Advisory Opinions - Tick Tock, TikTok,

Episode Date: December 19, 2024

The Agenda: —Christmas is canceled for the legal teams working on the TikTok case —Why in the world did Yashar Ali get the Federalist Society leak? —Justice Jackson and 'Juliet' drama —ERA DOA —It's an ethics violation to question the ethics of a Supreme Court Justice Show Notes (assigned reading for next episode): —Origins Part 1 —Origins Part 2 —Origins Part 7 Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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up to 90 days in advance. Uber Reserve. See Uber app for details. You ready? I was born ready. Welcome to Advisory Opinions, I'm Sarah Isger and that's David French. Oh, and look, it's David Latour joining our end of year extravaganza where we will talk Federalist Society reporting ethics complaints, Justice Jackson appearing on Broadway and everything in between. But first, we have breaking news out of the Supreme Court and David French, you and I were just wrong about this one. The Supreme Court has treated the application for a stay trying to prevent the TikTok ban

from going into effect on January 19th. They have treated it as a petition for certiorari and they have agreed to hear the TikTok ban from going into effect on January 19th. They have treated it as a petition for certiorari and they have agreed to hear the case on an expedited schedule. This is similar to what they did for the vaccine mandate case around COVID. Honestly, I'm sort of kicking myself for not seeing this one coming.

Because the law goes into effect January 19th, we talked about the fact that once the law goes into effect January 19th, we talked about the fact that once the law went into effect, it would be very hard for them to hear this after. So they are going to hear argument on January 10th, we're going to have our work cut out for us, but not as much as the work that these lawyers now have. Because the first brief will be due December 27th. I'm so sorry to Noel Francisco and his team over at Jones Day, who just had their Christmases canceled.

But not to worry because the government will have their brief due January 3rd. So no late night new Year celebrations for them. And all you amici out there that have opinions, no Christmas, December 27th deadline for you as well, set for oral argument. That's a Friday, January 10th. So I don't know, David, we might have an emergency podcast

that evening. You know, there's so many questions in this case. The first of which is whether David Latt, this even implicates the First Amendment. Yep. No, exactly. That was an issue that surfaced at the DC Circuit. Yeah. And, you know, I think it's really going to depend on the framing here. Is this a law aimed at a foreign-owned company owned by a hostile power that is vacuuming up Americans'

personal information and moving into the hands of a hostile foreign power, and a conduit through which that hostile foreign power is then injecting itself into the American conversation when it obviously has no First Amendment right to do so, or is this a case about the Americans who are watching it on their phone and receiving information? Now the information receipt, now this is what's gonna be very interesting about this and what I'm hoping to see out of this case

is some greater discussion of this sort of First Amendment concept of a right to receive information, which is not been fleshed out really fully. I mean, we've talked about it some in the PICO case around book banning and library books. There were some also. I mean, the original case for this, I think, was this idea that a professor, it was an immigration case in some ways, a professor had been denied a visa and the people who wanted to attend his lecture here in the United States,

said they had a First Amendment right to hear the information the professor was going to provide. The court sided with them in that case and said that the government had to provide that visa. I don't know, I'm a pretty First Amendment absolutist, but I'm also pretty originalist, definitely textualist. I think the First Amendment right belongs to the speaker, not the listener.

And I don't know exactly where the contours of that, there's gonna be some gray area even in that. Absolutely, yeah. But, okay, but even that, David, okay, so whether it's a First Amendment case for the listener or a national security case there, there's two other things here. One, even if strict scrutiny,

like even if it's a First Amendment case and strict scrutiny applies, does the national security interest overcome that? Exactly. So what exactly is strict scrutiny these days? Is this Supreme Court still gonna use the tiers of scrutiny in the First Amendment context, even though they've chucked it in the other context?

Especially in a case where something may pass strict scrutiny. Are they going to really make this about tiers of scrutiny? And next, the Justice Kavanaugh line. Who gets to decide? Is this going to be a case where Congress just gets to decide questions like this? And this is really about Congress do your job, Congress did their job. When you have an incoming administration who says they want to revisit this whole thing, they want a different position, will Congress try to change its position?

All of these things are in the atmosphere, which makes the January 10th argument and the January 19th deadline for when the law itself will go into effect so interesting because there will not be a President Trump before this thing happens. But I'm gonna bet you're gonna see an amicus brief from President Trump, wait, future President-elect Trump. Yeah, oh, I, you know, you know, what's fascinating about this

is that this has been a total 180, because this, from the sort of the Trump and the MAGA movement, because they were the pine. No, this is actually a 360. Oh. This is one of those few things that's actually doing. Oh. Oh, wait, no, is it?

No, it's a 180. Nevermind, nevermind, okay, sorry, take it back. It's a 180. Yeah, they have completely reversed themselves because this was originally part of the, hey, see, look, Trump is tougher on China than the Democrats. We're so tough on China, we wanna get rid of TikTok. And then turns out that Trump kind of figures out

that he's got a lot of MAGA folks on TikTok. And he's like, well, you know, we do pretty well over there. So I'm, we need to keep TikTok. Which is just a perfect illustration of one of the issues with Trump, which is if there's no underlying coherent ideology there, but what is absolutely their self-interest, it's very hard to rely on any given policy statement,

other than a couple that he's always made, but this was a 180 for sure. David Lapp. I have a couple of points. One, if I can kind of lured it over you guys, I did predict this grant. Economically, it involves a business that could be sold in a forced sale that could be worth $200 billion.

It involves, as you were just discussing, some important issues of constitutional law. So it has both practical effect and significance and doctrinal effect and significance. So it was one of those situations where I thought they would grant it. I didn't know they would grant it so quickly. I thought, well, maybe they'll put a stay that will block enforcement of the law, and then they'll decide it in the spring and issue an opinion by July. But no, they're not doing that.

They're going to decide it more quickly. My second question or topic or observation is, procedurally, I wonder, could they do what some circuit courts do, where they'll have the argument, they will have the justices will have their private conference where they will vote on how this comes out. Could they basically issue their judgment or their bottom line in terms of TikTok surviving

or not with an opinion to follow? Because the Supreme Court can work fast when it needs to. We saw this in some of the election or Trump related cases. But can they really whip up this opinion that quickly? Again, in terms of people whose holidays are being ruined, I'm sure some clerks are probably doing a lot of preliminary working up of this case to make it much easier and faster

after the case is argued to put something out. And then my last point, picking up on your point about the tiers of scrutiny and whether they're still viable in the First Amendment context, a lot of times we have a situation where Justice Thomas or some other justices, here's an interesting question, but no party raised it, so we're not going to tackle it. I think that just for the legal nerds among us who are interested in this, I hope some party or someone raises the issue of, you know, we should get rid of the tears of scrutiny

or we should preserve the tears of scrutiny or whatever it is. I hope somebody raises it so that justices can't dodge this fascinating question by saying, well, under the principle of party presentation, nobody asked us to do this or nobody raised this issue. Somebody should raise the issue of the continuing viability of the tears of scrutiny in the First Amendment context so that justices have to give us an answer. Yeah, to your point about issuing the decision, if you will, before the opinion, I don't think they'll do that. But there's also something that Justice White pointed out, Justice Gorsuch has pointed out, Justice White pointing it out, this idea that the cases argued in April have the worst decisions, basically, the worst opinions, they're more

likely to be overturned than cases that were argued some other time because of the limited timeframe. Basically, we have data that shows that the court isn't as good when it's working on a short timeframe. I actually would be great with your idea. Issue the bottom line in the week between the argument on the 10th and when the opinion would go into effect on Sunday the 19th. But take your time on the opinion.

