Advisory Opinions - The TED Talk Heard ‘Round the World

Episode Date: May 12, 2026

Sarah Isgur and David French discuss the Virginia State Supreme Court striking down the state’s new congressional maps, Neal Katyal’s TED talk that we don’t want to talk about, and David plays a fun constitutional “Would You Rather” game. The Agenda:–Virginia’s gerrymandering map is unlawful–The left can’t get mad at the right when the right tried the independent state legislator argument–What really won the trillion-dollar Supreme Court case–Who is Harvey?–Shout out to the coolest AP Government teacher ever? Show Notes:–Supremely Cringe: Neal Katyal And ‘TED-Gate’ Order Sarah’s book here. Advisory Opinions is a production of SCOTUSblog and The Dispatch, a digital media company covering politics, policy, and culture from a nonpartisan perspective. Click here to sign up for our new Advisory Opinions newsletter, and click here to access all of The Dispatch’s offerings, including audio versions of all our articles and newsletters. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isgar. That's David French. And we are going to start with the decision out of Virginia striking down Virginia's new congressional maps. What the what? The Virginia Supreme Court refusing to rule on this until the election had been held.

And now saying that the ballot measure was never constitutionally processed under the Virginia a Supreme Court. What is to come of this? They've said they're appealing to the United States Supreme Court. Does David think that is going anywhere? Second, we've got a TED talk. Yes, former acting Solicitor General Neil Katyal recorded a TED talk about winning the tariff case. And look, I don't want to talk about it on this podcast, but we have to talk about it on this podcast, and I think it illuminates quite a bit about oral arguments and, frankly, how the Supreme Court cert petition process works that would cause one member of the Supreme Court bar to say that Neil Katyal just announced his retirement in the form of a TED talk. And lastly, David, what might be the best AP government

teacher in America, as best I can tell, put together 56 would you rather's on the eve of the AP government exam. Let's see how you do. All this and more on advisory opinions. Behind every F-35 jet is a Canadian company, horizontal tails built in Winnipeg, engine sensors from Ottawa, and stealth composite panels crafted in Loonberg to name just a few. Thanks to thousands of skilled Canadian workers, the F-35 aircraft is delivering unmatched capabilities for 20 allied nations around the world and will generate more than $15.5 billion in industrial value for Canada. This ad is sponsored by the F-35 partner team, Lockheed Martin, BAE Systems, Northrop Grumman, and RtX. Learn more at www.f35.com slash Canada.

Well, David, I hope you all had a wonderful Mother's Day with your family. In my family, we were on day three of potty training, the two-year-old. And there was just poop everywhere, David. There was poop on me. There was poop on him. But at one point, I will tell you, there was poop in the little potty. And while that may not sound exciting to those of you who have not done this, there's no better Mother's Day present I've ever been given than poop in that little potty.

And to be clear, little potties are not hooked up to plumbing. So I still had to clean poop from the little potty. But it's symbolic, David. That's the point. You know, when those moments occur, the delirium of the celebration that would break out in her house and it was intentionally designed a delirious celebration so that the kids would want to continue to do that to get to the celebration. We had a rager at our house, nine kids, lots of, you know, moms,

and there's my son, pantsless the whole day. So it was a party, let me tell you. David, speaking of parties, no, there's no actual segue here. Oh, I have the segue. Speaking of throwing out the poop. Oh! Yes, yes. We are going to talk about the end of the absurd Virginia gerrymander.

Okay. here's the thing, David. I could not have gotten this outcome more incorrect. Once the Virginia, I'm a Virginia voter, remember, so I like took time out of my book tour to go vote for this referendum, which was a ballot measure about whether Virginia could change how it does redistricting. Previously, there was a commission that did redistricting. That commission actually hilariously failed. And it was then left to courts to draw nonpartisan districts. And then, of course, Texas goes, California goes, Florida goes, and Virginia's like, let's do this too. And so Virginia wanted to redraw its districts to maximize partisan gain for the Democratic Party. There's the famous lobster district that

folks were pushing around. And multiple times, the plaintiffs in the case argued that there were all sorts of procedural hurdles that the Democratic legislators did not go through to get this ballot measure voted on. And every time the Virginia Supreme Court did not review it, didn't stop the election, nothing. And David, I made the huge mistake that I tell people about all the time. You are, you know, not an expert in all courts just because you're an expert in one court. I'm not an expert in the Virginia Supreme Court. I was reading the tea leaves about a court not stopping something from happening as a quasi-interim docket type decision and that that tells you something about the likelihood of success on the merits on the back end. Well, not in the Virginia Supreme Court.

They held four to three that in fact the legislators had not checked the box because under the Virginia Constitution, you must have a ballot measure passed by two separate legislatures. with an intervening election. Well, they passed the ballot measure in October of 2025. Indeed, the very end of October. Then there was an election on whatever it was, November 5th or so. And then they passed it again after. And then it gets voted on by Virginia voters, where it narrowly passed. I think two and a half points or so, it passed by. And the Virginia Supreme Court's like, Nope. The election was going on when you passed it the first time, and therefore there was not an intervening election to allow voters to have their say over, you know, this thing that was basically

happening. David, so much to break down here. But first of all, this sounds a lot like our filibuster idea that I've talked about, right? This idea that as long as there's an intervening election, you make the voters actually weigh in on real substantive issues. But if it's October 31st and early voting here starts early. I take the point. Before I get to you substantively, though, I want to get to this interim docket question, right? The Virginia Supreme Court said that they had no choice. They were not able, because of Virginia precedent, to weigh in on this. And let me read you what they wrote. It is fair to ask whether we could have or should have reviewed the constitutionality of the proposed amendment prior to it being presented to

