Advisory Opinions - Title VII: Originalism vs. Textualism

Episode Date: June 15, 2020

The Supreme Court declined to take up new cases dealing with gun rights and qualified immunity. The court ruled that federal anti-discrimination laws protect gay and transgender employees. Lines are drawn on originalism vs. textualism. David and Sarah have thoughts. Show Notes: -Supreme Court cert denials -Supreme Court Bostock opinion -Sarah's guide to the top 10 cases -Sarah's SCOTUS glossary Learn more about your ad choices. Visit megaphone.fm/adchoices

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under your supervision with live trip tracking and highly rated drivers. Add your teen to your Uber account today. You ready? I was born ready. Welcome to the Advisory Opinions Podcast on a huge, or should I say huge law day, Sarah? My goodness. I was talking to Krista Soltis-Anderson, one of my favorite humans,

and she was asking how the day was. And I was like, Kristen, imagine as a pollster if the Des Moines Register poll had actually come out like it was supposed to this year in a presidential election and it, you know, it was all the things that, you know, nobody quite expected, but kind of expected. I was like, that's what today's like for me. Oh, my goodness. I mean, we're going to walk through this, but let me just put it this way. If you are a if you are conservative and you voted for the president of the United States expecting to receive specific judicial outcomes, and we're going to, we're going to talk about why I use the term outcomes and emphasize it so much.

This was not your day today. This was not even close to your day today. If you are politically conservative in the sense that, again, I'm talking politically versus judicially, we're going to get into all of this. But if you're, if there are certain conservative outcomes that you wanted, this was a bad day for you. Now we'll get into it. And it all started at 930 in the morning. Oh, yes. Oh, did it. And it all started at 9.30 in the morning. Oh, yes. Oh, did it. You didn't have to wait till 10 a.m. when the opinions come out today.

And, you know, plug for the piece I wrote, you know, for Mondays and Thursdays, it looks like from this point forward for the rest of July, June, we're going to be getting opinions at 10 a.m. But you get the orders, cert grants, cert denials at 9.30 a.m., which obviously, David and I monitor for you very closely. Yes. So at 9.30 today, I was stunned, David. I don't know what your reaction was, but at 9.30, we get the big order list. It is, um, it was 57 pages and you know, you've got to get through 57 pages to figure out what they actually granted. There was a CVSG, there were two grants, like none of them were particularly interesting to me. And so I'm just, you know, ticking along down the 57 pages. And then you realize what happened in the cert denial section and then the dissent from denial section they denied all of the second amendment and qualified immunity pending cert petitions whoa uh thomas has a dissent from denial uh kavanaugh joining on the second amendment

new jersey case and thomas has a dissent from denial on qualified immunity as well. We've got to start there, David, because it started off the whole morning. It was like, you know, current mood. Whoa. And don't forget the cert denial on the appeal from the Ninth Circuit about California sanctuary laws. Oh, my gosh, you're so right. That one really would have, we would have talked about that as like top news if there wasn't all

this other stuff. And yet now it's going to get short shrift. Yeah. So defeat for the coalition trying to overturn qualified immunity, huge loss for the Second Amendment, for the gun rights community. Now, to be clear, when you're talking about a denial of a cert petition, that's not an adjudication on the merits. But when I explain, for example, the New Jersey case, you're going to see why, if you're a Second Amendment activist, you're not looking at a very robust Second Amendment jurisprudence at the federal level right now at all. Not at all. And then on the sanctuary city provision, if you're someone who's opposed to sanctuary cities or sanctuary laws at the state level, this was a really big loss today. So a judicial slapdown, as they say. Yeah. So let's

start with the Second Amendment. OK, so the key case really, in my view here, and this is par for the course of the Supreme Court has has rejected cert petitions on Second Amendment issues. It is there are multiple circuit court jurisdictions that have upheld bans on so-called assault weapons, for example. The Supreme Court has consistently denied cert on those. At some level, that's understandable. You're looking at sort of a development of jurisprudence working through the circuit courts. But overall, it is looking quite like if you're in a jurisdiction and you pass an assault weapon ban, that's going to be upheld. But the New Jersey one was different. The New Jersey one was different because what the issue was, whether states can limit the ability to bear handguns outside the home to