It's actually fine for people to wait and have to read why later. I just don't think they'll do that. I also think it's less important if they're upholding the circuit and the district court decision. I think it's more important if they're reversing those to have sort of a fulsome earlier opinion probably. But look, this was the point that Justice White was making. These decisions that don't have a lot of time

and the opinions aren't particularly like, well reasoned tend to not stand up over time. They're the precedents that are more likely to get overturned as well, because they don't have that sort of stability in their own reasoning that Justice Kagan pointed out in her master's thesis before going to law school, annoyingly precocious master's thesis. So yeah, your timing point is, is well made. But to all of you listening who are involved in this case,

we'll pour one out for you as we enjoy our holiday, I hope. (*LAUGHS*) Before we get to David Latt's reporting on the Federal Society, real quick, we are gonna take two weeks off from this podcast for the holidays, but we wanted to leave you guys a little fun nugget, which is a special Christmas episode with judges, Eskridge, and Starr. This is from a class that they teach

and many others on the origins of the Constitution for law students, and they're going to teach one of those classes on the origins of the Bill of Rights to David and I. You can do the reading before the class, just like you're supposed to in law school. We're gonna put it in the show notes for this episode. If you wanna do it like a real law student, I suggest you do the reading between midnight and 2 a.m. or in the 30 minutes before class. But you don't have to do the reading to enjoy this episode.

It's about 70 pages of reading. It's some fun primary documents, some Federalist debates, some Anti-Federalist material. But regardless, we certainly think you will enjoy the episode. And if you do want to do the reading ahead of time, again, you can go to the dispatch.com and go to this podcast and you'll find it in the show notes. All right. With that, let's move on to the future of the Federalist Society.

David Latt, you just had your piece out in original jurisdiction reporting on how the decision was made, how Sheldon Gilbert got the presidency of the Federalist Society when he wasn't even in the final two. I found the substance of the reporting, of course, very interesting, but I actually found the way you reported it interesting as well, just from a journalism perspective,

because you kind of walked us through how this works in our line of work. You said, hey, I got this tip, and then you explained the tip. And then you said, here's what I did, and here's who I called. In some ways, you use names and other times you didn't use names. Basically, I called people to check on this tip. And then you were like, basically, very little of it was corroborated by the people I talked to. Here's what they said. And then I were like, basically, very little of it was corroborated by the people I talked to. Here's what they said. And then I had a conversation with these people. Here's some quotes from that conversation. And you kind of let the reader then decide for themselves what they thought about either the tipper or the people pushing back on the tip.

And I just thought it was a really interesting way to do it. Because normally, you know, a journalist gets a tip. You never hear what the tip was. You just sort of see the final product of, here's what happened instead of, here's my process. I don't really know, but here's how I come down in the end. Yeah, no, I think that's a good way of putting it. And in some ways, I think it's a little bit of the difference

between old school blogging, I guess, which is now kind of morphed into news lettering and so called mainstream media I think those of us who came up in the blogosphere always sort of believed in breaking that fourth wall and mixing fact and opinion and Explaining our process and letting the reader inside. And so that's what I did here. I had heard all kinds of wild rumors and gossip about how the Federalist Society selected Sheldon Gilbert as its next president and CEO. And so I put together all the rumors into what I kind of thought was a chronological narrative.

I reached out to the Federalist Society. Often, as you know, they don't comment on these things. But I think some of the rumors were so off and also perhaps so negative that that might actually I think have spurred them into being willing to chat. I actually wasn't necessarily expecting them to chat. And then I get a call from Gene Meyer saying, hey, let's chat. And then he says, hold on, I want to patch in Leonard. And I have to mention, I've had a few conversations

with Leonard Leo over the years, but he's kind of this mythical figure on both the left and the right. He's sort of regarded as sort of like the godfather. If people on the left view the Federalist Society as some kind of evil organized crime mafia operation, he's the godfather. Even though Gene Meyer, of course, has led the organization for decades,

Leonard is very, very influential. And he left, of course, the Federalist Society as a staffer to go help Trump pick judges. And now he has a war chest of $1.3 billion in philanthropic funding that he gives to different conservative organizations. He's a very powerful figure. And so I was kind of a little nervous talking to Leonard.

And the other thing I was kind of nervous about was some of the rumor that I had sent to Fed Soc asking them for comment on was not flattering to Leonard. And so it was kind of like, oh, do you want to comment on all these negative things that people said about you? So I, and look, I was just the messenger. It wasn't like I was saying the negative things about Leonard,

but I still felt awkward. And what was kind of funny was, we went through the points one by one, point by point. And so Leonard would read each one before he responded to it. And some of them were very negative. So it was just kind of funny to have Leonard read these things that were kind of insulting towards him and then respond. I felt a little awkward. That reminds me of when I was up for the DOJ job that I ended up taking. Then President

Trump asked me to come to the Oval Office to interview for the job. And so I was sitting on the other side of the resolute desk and he pulled out a file and started reading verbatim all of the negative things I had said about him during the 2016 election. And it's funny because it's been reported that meetings been reported before and it's been reported correctly in some places and like really falsely and others. But that's the part that was hilarious. I remember the one in particular where he looks down and he says, Trump is smart, but a bad person morally. His eyes meet mine as he looks up on the word morally.

So yeah, so I've been on the side of that and I was the one who said them in that case, unlike you, who was the messenger. So, you know, nightmares really do come true. You know, I want to pause on this point for just a minute, because this, on this part of the account for just a minute, because I think this is really important for folks to hear and understand, because I just this is really important for folks to hear and understand, because I just finished a first draft of a newsletter talking about the drone story in New Jersey, and I'm going to connect these things, okay?

So the way reporting works is you get off a bunch of these rumors. They come into you, and some of them are lurid, some of them you think, oh my gosh, I'm sitting on a pack of dynamite, like I mean, this could just blow up. And so then what you do is you say, okay, how true is this? Let's put this through the paces.

And that takes time. So that means calling sources, that means double checking, that means talking to people, it means reading documents. And then that takes a day or two. And even your report was fast to generate. It was long and fast, but it was 24 to 48 hours before it was all out there. But what new media often does is it takes the rumor and just pops it out there.

So perfect example in the drone situation is, you know, look, there were all these reports of drones and people are, you know, total confusion. Is this Venus? Is this Orion? Is this American Airlines Flight 377 into Newark? What is this? And then in comes Joe Rogan and he goes, well, I wasn't concerned until now.

