Advisory Opinions - The Rights of Deportees

Episode Date: April 10, 2025

Sarah Isgur and David French examine detainees’ rights and habeas corpus before reacting to the Season 3 finale of White Lotus. The Agenda: —Gitmo: Hamdi and Rasul —Legal status of El Salvador detainees —Courts and human rights —The Associated Press' fight for free speech —White Lotus and evolutionary psychology —Friend groups should have even numbers 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, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Music Welcome to another episode of Advisory Opinions, our third of the week, David. Welcome back. Yeah, Advisory Opinions, our third of the week, David. Welcome back. Yeah. Well, I mean, when things get busy, we get busy, I think is the best way to say it. Normally that should be June when the Supreme Court's rushing to get opinions out and we're

rushing to cover them. But here we are in early April with three podcasts this week. So I thought we could have a little bit of a like slower paced discussion on a big picture question, maybe a couple of big picture questions, and then one district court case as well. So first, we've been getting a lot of questions about the status, the legal status of the people held in this prison in El Salvador and what it means. Do they have any rights, et cetera? And, you know, David, it's not totally applicable, as I think we'll discover through this conversation, but it's kind of a nice excuse to run through some of these previous war on terror cases and the habeas stuff around that.

And so I thought we could just like run through that history because it's interesting, legal stuff, interesting history. And we can explain how it does or doesn't apply to the prison in El Salvador. But frankly, it's kind of an excuse to just get to go back through the legal history. Well, also, it's an important legal history because we're in another, what we saw in the early 2000s was a series of arguments where the executive was at his apex of power. So this is George W. Bush engaging after the 9-11 attacks. And there were a ton of questions around when can the court even get involved.

And some of those kinds of arguments are being raised again. And then, as you said, we do have this El Salvadoran prison situation, which we'll talk about as different. But I do think you're going to see a consistent pattern in these cases that is very negative on the idea that even in times of war, even after something like 9-11, that the president can just turn to the court and say, get your hands off my military conflict. So yeah, I'm looking forward to this. This will be good.

All I'm doing is hearing Harrison Ford, get off my plane. Yeah. Get your hands off my war. Okay. So let's back up to 1950 to the Eisen Trigger case. This was a case of Germans who continued fighting after the war was done, but before Japan had surrendered.

So these guys were captured and held on a foreign US base. So in 1950, the Supreme Court said, the US courts had no jurisdiction over German war criminals held in a US administered prison in Germany. This is going to be like the face that launched 1,000 ships, all right? It's all going to keep coming back to Eisen Träger

and whether Eisen Träger applies, whether it doesn't apply, whether we care about Eisen Träger anymore. So next, 1973, Braden. This case doesn't involve foreign people at all. In fact, the facts are kind of weird and unnecessary to go through. But what the court held was that when it comes to habeas, where you're held and who you are doesn't actually matter. It's the writ of habeas goes to the person holding you.

So it's all about the status of the custodian. I'll read the quote here. The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody within its respective jurisdiction, meaning that as long as the custodian can be reached by service of process, you can issue a writ of habeas corpus. Well, that's interesting because it seems totally

at odds with Eisen Träger and indeed may well be. All right. Now we're going to get into the war on terror cases. Rasul is the first one that comes out in 2004. It's going to come out the same day as another case, David, that I know you want to mention. But technically like twins, Rasul came first. This was about whether Congress had granted federal district courts the power to issue writs of habeas corpus within their respective jurisdictions. This is what the statute said. Congress granted federal district courts within their respective jurisdictions. And this is what the statute said,

Congress granted federal district courts within their respective jurisdictions, the authority to hear applications for habeas corpus by any person who claims to be held in custody in violation of the constitution or laws or treaties of the United States. So as you can imagine with that one, what the Supreme Court held was that,

yep, for those guys being held in Gitmo, Congress has granted statutory authority for the District Courts to hear their claims. Now, remember, this is 2004. So, Roberts isn't on the court, Alito isn't on the court. It's a pretty different looking court. Fast forward to 2008. Now, since then, between 2004 and 2008, Congress passes the Military Commissions Act of 2006 and is basically like, take away all that other stuff we said about habeas. It's a 5-4 decision. And now the question is, is there a constitutional right for these guys at Gitmo to have their habeas petitions heard? And Kennedy writes the decision saying, yeah, constitutional right to habeas.

So the Military Commissions Act of 2006 is unconstitutional, in fact, as it strips jurisdiction from habeas petitions. But it's the five-four that should give you a little pause there because Roberts is in dissent, saying the procedures prescribed by Congress in the Detainee Treatment Act. I'm sorry, the whole time I was saying Military Commissions Act. I meant the Detainee Treatment Act. My bad. The procedures described by Congress in the Detainee Treatment Act provide the essential

protections that habeas corpus guarantees. And then Scalia, in sum, all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. What history teaches is confirmed by the nature of the limitations that the Constitution places upon the suspension of the common law writ. It could be suspended only, quote, in cases of rebellion or invasion, Article 1, Section 9, Clause 2. The latter case, invasion, is plainly limited to the territory of the United States.