the voters. But it is not a question the Commonwealth should ask. Throughout this litigation, the Commonwealth has insisted that we cannot lawfully decide this case prior to the referendum. In its motion for a stay in this case, the Commonwealth argued that longstanding Virginia precedent, Scott versus James, was, quote, virtually indistinguishable, in quote, from this case and that it clearly held that, quote, courts cannot interfere to stop any of the proceedings while this permanent law is in the process of being made and only upon the completion of the proceedings if the validity of the amendment is assailed on the ground that the several provisions of the Constitution have not been complied with, then the court can pass upon the validity of

the amendment, citing their motion. The Commonwealth concluded the lesson is clear. Courts may not preemptively invalidate a proposed constitutional amendment before it has been passed by the voters. Having successfully insisted over the objection of the claimants that we postpone judicial review of the constitutional amendment until after the election process, it might be tempting for the Commonwealth to think that the final vote implicitly stacks the deck in its favor, perhaps enough so that the exercise of any judicial review could be viewed as an ultra-vira's effort to overturn the will of the people. And then basically it's like, that is wrong. But David, that's a really weird way to phrase all of this. It's basically like the rest of you can question

whether this was a good idea, but Virginia can't complain. What about you, Court? Like, can we go back to why you thought this was a precedent worth upholding? David, this precedent is from 1912. It deals with two ballot measures that basically were supposed to be separate and then they combined them as one ballot measure. It's a hundred and some year old precedent. I think it would have been completely reasonable for the Virginia Supreme Court to say, we're not going to follow that precedent here. There are distinguishing features to that precedent, so narrowing it to its facts. $83 million were spent on this ballot measure in Virginia, $5 million taxpayer dollars to actually, you know, hold an election, and my time was wasted, which is maybe the thing I am most upset

about? So David, I guess overall, my takeaway is, thank God the U.S. Supreme Court has an interim docket, an emergency docket, a shadow docket. I don't care what you call it, because the alternative is what Virginia just did. We have to do a little bit of quick civics here because we don't talk about state Supreme Courts nearly as much as we talk about the federal courts. So for a quick reminder for the non-lawyers, the state Supreme Court is the final word on state law. The U.S. Supreme Court is not the final word on Virginia state law. Now, if Virginia state law conflicts with federal law, or if federal law has a bearing on Virginia law, or the Constitution has a bearing on this, the federal constitution, then, of course, the U.S. Supreme Court is involved. But if it's a strict state law issue,

then they are the final arbiter, which means they're not actually bound by that precedent, only if they choose to be bound by it. So they're deciding, they don't have to do this. They decided not to intervene when a majority of the court believed there was unconstitutional under Virginia State Constitution, unconstitutional defects. They allowed this to go forward,

80 plus million dollars spent, millions of voters going to the polls. I mean, it is remarkable. It's remarkable. What a choice to make here, honestly. What a choice to say, we choose not to uphold this, I mean, we choose not to disturb this precedent. And we're going to allow a referendum to go forward for nothing. And the constitutional defect was back in October, right?

Like, it was a long time ago. And that's only the first defect. There were three other defects that the plaintiffs in this case argued that they didn't need to reach because they found that the very first defect killed. the entire amendment process. Okay, David, so here's what they wrote, the opening sentences of Article 7, Section 1 of the Constitution of Virginia. Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments

shall be referred to the General Assembly at its first regular session held after the next general election of the members of the House of Delegates. Now, David, this is Virginia, right? This is Madison. This is Jefferson. Like this Constitution, it old, and these guys intentionally wanted to slow things down, force compromise, prevent, you know, mob rule. And here you have, again, four to three. This was very close at the Virginia Supreme Court saying that, well, an election then meant one day, sure. An election now can mean many, many weeks. And so, yeah, you have to do it before the election starts. And, you know, David, I'm curious on the legal side, whether you think this is the right outcome. I would think that if there was only one singular,

election day, that it would not be the correct outcome. So if they voted on October 31st, and even though it was November 4th, just so soon after that you had, it would still technically be the next, there would be an intervening election. And everybody, at least would have the opportunity who was going to the polls, they would have the opportunity to go and take into account as part of their vote the existence of this amendment. Because the intention is to have a legislative vote, the voters to weigh in on the legislature, then another legislative vote, then a referendum, which by the way, we need to have a whole conversation about this process because I kind of love it, actually. I kind of like it. Anyway, that this, this would be an interesting

idea of like one of the potential amendments that we've talked about how to amend the Constitution to make it easier to amend the Constitution. I kind of like this idea. I haven't chewed through it entirely in my mind, but I kind of like it. But if, if that was the case, October 31, there's the vote, November 4th, you have an actual election. And in fact, in some ways, even that short turnaround time, because it would be just fresh in the news cycle, it'd be all over the news. There might be some validity to the idea that, hey, even close to the election is, you know, fine. But here, I'll read you this paragraph. In this case, voting in the general election for the House of Delegates began on September 19th, 2025,

and ended on Election Day, November 4, 2025. The General Assembly voted for the first time to approve the Constitution to propose the Constitutional Amendment to the electorate on October 31st, 2025. Here's the key sentence. By that date, over 1.3 million votes had been cast in the general election, which was approximately 40% of the total vote for that election cycle. So to put this in James Madison terms, in terms of, at James Madison, who was not aware of early voting, this would be about like the General Assembly

proposes the amendment at noon on election day after the polls have been open for, say, six hours, and then you vote, then the General Assembly votes, and then you've got six, seven more hours of the polls being open. That's sort of the equivalent of it. This was proposed in the middle of the election, not before the election, in the middle of the election. And I get it. I get it. I get the dissenting view that, wait, there is an election day. We've talked about this whole election day concept more than I ever thought we would. I mean, I get it, but my goodness, 40 percent of the total vote had already been cast. That's during an election. That's not before an election. It's worth mentioning that the Virginia Supreme Court justices are picked in kind of