only those who found to have a sufficiently heightened need for self-protection. And the reason why that was sufficient is that the Second Amendment protects the right to keep and bear arms. Keep and bear. So right now, where the Supreme Court jurisprudence is, is basically I've got a right to have a handgun in my house to protect myself. Period. Period. That is not the hope of the gun rights movement for the Second Amendment. And there was a lot of hope that you would at least begin to get a similar ability to bear handguns outside the home, but cert denied. or rule ever on this issue. But what it absolutely was, was you can't spin it any other way than a defeat for gun rights advocates here. And it is one of the things that just stood out to me that if you've been voting

to have better Second Amendment jurisprudence, well, keep waiting. Something big picture that was interesting, and I want to talk about the big picture issue around the QI denial as well. But big picture on the Second Amendment one, and we've talked about this, but they kicked on mootness grounds, basically, that New York case earlier. And what I assumed, and I think a lot of people assumed, was that, okay, they want to get to the Second Amendment. It turned out this was just a bad vehicle, which they didn't really know at the time, et cetera, and things changed, and they were going to wait for a better vehicle. So when they held over the Second Amendment cert petitions,

I think a lot of people assumed they were just looking for a better vehicle than the New York vehicle. And New Jersey seemed like a good vehicle. And so everyone was just sort of like waiting for them to grant it. Yeah. And so what's strange to me is you took the New York case, which signaled that you were interested in diving in on Second Amendment jurisprudence. You granted cert on a different Second Amendment case, then kicked it, and then you didn't take another case. Well, that's a little bewildering to me. And I can't quite figure out why the New Jersey case, for whatever reason, it doesn't look like it met what they're looking for. And I guess I think that it's still likely that they will take a Second Amendment case in the next year.

At some point, what this suggests to me is nobody's sure of how this will come out. case that the court actually did take was of a very strange, unique New York City-specific law that dramatically restricted the ability of an individual to carry a gun outside their home. You could only- But it was still on bearing, you know? It was on bearing. Versus keeping. So it was still on your line, which I, by the way, find smart and interesting point. Yeah, it was on bearing. line, which I, by the way, find a smart and interesting point. Yeah, it was on bearing. But you could shut down that New York law, which essentially said the only way you can take a gun, if you have a premises permit, one that applies to your ability to have a gun at your home, your premises, you can only take it outside of the premises if it's locked, the ammo is separated, and you're going to one of seven shooting ranges in the city. So essentially, you have no functional ability to bear at all. And so that would have been an easy case for the court if bear means anything. And I think it's

one reason why New York State and the New York City mooted the case out, very quickly and intentionally mooted the case out. Now, this New Jersey one is the second easiest kind of case, which says, I don't actually have a right to bear. I only have a, I don't have a blanket right to bear. I can only bear if I can show a need to bear. And in the gun rights community, that would be sort of seen as the second easiest bearing arms kind of case. Well, this is where Thomas's dissent from denial was quite interesting. And by the way, if you're even moderately into this topic, I recommend the dissent from denial because I think he's talking about an interesting point. from denial because I think he's talking about an interesting point when, you know, we talked about incorporation against the states. That's what McDonald did for the second amendment,

which I guess my overall point on that is we're still in a very youthful stage of second amendment jurisprudence. And you don't get to see that a lot. It's sort of like if we got to go back to shortly after the big bang and we're watching some stars form up close and we're like, oh, how fascinating we didn't really, you know, we've never really gotten to see this process up close. And so that's why the Second Amendment is interesting to me. I know you have more of like a personal Second Amendment actual passion. Mine is more like watching a new star form. And so that's why I follow it so closely. And that's where I thought the Thomas dissent was really interesting because his point is you're not applying heightened scrutiny to the Second Amendment. No other constitutional

right gets this lax of a treatment from the Bill of Rights. And he points to this pretty hilariously named law review article called Justice Breyer's Triumph in the Third Battle over the Second Amendment and how we have this Breyer balancing test that the circuit courts are applying to the Second Amendment, even though that was explicitly rejected in Heller. So Breyer wins with his how to interpret the Second Amendment question, even though the court never agreed to that, that was never the test. And I just like that's called the third battle over the Second Amendment. And basically under the Breyer balancing test, gun rights always lose. Yeah. Like the Second Amendment seems to always lose. Uh, and I just think Thomas,