And while it is conceivable that a rebellion could be mounted by American citizens abroad, surely the overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, quote, functional considerations as the court holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an even greater justification for suspension in foreign lands where the United

States might hold prisoners of war during an ongoing conflict. And correspondingly, there is less threat to liberty when the government suspends the Ritz's supposed application in foreign lands, where even on the most extreme view, prisoners are entitled to fewer constitutional rights. It makes no sense, therefore, for the Constitution generally to forbid suspension of the writ abroad, if indeed the writ has application here." So I say all that, David, as like a history of the writ on foreign persons held on questionable places that the United States may or may not have control over, even if they don't own it. There's a few other cases.

Hamdi, Hamdan, do you want to run through some of those? Yeah, yeah. Very briefly on these. And one thing I want to mention is that why did these cases all come up like this? Because I think that's a really important background. Because prior to 9-11, the American military and the American legal system, the American military legal system was really set up to deal with and to fight uniformed militaries controlled by sovereign rulers.

In other words, take on the Russian military, take on the North Korean military, just like we did, just like we took on the German military on the Russian military, take on the North Korean military, just like we took on the German military and the Japanese military, North Korean, Chinese, regular army, North Vietnamese. And that was all well trodden ground legally. We knew how to treat prisoners of war. We knew how that whole system worked. But here, after 9-11, we were facing what

at the time we called unlawful combatants. And these were people who were not fighting according to the laws of war. They were not wearing uniforms. They were not under wearing distinctive units insignia. They were in violation of the laws of war. And now, traditionally, if you're going to go back a while, if you were fighting in violation of the laws of war, you were subject to summary execution. This was something that was like dealt with on the battlefield. Now you can obviously see the potential for horrific abuse if you just sort of delegate down to the battlefield the determination that someone's an unlawful combatant and meet out

sort of battlefield justice. So the question is, what kinds of procedures are due? Once somebody is an unlawful combatant, once they're, if they're captured and they're violating the laws of war, what do we do? And this is where we set up military commissions. This is where we put people in Guantanamo Bay. And that's kind of the, that's the background here. And so there was a strong argument made by the Bush administration that all of that that they did, the military commission setting up Guantanamo Bay was sort of this hands-off zone. This is where we're at our peak.

This is a wartime leader executing commander-in-chief authority. And this was back in 2004, Hamdi versus Rumsfeld. Now, this is the same day as Rasoul's, the second case on that day, and it involves a U.S. citizen. And it was kind of the really the sharpest conflict between an assertion of rights by a U.S. citizen and an assertion of authority by the Bush administration. And Hamdi was saying, look, I get due process. I get due process. And in a plurality opinion, O'Connor says,

although his detention was authorized by Congress, in other words, that the legal superstructure did authorize his detention after his seizure on the battlefield, he is entitled to due process. He's entitled to contest the factual basis superstructure did authorize his detention after his seizure on the battlefield. He is entitled to due process. He's entitled to contest the factual basis for the detention before a neutral decision maker.

And then after the decision, Hamdi was ultimately released after agreeing to renounce his US citizenship, interestingly enough. And this sort of is the first of a series of cases. Hamdan is another one. This is the capture not of an American, but as a foreign national named Salim Ahmed Hamdan, a bodyguard and chauffeur for Osama bin Laden. Bin Laden chauffeur case. This is one that if you were an adult in this time period, you remember this case. And this one, it's 5-3, John Paul Stevens, president has no inherent constitutional authority to establish military tribunals.

That Congress had at the very most authorized military commissions that complied with the Uniform Code of Military Justice and the laws of War, but it held because the commissions violated the UCMJ and the Geneva Conventions, they exceeded the president's authority. So you're getting to this pattern here, Sarah, that really does, and we mentioned this before, remember the JD Vance was at Tweet or statement that the courts don't interfere with military operations. Yeah, they do. Which we laughed about. Yeah. Yes, we laughed about. Yeah, they do. Yeah, they did. Yeah. Now, what's interesting about a lot of these cases is that they're what you're talking about is a series of cases involving individuals held in US custody on

US bases. So Guantanamo Bay is an American naval base in Cuba. It is not, it is on Cuban territory, but is under the control of the United States. And so one of the key questions here is how much is this case law that is consistently habeas, habeas, due process, due process, habeas at every turn, how much does this apply and how much can you escape it by seizing the same group of people, putting them in a foreign prison, and then just trying to wash your hands of it all by saying they're in El Salvador in custody? Good luck with that. It's not us anymore.

And I think that that's going to be the very interesting twist of this. If imagine instead of Guantanamo Bay, we swept up everybody and dumped them into prisons overseas, how much would any of this have come up at all? How relevant would it be? And by the way, this prison is no joke. The conditions are utterly brutal. 23 and a half hours in a cell, half hour a day outside of cell, but only in a corridor. Lights are on 24-7. You're jammed in with maybe 80 other people in these tiered

bunks that have no sheets, no bedding. There's just a toilet in the middle for all the people, a splash bucket to wash off on. These are conditions that would not be legally permissible in the United States. They would violate the Eighth Amendment in the United States. Okay, but David, here's where things get

a little bit weird, right? Yeah. We're not running the prison. American officials are not running the prison. We have no say over the prison. All of those weird, right? Yeah. We're not running the prison. American officials are not running the prison. We have no say over the prison, all of those things, right? But we pay for them to hold these people. Yes. Millions.