an interesting but not shocking manner. They are selected by. the governor and then sent to both houses to be voted on. Virginia has actually had divided government the entire time for every single one of these justices. There were two years 2020 and 2021, where it was full Democratic control, but no justices were appointed at that time. So every justice on the court, it's hard to actually pin down, you know, any sort of partisanship to any of these justices in particular, for what it's worth. So, David, here's my lightning round on this Virginia question. One, is there something to be said for not having an interim docket? And would it take pressure off the United States Supreme Court if everyone understood that we don't decide these things

until they are actually in effect? So, you know, the birthright citizenship order would have to be in effect before the Supreme Court could rule on it. Biden's student loan debt forgiveness would have to be in effect before the Supreme Court would rule on it, or did the Virginia Supreme Court just prove why we need an interim docket? First question. Okay. First question, Virginia Supreme Court demonstrates why we need an interim docket. You know, there are some injuries, and we've long known this, we've long known this, that there are some injuries where the harm is irreparable. So, for example, I spent much of my career arguing injunction cases involving constitutional rights where, you know, the deprivation of a First Amendment right was deemed, even for a moment, irreparable harm.

Why? Because there wasn't really a dollar figure you could put on the compensation. That, in other words, what is it, what is the financial cost to me of not being able to chant no blood for oil, right? I can't put a dollar amount on that, but there's some incalculable value of this individual liberty. And so in those circumstances, you know, there are times when you've got to stop something from happening because there is this potential for irreparable harm. And this is a circumstance where this looks like an irreparable, almost a paradigmatic irreparable, who's going to write the 83? You can't compensate for this loss. Let me take the other side of this. one, there was nothing the legislature could have done once they had done it on October 31st,

and that was already within the election period. It wasn't like they could have fixed the ballot at that point. There was always going to have to then be an intervening election. So this ballot measure was never going to be done in time for the 2026 redistricting. So in that sense, it didn't really matter when they ruled on it. Two, there was a 50% chance that the Virginia Supreme Court wasn't going to have to weigh in in this at all because the ballot measure was going to lose, in which case you prevent the court from having to be in this partisan situation where one side is going to lose and one side is going to win and they're having to decide the winners and losers. So 50% chance of saving yourself a lot of grief. And yeah, you know what? Both sides

spent a lot of money. Most of that 83 million was spent by the Democratic Party to try to get the ballot measure passed. That was their choice. They're the ones that cut the corner in the first place. They knew the risks they were taking, assumption of risk. But not the voters. Yeah, yeah, my time was wasted and I'm pretty uncool about that. And to the point, like, I knew that there were defects with this ballot measure, but I couldn't take the risk. Like, I didn't get to choose, like, well, I'm not going to vote because I think there's a good chance that this didn't pass Virginia constitutional muster. No. Clearly, I have to go waste my time regardless. And you feel a certain buy-in to the process. So now millions of Virginia voters, I do think understandably feel like

their votes just got tossed out. So this brings us, by the way, David, to the future question. The Virginia, the Commonwealth has said they are going to appeal this to the United States Supreme Court. Now, David, you already said, this is based on Virginia law and the only authority, The end authority on Virginia state law is the Virginia Supreme Court. The United States Supreme Court gets no say over what Virginia law means. It looks like their argument is going to be that the Virginia Supreme Court interfered with the state legislature's power under the Constitution, which allows state legislatures to set the time, place, and manner of elections for Congress. And David, this is exactly the argument the right was making. It's, it's, it's, it's,

Pure horseshoe. This is the independent state legislature argument that got struck down by the Supreme Court when it was made by the right. Yes, yeah, exactly. It's a beautiful thing. I love it when one side says that the other side is morally reprehensible. And then are we four years later? Four years later adopts the exact same argument.

Republicans were a threat to the Constitution and the rule of law when they made these arguments, David. and while I didn't agree that they were a threat to the rule of law, I thought they were losing arguments. So I just want everyone who said that Republicans were a threat to the rule of law for making these arguments to be willing to say that their own side is a threat now. And vice versa, I want Republicans who think this is somehow a threat to whatever to acknowledge that they made the argument four years ago. You know, this is just endemic.

I wrote a piece over the weekend about Graham Platner. And can I just say I'm not a fan, not a fan of the guy? and you know look sarah i've been around a lot of soldiers in my day uh more than a few marines and if there's one thing i know about soldiers and marines they know their tattoos it's like hey this one's a picture of my mom when she was 29 this is the chinese symbol for strength and fortitude this is the final score of my last high school football game like this you know this des had tattoo i don't know what this is where'd that come from who knows what that is The guy's a history buff.

Anyway, it's not a fan. Just a record of like reprehensible public statements, just reprehensible. Says he was going through a dark period. That dark period ended in, I don't know, 2021, Sarah. So you've been out of your dark period for, what, five years? You just covered up your tattoo. And you're now running for Senate. And it's very important to overlook the Nazi tattoo to run against Susan

Collins, that threat to democracy, who, by the way, voted to impeach and convict Donald Trump. And the rationalizations, now I'm not comparing Graham Platner to Donald Trump. Donald Trump is in his own category. So I'm not everyone who's saying, oh, how dare you put them in the same sentence? They are in as far as the gravity of the wrongs committed by the two men, very, very different. But the arguments for rationalization of supporting the wrongs are very, very similar, very similar. Democracy is at stake, et cetera, et cetera. You know, Dens justify the means. We want authenticity, which is a word I'm growing to detest. Have you, like, have you been in a prison? There's a lot of authenticity in prison. Do you want to go ahead and start recruiting your candidates from there?

