulations as unlawfully lacks would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health. And if we were now to invent a new doctrine of doctor standing, there would be no principal way to cabin such a sweeping

doctrinal change to doctors or other health care providers. Firefighters could sue to object to relaxed building codes that increase fire risk. Police officers could sue to challenge a government decision to legalize certain activities that are associated with increased crime. Teachers in border states could sue to challenge allegedly lax immigration policies that lead to overcrowded classrooms. Finally, it's been suggested that here that plaintiffs must have standing because if these plaintiffs don't have standing, then it may be that no one would have standing to challenge FDA's 2016 and 2021 actions. For starters, it is not clear that no one would have standing to challenge FDA's 2016 and

2021 actions. For starters, it is not clear that no one else would have standing to challenge FDA's relaxed regulation of mythoprestone. But even if no one would have standing, this court has long rejected that kind of if not us who argument as a basis for standing. The assumption that if these plans have lacked standing to sue, no one would have standing is not a reason to find standing. The assumption that if these plans have lacked standing to sue, no one would have standing is not a reason to find standing. Rather, some issues may be left to the political and democratic processes. The framers of the Constitution did not set up something in the nature of an

Athenian democracy or a New England town meeting to oversee the conduct of the national government by means of lawsuits in federal courts. And David, so much I think of what we've seen from the left in reaction to this case, because it's unanimous. It wasn't ideological. It doesn't fit their narrative of an out of control, right wing juggernaut, horrible democracy undermining court is, oh, they're just doing this because it's an election year

and they'll take up another similar case next year to strike down Mifoprestone or they're doing this one just so they can do Trump immunity later. It's basically like an unfalsifiable thesis because if they strike down Mifoprestone, see look, and if they don't strike down Miffa Prestone, it's just part of a larger conspiracy. Yep. You know, it's kind of a classic heads we win, tails we lose. They have a theory and the evidence all is twisted or leveraged to fit their theory. So in terms of what folks on the left are saying, in terms of how this isn't the end

of the story, Ene Milheiser had a post about this, and a bunch of other people pointed this out. One, Judge Kazmarek did allow certain red states, I believe three of them, to intervene at the district court level. So now it could go back, and Judge Kazmarek could hold that these plaintiff red states have standing.

Now, state standing is a very interesting and tricky and evolving area of the law. So we'll have to see what happens there. And then the second thing that folks have raised, although I tend to doubt this is they say, well, to the extent that the Kavanaugh opinion talks about leaving something to the political branches in a Trump administration, might we see executive branch or legislative branch action against Miffl-Prestone? I personally doubt it. I just don't think there's the political will to tackle this issue.

And I think that in some ways, some pro-life folks, they might see it as maybe the lesser of, you know, different evils in the sense that maybe an early stage medication abortion is less evil or less problematic than a surgical procedure later on. And so maybe they can live with this. I don't know. We'll see. We'll see. One thing I will say is this is not an edge case. In law school, often you're taught one case that illustrates the rule. And then after that, after you've mastered the doctrine, the professor tosses out these messy or nuanced cases to probe it.

This will be taught as the classic illustration of standing, as in no, you don't have standing as a random doctor because something is going to increase your caseload. This will be taught first, and then all the other tricky cases will be taught next. The last thing I'll point out is this was another slapdown of the Fifth Circuit, also like the CFPB funding case which you talked about a few weeks ago. On the one hand, they're not doing great in the sense that they lose by these lopsided

margins, but at least the bump stock case, they actually did get affirmed and they did win in Cargill because they went on bonk and held that Congress has to act on the bump stock issue. And that's what the court held. So we'll see at the end of the term what the stats on the Fifth Circuit are. Yeah, I don't think they're going to be great. And we'll take a quick break to hear from our sponsor today, Aura Frames. Looking for a really special gift for this Father's Day? Whether it's the group shot from the family reunion, the 20 pound bass he caught last summer, or his favorite photo of mom, an Aura digital frame is the best way to display dad's favorite memories.

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by visiting auraframes.com to get $30 off their best-selling frame. That's Auraframes.com. This deal ends June 18th, so don't wait. Use code ADVISORY at checkout to say terms and conditions apply. Next case. This is Vidal. This is the Trump too small trademark case.

So after the Marco Rubio Donald Trump debate, if we can call it that, this is actually the first debate where Carly didn't make the stage. For those who aren't familiar, I was running Carly Fieri in his presidential campaign back in 2015, 2016. And this was the New Hampshire debate. We barely failed to make the cutoff after I vociferously complained that we had actually outperformed in Iowa the people who were going to be on the debate stage, cough cough Chris Christie in New Hampshire. So there were to be on the debate stage, cough, cough, Chris Christie in New Hampshire.

So there were no women on the stage. And then Trump and Rubio start going on about their hand size. And I wanted so badly for Carly to be on that debate stage to talk about her hand size and really pierce. I think what she would have done is, you know, pierce that fourth wall and be like, we're talking about penises. And I think it would have been great. But someone watching that debate also thought that it was a lot and decided to make t-shirts with Trump too small and like Trump hand gestures on it. And he wanted to trademark that. But under the Lanham Act, you can't trademark someone else's name.

And the question was, does that violate the First Amendment? Because it's a content restriction. And we've had several other Lanham Act cases recently where they have struck down pieces of the Lanham Act or applications of the Lanham Act that have violated the First Amendment. For instance, the most famous one is the band, The Slants, which the Patent Office said was derogatory to Asians and the Supreme Court said, that violates their First Amendment rights. So they said, yeah, they can decline to provide trademark protection for someone's name, and that was unanimous. But it was really a 3-3-3 decision,

and you and I really don't care one bit about the Lanham Act or trademarks or Trump Too Small, anything. But this is Amy Coney Barrett's coming out party, or maybe her second coming out party, because I might argue that her first coming out party was her major questions, doctrine, concurrence. This is now though going to be sort of a second,

I think real window into the Justice Barrett that we will see for the next decades, in which Justice Thomas for the opinion of the court, writes that the text history and tradition of the Lanham Act means that they can bar you know trademarks for people's names and here comes Amy Coney Barrett in a concurrence. I'll just I'll read from here. While I agree with the court that the names clause does not violate the First Amendment, I disagree with some of its reasoning.