And he pops up like a five minute video from the CEO of a drone company who's saying, well, everybody knows that Ukraine lost 80 nukes and we've never found them. And I talked to somebody who's put his hand on a Ukrainian nuke and is warning the American government of the presence of that nuclear weapon is heading to the US. And so why would you fly drones at night?

To sniff out radiation. Okay, okay, wait a minute. Is that something you just pop out there? Right? Is that just something you use your infinity Twitter following as Rogan has and just say, hey, for your consideration, guys, here's a rumor about a rogue nuclear weapon. Because people then click on the video, which has 30 million views as of this moment, and he seems credible, you know, like he's got a,

he's a CEO of a drone company, man. What doesn't he know about drones? But they don't know anything about the background of Ukrainian nukes, et cetera, et cetera, et cetera. And then you end up with total fear. You end up with FBI Newark putting out a statement on Monday night saying, don't shoot at airplanes. You know, and so, anyway, it's just, I think it's very important to highlight what reporting is,

what good reporting looks like, which is what you did, and also that it can take time. And so that when there's a strange thing that occurs in the media that doesn't have an easy or there's a strange thing that occurs that doesn't have an easy immediate explanation, sometimes you just got to press the pause button and let people work for 48 to 72 hours. No! Not in this day and age! Yes, yes. Anyway, side digression, sorry. And we'll take a break to hear from our sponsor today, Ethos. Your family depends on you.

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I've talked to Yosher before. I mean, that's how crazy it is. But for him to get the scoop on who the next Federalist Society president would be was odd. And at that point, as far as I can tell, only the members of the board were privy to that information at this point,

which brings up, okay, so then why and how did Yasha get that leak? I think they're sort of the school that the board is dysfunctional version of this and that someone did it to hurt their own organization, which would be a real violation of all sorts of board duties as a member of the board. But, and this also goes to the journalism point, I tend to believe that a fair number of leaks of board duties as a member of the board. But, and this also goes to the journalism point,

I tend to believe that a fair number of leaks are not motivated at all. Someone tells someone else over dinner that night or at a holiday party, and that person then wants to show that they're in the know and tips off someone. It's far more about showing off and burnishing your own credentials than it is about any motive. Because frankly, I can't really figure out what the just the motive of leaking Sheldon Gilbert's name 48 hours early could be other than, aha, we'll have caught them flat-footed. Yeah, fair enough. I mean, it wasn't great for the Federal Society or for Sheldon. It makes them look like they don't have their eggs, you know, in a basket together.

But otherwise, I think this looks more like an accidental leak or a puffery leak, I'd call it, David. I think that's quite possible. It was fast because the board meeting that ended up with Sheldon as the selection concluded at around Friday at 3 p.m. according to Gene Meyer and Leonard Leo whom I interviewed for this piece. The leak came around on Saturday afternoon and I think it was probably 24 hours or less after that meeting but I kind of agree with you Sarah I don't know that a board member necessarily did it and if you believe what Gene and Leonard told me, they said that there was a lot of unanimity and harmony

on the board, at least as to this process. But it could have been that Friday night, somebody mentioned to a friend over dinner or drinks, oh, hey, we're really excited. We just picked a new president and CEO for the Federalist Society. And then maybe that person told another person. And then 24 hours later,

it somehow makes its way to Yashar Ali. But it was weird because it wasn't like it was reported by a conservative media outlet or a pundit with ties to the conservative world or something like that. But I did believe it. I was like, how did he get it and why? But it wasn't the kind of thing where I thought,

oh, this is fake. But what was surprising to me was, it was in conflict with some of the past reporting that you and I had done. I had reported in October that there were five finalists for this role. You had reported, I believe, in November that it was down to two.

And then Sheldon was not on the list of the five or the two. And so that was sort of my puzzle going in. Were Sarah and I misled? Were we off? And I didn't think we're off because we're not usually off on things like this. We're very well-sourced and knowledgeable and responsible. So how did we get this wrong?

And it turned out that we didn't get it wrong. We weren't wrong at the time that we made these reports. We got overtaken or superseded by events. And I mean, the other part of your reporting that's interesting is Leonard and Jean, at least according to the rumor mill, loathe each other. There's all this tension within the Federalist Society between Leonard and Jean. And so for the two of them to get on together to talk to you was really more symbolic almost than anything else because you basically have Gene backing up Leonard

to give Leonard credibility and push back on some of the negative things that were being said about him. And at the same time, you have Leonard backing up Gene on how the Federalist Society has been run up to this point, because a lot of the sort of like, why they hate each other rumors and gossip was, you know, Gene hates

Leonard for politicizing the Federalist Society by going in with Trump and by sort of raising the profile of the Federalist Society in this political moment so that it became part of, you know, the negative polarization so that, you know, the Federalist Society is now this boogeyman in a way that it really wasn't up until eight years ago. And then on the flip side, Leonard is annoyed with Gene because same old, same old, they're not prepared for the next generation, they're not changing, they're not doing a transition,

they just wanna like the founding class wanna hold on to power forever and ever. And they're not getting with the time, so to speak. So for you to have them both on together was really fascinating. And in your description of your reporting, you know, they're finishing each other's sentences and very much in love. Yes, I was actually very surprised by that. I actually was about to use the line about finishing each other's sentences

because it really did feel that way. I almost thought, wow, is he kidding? He's going to put Leonard on the line? Because I've heard those rumors. I've even reported or shared some of those rumors. And look, I think it's true that they do have different visions for the society. I think Gene has a more old school vision of it, going back to its origins as a place where important and serious ideas are debated.

Leonard, I think would like to have a more politically engaged society. One of the things I mentioned in my report is that one of the organizations that handles some of Leonard's giving, the 85 Fund, sent a letter to some of its recipients saying, look, we are actually going to prioritize our giving or our grant making or what have you, and we are going to favor

organizations that are more grassroots and active as opposed to ones that are engaging. I think what the letter called ideation, just coming up with ideas and talking points and public education about conservative values. I think you could argue that Federalist society traditionally has been all about the ideation and that's very much Gene Meyer's vision of the society. So I don't think it's untrue that they have somewhat different visions, but on this call, they really presented a united front. They were very complimentary of each other.

They were very consistent in their narratives. And I think they really were trying to make a show of force or a show of unity. And some of my other sources were saying, oh yeah, of course they did that. They had been caught flat-footed by this leak to Yashar, and they wanted to kind of try and recover some credibility. And of course they did this, and they still

have a lot of tension. But I have to say, look, you know, relationships are complicated. Do I think that they have tensions? Sure. But look, these two men work together for almost 30 years. That kind of just being in the trenches, to kind of use the military metaphor that David might approve of, that kind of being in the trenches for that long, even if you have major disagreements, you also have a kind of bond.

And I think it showcased whatever tensions may exist on what direction they want to go in. They clearly are both still invested in the future of the Federalist Society, because the whole point of them jumping on together was really to prevent, I think, Sheldon Gilbert's presidency from tripping right out of the gate. And so this was, I think, about protecting Sheldon for both of them, which says something about where the tensions aren't, I guess, is an interesting way to think about it, regardless of where all the tensions may still be. The tensions are clearly not around Sheldon, and they're not around—they're

needing to be a bright and happy future for the Federalist Society in both of their minds, even if they disagree on what that is, not enough to hurt this process, I guess. I was just gonna say, you know you have a four-year-old granddaughter when you talk about finish each other's and I immediately fill in sandwiches.