Because they're super authentic. Like, come on. Honesty is not an equivalent. It's not a synonym for authenticity. I want honesty. Authenticity is a different thing. That is, I am who I am. And sometimes I am who I am is a horrible liar. But we're just seeing this again and again, as this partisan temperature rises and rises and rises, that the argument that was reprehensible, morally unconscionable, and vicious and evil, when the other side makes it somehow becomes totally fine

when we make the argument. Because everybody knows if we win and we run things, then it's all great. They can't win. That's the real harm, It's not the process foul. It's the outcome. And whatever process gets us the outcome that we want,

that's the one we're going to embrace. And it's just a virus that is spreading all over this country. The last thing I'll say, David, is on the actual question of the intervening election. The consequences of this, Virginia Supreme Court decision, that basically holds that you must pass a ballot measure before early voting starts. And then again, after the election,

in order to put a ballot on the Virginia Constitution, will basically mean that for, you know, six weeks or so every two years, you cannot propose a ballot measure, or you can shorten early voting to have that be less amount of time so that you have more time up until the election day to pass a ballot measure for the first time. I think I'm actually great with both of those consequences, right? That, like, the election period is sort of the sacred period where the House of Delegates can't try to amend the Virginia Constitution. And or we have a shorter amount of early voting, which I think has gotten really way too long where we're learning, like we're voting on candidates before the election is really

started. Campaining has started. And so you learn things about candidates weeks later, but you already voted, but the election hasn't happened yet. So I would love if that were the consequence, too. So, yeah, this one's done, David. Yeah, I have no objection to a brief period of early voting. But these six, seven, eight week early voting periods, I really don't like them because

what it really does is it sort of gives away the game that essentially what's happening is not persuasion but mobilization. That's right. You're locking in voters who don't know who the candidates are. Right. Right. You're going to your classic traditional constituencies. You're trying to get your reliables out to the polls as much as possible to bank your votes, to bank your votes. In any democratic system where the voting process really does devolve to mobilization over

persuasion, I think you're drifting towards real problems. That's when you're really drifting towards the kind of polarization that we have now. If your fundamental goal is persuasion, that really does have both a temperamentally moderating effect, and it often has a policy moderating effect. And I'm not saying that moderation is always right, but I don't think that in the United States of America and the Year of Our Lord, 26, we're overcome by an excess of moderation

amongst our elected leaders. We could, at the very least, even if you don't want to compromise on your policy goals, at the very least, some temperamental moderation would do us some real good. All right, David, when we get back, I'm going to read the tweet from Neil Katyal that I actually didn't think warranted any time on this show until the TED Talk came out. So we'll be right back with everything Neil Katyal.

All right, David, let's start with who Neil Katyal is. He was the deputy principal solicitor general under President Obama. He became acting solicitor general when Elena Kagan was, nominated to the Supreme Court. And he has been a constant presence on MSNBC, now MS now as a legal commentator. And he argues regularly before the Supreme Court, David, in fact, over 50 times. I think he's a really nice guy. And so when I saw this tweet, everyone was dunking on it. And I thought, you know what, David, forget it. Like, people aren't always their best on Twitter and it's funny to text your friends about it, but we're certainly not going to talk about it on this podcast.

I will read you the tweet. Five months ago, I argued against the president's $4 trillion tariffs at the Supreme Court. In 237 years, the court had never struck down a sitting president's signature initiative. Legal scholars said it was impossible. Some of my own colleagues said it was impossible. We won, 6'3. But the real story isn't what happened in that courtroom. It's what happened in the months before, and it's the subject of my TED Talk coming out tomorrow. I had the best legal team in the nation, especially Colleen Rose Siddzac, the most outstanding legal strategist I know. Huge thanks to go to the Liberty Justice Center, and in particular it's fearless and hyper-intelligent leader Sarah Albrecht, who organized the client's small businesses as well as to the brave

small businesses themselves. I also had four teachers preparing me, a mindset coach who'd worked with Andre Agassi, an improv coach who taught me that yes and works in Supreme Court arguments the same way it works everywhere else. A meditation coach who taught me stillness. And Harvey. Harvey predicted many of the questions the justice is asked, sometimes almost word for word, brilliant, tireless, occasionally insufferable. Here's the catch. Harvey isn't a person. Harvey is a bespoke AI I built over the last year with a legal AI company trained on every question every justice has asked an oral argument for 25 years and everything they've ever written. Now, tomorrow, Ted releases my talk about what really happened and what I learned standing at that

podium. A.I. can predict. AI can analyze. What A.I. cannot do is the one thing that actually won the argument. Connect. Read the room. Here not just a justice's words, but her worry and answer the worry. That is the irreducibly human skill. Find yours. Go deeper. In this age of AI, that's where your edge lives. So, David, I get it. That's kind of cringe. Maybe it's even very cringe. But you know what?

There's nothing particularly wrong about a lot of that to me. He gives a lot of credit to his team that worked with him. I think it's weird that after 50 arguments, you needed a meditation coach and a mindset coach and an improv coach. But you're crazy if you are an oral advocate who is not working with an AI to help predict the questions that the judges on your panel or the justices are asking. Everyone is doing that. David Latt reached out and asked whether he was making money off Harvey or had any financial

interest, whether they given him Harvey for free. He said, no. He has zero financial interest here and, in fact, pays full price for the Harvey product that he uses. So, David, why are we talking about this? Two things quickly about that tweet. One, it feels very AI written. So if you, and guys, if you are on Twitter, which I do not advise it, you see this kind

of tweet all the time now. There'll be 400 words, 500 words, 600 words, longer than that. And they all are written in the same way, like a punchy paragraph, another punchy paragraph, punchy paragraph, punchy paragraph, mic drop close. And it's just like the same thing every time. It is actually remarkable. So I don't know, maybe it was written by an AI helped write the post or not, but it reads very much like an AI written pose. But number two, once you get past the cringe, I think on the substance, it's exactly right.