The court claims that history and tradition settles the constitutionality of the Names Clause, rendering it unnecessary to adopt a standard for gauging whether a content-based trademark registration restriction abridges the right of free speech. That is wrong twice over. First, the court's evidence, consisting of loosely related cases from the late 19th and early 20th centuries, do not establish a historical analog for the Names Clause. Second, the court never explains why hunting for historical forbearers on a restriction-by-restriction basis is the right way to analyze the constitutional question. It is therefore inappropriate to

view these restrictions as presumptively unconstitutional and apply strict scrutiny. Still, not every restriction is permissible. To evaluate these rules, we ask whether they are reasonable in light of the purpose which the forum at issue serves. This ensures that the government respects the lawful boundaries it has itself set. So there she's saying she would use the analogy of a limited public forum and the standard that the court has used for decades in the free speech context when it comes to public forums, which David French and I went over at extreme length recently about the different forums when it came to a Gazan protest and Palestinian protests on these college campuses. Okay. continuing with Amy Coneybert.

But I cannot agree with the court that the existence of a common law tradition and a historical analog is sufficient to resolve this case. Even if the court's evidence were rock solid, I would still not adopt this approach. To be sure, tradition has a legitimate role to play in constitutional adjudication. For instance, the longstanding practice of the political branches can reinforce our understanding of the Constitution's original meaning. And here, by the way, she cites Kagan's concurrence in that CFPB case that she joins with the liberal justices.

We'll come back to that. A course of deliberate practice might liquidate ambiguous constitutional provisions. The views of preceding generations can persuade and in the realm of stare decisis even bind. But tradition is not an end in itself. And I fear that the court uses it that way here. In my view, the court's laser-like focus on the history of this single restriction misses the forest for the trees. It gives secondary billing to what I think is the central point, that the Names Clause reflects trademark law's historical rationale of identifying the source of goods.

I see no reason to proceed based on pedigree rather than principle. Besides, as the court admits, its approach merely delays the inevitable. Eventually, the court will encounter a restriction without a historical analog and be forced to articulate a test for analyzing it. So look, the limited public forum analogy for the Lanham Act is interesting, persuasive

to me, I'm on board. But why this case matters is because it is really Justice Barrett saying she is not on board with text history and tradition, replacing the tears of scrutiny. And I will tell you, David, I thought we were kind of on an inevitable and interminable march toward text history and tradition overtaking the tears of scrutiny. And we were just going to march through different doctrines, replacing it. And here we have Justice Barrett standing a thwart saying no, and I think she's going to win this because there was also, and this gets really like in the weeds, there's this concurrence by Justice Kavanaugh joined by the chief.

This is the totality of their concurrence. I joined all but part three of the court's opinions. Part three is where Justice Thomas attacks Justice Barrett's concurrence. So they're not joining the part where Justice Thomas says Justice Barrett's concurrence is dumb. They say, I agree with the court that the names clause is constitutional, particularly in light of the long history of restricting the use of another's name and trademark. In my view, a viewpoint neutral content based trademark restriction might well be constitutional even absent such a historical pedigree. We can address that distinct question as appropriate in future

cases. See Justice Barrett's whole thing on limited public forums as an analogy. So that's your three. It's Kavanaugh, the chief and Barrett saying, this Texas transition thing might be helpful, but it's not dispositive. We're not getting rid of the tiers of scrutiny. Justice Thomas, if Justice Scalia made originalism a thing, you have Justice Thomas trying to make text history and tradition a thing in his last few years on the court.

And here, I think you have the three justices leading with Justice Barrett saying, stop trying to make fetch happen. Well, what I found interesting here is we now are a lot more uncertain about text history and tradition. Lower court judges were already starting to go in that direction, especially more conservative or originalist or federalist society type judges.

But I think this may put the brakes on that a little bit, because in a way, I don't know, maybe this is like Justice Scalia's zombie in the lemon test or whatever, like tears of scrutiny. You know, that that hand is poking up above the soil like it's not yet dead and buried. And Justice Barrett's concurrence, I would point out, was also joined by the three liberal or progressive justices too. She wants to look at reasonableness.

She wants to look at consequences. She also wants to look at case law and doctrine. She doesn't want to just kind of go back to the founding. She wants to look at what the Supreme Court has held more recently. Justice Thomas, as we know, he's not so into precedent. He doesn't really focus that much on the court's past presidents.

He does talk about some of them, like the Slant's case, but not in a big way. So it is interesting. One thing I will point out that I think is significant here, because I know that the First Amendment and free speech are big concerns for AO listeners, Justice Thomas does point out the difference between content-based restrictions

and viewpoint-based restrictions. Content ones are, I guess you could say, about a topic generally. Viewpoint ones are focused on your opinion about the topic. And there is a much harder lift to say that something that is viewpoint discriminatory is going to survive First Amendment analysis. So for example, the slants case,

you could say, well, that was a viewpoint. It was this arguably negative viewpoint towards Asian Americans, although the band was Asian American and they were doing it ironically, but that's a viewpoint. It's not content. The Names Clause of the Lanham Act is about content. It's just basically saying, and this is just the language of it, it prohibits the registration of a mark that, quote, consists of

or comprises a name identifying a particular living individual except by his written consent, Close quote. So you might say Trump too small or you might say Trump MAGA forever. The point is you can't trademark either of those things. So it's about the content or the general topic of names. It's not about the viewpoint of I love Trump or I hate Trump. Yeah. Again, First Amendment wise, this case is interesting, but only if you're like super into the distinction between content based and viewpoint based. I loved your explanation of that.