Millions. Right. So if we stopped paying the money, presumably, they would stop holding the people. And so while I think this is clearly a different case than Guantanamo Bay, it's not purely, we just sent them to a foreign place and washed our hands of it. We still maintain some control because of the money. Right.

But is that legally relevant control? Is this like, I mean, the Eisen Träger case, there's a reason I started with that because it was a German prison, but America had actually, you know, taken over Germany. So still American custody, still American officials there. There's just nothing I can find that's really on point of this weak level of control,

but nevertheless still maintaining some minimal level of control. Right. Right. And, you know, there is, as I mentioned earlier, there is jurisdiction over the United States in the sense that the Supreme Court could compel public officials, say, to request the return of the prisoners, I would say. I think they could compel that. They could compel public Americans not to pay the remainder amount owed on the six million unless the prisoners are returned. I mean, there are a lot of things that they can order the federal government to do.

The problem here is, and what makes this, let's just say, particularly heinous, particularly heinous, is they have engineered a situation with a last minute, they're loading people up, they issue the proclamation, this is something that happens so fast before you could even have any real opportunity to meaningfully challenge it legally. And they send it to this place and then try to turn around and argue, well, it's El Salvador now. And this is incredibly heinous. This is not even what we did to Al-Qaeda prisoners, guys. And so the administration, every time you see the administration sort of crowing over the fact that it figured out this El Salvadoran solution, well, A, it may not be ultimately a, quote, solution by their standards. The court still has jurisdiction over the

US. There are things the court can do. But they're essentially celebrating and dunking on a violation, dunking to celebrate a violation of human rights. Okay. So first of all, let's go back to that Braden case about it's all about control over the custodian. So as we noted, we do not have control over the custodians in El Salvador. So we have control over the money that pays the custodians, which is definitely one step removed. But I guess part of the question then is like,

these people aren't being held on charges. They're not being, you know, there's no like end to their detention. So basically they came to the United States unlawfully. Let, stipulate these facts for me, you know? They came to the United States unlawfully. Let's stipulate these facts for me. They came to the United States unlawfully. They get processed here of whatever kind. I think, again, let's stipulate this with me

that the people that I'm talking about were removable under the INA. They'd already gotten all their process under the INA. They were just waiting to be removed and we didn't have a country to remove them to because their home country, Venezuela, wouldn't take them back. So that leaves us in a bit of a pickle, doesn't it, David? Either we're going to pay for them to stay in the United States, a place that they weren't

allowed to come to anyway. They've had all the process they're due, and we found you don't have a right to stay here, but their home country won't take them back. So usually what happens, or at least in theory what's supposed to happen, is we find some other country that's willing to take them and then we like land the plane, you get off the plane, and then you're not our problem anymore. Anything that happens to you after that is not our problem anymore. You are just released into some foreign country, which you may or may not speak the language. We don't like give you a bus token, nothing.

Here, El Salvador agreed to take you, but only if you stayed in this place. By choosing to come to our country illegally, you in some ways consented to this whole process of which we are now many, many steps down the road. Now, from a political standpoint, David, there's no question that the purpose here is to disincentivize anyone coming

to this country illegally. And I think it will have that effect, like, of course, obviously. I think word will spread quite quickly that the consequences of coming to the United States are no longer this like turnstile thing where we just like send you back and then you come back to the country

and then like maybe you don't get caught for another 10 years and then maybe you do but then you get sent back and then you come back. They're like nope now it's going to be really really bad so you don't want to do the turnstile. The turnstile is gone. It's not existing. But legally David I guess I'm not sure what you do about it because it's not legally different than just shooing people out the plane. Yeah, it's, this is, and again, this is after the Supreme Court opinion that we had earlier this week. In theory, in theory, what the Supreme Court did is it put a stop to what has already occurred. In other words, you can't do that again. You're going to have to provide the kind of process and a habeas process that these other people did not receive.

Well, time out. So, like, some of them were removable already under the INA. What we're dealing with in that case is just those that had not already been found removable under the INA, and they were trying to remove them under the alien enemies act. But I agree with you that there are some people who had not gotten their process under the immigration and naturalization act. Right. And Reuters did an analysis and found of the first 50 cases they looked at, 27 had pending asylum claims.

So you had pending asylum claims for 27 of the 50 that they looked at. No, but my... And by the way, this was a movement under the Alien Enemies Act. This is not my understanding, Sarah, and you correct me if I'm wrong, this is not that the INA...that they are now going to be taking INA removable people as opposed to Alien Enemies Act removable people and just shuffling them into this El Salvadoran prison. That is not my understanding is that the administration is going all the way where you're taking all of these people who are crossing the border,

and then they're heading to El Salvador. This was the alien enemies act deportation. I mean, maybe this is why we don't do factual disputes on the podcast, y'all. But I think it's any removable alien at this point that El Salvador will take that fits the qualifications to be in this El Salvadorian prison is going to this prison. How they remove you, like legally, whether it's INA or Alien Enemies Act, like, sure, they'll check whatever boxes they need. But I don't think they care. Like, I don't think El Salvador is like, no, we only take alien enemies, act removable aliens.