You know, I was literally talking to somebody the other day who was talking about how AI is going to replace lawyers very quickly. And I was like, when are we getting the Blade Runner-style replicant who can argue a case in front of a jury? you know, that's when it'll happen is when you have like blade runner style or sylon level technology. But until then, you know, especially if you're a words person, you're communicating with people and human beings and reading reactions and gauging people's reactions. He's completely correct. AI can supplement, but it cannot replace. So the substance put the cringe aside, the substance on that was like, to me, spot on. And I thought it was actually interesting that a person with more than 50 arguments was that painstaking in their prep, was going that deep into the prep, and which is sort of like, you know, if you watch and look, I'm not going to say, as we'll be discussing here in a minute, I'm not going to say that Neil Couchal is the Steph Curry of advocates. But if you know and you watch Steph Curry, say, for example, go through his warmups, the guy doesn't take anything for granted, even though he's like the greatest shooter in basketball.

basketball history. He does the work. He does it. And so I feel like that's an interesting professional lesson for people. 50 Supreme Court arguments in, 50 plus, you're still doing the work. You may not do it the way he does it. Like I never thought, I don't even know what a mindset coach is. But I would not think of an improv coach, but I would think of how do I prep this as seriously as I can prep it. And also it's true that this was a super huge, monumental case. I called it the most important case of the new century. So there was a lot of reason to take it very seriously. Okay, that's the defense. That's the defense. And let's just say, this dude also posted pictures of himself from Burning Man with a beanie hat with a spinner on top.

And we didn't comment on that either, right? This podcast is not like dunking on people, you know, but for the grace of God go I, right? We've all posted super cringe things and we don't want people dedicating time to saying what a loser, you know, what a nerd we are. Fair enough. So all was well and we were not going to talk about any of that because again, not unreasonable to me. Then the actual TED Talk came out. 1.4 million people have watched it. And David, we've moved past cringe into something totally else. I'll just give the first, give some vibe here at the beginning. There is a mahogany podium at the Supreme Court of the United States. One person died there mid-argument, a stroke. Another collapse there, dying soon after. That's the

podium. It also happens to be where I practice law. The most powerful court on earth. Nine minds ready to attack, and you stand 10 feet away from them. There are no prepared speeches in this court, except as Josh Blackman points out your opening statement where they're not allowed to interrupt you for two minutes. There are literally prepared speeches, but fair enough. Instead, 50 questions thrown at you in 30 minutes. I'm making hundreds of decisions in real time. Every argument I choose to make or not make, every word, every pause, every tone, there are no rewinds. Flynch and the justices pounce. That's my courtroom. David, it's roughly 10 minutes long. There's the part where he says it's my courtroom, which is, again, cringe. He also says, I'd argued 52 cases. I'd saved the Voting Rights Act.

I'd struck down the Guantanamo military tribunals. Pretty aggrandizing. In the actual TED Talk, he never talks about his team by name. He makes references to other lawyers that he worked with, but actually dedicates a relatively long amount of time in a 10-minute speech to attacking Michael McConnell, his co-counsel, who he says tried to steal the argument from him. He has no evidence for this, that he has shown.

shown anyone. And that's when I changed my mind about this topic, David. Because when you punch down that way with no evidence and making that kind of accusation, feel free to bring the evidence. I'm open to it. But until then, no, sir. You do not get to give a TED talk with 1.4 million people and say that Professor Michael McConnell tried to snipe the argument from you. Poor form. That's like pretty gross behavior to me. Also, using the AI for moots, as I said, super smart. Everyone's doing it. Nothing special about that. But he gives these examples where he compares the questions that Harvey predicted with the questions that the justices actually asked. Well, David, I actually went through and looked back at the transcript because there's a lot of ellipsies in there. And let me tell you some

things that I learned about this. Guys, this is why you listen to advisory opinions. This due diligence right here. This is priceless. This is priceless. I'm on the edge of my seat, Sarah. Go. A month before the argument, Harvey told me that I should expect a question from Justice

Barrett about license fees. And then he puts up on the screen the question that Harvey predicted about a case called Algonquin, which was a relevant precedent in this case. Again, there actually weren't that many relevant precedent. so of course Harvey predicted a question about the relevant precedents. And then he puts up next to the screen a question from Justice Barrett, where she says, El Guantquin was very careful to always call it a license and a licensing fee.

Dot, dot, dot, dot, dot. So tell me, tell me what the distinction is between licenses and fees and if it matters. Here's the thing, the dot, dot, dot, dot had like, I don't know, 300 words in it, David. She was talking about a different precedent entirely when you get to the end. end of the question. And guess what, David? The question wasn't to Neil Cotill. It was to a different advocate. It was to the Solicitor General on the other side of the case. So let's continue. Harvey predicted that Justice Gorsuch would ask a question about, everyone brace it, the Constitution. So Harvey, the power to lay duties and imposts is front and center in Article 1. Why shouldn't we

apply a clear statement requirement before concluding Congress transferred any part of that power to the executive in Aipa. Justice Gorsuch's actual question, it does seem to me, tell me if I'm wrong, that a really key part of the context here, if not the dispositive one for you, is the constitutional assignment of the taxing power to Congress. Isn't that really what's animating your argument today. And in his transcript, he says, it knew that Justice Gorsuch would ask me about the taxing power. Again, that question was not to him. It was to a different advocate. And yes, Justice Gorsuch asked about the text of the Constitution. I could have told you that. I think anyone could have told you that. Like, that was actually every justice asked about that, really, because this whole

thing was on whether the Constitution allowed that. This was the whole non-delegation argument. Okay, there is a question from Justice Kavanaugh. It says it knew Justice Kavanaugh was going to grill me on tariffs versus embargoes. Here's Justice Kavanaugh's. Here's what he included in the PowerPoint. Well, what's the difference between a quota and a tariff and what's the difference between an embargo and a tariff? That is actually Justice Kavanaugh quoting a different court. It is not Justice Kavanaugh's words. And then there's an ellipses. And he says, we find no support in the language of the statute. Elypsies for. Elipses that the authorization. Elipses, yada, yada, yada. That's all quotes from a precedent. He's reading a precedent and then asking him to comment on that