A great frozen line. Exactly, exactly. Sorry, sorry. Resume the serious conversation. Oh, sorry. I was just going to say, just echoing Sarah's point, they clearly still care a great deal about the Federalist Society and its reputation,

and they really are invested in the success of Sheldon as the next president. That was really the message I took away from this 90-minute call, and I looked at my phone history. It started at 11.45 on Saturday and went for 90 minutes, so that was a long call. Yeah, I mean, I wasn't gonna necessarily mention when this was all happening, but David and I were talking.

I was talking to some of the people who were talking to David on Saturday night. I knew that this was all happening, but David and I were talking. I was talking to some of the people who were talking to David on Saturday night. I knew that this was, I went to bed, just so you know. And many of these other calls were still going on at two in the morning. I mean, David set off a flurry within Federalist Society world, a flurry, I tell you. So let's do some forward-facing stuff on some of the challenges facing the Federalist Society and the challenges facing Sheldon Gilbert as well. And I mentioned some of them on the last episode.

You have kind of the ideological rifts within the Federalist Society, which have always been there, right? The Federalist Society has prided itself on being for conservatives and libertarians, two groups that do not necessarily play well in the sandbox. So almost the purpose of the Federalist Society was to have ideological tensions. But for that to work, you still have to manage them, make everyone feel like they're heard, make sure no team feels like they're getting outsized influence or love, if you will. That's where I think Sheldon Gilbert as a pick seems the strongest based again on your reporting and Sheldon's

background. Do you want to go into a little bit of that and his ties to all of the different ideological factions that are contained within the Federalist Society? Yeah, so Sheldon is 44. He is a lawyer who's also worked in both the profit and nonprofit sectors. And I think you're absolutely right. He really does bridge the divides very well. Because let's think about some of those divides. And Josh Blackmon wrote a nice piece about this

that you link to and that I mentioned as well. Some of these divides are between libertarians and social conservatives, between people who think about judicial restraint versus judicial engagement, between never Trumpers and MAGA people. And all of these trains are represented in the Federalist Society. So how do you pull this coalition together? So Sheldon, he has really a foot in both of these camps. So personally, he

is a member of the Church of Jesus Christ of Latter-day Saints. So he is personally religious. He has credibility with social conservatives. One of the people who tweeted in praise of his selection was Robbie George, who's a very prominent Princeton professor and a big time social conservative. But at the same time, Sheldon has also

worked in the for-profit sector and for big business. His current position is he is at Walmart as senior lead counsel for strategic initiatives. And before Walmart, he worked for the US Chamber of Commerce, which is as blue chip big business as it gets. So he has credibility with libertarians and with the economic conservatives as well. So I think he's a really smart choice. And the other thing I would just say about Sheldon personally, I know him somewhat.

We've had interactions over the years, although nothing extensive. But he is really good at making you feel listened to and respected, whether or not he ultimately agrees with you or will come down on your side. And so that's why I think you had libertarians like Randy Barnett and social conservatives like Robbie George and moderates like Sean Morota

and liberals like Jeffrey Rosen of the National Constitution Center for whom Sheldon once worked. You have all of these people across the ideological spectrum saying really great things about him. And that is very impressive because with an organization with as many, you could say rifts, you could say intellectual diversity,

but with an organization like the Federalist Society, it's hard to get a pick that wasn't going to be savaged by one side or the other. I was just going to, when looking at his list of organizations, it was almost like, you know, it was a list of AO spirit animals between National Constitution Center, Institute for Justice, and others. But, you know, you raise an interesting point, David, because one thing that is fascinating about the legal right is that although there have

been sort of nasty splits online, you have seen them, they do exist. There are people who You have seen them, they do exist. There are people who are out there dunking on each other. But as a general matter, you have not seen the ideological splits devolve into the same kinds of personal splits that you have seen in other parts of the conservative movement, where people just can't even be in the same room together. And it is interesting to me that I think the Fed Soc

has avoided a lot of that in that you see the different factions in the room together all of the time and getting along. And it is an interesting, different dynamic. And I just wonder if you have any ideas sort of as to why is it, what is it about the Fed Soc that is sort of, it's not perfect by any means, and hasn't navigated these times perfectly, who has?

But it's navigated differently, certainly, differently. And I just wonder if you've had any thoughts or ideas about how that kind of a kaleidoscope of personalities can cohere behind one person. So here's what I will say about the Federalist Society historically, because as you noted, David, it has historically been very good at having a big tent and keeping different factions unified. But one thing that Leonard pointed out to me on the call, which I thought was very astute, was look, for years, conservatives, libertarians, textualists, originalists have been on the

outside. They've been the loyal opposition criticizing people running governing institutions. Now, in many cases, conservatives, libertarians, Republicans, what have you, are in control. So they now are controlling the governing institutions. Originalism has a majority at the US Supreme Court. You have governors of giant states like Texas and Florida,

you have, you're going to have Republican control of all three branches. And so before there was kind of a Cold War effect of, okay, we have a lot of internal disagreement, but we have this shared enemy. And that shared enemy might have been liberalism or progressivism or what have you. But now that conservatives are in control and in this ascendancy, you do wonder, well, if the shared enemy is now weakened, are we now just going to sort of, are conservatives now just going to argue amongst themselves?

And another thing I will point out is this. Another great unifier was opposition to Roe v. Wade. That was something that both social conservatives and textualist originalist types and Establishment Republican types. That's something that pretty much everyone could get behind unless you were an extreme Libertarian who also did not think that say a fetus is life because even libertarians There's a libertarian case for being pro-life But anyway, that was sort of this great unifier, opposition to Roe.

But in Daub, two years ago, Roe went by the wayside. So with Roe gone and with Democrats not holding any of the major branches and with the courts very much in control, I think, of conservative libertarian textualist originalist forces, are we now gonna see the coalition fall apart? Are we gonna see the wheels come off the wagon. It's a photo throws the ring in the mountain which by the way i know he did not golem bit the finger off and open fell in the mountain but let's suppose

brodo throws the ring in the mountain do that's row say i don't shake your head at me this is gonna work i just remember a few podcasts ago when you said you were't nerdy enough to play a Supreme Court board game. So please continue. It says, if Frodo throws the ring into Mount Doom, Roe is gone, turns around to the rest of the fellowship and says, now I got problems with you people. It's sort of the dynamic. Yeah, I didn't follow any of that. But- No, that's great.

It's perfect. So David, help me out here. That was fantastic. I don't know, you might be on your own on this one, David. Oh, come on. See, now it's just gone. The whole conversation is gone. Sheldon also, of course, as all of those people

seem to be reading off the same hymnal, they keep mentioning generational change. I think there's generational change in the sense that he's literally younger. I also think there's generational change that's actually more important than that, which is the Federalist Society, as of today, is still run by, in every meaningful sense, the people who founded it. I just don't think you can say a movement has been successful until there has been a successful transition.