But in terms of text history and tradition, I mean, this was a really messy opinion. So Thomas announces the judgment of the court, except as the part three, that's where he criticizes justice Barrett's concurrence, Alito and Gorsuch join that opinion in full. Okay. So there's three votes for all of it, including the criticism of Justice Barrett. The Chief Justice and Kavanaugh have that concurrence that I mentioned where they basically say, there's definitely some history here that's helpful. Don't know that we needed the history. And we liked what Justice Barrett wrote when she talked about the analogy to limited public forum, but we didn't join that. My theory on that, by the way, is that, of course, the chief assigned

this opinion to Thomas because since it's all an opinion of the court, the chief would have gotten to assign it. It goes to Thomas. If Roberts and Kavanaugh had joined Barrett's concurrence, hers would have become the majority opinion of the court and would have taken it away from Thomas. So that's why I think they just wrote their short thing sort of insinuating that they like Justice Barrett, but they can't join it. Okay. So then you have Barrett's concurrence that Kagan, Sotomayor, and Jackson joined for the most part, though not every single part of it. And then you have Sotomayor's concurring only in the judgment, which is dissent-y with Kagan and Jackson.

So it really is 3-3-3 with four votes, let's say, showing real shade on text history and tradition. That's Barrett, Jackson, Sotomayor, and Kagan, because they join her opinion on that. And then you have the Kavanaugh chief being a little coy about what exactly they think about it, but definitely not on board. Right? They don't join part three that criticizes Barrett's concurrence. And I think you can read that language. Again, I'll just read that little piece of it again. I agree with the court that the names clause is constitutional,

particularly in light of the long history of restricting the use of another's name and trademark. In my view, a viewpoint neutral content-based trademark restriction might well be constitutional even absent such a historical pedigree. I'll let everyone decide what they think of that on their own. And then you got the three, Alito Gorsuch and Thomas gung-ho on text history and tradition and F that Barrett concurrence. Well, you know, it's interesting. I think what we're going to see, just to kind of give

it a shorthand in terms of the battle over text history and tradition is how much weight do we give history? Justice Thomas, I think, views it as practically determinative or conclusive. But then there's what I would say is sort of a softer approach, which we see in Justice Kagan's concurrence in the CFPB case and which we see in Justice Barrett's concurrence here, and to quote from Justice Kagan, she says, quote, long standing practice of government can inform the meaning of constitutional provisions in appropriate cases, close quote. So history can inform the meaning, but it does not control the meaning. And I think that's where we're going to see this pitched battle over text history and tradition or THT. What is interesting is I think the wheels came off this wagon pretty quickly because

remember Barrett and Kavanaugh joined the Bruin opinion of Justice Thomas, which I would say is the major articulation of this in recent years in full. Justice Barrett had an interesting concurrence there where she was saying, well, what's the relevant period? Are we looking at the founding? Are we looking at the founding? Are we looking at the 14th Amendment, et cetera? But she didn't say, oh, history is kind of optional or history is just kind of a plus

factor. She went along with Bruin. And I think Justice Barrett is really emerging and coming into her own. Her first couple of terms, I kind of thought, what's going on? Like, what's she about? But with this, plus her opinion, her concurrence, was it, in the Colorado case, which also you could think of as a coming out party, that was her solo concurrence.

No one else joined that. And her brilliant, brilliant, probably one of the best opinions of the past couple of years, opinion in the student loan Biden v. Nebraska case explaining major questions. Justice Barrett is now, I think, finding her voice. She's basically saying, I'm here. I'm a force to be reckoned with. Yeah. And remember last term in the Samia case,

which was on the confrontations clause, similar, right? There's this text history and tradition for the majority opinion. And I didn't pay a ton of attention to this at the time, but this is the first sentence of her concurrence. I agree that the admission of Stillwell's modified confession together with a limiting instruction did not violate the confrontation clause. But in my view, the historical evidence described in part two A of this opinion is beside the point. And she said there's a timing problem. There's a substantive problem of the snapshot. And she's, you know, it's very short, but she's sort of walking through like, I don't know that this is working the way that I thought it would, this text history and tradition stuff.

There seemed to be a lot of, you know, a drunk looking for his keys under a light or finding your friends in a crowded room problem with the history part. And here she's laying it out. And she's basically saying, you're trying to use text history and tradition as a judicial standard because you wanna get away from a judge-made standard of the tiers of scrutiny.

But text history and tradition is judge-made too. And the Supreme Court actually, there is an originalist case for judge-made standards going back to McCullough v. Maryland. We always knew we'd have to have standards. That's originalism. You're just trying to replace one standard with another. And it's interesting, the analogy about entering the crowded cocktail party and looking over

everyone's heads to find your friends. Justice Sotomayor also invoked that in her concurrence that reads very dissent-y in this case, citing Justice Scalia, because the late Justice Scalia used this analogy when he was attacking the use of legislative history rather than the text of a statute. So I have to say, obviously, this debate is going to play out for years.

But I think I might be team Barrett on this. I think what you were of I might be team Barrett on this. I think kind of what you were just saying, Sarah, we will, I'm very sympathetic to the idea of restraining judges and not letting their personal opinions and priors control their decision making, but there will always be some discretionary element. And I think I may prefer the doctrine and history as an informing factor, but not a controlling one. I think I may prefer the doctrine and history as an informing factor, but not a controlling one. I think I may prefer that to the all-in on history and tradition. And last thing I'll say, just in the First Amendment context,

the First Amendment at the time of the founding was very, very different. And I'm a journalist. I like the First Amendment a lot. It protects me from getting sued and other things like that. And I don't know that I want a THT approach to the First Amendment a lot. It protects me from getting sued and other things like that. And I don't know that I want a THT approach to the First Amendment. I think I like a more doctrinal case law. New York Times v. Sullivan kind of approach to the First Amendment. So I think I may be team Barrett. Yeah, I mean, you know that I didn't love the Bruin opinion.