precedent. That, to me, looks pretty different. Then we have Harvey predicting that Justice Barrett would be worried about tariff refunds. Fair enough. Except as we've talked about on this podcast, in fact, so much so that, David, it's in my book that Justice Barrett asked questions. questions about consequences, right? And then the advocate pushes back in that one case and says, well, that's irrelevant to the constitutional question. And she says, I know. And I'd like to know what the consequences are. So once again, you didn't need an AI to predict that she would ask about consequences. If you are a, you know, following this in any way, you would hear that. I just, I actually found this if you're an actual Supreme Court person to almost prove the opposite that Harvey was

really unhelpful because we don't have the denominator. How many questions did Harvey come up with to be able to then say that it predicted this question? Because if the answer is Harvey predicted a hundred questions and one of them kind of looks sort of like this question, if again, we take the most obvious questions in the whole world that could be asked, that's not great for Harvey. There are three words that came to my mind when I saw the TED Talk. And they're going to not, they're going to surprise you. My three words were, top dog law. Okay, why would I say that? If you, you can't go anywhere driving around in the Midwest without seeing advertisements for call top dog, top dog law. And it's like this very brazen, I win cases. Like, you don't call

yourself top dog unless you are broadcasting that you're like the pit bull and, you know, even the picture of topdog law.com. I think that's, a pit ball by top dog lawyer. And it reminds me, it's like he went in to the TED Talk and said, I'm top dog. And I'm going to show you how top dog I am. My courtroom. I won. I won. I won. My courtroom. Deck stacked. Scholars said this was impossible. What? What? Scholar, scholars, yeah, scholar said, you're winning this case, Neil Cottchall. You're winning this case. Now, let me tell you, I think there's something that's kind of weird out there, Sarah. And we talked about this a little bit in the green room.

Can I call it the painfully unsophisticated, highly educated, political hobbyist? And this is the audience for an awful lot of political media, is this audience. And it is people who have a pretty good degree of education. They're highly attuned to politics. And they're highly partisan. And that last bit of it, the highly partisan, actually means they become much less sophisticated about politics and law. Because the media that they consume, this goes back to like the more in common survey from 2018 that shows the volume consumers of political media are the most wrong about their political opponents. So you've got, as your media and TED Talk listeners, is probably a highly educated person.

It's not rarely does somebody go from third shift at the tire plant to a TED talk, right? Now, there are some people who do, but it's not your core audience, right? So it's a highly educated audience. It's a very partisan audience, by and large, and probably highly attuned with political media. And if you're on the left, if you're left-leaning and you're highly partisan and you're highly attuned to political media, what is the one thing that you have in your mind about the Supreme Court? totally biased against us. You can't win. It's always going to rule for Trump, blah, blah, blah. All of the facts that you put out in your books, Sarah, all the facts that we talk about and advise your opinions, they don't know any of that. They are just deluged with Supreme Court's for it. It's rigged. It's rigged. It's rigged. Look at Dobbs. Look at these emergency docket cases.

Rigged, rigged, rigged. So then you have this attorney come in who's a fellow liberal who won in front of the 6-3 Supreme Court. and he is going to, if that's your mindset, look like Zeus walking down from Mount Olympus. He's got a thunderbolt in each hand. I walked in to the lion's den, this 6-3 Republican court and got a 6-3 Republican court to strike down the signature,

signature policy of a Republican administration. Look at me, I am the God King. I am Zeus. And it is a, a message that lands with a particular audience incredibly well, because it plays its premised on all of their false assumptions about the Supreme Court. If you actually walked in with a realistic view, he was the favorite. He was the favorite. He was big time the favorite. He is the Oklahoma City Thunder in the 2026 playoffs. He was the Los Angeles Dodgers in the 2025 World

series. I mean, he's walking in as a prohibitive favorite. And he won. His client won. He won. All credit to him. I would not minimize that at any way, shape, or form. But you know what? I would also not do? Maximize it. Right. Don't minimize it. He did something impressive. He won a major, major Supreme Court case. And guess what? I don't care if you are the favorite when you walk in. You still got to win the case. You still got to deliver the argument. make the argument. So all, I do not begrudge him a scintilla of credit for winning this case. However, my gosh, dude, please just acknowledge the truth here. You know, the truth is you're walking in as the odds on favor to win the case, that if you, those of us who knew the jurisprudence of these

justices knew you were the odds on favor to win the case, this was much more of a situation where if you're going to begin the TED talk, you would say, I walked in with the worst kind of pressure an oral advocate can feel. And this would be true. I could blow a winnable case. And I could, everyone knew walking into that courtroom that the odds are that I could win this. But I'll tell you, as somebody who's been on the underdog and been the favorite, I would much rather be the underdog.

It is much more stressful to be the favorite because I feel as if a loss is on me. So I hired a mindset coach. I hired, you know, to me, that's a very honest, true, clear way of explaining why would somebody who's the favorite feel so much pressure? Well, I've been the favorite arguing cases before, and I felt intense pressure. And then when I'm been the underdog, I've been much more loose. I've been much more, you know, I felt much more relaxed going into court. I took my, I took the big swings. I try, you know, and so I think there's a way he could have done the TED talk, which actually approaches it realistically, that would be very humanizing and not take any credit away from him for winning the case. Because the one thing I don't want to do

in talking about this is just denigrate him for he won, you know, his client won. Credit to you, Neil, you won, but gosh. And then trashing Michael McConnell like that. Everybody knew who he's talking about. He's just referred to as like that guy, I think, in the in the in the in the TED talk. What are you doing? I mean, we weren't there. We don't know all the ins and outs. We don't know all the full story. But Michael McConnell has a reputation as being a gentleman. I have known him not closely, but I've known him for years. I've worked with him on cases. And he is a gentleman. He is not a self-aggrandizing egomaniac. I've never seen a hint of that in him.