again, with this star formation metaphor that I'm using, um, is really walking you through how he's seeing the star form and that this isn't how stars should form. And we have this opportunity as this court to take a really fundamental piece of constitutional law and frame it, and what the hell are we doing? You know, and one of the reasons why I am very displeased with this is my general, we've talked about this, my judicial philosophy is originalist, and I don't think there is an enormous amount of ambiguity about the original meaning of the Second Amendment. And I don't think that a permission-based structure where you don't actually have a right to bear arms is consistent with the meaning of the Second Amendment. And that's one of the reasons why it's so distressing

to see the Supreme Court continue to punt on this. Well, this is a fun part of the Thomas opinion also, which is maybe more under your interest than my star gazing interest. So the Second Amendment codified a pre-existing right. Yep. Citing Heller. And this next paragraph starts with in 1328 and he's referring to the year folks not the statute preach it justice thomas preach it all the way back to 1328 we walk through some glorious revolution under james the second we've got some blackstone comment i mean there's you want some history of gun uh the right to keep and bear arms. Look no further than the dissent from denial from Justice Thomas.

Yeah. So, OK, we've got a lot to cover. But that that's that's number one conservative disappointment. Number one. Now, this one next one is not exactly a conservative, necessarily conservative disappointment. It is more of a libertarian slash religious conservative slash progressive disappointment. And that is this unified coalition of religious conservative groups, libertarian groups and progressive groups that had been seeking to get the judge made doctrine of qualified immunity overturned. They had multiple cases at the Supreme Court that had been held over for week after week after week after month after month, and they were all denied. All of them denied. Super interesting on that point, by the way. Again, big picture. There was an assumption that these were getting held over week to week.

When that happens, normally someone is writing a dissent from denial and out of courtesy to that justice or because they explicitly ask. You wait for that justice to circulate their dissent from denial to see if they can scrounge up a couple more votes. Sometimes, right, you know, there's three votes to grant, you're missing the fourth, and maybe a really well-written dissent from denial will get that fourth person to say, you know, that's a good point. I'm in board. Then you've got your four votes and you're off to the races. But here's what gets weirder about this one.

A few weeks ago, might have been a month ago, time has lost all meaning for me, as many of you know, they kicked a few of them. They denied a few of the qualified immunity cert petitions so that we were left with nine qualified immunity cert petitions so that we were left with nine qualified immunity cert petitions. Well, that signaled to everyone that they were going to grant some. Because why would you kick some and then keep some if all we were doing was waiting for, we all assumed, Thomas's dissent from denial to circulate so that people could read it. Then you just keep all of them together. I think it was a little over a dozen. And you'd kick them all at the same time. So David, here's my theory of this. I think something changed. I think whatever happened,

whatever things looked like two months ago, no longer looked that way today and uh you know a lot of things have changed in the last month uh but one of them is congress explicitly saying in the last 48 hours um the tim scott republican bill on this will not include any qualified immunity reform or abolition and the president saying it was a red line and he wouldn't consider any bill that touched qualified immunity. And then a few hours later, we get the Supreme Court saying, don't look at us. I think you're right. And I think it even goes back a little before that to Biden saying he's for qualified immunity reform, the Democratic police reform bill containing qualified immunity reform, and the Republicans saying no to qualified immunity reform, which screams to the court the political process is engaged in this issue.

Yep. The wheels are turning. The wheels are turning. They need some oil. It's not going well, per usual. But there they are. And so. Creek, creek, creek. I think there's a lot to be said for your theory, though, on that point.

But table that. Put a marker on that because it doesn't apply to the Title VII cases that we're going to be talking about here in a minute. There's also just some disappointment. There's lots of people who question the fourth amendment's exclusionary rule. And if you're looking for the exclusionary rule in the fourth amendment, you can stop now. It's not there. It's judicially created. This is the idea that if the police come in and search your apartment illegally, they don't have a warrant and they find all the drugs that you go to court, you know, during your trial, basically pre-trial, and say, you know, they violated my rights. And the remedy for that violation, that they searched your home without a warrant, is that

they can't use the drugs that they illegally got from the search, fruit of the poisonous tree, which is a pretty made-up rule. The Fourth Amendment doesn't say you can't, it just says you can't unreasonably search someone's home. It doesn't say that you can't use the stuff that you illegally search. There could be any sorts of remedies. And if you lower the standard on QI, for instance, you could get rid of the Fourth Amendment exclusionary rule. So there's all these things that are just sort of blocked up in the system in a constipated qualified immunity system, if you will, uh, that are, that are sitting around and waiting and God, it looked like this was gonna be the term to take qualified