Here, David, here's an actual reference that people will understand. There's a difference between George Washington being the first president of the United States and saying you have a successful country under that constitution, kind of. But the actual success comes, arguably, when there's a contested election between Adams and Jefferson, Jefferson wins, and they have a peaceful transfer of power to Jefferson. That's when you can say you have a successful constitution and country. That has not happened for the Federalist Society. And it's not just the president, it's the board.

It's a whole bunch of other vibes around the Federalist Society. And it's not just the president, it's the board. It's a whole bunch of other vibes around the Federalist Society. So I think that's a challenge for Gilbert in that he is generational change. Can they hand off the baton successfully? Yeah, I mean, look at the board of directors. A lot of these people were founders or near founders of the Federalist Society.

You have Steve Calabresi, you have David McIntosh, you have Lee Otis, you have people who are very early, early supporters. Ed Meese. Exactly. These are people who go way back. But I agree with you. The question is, if you want to see whether an organization has

staying power, can it transition beyond that founding generation? I see this all the time in another thing that I cover closely, law firms. If you have a law firm where the names of the founding partners are still on the door, that's great, but the question is, what happens after those people die or retire? Can that law firm survive? And some firms have done a better job of it than others. So this is going to be the big question.

I think that Sheldon is literally a generation younger at 44 than some of the people who have been leading the Federalist Society to this date. And so the question is, will it continue or not? Some firms continue to flourish after the founders are no longer involved. I used to work at Wachtell Lipton, and even though the two key founders are still alive, they're pretty much, you know, they're not very involved. They've really turned the reins over to a younger generation, and that happened a number of years ago,

and the firm is still killing it. But there are other firms where you wonder, if a certain key person or partner passes away, what happens to that firm? So I totally agree with you, Sarah. We have to see what happens over the next few years, whether the Federalist Society continues to grow in power and size and influence under Sheldon,

or whether there was some kind of magic to that founding generation. Again, think of the founding generation, just like the Constitution. I mean, will it endure? And perhaps actually the better historical analogy is that Sheldon Gilbert's Andrew Jackson, who's really the first person to become president, who's not a member of the founding generation, even sort of in that stretch, younger sense of like a Monroe or something.

How dare you say that about Sheldon? Sorry, Sheldon. Not Andrews in any number of other ways. I hope. I don't know. I guess we'll see. Okay, but then another, and you've alluded to it. To me, it's more than an ideological disagreement, the ideological disagreements that always existed,

the generational change. And then this third bucket, like you said, where the Federalist Society was there standing a thwart, the majority culture in legal world. And now it is the majority culture. And Sharif Girgis, when we had him Han, talked about this a lot when it came to originalism that like, it's much easier to be in dissent.

It's much easier to be the critic. And when originalism becomes the dominant feature of legal theory and thought, you have to answer some really hard questions. And what Sharif talked about in particular that has resonated with me is that basically, the easy originalist questions, or even the fun originalist questions, are all getting decided at the lower courts. Originalism is being done at the trial level, at the circuit level sometimes. Those cases don't come to the Supreme Court. The cases that make it to the Supreme Court are such edge cases that it is dividing originalists

down below. Right. And that has become, obviously, a source of tension at the Supreme Court. So, where the Federal Society, I think, was really successful was that ideation. Well, it's not really the era of ideation anymore. Now it's the era of putting it in practice. And if it's dividing the Supreme Court, it's clearly dividing the Federalist Society where you see, you know, hey, maybe

we don't need to be process oriented anymore. Now that we're in charge, like we use that whole process argument of originalism to get to be in charge. Now we are in charge, so let's just deal with outcomes. Or, you know, this was all well and good, but now we're going to divide into these factions of post-ratification history versus pre-ratification history and these fights that frankly just don't excite people to show up to a debate, for instance, in the same way. And so, Sheldon Gilbert will also have that issue to tackle of what it means to be in charge. Well, I think, I think I, again, I agree with you, Sarah.

They have to make the transition from ideation to implementation, from being in the opposition to essentially governing in a sense. And that's really hard. And if maybe I'm jumping ahead a little bit to what we were going to talk about later in the podcast, but if I think of the themes for this year, one of the themes of this year, especially from the end of the last Supreme Court term, is almost like the splintering of originalism. It was easy to all rail against some crazy thing that the Ninth Circuit did that was so unoriginalist

or what have you. But now you are getting into these finer points about the uses of history. And you have people like Justice Barrett and Justice Thomas going at each other. And sometimes the rhetoric is even a little pointed. And so you are at this really interesting phase now where the easy questions, as you said,

are not really the ones that need to get answered. It's the hard ones, and a lot of originalists can disagree in good faith on them. And so that's going to be a challenge for the federal society. It's going to be a challenge for judges on the courts. As a FIS member, you can look forward to free data, big savings on plans, and having your reports. The Agency. The CIA sends us out to behave in a dangerous way. Starring Michael Fassbender and Richard Gere. Whatever it takes, make it invisible. The Agency, new series now streaming exclusively on Paramount+.

All right, I wanna move on to some other year in review topics here. First of all, David Lapp, I'm so glad you're on this podcast this week because we need to talk about Justice Jackson appearing on Broadway. As listeners may or may not be aware, Justice Jackson appeared in the musical

and Juliet last week. There was a role written specifically for her. She attended rehearsal. She had to learn choreography. She had real lines. She said this was a dream come true for her. She attended rehearsals. She had to learn choreography. She had real lines. She said this was a dream come true for her. And I think for the most part, this was met with like, oh, that's nice. But here comes Josh Blackmon, and he is not amused. And basically, he's tying us into the larger ethics debate going on at the Supreme Court. And yes, he notes that justices have often gotten perks of the job, throwing out first pitches, non-speaking roles in an opera for justices Scalia and

Ginsburg. Justice O'Connor served as the grand marshal of the Rose Bowl Parade. I did not remember that one, though it sounds familiar now that I read it. But his point is, but this was created for her. It's not something that they have to. But his point is, but this was created for her. It's not something that they have to pick someone for every year. And why did they create it for her? Because they like the way she rules. This is a play about non-binary characters. It's basically, if Juliet hadn't killed herself

at the end of Romeo and Juliet, what would have happened as she sort of explores her sexuality and the options out there? And it's a very sort of modern LGBTQ plus type Broadway show. And so Josh Blackmon makes the point, Justice Jackson will surely be able to disclose these gifts. But whatever dollar amount she lists will not even come close to signifying the true value. How do you quantify a, quote, dream come true?