And so I don't know what went on behind the closed doors for all, you know, I'm not going to opine on the, the veracity of all this, but it was just such an unnecessary inclusion that really went with sort of this narrative of I'm the underdog, I slayed Zeus, and quelled an internal rebellion at the same time. If you remember, David, we did talk about this before the argument, and I said that I thought they were making a strategic mistake, not having someone fluent in conservative legal thought, argue this case because it turned so heavily on the major questions doctrine and non-delegation

doctrine and that having Neil Cateaul argue it was a mistake. Jason Willick wrote that in the Washington Post as well. Part of this TED talk is saying that Michael McConnell put Jason Willick up to that piece in the Washington Post. Jason Willick has since come out and said, that is not true. I talked to Michael McConnell the afternoon of the argument and basically prodded him into like, hey, you know, that didn't go very well in terms of the oral argument. You guys win and expected to win and you lost altitude in that argument. He wouldn't take the bait. He was like, well, I hope we went in the end. Thanks. Good to see you. And walked off. And then, of course, the client herself has come out and had some harsh words for this TED talk as well and how

unfortunate it is. David Latt has put together a whole newsletter on this over at original jurisdiction. This is catnip for David Latt, by the way. This is David Latt's Christmas is when you have like this high-level Supreme Court drama that he can unpack. I love it. I love to see a man in his wheelhouse. So here's, he put together some of the tweets. Here's Dan App's. Counterpoint, the justices are good at figuring out what they think about a case of this magnitude, and Neal's four coaches had zero effect on the outcome. I don't think I have ever seen a SCOTUS advocate claimed so much personal credit for a win before. Yeesh. And David, this is what I quoted, sorry, tweeted, quoted, citing an anonymous member of the Supreme Court bar. I hope Neil knows he

just announced his retirement in the form of a TED Talk because he can never appear in front of the court again. And I just thought it was worth to wrap this up, David. Do oral arguments matter and what that actually means? So one, we've said this before, right? The cases are largely decided on the briefs, but the oral argument sets the aperture. Is it a big win? Is it a narrow win? And sometimes you are picking off votes. And most importantly, you can lose the case at oral argument. I would have been really curious to see whether Michael McConnell arguing might have been able to move, for instance, a Justice Kavanaugh, or maybe even a Justice Alito, into a separate concurrence rather than being part of the dissent, for instance.

Would have been interesting to me. We'll never know. Fine. So that cuts both ways, David. On the one hand, claiming huge amounts of credit because of the oral argument, like, that's not how oral arguments. That's not what they do. but also, you know, me saying he will never argue again before the court, like, what does that matter?

So here's why, David, when you send in your cert petition to the court on behalf of your client, there is a counsel of record. And if you've read my book, you know the next process, right? It goes to the clerk assigned in the pool memos to write up that case. It's very short oftentimes, two pages, and they have these little short forms at the top, you know, splitless, fact bound, no apparent error, that means you're getting denied. There can also be a thing called a vehicle problem. Some procedural box wasn't checked. Who knows? It's just not the right case. They basically get the same cert petition for the same kind of fact pattern, maybe not multiple in a term, but they know they're going to get another one next term, and they'll wait for the right vehicle. I've complained about this.

It's why we have so few cases going to the court right now because they wait for the perfect vehicle. but David, I am aware of a clerk writing in his pool memo, vehicle problem, brackets, the lawyer who was the counsel of record, that that itself was the vehicle problem. And when you have multiple cases coming up with the same question of law being presented, yeah, they do sometimes pick the lawyer that they actually want to argue the case. And so, yeah, I think that having this kind of TED talk, if you are a sophisticated client deciding what lawyer you want on your brief because you want your cert petition to be granted, you would be insane to put a lawyer that basically just insulted all the justices on the court in this weird, bizarre, self-aggrandizement exercise where he also insulted another member of the Supreme Court bar for no apparent reason with no actual evidence. I would not, if I were a general counsel, I would never put that name on a cert petition unless I wanted it to be denied. actually connects with our professionalization of the court conversation, which is once you have a, say, a Paul Clement, you know, the goat, the conservative goat in all of, in these Supreme Courtal arguments, there's a sort of self-reinforcing momentum you get after a while. So if you're somebody and you've got, you know, let's say there's a circuit split that's hanging around out there and there's two to three to four vehicles. And one of them is a big commercial firm that wants its case heard.

You know what they're going to do? They're going to back this dump truck up full of hundreds and just like dump it on top of these leading Supreme Court advocates to draft the cert petition so that in the cert petition, their name is the Council of Record. And this creates this sort of self-fulfilling prophecy almost that's the Council of Record helps get the cert petition in theory, in theory. And then once that cert petition is granted, well, then that's, of course, who's going to argue it. And so it's at the cert grant stage that already you're starting to get this professionalization and narrowing. And the competition there is very, very intense. And, you know, to have an own goal like this, like I don't think this is it for Neil Cottchall. I mean, he's got 50 plus cases. He'll argue more,

I'm sure. But this is not something that helps. And, you know, it really does show you always have to keep in mind more than one audience, you know, if you're sitting there and you're just giving catnip to a TED Talk audience, you have to know that other people are also watching you and who are not TED talk audience, who are not going to eat all this up because they know a lot more about what went down than the TED Talk audience does. And as much as many plot it and as many views as you're going to wrap up, wrap up on YouTube, the actual audience that really matters has tuned you out or has discounted your position, or you've put yourself in a hole with them in a certain way. And I think that that's what happened here. And it's one of these consequences,