Yeah, well, that was certainly that initial removal. And the second, but I do think that if you're talking about going forward, you're going to be able to file a, you're going to be able to file in federal court if you're a person in federal custody and try to enjoin the use of that prison or comparable kinds of circumstances. Because if you think about this for half a second, this is so grotesque. Because essentially what happens is if you come in illegally into this country, it's basically a misdemeanor level offense.

It is now repeated, unlawful entry can rise to the level of a felony offense, but you're talking about basically a misdemeanor level offense and to deter you, we're going to send you to a place that violates the Eighth Amendment in the United States for indefinite detention in brutal and inhumane conditions. That's horrific. That is utterly horrific. And I find it very difficult to believe that federal courts would permit that those kinds of deportations as essentially overriding congressional dictates as to what the proper punishment is for unlawful entry into the United States.

But the punishment is just the deportation, right? So it's no, like, if we deported someone to another country who would accept them, Iran, and they get off the plane and Iran, then immediately arrest them for, I don't know, wearing the wrong colored shoes and throws them in prison. Like that's not our problem. I think what's different here is that we know the expectations slash are paying for the prison, but there's sort of a legal fiction here that as soon as they get off the plane,

they are no longer in US custody and we are not responsible for what happens next. Well, I think we're responsible for the intended effects of our action. And so, if you're a federal judge and you're looking at this, say, from the standpoint of due process, cruel and unusual punishment, et cetera, and you say, well, Your Honor, I mean, in theory, we could hand it over to El Salvador and they could just let them go. That's up to El Salvador. And the first thing I'm going to ask is, is that your expectation counsel? Is that the

arrangement that has been struck with the El Salvador government counsel? I just don't think you can violate the Eighth Amendment by delegating a known delegation of that violation to a foreign nation. Okay, real quick on just the composition of the court. Cause as I mentioned, I think the composition of the court does matter here. When you think about, uh, boom, Medellin 2008, it's a five, four decision with Kennedy, Breyer, Ginsburg, Kagan, Sotomayor as the majority.

You know, Roberts, Alito and Thomas are still on the court at that point. Roberts in particular, very interesting because we've talked about him being the swing vote so far. Now, Roberts was in dissent on Boumediene, but what he was saying was, of course you need process, but Congress has set up this process and we can defer to that process because it is not so legally distinguishable from the habeas process anyway, therefore I am satisfied and we defer to Congress who specifically passed the Detainee Treatment Act to override Hamdan. So ugh, like we should give them some leeway to do that,

the politically representative branches. Scalia agreed with that as well, by the way, but just had his like historical, a little bit of pre-text history and tradition, if you will, on the writ of habeas corpus. So I think the question is, A, does any of this fit with Roberts' process problem? As in, if you get processed before you leave, would that be sufficient for Roberts, even if you can't

get processed once you're there, for instance? And two, do Gorsuch, Kavanaugh, and Barrett fall behind Roberts, as they generally have done in other cases? Or is there something distinct about, for instance, Gorsuch's criminal, you know, defendant cases that would be relevant here? Or Barrett's process stuff, which has been different than the Chief's at different points? I don't know, David.

I don't know, but this case about Abrego Garcia that we mentioned from the emergency docket, this was the guy who was removable alien, had gotten all of his process here, but was not allowed to be removed to El Salvador because in fact he had protected status from being removed to El Salvador. That is the order that the Chief Justice put an administrative stay on, meaning the chief justice said, no, you don't have to call up El Salvador and request that they send him back. Give us a sec. We want to look at this.

So this whole conversation has basically been a setup for what I think we'll hear from next week, which is going to have to be, what is the status of someone being held in that El Salvadorian prison and what is the power of the courts to order the government to request their return or anything else related to that? And that's the fun part. There's also an element of the war and terror cases that we have not just talked about, and these might be more applicable, but maybe not. So cases challenging extraordinary rendition. So this is when you're taking somebody from, you're essentially transferring someone to

that third party jurisdiction. And in many cases, that would lead to interrogation and in violation of relevant human rights laws, sometimes outright torture. And so, the extraordinary rendition process is actually something that began under Clinton, continued under Bush, continued under Obama. And one of the issues that you saw in the legal cases trying to challenge this was that as a practical matter, the courts were making challenges almost impossible through invocation, for example, of state secrets, doctrines, and things that made it very, very difficult to challenge the

rendition in court. And so what you almost have here is like it's as extraordinary, it's like extraordinary rendition but not directed against suspected terrorists or people captured on a battlefield. But it's like extraordinary rendition with known torture and inhumane conditions on the other end for people who have been, who've crossed the border. Well, and who importantly for legal purposes also were in sovereign American territory. And you're going to see that brought up in many of these cases, the distinction for instance in Eisen Träger, they never touched US territory. It's not our problem versus at some point they were in US territory slash US custody.

Ooh, that's a different thing. Okay, David. Next up, I wanted to talk about this decision from Trevor McFadden on the DC District Court. This was about the Associated Press. And we just really like free speech here. So after President Trump issued his executive order renaming Mount Denali, Mount McKinley, and the Gulf of Mexico, the Gulf of America, the Associated Press announced that it would, in fact, change the name of Mount Denali back to Mount McKinley in its style guide.