immunity. And I'm sorry, David, I feel like today's hitting you hard. The nine 30 time of day was, it was not David's. It was bad. Well, I'd say 9.30 was bad, two out of three. So qualified immunity and Second Amendment. But I agree completely with the court not taking cert on the sanctuary state. That's funny. You and someone else who lives in my house. Now that there's three people living in the house, I'll just let you decide. Well, but first, let me just say I'm a horrible human being because the very first words that

should have come out of my mouth at the start of the Advisory Opinions podcast was, congratulations, Sarah and Scott. We'll get to that at the end. We'll talk about it. But in fairness, listeners, I talked to David all weekend. So it's not like he hasn't said stuff. Yeah, we've said stuff. And, well, we'll get to this, but man, Sarah's a trooper.

So, anyway, my perspective on the sanctuary city cases is that, and the sanctuary state cases is, this is federalism in action. If a state does not want to use its resources to advance a federal policy, it should not be compelled to. And that even if I disagree with a sanctuary policy, or if I disagree with a sanctuary policy, that's California's decision to make with its own resources. I took a dim view of the Obama administration intervening in the Arizona immigration law case, that Arizona wanted to enhance its ability to identify illegal immigrants

in its state. California has a much more welcoming stance to illegal immigrants in its state. And those things, so long as they don't actually conflict with the requirements of federal law, that represents federalism. But Sarah... But that's the problem. There is the stickiness. Did this conflict? And again, full disclosure, I worked at the Department of Justice when this case began. But you've got the point. Of course, case began um but that you got the point like of course the states have some federalism interest in experimenting and what they want to do about um some people in their state but like on the detainer question when you get into the nitty-gritty of what some of these rules are and whether it conflicts with federal law enforcement interests i don't think think it's as clear cut as you're making it sound. Well, and there's also this whole area of federalist, federalism jurisprudence that

I dislike that is implicated, and that's called occupying the field. Yes. And that was the grounds for the Supreme Court's decision overturning Arizona's immigration, enhanced immigration enforcement provisions. That essentially, immigration enforcement is so federally, there's such a comprehensive federal legal presence in the immigration field that it has occupied the field. And that a state that is intruding into this field that the federal government has occupied. It just can't do it. It can't come onto the field at all.

Can't come onto the field at all. And that was not the Scalia position. He wrote a pretty ringing dissent. When you say Scalia dissent, it means ringing dissent. That's right. But yeah, so there is a real dispute in federalism jurisprudence about the very concept of occupying the field. Well, I say real dispute in that a minority of justices don't like that jurisprudence. A majority do. that the federal regulation, that California cannot inhibit,

take any actions that have the effect of inhibiting this federal enforcement scheme. And I think that was, you know, one of the cornerstone kind of arguments within this context. True enough. All right. So we have covered the Second Amendment. We have covered qualified immunity. We have covered sanctuary state laws. Now let's get to Title VII. So 10 a.m. comes. It's clear that this is the case coming down, Bostock, which is the Title VII case. And everyone goes, OMG. And if you remember, loyal listeners And boom, my number one case comes down. I didn't even get to react to it because none of us could download it. Exactly. Exactly. I got the first page and nothing else. And the key language in the first page held, an employer who fires an individual merely for being gay or transgender

violates Title VII. And at that point, all of the sort of internal fireworks go off in your head because this is a big, big legal development. And the next thing you're thinking in your mind is, who wrote it? What's the majority?

Are there, you know, what? And then you're frozen on page one. Like you're just, and it's almost like if you walked into Avengers Infinity Wars and. Interesting. I went to like, you know, the big bang and science and physics, and you went to Avengers for your metaphor. Please continue. Yes, it's almost as if you walk into Avengers Infinity Wars and it opens with the spoiler. Spoiler alert.

Thanos wins. And then the screen freezes. And you're like, what else happens? You know, what else happens? It was a good 15 minutes until someone got it. You got it downloaded for sure.

I did not. I was relying on others on Twitter, etc. But it's 15 minutes before we could actually see that it was 6-3 with Gorsuch writing, Roberts joining along with the four expected, and Alito with a Scalia-esque dissent, I would say, David. A very angry dissent. A very angry dissent, indeed. And a Kavanaugh dissent as well.