I thought it was sort of correct in terms of outcome. But I just thought the text history and tradition thing was a hot mess. And here the hot mess is turning into a stew. Okay, next up, Campos Chavez. This is another follow-on opinion about what sort of notice an illegal entrant into the country needs for their removal hearing. We don't need to get into the details of this. It's a fun little textualist five-four decision on the meaning of or, or rather the application of or. Is it, you know, A or B? Or is it the full sentence or the full sentence for A or B. The reason that I highlight this one is because

Gorsuch joins the three liberal justices in the dissent. This is like the most Gorsuchy stuff ever. While this is in the immigration context, you can feel it being in the criminal defendant context. This is about due process, making the government square its corners. The majority is basically allowing the government to send less notice to people about their removal hearings. Gorsuch is saying, no, no, you need to send the most notice ever. Another interesting thing about this from empirical SCOTUS, and thank you, Adam Feldman,

for all of the amazing work you do. He looked at the ideological-ness of the different justices and was, in fact, looking at the likelihood among the six Republican appointees that they would join in close opinions with their liberal counterparts. He also looked at the likelihood of them overturning or agreeing with cases based on the political appointee makeup of the lower courts. So three Republican appoint cases based on the political appointee makeup of the lower

courts. So three Republican appointees are on the panel or two Republican appointees or one Republican appointee or no Republican appointees. And I just thought that that analysis was creative and interesting. And it will not surprise you to find that Gorsuch leads the charge on that measure, on the measure of siding in close cases with his liberal counterparts. And it's because of cases like this.

When it comes to criminal defendants, anything involving that kind of due process of the government versus an individual, you can count on Gorsuch not caring one bit about the consequences of removal hearings at the border and instead saying like, no, notice to appear is a notice to appear. You got to do it right. Yep. No. So it's interesting. Justice Jackson here wrote the dissent and I easily could

have imagined Justice Gorsuch writing a separate dissent, basically doing the whole government must turn square corners thing. But no, he joined Justice Jackson's dissent, which I view as a compliment. I think he's basically saying what she said. He doesn't feel the need to restate it in his own words, as he sometimes does. He is good with what Justice Jackson said about this issue of how your initial notice

does or doesn't have to include the date or time for the hearing. The majority basically said, you can give the date and time to them later, but the dissenters are basically saying, no, no, no, you really need to give it all up front. Anyway, interesting classic opposition between Justice Alito for five conservatives, Justice Jackson for the three liberals plus Justice Gorsuch. Well, speaking of the relationship between Gorsuch and Jackson, there's a bankruptcy opinion

that we're not gonna talk about at all. But in it, Justice Jackson writes the majority and Justice Gorsuch writes the dissent. In Justice Jackson's majority opinion, there is a footnote. I will read it. The dissent attempts, in various additional ways ways to cabin, qualify, or contradict our analysis, including by wrongly suggesting that it rests on the party presentation principle.

Readers are reminded that the dissent is, quote, just that. Citing National Pork Producers Council v. Ross, everyone remember that was my favorite case, opinion of Justice Gorsuch. And if you go to Pork Producers and look for what she's talking about, you will find that Justice Gorsuch, in fact, in a footnote, he's criticizing a dissent by Justice Jackson in which he says both dissents seek to characterize today's decision as fractured in an effort to advance their own over-broad readings of Pike and layer their own gloss on opinions they do not join. But the dissents are just that, dissents.

Their glosses do not speak for the court. So here's the question to you, David. Is this Justice Jackson throwing shade at Justice Gorsuch? Or is this actually a cute splashing, splashing water, splashy splashies? I thought it was kind of playful. Because remember, we saw this more last term. They kind of had this across the aisle. I know they're of different genders.

But it was kind of like a bromance kind of thing. They really seem to be forming these unusual alliances. And so I had this sense that in many ways they are copasetic. And remember, of course, we just talked about how he joined her opinion in Campos Chavez without feeling the need to write one of his own.

So I kind of viewed this as sort of good nature. But it is interesting. The most interesting thing about this Hammons case is that you have Justice Jackson writing for six justices, including Alito, and then you have Justice Gorsuch dissenting, joined by Justices Thomas and Barrett, but not Alito. So again, it's an interesting example of how it's not all just

Ideology a justice Gorsuch was also sticking up for his former court here. It was the 10th circuit that got reversed But anyway, I the footnotes Involving justice Gorsuch and Justice Jackson were the most interesting thing about this case Not the issue of the proper remedy for a violation of the bankruptcy code that allowed two fees for Chapter 11 debtors in different states, whether it's parity or not. Well, maybe your dad, he's a bankruptcy judge. He can nerd out over this. Again, this was Charlie Brown's teacher to me.

Yeah. Same, honestly. Yeah. I think that it was Justice Jackson being platonically flirtatious, but you can read it to be spicy if you want. Last decision we'll talk about today, because we talked about it in actually when it was just at the circuit level. This is the NRLB case about Starbucks employees who were trying to unionize after the store

closed. They use their keys to go into the store to conduct media interviews. This violated Starbucks policy. Starbucks fired them. They claimed that this was retaliation for trying to unionize. The NLRB took their side, sought an injunction to basically reinstate these employees. They got that injunction because the court basically used this standard that was, as long as it's not frivolous, the NLRB gets an injunction.

Unanimous decision holding that, no, when you're talking about any injunction, including this kind, you actually do still have to apply the four tests for an injunction, likelihood of success on the merits, irreparable harm that we've talked about plenty on this podcast. But there is this really interesting concurrence from Justice Jackson that I thought it's like a pre coming out party for Justice

Jackson. I think we're starting to see, and this goes to the Gorsuch bromance, because it felt very Gorsuchian to me in some ways. And I don't quite, I can't put my finger on why this was such a low institutionalist concurrence in my view, why I think that Jackson and Gorsuch really have this similar mindset about the law, even from polar opposite ends of the ideological spectrum. But her point is that that prong, she's like, yes, you do have to apply the four prongs. But on the likelihood of success on the merits prong, Congress, by creating this NLRB standard and statutory framework, what they're saying is that it's up to the board to tell you what the likelihood of success on the merits is.