But it would not change the Gulf of Mexico to the Gulf of America. Ben listed all these sort of historical reasons, like it's been that for a really, really long time, unlike Denali, which had just been renamed a few years ago. It's not just called the Gulf of Mexico here. It's called the Gulf of Mexico and a whole bunch of other places that also use the AP style guide. So for all these reasons, and we don't feel like it, and we don't have to do what you say, these reasons and we don't feel like it and we don't have to do what you say. We're not changing it. So the administration slash the White House announced that one, it was removing the Associated Press from the press pool.

This is the very small group of reporters that basically follow the president around. It's often called a body watch, meaning you're really only there in case the president dies. But we want people there. It basically started, I believe, after Reagan, they started having a press pool for exactly that reason. It's a little bit dark. So they said that was a privilege that previously the White House Correspondents Association had been in charge of assigning reporters and outlets to the press pool. But the White House was taking that power back and they would now pick which reporters were in the press pool and lo and behold, the AP is not in it. Then second, in the larger press briefing room, when they're

having big events in the East Room where people with a hard pass, meaning they've already passed security and they have the ability to enter the White House complex, can apply to come in. And like hundreds of reporters are in those. And they said, while the AP was still eligible to attend those events, they would not be accepted to attend any of those events until they changed the name of the Gulf of Mexico in their style guide. So the AP sues First Amendment and Judge McFadden having none of this. It's David, one of the most sort of like just old school workman like trial court opinions.

There's nothing flashy about it, although there's one paragraph of flash that I'll mention. But it just it walks you through public forum, non-public forum. It's just really good, basic First Amendment law. It's the meat and potatoes of the First Amendment spelled out in opinion. We'll put it in the show notes for anyone who just wants sort of a primer on the First Amendment, because I think he did a nice job. But I did want to mention this, the little bit of flair, just he put one piece of flair. All of this to say, the AP's predicament comes with considerable prologue as he walked through basically the history of the First Amendment at the founding,

the Alien and Sedition Acts, a congressman who tried to censure a reporter who he thought had unfairly covered Congress, and then he got censured himself basically because everyone's like, that's not what we do here in America. So all of this is to say the AP's predicament comes with considerable prologue. See William Faulkner, requiem for a nun. The past is never dead. It's not even past. History and tradition. I saw that. I love that. Right? History and tradition guide the court's understanding of the First Amendment, but that does not settle this matter. Modern First Amendment case law binding on this court is an intricate web and more is needed to untangle it. C.E.G. Vidal V. Elster citing Kavanaugh's concurrence and

separately Barrett's concurrence. The reason that's interesting to me, David, is because Vidal V. Elster is that Supreme Court case about whether you can issue a trademark for Trump too small, the like t-shirt about his hands being too small or whatever. And there'd been long trademark history that like you can't use someone's name in a disparaging way without their consent. And so no, you can't get a trademark. And he was like, but the First Amendment.

And he lost. Trump too small lost at the Supreme Court. But what Kavanaugh and Barrett's little concurrences are kind of about is like, we don't use text history and tradition in the First Amendment yet. So I'm not sure why any of that was relevant. Instead, we're gonna look to the statute, we're gonna look to the, you know, why we're doing this.

And like, that's enough. So I did find it interesting that Judge McFadden said, history and tradition guide the court's understanding of the First Amendment in the majority opinion of Vidal Feolster, but that does not settle this matter. Modern First Amendment case law binding on this court is an intricate web and more is needed to untangle it. So like, if you're looking for the personality of Judge McFadden, and yes, I've also known Judge McFadden a very long time. I've in fact known his wife longer than him, as I think I've mentioned before.

Our kids even go to the same school. That paragraph is how you get to know Judge McFadden. There's like so much McFadden just like all baked into that paragraph between the Faulkner and the concurrences and the... Yeah. But overall, David, he found that the government must treat the AP like every other outlet for viewpoint purposes. Now, they can change the pool. They can not have a pool. They can never allow another reporter in the Oval Office for the rest of the term if they want. They just can't not allow the AP in the pool for viewpoint discriminatory reasons.

So he found that the Oval Office was a non-public forum. This means official authority to restrict expression in the Oval Office is at its zenith. But still, there is a limit. Access restrictions must be reasonable and not viewpoint based. So while the AP does not have a constitutional right to enter the Oval Office, it does have a right to not be excluded because of its viewpoint. For the government to put the AP on an equal playing field as similarly situated outlets despite the AP's use of disfavored terminology,

the court does not order the government to grant the AP permanent access to the Oval Office, the East Room, or any other media event. It does not bestow special treatment upon the AP, permanent access to the Oval Office, the East Room, or any other media event. It does not bestow special treatment upon the AP. Indeed, the AP is not necessarily entitled to be the first in line every time permanent press pool access it enjoyed under the White House Correspondence Association. It cannot be treated worse than its peer wire services either. The court merely declares that the AP's case exclusion has been contrary to the First Amendment and it enjoins the government from continuing down that unlawful path. Two things David, one, the government barely fought back on this. There were no legal arguments and