And why are these strangers to Justice Jackson fetting her with these gifts? Because she will rule on cases, quote, the right way. Make no mistake about that. Justice Jackson is celebrated as a cultural icon, and Justice Thomas barely gets a mention at the Smithsonian African-American Museum. If Justice Jackson pulled a reverse suitor tomorrow

and became an arch conservative, these opportunities would dry up quickly. Speaking of Justice Thomas, by now some detractors are screaming, what about Harlan Crowe? Sure, let's play that game. Justice Thomas accepted certain travel from his actual friends and did so when those trips were permitted by the rules. And now the Justice's good name has been dragged through the mud. What about Justice Jackson? She gets a standing ovation and yet another puff piece

on CBS News and silence from the so-called watchdogs. And one final note, he says, Justice Jackson's participation in and Juliet of all plays casts any doubt on her participation in scrimmety, as in the transgender care for minors case. Readers may recall that before Obergefell was decided, Justice Ginsburg officiated over a same-sex wedding. Did anyone think that Justice Ginsburg's vote

in Obergefell was not preordained? Justice Jackson should be grateful the Supreme Court lacks an enforceable ethics code. All right, David Latt, what are your thoughts on Justice Jackson participating in a Broadway musical? Okay, so full disclosure as people know, I'm not exactly an ethics hawk. I think that some of what we're seeing is sort of an overreaction in populist terms to the justices. But I'm not sure what is actually being violated in terms of the code.

Because technically it was Justice Jackson who was providing a service to the producers. She's acting and singing in their play. So just because it's a cool experience for her doesn't mean that she received a thing of value. If anything, she provided a thing of value. And again, there are all kinds of amazing experiences, you know, some of which are alluded to by Josh.

There was an opera, Scalia Ginsburg, that was written by Derek Wang, that was in many ways an homage to Scalia and Ginsburg. And Justice Ginsburg attended this, and all these, I was there, all these adoring people were coming up to her intermission, and everyone was just, it was a big RBG love fest. So of course that is an experience of a lifetime.

Very few people will ever have anything remotely like that experience. But did she receive a thing of value because she, a public figure, was written about in an opera? I just, it's different when you receive sort of a thing that somebody would have paid for, like a trip on a jet or a stay at a luxury resort. But to actually have to do this work and do the rehearsals and

all of that, you know, I just, I'm not sure I see it. And then the thing about the scrimmety thing, again, look, if the producers of this show or if this show somehow winds up in litigation that makes its way to the court, of course she should recuse. But all the time, justices do things that show in a general way how they feel about certain issues, and we don't say they should recuse from that. It's like the Alito flag situation. We know Alito is conservative. We know Thomas is conservative.

We know their spouses are conservative. Does that mean that they now have to recuse from anything that is vaguely politically inflected? So look, like, again, she should recuse if this show or the producers of this show wind up before the Supreme Court. But just because it touches on social issues and the Supreme Court rules on social issues,

I mean, my gosh, they can't do anything anymore if that's the standard. David French. I was untroubled by this for many of the same reasons as David Latt was untroubled by this. Obviously, if the producers of the show come before the court, maybe even actors in the show, I mean, if she has a close personal relationship that she developed with him. But what's the corruption here? That's a thing I go back to.

And you know, with the Thomas situation, you know, you're talking about a concept under which a lot of people recognize, hey, if I'm getting stuff that has tangible financial value that is coming to me, that raises questions a bit different from, I had a cool experience for which people are normally paid for, but I did for free. I don't know. Yes, it is a cool experience. She got a standing ovation.

But by golly, if a standing ovation is the coin of the realm of corruption, these guys, when they go anywhere, if a standing ovation is the coin of the realm of corruption, I mean, these guys when they go anywhere, get a standing ovation. I mean, yeah, they're always getting standing ovations when they're in front of friendly crowds. So, I don't know, I'm straining to figure out why I should be upset at this one. This to me is the problem with the ethics wars. It gets weaponized of this person lives a life and believes things I don't like.

But at the founding, in fact, and for several decades after the founding and the ratification of the constitution, bias was not even a grounds for recusal. It had to be financial gain. So even if you said, I hate this person and will never rule for them, that's still wasn't grounds for recusal. So if anything, you want to do some originalism, like let's go back to that. The idea was similar to how we use juries, right? Like,

you can have really strong feelings about someone. And as long as you can say, I think they're guilty, but I'm open to hearing the evidence and I could rule either way based on the evidence. That would be fine for a juror? And I think we need to chill with the everything is an ethics problem for the justices. You don't want a world in which these people are so cloistered that they can't talk to someone they don't already know because they're going to be secretly recorded, and even if they say something totally banal, it's going to be some headline of like,

secret recording shows that they have two legs. And you don't want it in a world where they can't be out there being in the public eye, whether it's throwing out a pitch, being in a Broadway show, speaking at the Federalist Society, speaking to a high school class for some private school, I don't know. Like, you want these people out in the world.

We should be happy about it, regardless of whether the Broadway musical has some strain to it that you think has a political strain that then has a similar political strain to that that's in some case. Like, whoa, whoa, whoa. We are way past that. And I understand that you don't want to unilaterally disarm,

that you feel like what happened to Justice Alito because of the flags was made such a big deal or Justice Thomas, and that therefore, you want to see how they like their own medicine. I get it, but this isn't like shooting everyone on both sides isn't going to result in some happier world. It's just going to be more shooting. Two points.

One, I think a great example about your point about bias not being grounds for recusal, Marbury versus Madison, 1803, one of the most famous Supreme Court cases in history. Chief Justice John Marshall's presiding. This case concerned the validity of judicial commissions that he himself had signed and sealed and that his brother was supposed to be delivering. You would think, shouldn't you recuse your kind of intimately and you could have been a fact witness in this case

had it come to a trial in a trial court, but no, he didn't recuse you're kind of intimately involved. You could have been a fact witness in this case had it come to a trial in a trial court, but no, he didn't recuse him. Nobody cried foul at the time. And then I think to be fair to Josh Blackman, I guess you could have, and this is sort of going to your point about, you know, well, you know, like you can have a strong form, you can have a weak form of his argument. The strong form could be, oh, this was so unethical of Justice Jackson, it's terrible. A weaker form, which I could get behind is, look, if we're going to criticize,

if we are going to refrain from criticizing KBJ for this, we should refrain from criticizing conservative justices for similar things or vice versa. If we're gonna attack conservative justices for whatever, speaking at Fed Soc, which is a conservative organization, then we should also attack a justice for doing a Broadway show, and Broadway is famously liberal. I get the weak form of the argument that we have to have a consistent standard. There is sort of a what about-ism sort of angle to this, and I don't love those arguments

because a lot of the time kind of my response as well, it was wrong when they did it, it's wrong when we did it or vice versa. So I don't love those arguments. Our mutual friend Judge Ho, he kind of makes those arguments a fair amount, I think. For example, during the Alito, Thomas, Harlan Crow kind of stuff, you'd be like,

well, Justice Ginsburg said all these terrible things about Trump and you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know,

you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, you know, I don't know who those theatrical of the justice. I don't know. I don't know if any of the conservatives would be good actor. You know, why any conservative Broadway shows are there. Like I know what it is. What if justice Thomas acts

in a mega church Christmas pageant? That would be great. And I would have no ethical problem with that. No ethical problems. That's right. You know, justice Jack, justice Thomas has this amazing voice. And you know who else was a Broadway actor

with an amazing voice? The late James Earl Jones. So if there was any show that James Earl Jones was in that Justice Thomas wants to hop in and whatever be the understudy, I say God bless and I'm not gonna complain about ethics. Speaking of ethics, by the way, do you remember the op-ed published in the New York Times

by US District Judge Michael Ponzer out of Massachusetts, criticizing Justice Alito related to Flaggate. This was actually referred as an ethics complaint, and the judge who oversaw that ethics complaint, in fact, found that there was an ethical violation. Sort of interesting, right? Like, Justice Alito, no ethical violation for the flag, but the judge who criticized Justice Alito was cited for an ethical violation. He in fact issued an apology, quote, with the benefit of an objective perspective, I realize now that my criticism of the ethical judgment of a Supreme Court justice might have had the effect of undermining the public's confidence in the integrity of the judicial system.