And therefore, in this case, perhaps, there was a higher likelihood of success on the merits because the board is not acting as a party. They're acting as a decider, as their own sort of judicial body. Congress wanted that because of a history, frankly, of the courts being very antagonistic towards unionization. So, they created this board to be the sort of expert decider. Again, it's an interesting concurrence. We'll see how that plays out later.

Nobody joined it, but we're starting to see a fully formed Justice Jackson as well, although Justice Barrett has a couple years on her to get ahead. Well, it's interesting. I wonder whether this is foreshadowing a more vigorous defense of the administrative state, including in the cases that are looking at reconsideration of the Chevron Doctrine, because one thing that Justice

Jackson does state is defending the prerogatives of the NLRB. She said, and I'm quoting here, Congress created an expert agency, the National Labor Relations Board, to investigate, adjudicate, and stop unfair labor practices. So she's essentially saying, look, this is an administrative agency. It's in its area of expertise. So in deciding the prongs of the preliminary injunction standard, including irreparable injury, and including also likelihood of success, you need to think about the special role of the NLRB as delineated by Congress.

So we may see more of this in terms of just how much deference our agencies owed in future cases. Coming very soon. Very soon. So speaking of that and just sort of some predictions that these cases, I think, allow us to make about what's still remaining. So you mentioned the Fifth Circuit and their losing streak minus Cargill, but they've got two more decisions left to go here.

Rahimi. I think that the Vidal case and Barrett standing a thwart against text history and tradition means Rahimi is going to stay in jail big time. I mean, there was already the bad man stays in jail doctrine that I was applying to Rahimi. But Rahimi's only shot was text history and tradition to try to overcome this statutory framework and the votes aren't there anymore. So Rahimi is going to lose. That's my prediction on that. So that's the Fifth Circuit then being overturned on Rahimi. And then Jarkisi is the SEC and administrative law judges, which looks a lot like the NRLRB.

And while I don't think there was a lot of question over where Justice Jackson would fall in that, obviously her decision in this case, I think, is laying out some of the framework of how she's gonna discuss Congress. And I'm looking forward to being persuaded about this because it's a little hard to say Congress do your job and Congress is like, cool, we created an administrative law judicial framework. And then it's like, no, no, don't do that job.

So I've said all along that I thought after oral argument that the Jarkosacy case, the Fifth Circuit is going to get flipped. They will hold that in fact, those administrative law judges are constitutional. Even though walking up to the oral argument, I was much more mixed on how that would turn out. So I predict a bad couple of weeks for the Fifth Circuit based on these decisions today. Yeah, no, I'm not going to disagree with your prediction, Sarah. I will point out,

and Adam Feldman talked about this too, there's actually a fair amount of agreement or consensus at the court this term. Again, this was technically unanimous, even if Justice Jackson, I guess, concurred in part or in the judgment. But it's interesting. I mean, there's a lot of agreement going on on the court right now. And this case going in sort of had a little bit of a culture worry feel because there's been a lot of labor controversies lately, including Starbucks, which has really been in the headlines a lot. But at the end of the day, the court was pretty united in

awarding the win to Starbucks. And this really came out to be a case of, I guess, what you could call garden variety error correction, because the Sixth Circuit was using this really low standard for giving the NLRB injunctions versus what the other courts were doing. So this was kind of like a Hey, Sixth Circuit, you had like a few too many espresso shots in your macchiato. Like just kind of you know, hold on Even if there is this interesting sub issue explored in the Jackson opinion So I'm really interested in the unanimity of the court this term.

I think this is, at least on track, to be the most unanimous court in recent history. And it may even go beyond recent history at some point. That'll be fascinating. I think overall averages have been slightly under half. Decisions will have been unanimous. We're certainly on track to be well over half. I think the question will be, do we hit 60% potentially? I don't know. And what does that mean for the Trump

immunity case? You know, I've said that I think the chief will do everything in his power to make that a unanimous case. Sure, maybe it'll be a concurring in the judgment only situation, Sure, maybe it'll be a concurring in the judgment only situation, but the headlines matter from an institutionalist perspective. So keep an eye out for more unanimous cases. Things seem to be going well at the court, except that we'll move on to our next topic, David, and that is Justice Alito's secret recording gate about flag gate. So a woman went to the Supreme Court Historical Society dinner earlier this month. It's open to the public, but you do have to buy a ticket if that makes sense.

You don't be a member of anything. It is by no means an ideological organization. It is actually a historical society. They send out little historical nuggets and notes about the Supreme Court. Full disclosure, my household is a member of the Supreme Court Historical Society and I love their products. So she goes to this event for the purpose of being able to speak to the justices and secretly record them while pretending to be a conservative Christian. Justices Alito and Jackson were in attendance and the Chief Justice was as well,

and Mrs. Alito was there. No word of whether she secretly recorded Justice Jackson or asked her any questions. All she released were the recordings of Mrs. Alito, Justice Alito, and the Chief Justice. It just turned into a bit of a Rorschach test, it seemed to me. If you already hated Justice Alito and think he's an insurrectionist, then you thought this secret recording confirmed all of your priors.

The Chief Justice, I thought, not surprisingly, takes on the very politician-y sort of tone instead of how humans respond to each other, of wanting to agree to each other of like wanting to agree to get out of a conversation. The chief, you know, almost knows he's being recorded or might be being recorded and disagrees. And he's like, well, no, it's not a Christian nation and my Muslim and Jewish friends might disagree with you there. And that's not the court's role and all of that. Whereas she doesn't ask Justice Alito anything about the law, being a justice,

about the court. Instead, she says, you know, you're a Catholic. And she has a six-minute question, basically. And in that question is, we need to return the country to godliness. And he says, I agree. So he never uses the word godly, but the headlines are Justice Alito's godliness comment, etc., etc. Peggy Noonan had an op-ed in the Wall Street Journal and I wanted to read part of it to get your

reaction, David. The Alito's and Chief Justice Roberts didn't do or say anything wrong, but there was something quite inhuman in what the left-wing activists did. She treated human beings as if they were mere means to her end. She acted out admiration to perform reputational harm. She presented herself falsely to inflict damage. That the content she produced was disseminated by honest grownup journalists is to their discredit.