the record was just replete with evidence of viewpoint discrimination. I mean they basically said like yeah we're viewpoint discriminating. So it made it a weird case in that sense. Are they going to even appeal this? I don't see how. I don't see on what legal grounds. Two, this is a little like though the law firm orders, David. Once the order has happened, the punishment already sort of gets baked in before you can

even get the process. And in fact, the opinion goes to great length talking about the economically devastating effects just since February 11th that the AP has experienced basically people moving to different wire services because they're no longer getting the real time photos and information that they were getting and relying on the AP for. So did the government actually lose

or did they kind of win in their own way? Well, this is the El Salvadoran prison of First Amendment situations. Funny enough. Yeah, I mean, it's, yeah, yeah, exactly. I mean, it's just, they can inflict a lot of harm that is not easy to fix by the time courts get involved. Doesn't mean that this decision isn't necessary, isn't important, can't go perhaps some of the way to repairing the damage that AP suffered, maybe stop the bleeding to some extent. But yeah, if an administration is just willing to

flout the law and enjoy inflicting the consequences that it gets to inflict before the courts intervene, you're just going to, we'll just keep seeing more of this. I think this is going to be a pattern. But one thing, going back to the opinion that I think is, that I really appreciated, and you said it well, he walked through First Amendment law, and I especially like how he walked through what it means, what retaliation doctrine is. Because, you know, when you see this, people talking about this case, they're so stumped by it because they go this turn in their brain, which is nobody has a right to Oval Office access. So how could the judge rule against the Trump administration?

Because nobody has a right to First Amendment, I mean to Oval Office access. And the answer is yes, that's correct. But retaliation doctrine is rooted in the idea that if I don't have, even if I don't have a right to Oval Office access, I have a right not to be excluded from the Oval Office for constitutionally protected activity. Think of it like this. I don't have a right right to be excluded from the Oval Office for constitutionally protected

activity. Think of it like this. I don't have a right right now to public employment. I don't have a right to walk into a federal office building and say, where's my desk? Where's my salary? I have a right to public employment. But if I'm applying for public employment, I have a right not to be rejected for reasons that would violate the constitution or violate the law. So I have a right not to be

rejected because of my race. You have a right not to be rejected because of my political viewpoint. I have a right not to be rejected because of my sex. And these things are, that's what retaliation doctrine is. It's saying, wait, they went ordinarily, they might have the ability to exclude me, but they excluded me for the reasons that were not permitted to them. And I think that he explained that really well. Agreed.

Okay, next topic. I mentioned a couple episodes ago, when we were talking about the oral argument that I did not think went well for anyone about the Wisconsin Catholic Charities case. And I was asking like sort of a chicken and egg problem, because I've always assumed my whole life that being a good writer is the thing that comes last, if you will, like that's the hardest thing to master and that being a good speaker is a totally different skillset and one that you also could work on or not.

But David, it sort of occurred to me, is it possible to be a good speaker without being a good writer first? And I say this because, yeah, now look, I'm not talking about you're afraid of public speaking or you have anxiety and that's why you're not good at it. Set all that aside. I don't really even mean public speaking. I mean, which comes first? Clear and logical ability to speak or clear and logical ability to write? And I say this, David, because we always say

that good writing should sound like conversation, not a script, but like it should be like the spoken word. So if you're not already a proficient logical thinker, you can't be a proficient logical speaker, and then how can you be a proficient logical writer? Or is it the other way around? Is it you have to learn to write logically first and then once you know what good logical writing is, you can be a good speaker and then you can go back and make your writing more conversational like you're learning to speak? I'm curious what your take on this is.

So I've taught legal writing before. I taught legal writing at Cornell Law School for a couple of years. And it was very interesting to me how many people were better speaking than they were writing. And the way that I made their writing better was by bringing it in harmony with the way that they spoke. And then I've met kind of the reverse, people who are very clear in prose, and then when they get up to speak, something else locks in. And I think, so I would put it this way, is you have to be a clear logical thinker in which, whether it first emerges as in your writing or first emerges in your speaking is variable to the person. So, in most of the circumstances where the good speaker was the poor writer, what they

were doing was they were intentionally writing in a way they did not speak because they thought that that's how you write. You know, that they had sort of like, my writing should sound different. My writing should be flowery. My writing should, you know. Where to for I need to be a good writer. Yes, yes. Comes now the plaintiff, right? I mean, like that kind of stuff. And you go, whoa, whoa, whoa. Here's one, a great way to know if you're right. Here's a great way to know if you've written, if it's been written well, why don't you read it out loud? If you read it out loud, and it sounds weird, it sounds off, you know something's wrong. And then similarly, I've

just known a lot of good writers who have just a fear of public speaking. They also think it requires something else, like a flourish, like, you know, like I'm reminded of Ricky Bobby and Talladega Nights, you know, what is it that I do with my hands? You know, they don't know how to stand there. They adopt a weird persona. They kind of have a mental block. So I just think it's variable depending on what is it that's kind of tripping you up. Okay. So I've personally given this now a lot of thought since I raised it two weeks ago. And here's what I think my order of operation was. I think, I mean, I know that I was both a bad speaker and by the way, here, I mean, I mean like lawyer speaking,

like logic, persuasion, not like entertaining. I did musical theater as a high schooler, as I'm sure we'll just shock everyone listening that I was a theater kid. I also did magical choir, by the way. Yep, that's where we sang Baroque pieces of music in like sort of their original form. And in costume.