I think, of this just populist moment where this temptation to throw chum in the water. Because one of the ironies of populism is you always have the leader of the populist movement. You know, you always have this sort of populist elite, the man on the horse in front of the mob, and everybody wants to be that man on the horse in front of the mob, so they throw that chum into the water. And it's just, it's disappointing. He didn't need to do this. He had a good story to tell. He had a really good story to tell. And look, you know, what you just said, Sarah, about you can lose at oral argument, harder to win at oral argument. That's why it's so nerve-wracking to be the favorite

because I can throw this thing away. You know, it's why defending champs often play tight. They're worried, like, I could throw this thing away. And so you do have a story to tell, but it's not the story that he told. And it's not the story that maybe a left-leaning TED Talk audience was wanting to hear. I don't know that they want to hear that these Republican nominally. justices were already predisposed to rule against the Republican president. Maybe that's not the that's not going to land in the same. Well, David, David Latt reached out to Neil Cateall and asked him

for his thoughts more generally on what one reader of mine dubbed Tedgate, here's what he had to say. And I'm going to do some ellipsies of my own, but I think I'm going to capture. He had three paragraphs, and each paragraph had a different message. Paragraph number one, thanks for asking. The whole point was to admit vulnerability and to share with folks that no matter what your past looks like, it's still really hard and difficult. The bar is not really honest about this. I've often thought that the talk I really needed to hear in law school was not about the various modalities of constitutional interpretation, but rather about the difficulties and how out of place one can feel in the practice of law. Paragraph number two. I have been fortunate to learn from the best advocates and from

experts outside the law and I work my tail off to try to improve all the time. I've never felt like I'm the best lawyer. The one skill I feel confident of today is the ability to put together fabulous teams and learn from them. The whole talk is about team ball, how to put together that team in your life to be able to do the things you want to do. And then number three, the AI piece is part of that. Our profession is on the verge of a seismic shift and the legal profession doesn't understand what is about to happen. Lawyers are already using AI. Soon judges will be if they aren't already. And we need to begin that conversation now. And the talk is an attempt to do that. As David Latt said, I agree wholeheartedly with Katyal on the importance of admitting vulnerability,

learning from others, working as a team and embracing the power of AI rather than pretending it doesn't exist. And if his tweet and TED Talk had sounded more like the reflections he shared with me, the public reaction probably would have been different. couldn't agree more, David. I thought that email was lovely. But to your point, that email does not gin up your base. That's a TED talk I would love to see. A 50-plus guy argument guy saying, I still feel insecure, I still feel vulnerable,

here's the process that I do. That would have been tremendous. Instead, we got my courtroom. Yes, I blocked Guantanamo. You, what? That's an insane thing to say that you did anything. I mean, you can say, I argued the case. case that dot dot dot dot i persuaded the justices i'll accept that but you didn't block anything with your

article three zero powers okay david when we get back we have an email from an ap government teacher the ap government exam was this week and in preparation for their test he developed a would you rather activity and david i thought i'd play a little would you rather all right david you ready would you rather, this is the most exciting nerd game ever created, would you rather live under the Articles of Confederation or live under the U.S. Constitution pre-bill of Rights? This one's easy. Let's see if you can get it right. Oh, U.S. Constitution pre-bill of rights. That's correct. And by the way, there's no correct answer. I'm just, you know, McLaughlin style. Anarchy versus at least some degree of order. I'll take some degree of order.

Would you rather be a federalist at the Constitutional Convention or be an anti-federalist after the Constitutional Convention? Anti-federalist. Oh. Ooh. Ooh. Okay. All right. This one's tough, Sarah.

I'm going to say federalist at the convention because the anti-hmm. It depends on what my brand of anti-. federalism is, is it strike down the whole constitution or is it I will vote for this constitution if you add the Bill of Rights? That one I'd rather be. That one I'd rather be, but throw the whole thing out, not that way. Would you rather, this is maybe the hardest one? And it's one that we've talked about that I hope lots of Americans talk about as we approach the 250th anniversary of the Declaration of Independence, because this really was the question. would you rather have the Constitution fail without the three-fifths compromise or have the Constitution ratified with the three-fifths compromise?

Boy. That's it, right? That is a question of America's constitutional republic. That is a great question. I think you ratify it with the three-fifths compromise because I don't think if the Constitution fails, that doesn't end slavery. it might end America, it wouldn't end slavery because that wasn't the issue. The ending slavery was not on the table. That was not even in the realm because, you know, all of the southern states,

which by the way, relative to the north were much more powerful and prominent than they were by 1861, then do those southern states stay in a, boy, that, yeah, that's a, that's a, that's a, that's a, really, really great question. But I think once you realize ending slavery is not on the table at that point, and the question is a United Country or not a United Country, that's... Woo! All right, David, we're going to end on that one for this episode. I may come back to a few of these, because this is, there's 56 of these. I love it. I would do a whole podcast for this, it just had the greatest time. And they are nerding out. I mean, some of these, you've got a really, you're going to score a five on your APGov exam.

I'll tell you that if you can even understand 30 of these. Oh, just you reading these out to me says these kids are going to be just fine because I will tell you, my AP history class was not this intense, not by a long shot, not by a long shot. So good on you. Good on you, teach. That is a, those are some great questions. I want to answer more, Sarah. I want more.

Give me more. Well, good for you. This is in a high school in Charlotte, North Carolina. He's been teaching there for 16 years. You know who you are. Extra shout out. And to everyone else, I have got this case on the Lanham Act. And you think to yourself, that can't be sexy.

And you are wrong. I feel like it is the case that I'm going to point to, David, to decide who the next Supreme Court justice should be. based on what side of the argument they take. This was a 2-1 decision out of the Ninth Circuit, and I think far more than ideology, it tells you everything you need to know about a potential justice. So we're going to do that next time on advisory opinions.

Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us, and we hope you'll consider becoming a member of this. Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at the dispatch.com slash join, and if you use promo code AO, you'll get one month

free and help me win the ongoing, deeply scientific, internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership at the dispatch.com slash premium. That'll get you an ad-free feed and early access to all episodes, two gift memberships to give away, access to exclusive town halls with our founders, and a place in our hearts forever. As always, if you've got questions, comments, concerns, or corrections, you can email us at advisory opinions at the dispatch.com. We read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.