She claims to oppose polarization, but fans it further alienating those who already lack trust in institutions like the court and professionals like journalists. She presents another warning to those who hold or are adjacent to high office. You can't assume good faith on the part of fellow citizens who seek you out.

More than that, it's deeply Stalinist. In Stalin's time, private life was dead and private comments too. Neighbor spied on neighbor and reported back subversive comments to the central committee. People became spies rooting out ideological error. And if you're serious, what does it even get you? You persuade nobody. Your ideological

friends like it that you own the cons. Your foes are hardened. You get attention for yourself. So what? You'll always be the person who got attention that way. My beef with this, I don't like Justice Alito's answers. Justice, sorry, the Chief Justice gave the right answers in that sense. But what I hate is what's going to be the result of this, that the justices are no longer going to engage with people either at all, or they're going to feel like they need to be the sort of politician that the chief is, always giving the politically correct answer in case you're being secretly recorded.

They're going to stop going to events like the Supreme Historical Society or any other event where they actually interact with the public. Particularly when it comes to Mrs. Alito, the actual correct reading of everything she said was that she's confirmed every bit of information that we have about Flaggate. She's obsessed with flags. She's really, really into them. When she thinks about getting revenge on people, she thinks vexologically. So that wasn't the headline, though. Instead, it was, you know, Mrs. Alito's insane. So I just think it's bad for the court and it didn't accomplish anything. And their answers weren't newsworthy. And if they hadn't been secretly recorded, if Justice Alito had said any of these things at Notre Dame, for instance, about his views on Catholicism and how the country should return to a place of more godliness, it wouldn't have made any headlines.

But it's sort of like anonymous sources. The anonymity is what gives it the power. The secret recording is what made it salacious, regardless of the content. So I agree with you and I agree with Peggy Noonan. It's interesting when James O'Keefe of Project Veritas does these recordings, they don't get picked up by the New York Times and the Washington Post. And I'm not saying they should, but it is interesting that Lauren Windsor's stuff did get picked up, even if in tactics it's actually quite similar. And I agree with you that if you listen to the statements

by Justice Alito or you read them, there's really nothing here that he hasn't said in one form or another, whether it's that speech he gave not long ago at the commencement of Franciscan University, which is a Catholic institution, or even his dissent in Obergefell. There's nothing really that scandalous in his remarks, even if he wasn't quite as perfect as Chief Justice Roberts.

It's kind of like, just like at his confirmation hearings, he's like, he's kind of awesome. Like, I guess, you know, you and David refer to Elizabeth Prelogger as this, like, perfect robot for Supreme Court arguments. Chief Justice Roberts is a little like that, too. Like, even when he's in a room alone, he's probably always acting perfectly,

like he's, like, in some kind of Truman show. So Mrs. Alito, she did say some spicy things to Lauren Windsor. And as you said, it all just confirmed what Justice Alito said, that this flag stop is Martha Anne's, it's not mine. So she, for example, she, she complains about the pride flag and she wants to do, she has even designed in her head, her own flag with these orange and yellow flames and the Italian word, I can't pronounce it, I think it's like vergonia or something, meaning shame. And she wants to fly her shame flag opposite the pride flag. So obviously she is all about this, you know, the flags,

because a lot of people were saying when Justice Alito made what I kind of jokingly refer to as the wifey did it defense, a lot of people said, well, like let's have him before the Senate Judiciary Committee so he can say that under oath. We can't just accept his say so. Well, his wife, in an unguarded moment when she had no idea she was being recorded,

basically confirmed everything he said. This flagstaff is all her. Look, is Mrs. Alito a very religious and conservative person socially? Oh, absolutely. I have a funny story. So 20 years ago this month, I launched Underneath Their Robes, which was focused on federal judges. And I adopted this persona called Article 3 group. I pretended to be this woman

who was superficial and occasionally catty and who was obsessed with fashion and appearances and federal judges. And so when I wrote about Justice Alito's nomination, then Judge Alito's nomination to SCOTUS, I wrote about his family because I was all about their personal lives. And I commented on his son, Philip, who's a very good looking man. And I think I said, quote, since he's 19, A3G Article 3 group is permitted to say he's a hottie. So I later learned that when I came out as the author of Underneath Their Robes and Mrs. Alito learned that it was a man saying her son was a hottie, she was deeply, deeply troubled. So Mrs. Alito is not down with my people, LGBTQ folks, we are not her people, but that's

fine. It's a free country. She's entitled to have that belief and she's entitled to fly whatever flags she wants. And Justice Alito disassociated himself publicly from any beliefs that might have been expressed by her flag. So again, is it inadvisable? Is it inappropriate? Is it imprudent to fly these flags? Oh, I don't disagree on that. But is he required as an ethical matter to recuse from election cases because his wife flew a bunch of flags and then told this this liberal advocacy journalist that she's not down with a gay agenda?

I don't think he has to recuse. I'm giggling, because I see Phil Alito a lot. He lives near me. Oh my gosh. So I'm definitely going to repeat this all to him, because I just wonder if he remembers being called a hottie by A3G. And he's expecting twins in the next few weeks. Congrats to the Alitos on their impending joy.

But can I tell you something, David? So I obviously binged underneath their robes every time there was a new post. And Rachel Brand was the prom queen, and she always wore red to the Federalist Society dinner. And I will admit now this really embarrassing thought in the back of my head that, you know, this is like a life lesson that I try to pass on to young people. I've never had career goals in terms of like, what job do you want five years from now? That's not the way I think, but I do think in terms of attainment or something. So my goals when I moved to DC were to be on a Sunday show, attend the White House Correspondents' Dinner, and have a parking spot on West Exec Drive. So I'd still have never had a parking spot on West Exec Drive, but it gives you some idea, right?