I thought you said magical choir at first. I was like, singing and card tricks? No, let's be clear. I bet a bunch of the boys were into magic also. There were men in this magical choir, boys, boys. They weren't 18 yet. Anyway, so when I'm talking about speaking here, I mean lawyer speaking. So David, I came into law school catastrophically bad at both. And I'm not being self-effacing or humble or something like that. I would put my own writing up on the show notes except that I find it so deeply shameful. That didn't get fixed in law school. But my thinking did get fixed. I was becoming a far more logical thinker by the end of law school, but I would argue that my writing

and speaking were still pretty bad. So then I clerked for a year. That's when the writing locked in. My logical thinking finally started to translate into very logic next, this, next, this, next writing. I would say only after that could I actually speak that way, that speaking came last for me. What about you? Interesting. It was definitely writing before speaking because for me, the social,

when I was in high school, early college, let's just say I did not approach a podium with confidence. I approached a podium as a ball of insecurity. And so it was just not going to go well. And in fact, when I, you know, I had to get to a point where I felt comfortable within the community itself, like before I would speak. And it took about a year or two into my legal practice for me to really get over that. And it was just something that clicked in my brain when I was once again really nervous before going before a judge.

And I just realized, this is just a conversation with another human being. That's what this is. This is not a special, rarefied air kind of ritual that requires highly specialized learning to engage in. This is a conversation with another human being. And for me, that was a breakthrough. Just that, and that sounds so trite, but you kind of had to get to a point where your head

and your heart could talk to each other on this issue. And they finally connected and it was like, okay, this is fine, I'll be fine. Okay. So for me, it was definitely writing. So I think there is going to be a lot of universal truth here, in which case my theory back to the like activists and oral arguments and that conversation we've been having the last few episodes, perhaps the Lisa Blatt, Paul Clemens,

Cannon, Sham McGanns, etc. Perhaps they just continued on the path that the rest of us kind of stopped at, if you will. Meaning, you had to learn to think logically first, then they learned to be excellent writers, and then they have just continued in the way that most of us think is all about our writing. Because writing, by the way, is the most important skill that you can have as a lawyer. Well, after maybe the thinking. Thinking logically, I mean, not like IQ. But the writing is where you're actually going to win or lose. But maybe they just spend a lot more time the way that the rest of us spent perfecting our writing. Like they were like, yep, got to do that. And then they just kept going with the speaking.

And maybe for most people, it goes thinking, writing, speaking, which I think is different than what a lot would expect. And this is related, David, have you ever done an Enneagram test? It's like one of those personality tests, like Myers-Briggs or whatever. Yes, I have. I wonder if at some point we should talk about our Enneagrams. I'm not sure I'm prepared to today.

I just, a friend of mine just forced me to do this test today, and I'm not sure I'm there yet, but it's interesting that you have. Huh. Huh. All right, well, maybe in the comment section, people can guess what our Enneagram type, or Myers-Briggs. Huh. All right. Well, maybe in the comment section, people can guess what our Enneagram type or Myers-Briggs. Myers-Briggs. Myers-Briggs I've done and I'm fine with. I have no, I don't need to chew through that one anymore. All right. Last thing, David,

White Lotus. This is going to have spoilers. So if you want to watch it and haven't yet, turn this off. Bye. It's been nice knowing you. All right, David, I'm opening this up to you. You were the one who wanted to talk about White Lotus so badly. And now we've gotten to the end of the season. What'd you think? Well, okay, so there's two strands here on White Lotus. The one I wanted to talk to you about was the dynamic with the three friends.

The three female friends, yeah. Yeah, the three female friends. I found that fascinating. It was this constant shift of two versus one. And the one was variable. The two were variable. But it was this constant shift of two versus one, and the one was variable, the two were variable, but it was this constant dance where one felt like they were on the outside at all times. And so I just wanted to talk about that.

Like how you're somebody with a strong friend group. I talked to somebody else about it and they said something really interesting. They said, female friend groups should have even numbers, which was a very interesting observation. And so I just wanted to hear that. I just wanted your reaction, Sarah. And then, you know, I have thoughts on the overall finale and sort of how it ended, but I was mostly interested in your thoughts on the dynamic there. Was this just absurdly caricatured or something else?

It was a caricature in how quickly they all shifted, but no, it probably was not overall a caricature, especially, I mean, it was a slight caricature. That's what TV is. Right. That's what White Lotus in particular is. It's meant to be a caricature, but a satire, if you will. But yeah, the like saying really nice things and then getting to the thing that you think

is their greatest weakness or flaw. Yeah. And couching it in a way where you're, you want to help, but also you want the validation from the other person that this third person has that flaw. Yeah, it's all built in there. And David, like for me at least, I find great comfort in sort of thinking

of the evolutionary biology aspect of women's brains just being so completely differently wired than men's brains. And we have endless jokes and comedians and all about how our brains are different. I have no idea what it's like to be in your brain as a man. It seems like a dark and scary place to me that is mostly driven by sex and status.