And that's it, by the way. That's the whole end of the saga, really. You issue the apology, the end. Anyway, I just thought this was interesting on how ethics codes work in the judiciary, because I feel like some of the complaints also about, for instance, the disclosure stuff. People seem to think that these judges are going to get thrown in jail

or impeached or something else. Most of these fights were over disclosure. So the remedy is that they would then disclose the thing that you already know about. Okay. And in this case, the remedy was an apology. Great. I think these are great ways to have an ethics code, by the way. But it feels like the people on either side are really willing to talk about what it would actually mean. No, I'm with you, Sarah. And, you know, look, I also think that if you're looking at these various controversies, they're both, they have distinctions both legally

in the sense of, hey, wait a minute, was, were the gifts that Thomas received from friends improper under Supreme Court ethics rules, and many of them were not. For a long time, there was the hospitality exemption, et cetera. He was in comfortable legal ground. Then there's this sort of public perception, which is much more amorphous. There really is an element of you know it when you see it and for, and that's

a your mileage may vary. If you're given a gift of tangible financial value that feels different to some people than it does when somebody's given an opportunity to be on stage. You know, those things sort of feel different to people, which I understand completely. But if your bad feelings are really bad, then codify them. So, you know, if the Thomas situation resulted in a feeling of, well, wait a minute,

we really are uncomfortable with this, change the standard, and, but don't hold someone to a standard that did not exist. And I think that there is some confusion about those two points in people's minds. If they have trouble over point two, this feels wrong. They sort of stampede to it's a point one violation.

The law is there's a legal issue. But the reality is the two don't always meet. When it feels bad, it isn't always legally bad. And so if you're concerned about the feel bad, you want the feel bad to stop, you got to make it law. You got to make it a rule. And I think there's just a lot of confusion around that point. There's a lot of feels bad out there and there's a whole lot less actually bad, legally bad. Well, I just appreciate in this case, Judge Posner is a Clinton appointee,

the judge that oversaw the ethics complaint, Diaz is a Obama appointee, and he's the one who found that given its context, the article entitled, A Federal Judge Asks, Does the Supreme Court Realize How Bad It Smells, could be read as quote, a commentary on partisan issues and as a call for Justice Alito's recusal. Sorry, David Lapp, yeah.

Oh, I was just going to say, echoing David French's point, take the issue of private jet travel. New regulations were passed to require disclosure of that. But those new regulations don't make it improper or illegal or unethical to not have disclosed it back when they weren't in effect. So again, I just totally agree that we have to, if we think something feels icky,

like justice is tooling or flying about on private jets, well then let's actually have a rule about it. So again, and I don't have a problem. I'm glad Judge Panzor apologized. Full disclosure, I'm friendly with him. He's actually a fellow lawyer turned fiction writer. He actually had his third novel come out this year. And I haven't read it, but the first two are excellent.

They're all legal thrillers involving a district judge in Massachusetts. So, but, you know, so if you're looking for a... You may not remember this, but when Case was born, you sent me this wonderful care package and it included that book for late night reading. And I actually thought that the judges op-ed, like he made some excellent points in it. I think the issue is he was a judge while doing it, and you lose certain privileges to comment

on ongoing public controversies, and particularly ones with political valences, when you're a judge. But my God, his points were well-made and well-taken. And little known fact, when you're a member of the bar, when you're a lawyer, you also lose some small, on the edges, you lose some capacity to just really go after the court.

Now, it's not really salient and doesn't matter that much in the normal course of life, but there are lines. There are lines. It was very interesting what you were just saying, David. I've been on some ethics panels, CLE ethics panels, where that issue has come into play, because there have been situations where I think there's a big tension between a lawyer's duty

to respect the judicial process and the First Amendment. There was a case, I believe, out of Florida, where a lawyer who lost a jury trial before a certain judge, and there was a racial issue at issue in the litigation, basically talked about structural racism, and they were pursued on ethics charges because there was a suggestion or implication that maybe they were claiming that the presiding trial judge

was a racist, like a subjective racist. So, again, I think that there are these tricky issues. All right. Last thing up here, the National Archivist rejected the final Hail Mary to certify the Equal Rights Amendment. David French, this is something that we started talking about years ago at this point when there was litigation pending. The Equal Rights Amendment, as many of you may remember, was first approved by both houses of Congress in 1972,

but it was not ratified by the necessary number of states within the seven-year timeframe that Congress put into the amendment. It has since been ratified by additional states, but then some other states withdrew their ratification. And so part of the legal question was, can you put that exploding timeframe into an amendment? Does it need to be in the amendment itself? Or can it be in the sort of introductory paragraph, like that you send

around to the states with? And can you withdraw ratification? All of those were interesting legal questions. None of them worked. Senator Gillibrand argued to President Biden that he should use his presidential power to simply direct the head of the National Archives to call the amendment ratified and then force someone to sue for that.

The head of the archives said that she would not do that, quote, cannot legally publish the Equal Rights Amendment. She was asked that during her confirmation process in 2022 and told lawmakers that she would not add the amendment to the Constitution, saying that Congress or the federal judiciary would have to make that determination. So thus endeth the Equal Rights Amendment. I don't know, I kind of miss this saga again. I was sort of enjoying, these were like, deep in the weeds legal issues. And if you set aside what the amendment was about or any of the political fights, I find those interesting. Can you put a deadline in the amendment itself?

Can you put a deadline in the prefatory clause? Can states unratify something they already ratified? I don't know, that's fun. We should answer those questions at some point. So what I would also point out, sort of a CF for people who like blue book signals, is David French's employer, The New York Times Times there was a very interesting article the other day The title of it is a constitutional convention

Some Democrats fear it's coming because states can individually request constitutional conventions for one reason or another And over the years numerous states have made numerous requests for a constitutional convention. Some Democrats or some on the left fear this because they don't know what might come out of it and what might come out of it might be uber conservative. And so some states have withdrawn or purported to withdraw their calls for a constitutional convention. But again, very similar issues. Is a request for a constitutional convention from a number of years ago still valid? Do we give effect to these purported withdrawals? Sometimes, you know, there's a request to call for a

constitutional convention for the purposes of passing Amendment X. Does that sort of it's kind of like the Second Amendment, does that language sort of restrict or limit the scope of the request? Or is it just sort of like window dressing? So again really interesting questions and the Constitution itself Doesn't really say a lot about these issues I think one thing that pretty much many constitutional scholars from both the left and the right agree on is The Constitution needs to be easier to amend but I would also add the Constitution needs to have clearer to amend. But I would also add the Constitution

needs to have clearer provisions about how it can be amended, including by convention. All right, then final question to you guys. Give us your New Year's prognostication for something about the law. It can be the Supreme Court. It can be a specific case. It can be something legal related to the incoming Trump administration, whatever you want, or

what you'll just be watching for, I suppose, as well. I can offer what I think is a pretty easy prediction, but will be of interest. I don't think there's going to be a Supreme Court vacancy in 2025. That's my prediction. Interesting. David Latt. Well, again, not to copy from David's homework, but I will go farther and say there won't be one in 2026 either.