That I don't want to be White House Press secretary. That's limiting in a lot of ways, but the types of people and the types of jobs that get you a parking spot on West exec drive, whether it's White House counsel, chief of staff, press secretary, comms director, etc. that that was a good sort of goal. So I say all that because in the back of my head, I was like, someday I want to be called prom queen of the Federalist Society dinner. But then you got outed and I was never going to be prom queen. Yeah, I can't do some of the antics I used to do on Underneath Their Robes.

I kind of feel like I'm a mainstream actor now, but in my early days starting out as an actor, I had to do some things I'm not so proud of. So there's certain things I did in the Under the robes days that will not be repeated. Well, I thought that was fun. Okay, next up, I can't believe this is coming an hour into a podcast. Hunter Biden was convicted on three gun charges also this week since our last episode of Advisory Opinions. Obviously, you know what I think about this? He was going to get found guilty in order for the jury to acquit Hunter Biden. They would have had to decide that the text messages that he was sending contemporaneously to having

the gun in his possession where he said, I'm smoking crack on the hood of the car waiting for my drug dealer. I think his name was Mookie or something. The defense's argument was that he was lying. So you'd have to believe he's telling the truth when he says that he's lying at that time. It'd be a weird lie to tell someone you're smoking crack on the hood of a car. He's sending 2 a.m. text messages to his daughter like, what are you doing at 2 a.m. type stuff? And perhaps most damaging on the heels of all of that, there was gun residue found on the holster of the gun when they retrieved it from the dumpster. And their defense to that was, you don't know who put the cocaine there. It was in a dumpster. And it's like, okay, was there a kilo of cocaine in the dumpster?

No? I mean, there's some Occam's razor stuff there. So, you know, I was surprised at how bullish the Hunter Biden team was that they thought they were going to get an acquittal here, even as the jury went out to deliberate. And some of that testimony on cross had gone really poorly for them. From here, of course, they'll be sentencing President Biden has now confirmed that he is not going to pardon or commute his son's sentence. I've said I was very skeptical of that. I'll take him at his word, actually. I also think it is unlikely that he will get sentenced both to prison and have to start

that sentence before the election, for instance. I think it's far more likely that he will be sentenced to time of home confinement, home arrest, and that, yeah, his dad will not commute or pardon that sentence if he's at home. Okay. So I'm going to actually disagree with you on the predictions. I do agree with you that his lawyers should have followed the advice of your Times op-ed and gotten a plea agreement. Because he didn't and he went to trial, he won't get acceptance of responsibility points under the federal sentencing guidelines and a number of former federal prosecutors including Tom Dupree and Ken White have looked at the guidelines and They think hunter is likely to get a sentence between one and two years or more precisely 15 to 21 months

In prison and I think he could get it I agree with you that he won't have to serve it before the election because he does have this interesting appellate issue about the criminalization of owning a gun while an addict. I kind of described the issue as what if Rahimi and Grant's pass had a baby? Rahimi being the challenge to 922 G8,

which prohibits possession of firearms by people subject to domestic violence restraining orders. And Grant's Pass being the case that effectively asks, can you criminalize the status of being homeless? So this is sort of like, can you criminalize the status of addiction in terms of or with respect to owning a gun? But here's one issue with his appeal.

He was convicted of one count of violating 922G, G3, for those of you keeping track at home, Rahimia's G8. But he was also convicted of two false statement counts. And those, I think, might survive even a successful appeal. There was a professor, Jacob Charles, who was interviewed by Bloomberg Law. And he pointed out a very on-point case

by Judge Easterbrook of the Seventh Circuit the United States v Holden case which is basically just this the Seventh Circuit held that a fellow who was convicted of Lying on a government forum when he was buying a gun Could not invoke Bruin to get out of the false statement conviction because Just judge Eastbrook said the word material as in a material false statement in the statute does not create a privilege to lie and whether or not the statute as an independent constitutional problem is irrelevant and according to Judge Eastbrook

many Supreme Court decisions hold that false statements may be punished even when the government is not entitled to demand answers. So even if he wins on his gun issue, I think he still is stuck with a false statement, but maybe he'd get a lower sentence. So on the false statements, right? The way you'd want to do this is tell the truth, get denied your gun, and then challenge that. Yeah.

And then you're not in criminal jeopardy. So do it that way, dear drug addicts. On the 922G3 appeal, I love your Rahimi Grants Pass, baby. That's a perfect explanation for the challenge. I think it's a loser. The Fifth Circuit, as I mentioned, struck down the law as applied to this marijuana user, when they pulled him over with a joint and a gun, but they never tested to see whether he was high at the time. Here you have the jury finding beyond a reasonable doubt that he was using cocaine at the time

he possessed the gun, and it's cocaine. I just think you're going to say, even if it's a Second Amendment fundamental right, all of that, and you apply strict scrutiny. I actually think that the government might have a compelling interest in preventing cocaine users currently on cocaine from having guns given what we know about cocaine's, how cocaine acts on the brain.

So yeah, I don't think that's gonna fly. You're right though, that I've mis-reporting the guideline range because I was reporting it based on my plea. If you accepted a plea, then the guideline range would have been 10 to 16 months because of that acceptance of responsibility you would drop to things. So, you've like blown my mind because like, yes, I need to stop saying that because now it goes up two levels to a 14 by my calculation for those who are really familiar with the federal sentencing guidelines. David of course is a federal prosecutor, so he knows this

far more intimately than I do. Okay. Next up, this is where David is going to teach me about the trial of young thug going on in Atlanta. I've seen all these headlines and I just haven't had the bandwidth to learn about it. Please teach me. Okay, so I'm giving you the Cliffs Notes version. Young Thug is a well-known rapper. Rap is one of the many fields that I have ignored in order to make more space in my brain for law stuff. So I did not know about Young Thug before this. Other things that I don't pay attention to include things like auto maintenance professional sports, etc But anyway, I'm so proud of the pod is a huge rap person really

Young thug is well known and played in my household. We ended up going to It's no I'm not even gonna go into the whole thing. Like there's a lot of rap, like Future, Metro Boomin', I'm very up on the Kanye. Oh my gosh. Beef. So, yeah. You are a Renaissance woman. I don't have space. No, I have.