Wow, that's grim. Yeah, like it's a very linear, like I'm here, I need to get to there. How me get there? And like, that's kind of all y'all do. Women's brains, I think, are just super spokey, meaning it's a web. And that's because that was an evolutionary advantage

for us in a way that that's why we sent you guys out to fight and die, because it was pretty easy to convince you to do it. The women were there then building all of these networks because you know with most species that are monogamous, if the male dies, then the babies, the mom just abandons the babies most of the time, but the babies die kind of no matter what. But that's not true for humans. If the male dies, most often the children will be okay. Maybe not all of them, maybe they'll be less good than they would have been, but we humans have built these networks and it's because of the female brains.

So yep, there's a lot of upside. There's going to, of course, be some downside, but overall, that's the evolutionary advantage because we build these very complex webs with our friends and our networks. And it's a safety net. It's literally a web. So yeah, it was pretty true. Yeah, that was very interesting. And then there was this other thing that I thought, so you had the family with the wealthy businessman, the Parker Posey, who stole every scene that she was in. She was phenomenal. But like talk about then quintessential male brain.

He had the quintessential male brain. There is this problem. I can't fix it. Therefore, I need to get from here to there. And so I'm gonna go through all the options. Kill myself, no. Kill my family. Eh, what if I kill all my family except for that one?

Yeah, right. It was very linear thinking. Yeah. Now that was, whereas you're talking about the three women as being a slight caricature, this was taking things to an extreme. That's sort of, okay, I'm facing adversity, who do I start killing? Was sort of like. Well, but when men are threatened,

when men's whole, they set it up pretty well that this was his life and others' view of him, right? That he had always done everything right. That he had provided this life for his family. That he was the center of the family. And when that wasn't just threatened, it's like gonna be taken away? I mean, men, very rarely, but men do kill their families

and then themselves in those situations. Yeah, that is a thing that happens rarely. And he went zero to 60 in about 2.1 seconds on that. But what I did think was really interesting and so fascinating was how in most shows, if you put, when you put it to the members of the family, we're going, if we faced a struggle, could we get through this together? The family's like, yes, and then doesn't, right? Like that would be, that would be sort of like the way things work out in life. Yes, we can handle anything and then when the anything comes, they're like,

I'm out. This is the worst. What was interesting was he just went straight to the honesty. Like he cut through all of the pretense and his wife was like, nah, this is what I need. His son, nope, this is all I am, dad. And even the daughter, even the Buddhist daughter, with that moment when she said, well, the vegetables weren't organic. And you saw the look on-

It was so good. It was so good. But I felt like Mike White was putting that family right in front of us and saying, this is all y'all watching this. This is all y'all. You might think it's not you, but it's you. And then at the final twist of the knife

was really the Belinda character, where she became the very person that hurt her in season one. And it's shit. Like word for word. I think they actually use the same language from the script, right? Oh, is that right? Oh gosh. Well, yeah. A lot of this wasn't subtle. A lot of this wasn't subtle. But I found that family particularly interesting because I was fully expecting

her to say, I'm with you no matter what, Tim. And then she's like, no, I got to have this stuff. I don't think I can go back to being poor. And then she's like, no, I gotta have this stuff. It's like, wait. I don't think I can go back to being poor. I don't think I can, like wait, okay. Oh, he's just putting- Was I just too old to lead an uncomfortable life?

Yes, yes. And I thought he's just putting us in front of us in the most blatant way, is the way I looked at it. This was my favorite season of White Lotus. It was mine as well. And I will say, I don't, we've actually spoiled relatively little. I will tell you, by about 30 to 40 minutes

into the finale, like the tension was getting kind of unbearable. I was like, somebody's got to just start shooting. I'm too nervous right now. Okay, what's your next binge gonna be? Are you joining for season two of Last of Us? Have you finished Severance? He's got to just start shooting. I'm too nervous right now. Okay, what's your next binge going to be? Are you joining for season two of Last of Us? Have you finished Severance?

What's going on in your life? Absolutely finished Severance. We'll do season two of Last of Us. And I'll tell you a show that we're really enjoying right now, that's just out, it's called The Studio. And it is absolutely hysterical. Seth Rogen takes over a Hollywood studio,

hijinks and sue. It's so funny. It's so good. And the cameos, like the celebrity cameos, are absolutely fantastic. Ron Howard was in the latest one in a very memorable way. So, hard recommend. Does Ron Howard have nothing else to do? I feel like he cameos in everything these days.

I mean, I didn't realize it, you know, he comes on screen and I thought, how old is Ron Howard? He looks pretty good. Cause I have a vested interest in Ron Howard looking, hanging in there. Cause we have the same like whole hair situation going on, you know? And I was like-

Don't resemble each other. Yeah. I'm proud of you, Ron. Look how great you look. He's more than 70 years old and he looked great. Yeah, it was amazing. So very encouraging. Thank you. The skin treatments they have these days.

Yeah, you're doing a lot of Botox, David? Yeah, none of that. All right. Well, we still have many pending emergency docket cases at the Supreme Court and it is opinion season. So we'll start having more opinion hand down days. As the weeks go by, join us for the next episode of Advisory.

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