As in, the first two... Yeah, I don't think so. I think that Justices Alito and Thomas have telegraphed, sometimes through surrogates, that they aren't planning on going anywhere. And again, look, they're 74, 76. Sure, it is true as Adam Feldman of empirical score and others have noted that the past, over the past 50 years or something,

the typical age has been 75. But look at the more recent ones. You had Justice Breyer leaving at 83, you had Justice Ginsburg passing away in office at 87, Justice Stevens left at 90. Justice Thomas and Justice Alito still seem very with it, very healthy, very active at oral argument, issuing very thorough opinions.

I don't think they're going anywhere. And again, as I've mentioned in original jurisdiction, if Justice Thomas sticks it out to the end of Trump's term, he will surpass Justice William O. Douglas as the longest serving justice in history. I think Justice Thomas would like that. and I would also point out that look I think it is known that justice Thomas still has some upset over his confirmation battle And I think every day every week every month that he's on that court

It's kind of like, you know sticking it to the people who he believes treated him unfairly So why wouldn't he stick it out as long as he's capable of doing the job? So I don't think we're gonna see uh, I will go, I will go bolder than 25 and 26. I don't think we will see a voluntary retirement as opposed to something health related or something like that in Trump's second term. Trump was lucky and got three appointments. I think that he will not be getting a fourth. Interesting. Well, well, well, that's a bold prediction and there's certainly some heft behind it. All right, with that advisory opinions listeners, Merry Christmas, happy Hanukkah, happy new year,

happy all holidays that you're celebrating. We're so grateful for you guys out there and we're very grateful to be taking the next couple of weeks off, but we'll miss you. And as you know, we can't avoid an emergency pod if one should need to arise. Hoping to take two weeks off, pray for little legal news for us. We really hope you enjoy the special Bill of Rights Origins Christmas extravaganza coming your way in a few days. ["Wintergatan"] David Latt, any special Christmas Hanukkah

end of year traditions in your family? Not really, other than eating a lot of latkes that my mother-in-law is very skilled at making. And we have been getting the kids gifts, lots of Lego stuff for our oldest Harlan. So, yeah, we're just kind of doing the usual thing. And then we go to my parents who live not far from us in New Jersey for Christmas Eve slash Christmas day. So, you know, pretty typical. David, traditions.

Well, we don't have a lot of sort of family rituals other than getting together, you know? So, wife's side, husband's side, like both sides of the family. But we have a new tradition. This is new. Can you say it's a tradition when it's now year two? So the new tradition is yielding to the gravitational pull of the grandchildren and heading up to Chicago for the holidays.

So that's the new tradition. So we spent last Christmas holiday in Chicago. We'll spend this Christmas holiday in Chicago. And you know what? This Christmas holiday is just so much better than last Christmas, because last Christmas, Nancy, was at the beginning of a cancer battle.

And we had a wonderful Christmas together as a family, but when that's there, it's hard. And then this year she is cancer-free, and so it's a totally different feeling as our Christmas break approaches. So how about this for tradition, celebrating a cancer-free Christmas in Chicago, year one. Cancer-free Christmas also is a bit of a tongue twister.

So bonus on that. It is, exactly. What about you, Sarah? We're like shopping for Christmas traditions. Like I feel like on the one hand, kids eventually start like rolling their eyes at Christmas traditions, but on the other hand, they want that Christmassy culture, family

feeling and that comes from having traditions that you roll your eyes at. So we did Christmas lights last night and I'm going to do Christmas pajamas on New Year's Eve this year. Obviously we do milk and cookies, we do carrots for the reindeer. You know I care about the animals quite a bit, so the reindeer have quite a spread actually, to be very honest. But yeah, I mean, I think we're going to start a prime rib Christmas Eve tradition this year. See David, we're even behind you.

We're going to start it. This will be here. Oh, nice. It hasn't even happened yet, and I'm calling it a tradition. Yeah. And then of course, the chocolate chip cookies are a recipe handed down multiple generations now. It's my grandmother's chocolate chip cookie recipe.

Do you share that outside the family? I can share the chocolate chip recipe outside the family, but I have to tell you some of it's eyeballed. That basically, this started as an oatmeal raisin recipe, except raisins are cockroaches put into your food. So that's now definitely turned into chocolate chips. Then at some point pecans have been added because Texas, right?

So we added pecans into the cookies and you've got to kind of eyeball your oatmeal to cookie dough ratio and the flour to make sure that they're not gonna collapse. You want them to be mounds, Odie mounds. So, but I'll put the recipe in the show notes as well. I'll put a little comment in there with the recipe. For those who still don't have a chocolate chip recipe

in their family, I can't imagine in the year of our Lord, 2024, anyone has failed to find a chocolate chip recipe, but I think this one is very good. So yeah, all right. I usually just get the one from the back of the packaging, whether it's Toll House or Giordale or whatever. So I like this idea of the oatmeal twist. Oh, well, David,

I do have good news for you on that front. So we actually think my grandmother probably started with one of those back of the oatmeal box recipes and then it is like transmorgified through the years. My dad changed it. And then I feel like this in true millennial fashion, I have done A-B testing on nearly every ingredient in the chocolate chip oatmeal cookies. The only thing I haven't done is to try, nope, that's not true.

I did do different oats. I did quick oats and regular oats. So in the end, the most important change was that the Ghirardelli bittersweet chocolate chips are superior to those chocolate chips that may be below them in price point. But more importantly, they're superior to those chocolate chips that may be below them in price point. But more importantly, they're superior to the chocolate chips that are above them in price point as well, which was surprising. And definitely for me,

superior to semi-sweets and some of your other sugar ratios as well. But I tried browning the butter. Like I said, I tried the different oats, quick cooking oats. I tried almond flour versus regular all purpose flour. All of it, David. And so I really do feel like I have come to the platonic ideal of an oatmeal chocolate chip pecan cookie, at least for me.

Sarah, just for the record, for this podcast, could you please say David's plural? Ooh, good point. Because if you're addressing both of us, you gotta pluralize it. If you're addressing one of us, we gotta distinguish. You know, a lot of people just call me Lat for some reason, going back to years.

So feel free to call me that too. I know. I mean, I've known you for a very long time though, and I've never called you Lat. And what's weirder is I've seen people call you Dave instead of David, and that weirds me out even more. Yes, that's old school. Like my order of operation is David, then Lat.

Dave isn't even on the list. I couldn't do it if I tried. No, those are people who've known me a long time too. But I usually don't go by that these days. All right.