This is like part of marriage though. It's not that I'm into rap. It's that I try to maintain a healthy marriage where I show interest in my husband's interests. I try. Oh, that is too funny. I try. So, anyway, Young Thug is being tried on RICO charges in Fulton County, Georgia by DA Fonny Willis.

Who does that remind us of? A certain Donald J. Trump. But the Young Thug trial is even a bigger mess than Trump's. It has gone on for 18 months so far, making it the longest trial in Georgia state history. And it is projected to go into 2025. So in 2022, May of 2022, young thug was arrested with 27 other alleged gang members and charged in this 56 count

indictment funny Willis loves her sprawling indictments, alleging that his YSL rap label was basically a front for gang activities. It took 10 months to pick a jury, which is insane. I've never heard of jury selection taking 10 months. The trial began last November. Here we are seven months later, and the prosecution is maybe halfway through its witnesses. Oh my. So here's the crazy thing that happened.

On Monday, Judge Ural Glanville took the remarkable step of holding Young Thug's lead lawyer, Brian Steele, in contempt. This is crazy. I can't recall off the top of my head a case where a defense lawyer was held in contempt and ordered to jail mid trial. Even the infamous Chicago seven trial involved the lawyers being held in contempt after the case was before the jury, not like in the middle of presentation of evidence. So what did Steele do to encourage

Judge Glanable's ire? He complained about an ex parte meeting between the judge, the prosecution, and this uncooperative star witness. Ex parte meaning the defense wasn't at this meeting and they weren't informed about this meeting. And Brian Steele was saying, this is inappropriate. It shouldn't have been ex parte. Judge Glanville said, well, how do you know about this meeting? And Steele said, I'm not going to tell you, Judge. And Judge Glanville said, well, I'm holding you at contempt and I'm sentencing you to 20 days in jail served on weekends. Steele, being a very committed lawyer, said, can I be jailed with my clients so we can work together on the case? But good news for Brian Steele on Wednesday, after a lot of public controversy, a lot of media attention, and a lot of complaining from the

defense bar, including Ashley Merchant, who was the lawyer who discovered the Nathan Wade improprieties in the Trump case, the Georgia Supreme Court stayed the contempt order. So right now, what's most significant about this young thug morass of a case? I think it could be a decent indicator of what we might have in store for us when the Trump case starts moving again. As you'll recall, the Georgia Court of Appeals has frozen that case while it decides the Fonny Willis disqualification issue. Everything has been stayed. Initially, Judge Scott McAfee

was moving forward with certain other aspects of the case, but the Georgia Appellate Court said, no, no, no, don't even do that. So the Trump Georgia case is on ice, but when it thaws, we could have craziness a la Young Thug. I mean, that's a lot. Yeah, this is just the CliffsNotes version. I know we're running long. I just wanted to give you any listeners who are not familiar with it just the 30,000 foot view.

I love the idea of asking to be jailed with your client so you can work on the case. That's commitment. That's a baller request. And I'm surprised the judge said no. Feels like I can't remember what he said. Yeah, I can't, I'm not sure what he, but it won't get to that because he's been rescued

by the appellate courts. Lame. Wow. Yeah, look, after Nathan Wade went on CNN inexplicably to give an interview this week in which he's asked when his relationship with Fonny Willis started. And as he starts to answer it, one of his handlers stops the interview with the tape rolling and the tape still rolls. They take off his microphone. He goes to the corner of the room, talks to his associate of some kind, and then comes back and says, this question's a distraction. Like he tried to give the like, politician pivots off question they don't like answer. But after everyone just saw you were going to answer it and then someone told you not to and to give a different answer. But after everyone just saw you were going to answer it, and then someone told you not to,

and to give a different answer. This is a clown show down there. And it should be embarrassing. But this is where I don't know what the right I don't want to say like, I blame voters. But this is what representative democracy is, right? Fannie Willis is elected and she's won her primary again. So this is who they want bringing their criminal trials, whether it's the 18-month longest in Fulton County history trial. Georgia history, I think. Georgia history. Or the nonsense in the Trump case that was so easily avoidable. But nonsense in the Trump case that was so easily avoidable. That case could have gone to trial months ago, but for having 19 defendants, RICO charges. She had it.

She had the evidence and she had the charges at her fingertips, but she wanted to go big, bigger, and then even bigger. And she also wanted to be romantically involved with, again, not someone in her office, which actually would have been a different problem, but not one that would have affected the case. Nope, she wanted to hire someone and then be romantically involved with them.

That's why it became a problem. It's not that she was sleeping with someone in her office actually. Anyway. Yep, and she wanted to pay him hundreds of thousands of dollars, actually. Anyway. Yep. And she wanted to pay him hundreds of thousands of dollars. For the privilege.

Okay. Well, David Latt, this has been such a treat. And I'm going to tell you what we're going to talk about on the next Advisory Opinions when David French is back, because you published an original jurisdiction. Aston answered. I love your different genres of original jurisdiction content. So asked and answered is like your dear Abby column. And this is, how can I leave the law?

Practical advice from someone who left the practice of law and has no regrets. So basically, this junior associate in big law says, I haven't been here long, but I'm already pretty sure that I want to leave, not just my firm, but the practice of law. But he's got student loans and life's tough. So you provide some advice. David French and I are definitely going to break down how to leave big law because it

goes to this fundamental point that I've had, which is you just got out of law school, you just started at your law firm, and now you realize you hate the practice of law? It turns out that the best advice someone could have given you was don't go to law school. But more to come on that on the next advisory opinions. David Latam, so grateful that you broke down all these cases with us. Thank you. Thank you so much, Sarah.

It was, as always, a blast. Yeah.