Yes. So it was 6-3, so it was not close. It was not a 5-4 decision. And Justice Alito, essentially to cut to the chase, says, look, the law prohibits discrimination on the basis of sex. I know, you know, everybody knows that the drafters of the Civil Rights Act did not intend to include sexual orientation or gender identity. They probably didn't even know what gender identity was as a concept when they wrote the law. But the word sex has a meaning. And if you have, for example, a gay man who goes to a

company picnic and he brings his date, he brings a male date, and you have a woman who comes to a company picnic and she brings a male date, that the reason why you would be singling out the male, the gay male, if an employer took action on that basis. Yes, it was because they're gay, but it's also because they're male. Because the woman who brings the man has no repercussions. The man who brings the man has the repercussions, and it's because he's a man. And Justice Gorsuch, by the way, signaled this at argument. Loud and clear. The question that he asked during argument, in what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case? So that's why Justice Gorsuch writing this, not the biggest shock. Although, again, noting at the biggest

level, the highest level, the way that Supreme Court arguments are assigned, the most senior justice in the majority assigns the argument and oftentimes, not surprisingly, assigns it to themselves. Which means that either the chief justice, because he joined the majority, chose not to assign it to himself and chose to give it to Justice Gorsuch, which is an interesting choice all in its own, or that he wasn't part of the majority after the conference vote. See, Sarah, that's why you're awesome on this pod. Those kinds of... I didn't even think about that. I didn't even think about that. That's, yeah, very, very interesting. Either way, I mean, it would also mean that Justice Ginsburg in that case would have assigned it to Justice Gorsuch. And I think there's political reasons why a liberal member of the court like Justice Ginsburg would see a benefit to having Justice Gorsuch write the opinion rather than assign it to herself. But I think the possibility that just Chief Justice Roberts joined with the five person majority after the vote as an

institutional signal. Like, if it's going to go that way anyway, it is better for the country to have it not be a 5-4 opinion. It's at least an interesting theory. Also, big picture, there were some rumors that Justice Gorsuch was writing the Bostock opinion and this was how it was coming out, which would mean that there is a leak at the Supreme Court, which is highly, highly unusual.

I heard those rumors in Franklin, Tennessee, Sarah. So yeah, they weren't like they weren't like cafeteria rumors so much as like on the interwebs. Yeah, much out there. Yeah. Yeah, that's I found that very, very interesting as well. But what's very what's super interesting about this, so this is like peeling an onion of interesting, okay? Yeah.

So what you have is a very stark difference between the Gorsuch view of textualism and the Alito view of textualism slash originalism. This is why, so we actually were gonna talk about this. I was like, David, is this a good week to do textualism slash originalism. This is why, so we actually were going to talk about this. I was like, David, is this a good week to do textualism versus originalism? We had a couple of people write in and ask us to explain the difference between the two. And it just never felt like the right moment. And then boom, you get all of these opinions today that really dive in to the nitty gritty difference between textualism, originalism, who are at true heads in today's

opinion on this. So it's a great example, if you really want to get into the weeds of the difference between those two conservative judicial philosophies, because oftentimes they overlap, and so it's hard to explain to law students, for instance, or non-federalist society nerdos, or non-federalist society nerdos what the actual difference is. Today's Alito versus Gorsuch is textualism versus originalism, in my opinion. But also, I think it highlights some of the other current philosophies floating around, purposivism and judicial realism, legal realism. and judicial realism, legal realism. So we should get to all of those and compare and contrast and do a whole little watercolor painting, David.

Yeah. Well, let me read, if you'll permit me, let me read two paragraphs, one from Gorsuch and one from Alito. And I think that these two paragraphs demonstrate the difference of opinion quite starkly. So here's Gorsuch. A dramatic reading. A dramatic reading. So here's Gorsuch. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.

Likely, they weren't thinking about many of the act's consequences that have become apparent over the years, including its prohibition against many of the act's consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood, or its ban on the sexual harassment of male employees. But the limits of the drafter's imagination supply no reason to ignore the law's demands. When the express terms of a statute give us one you would call a pure textualist argument. Would you agree, Sarah? I completely agree. And I think that Gorsuch as textualist,

this is as good as you're going to get of pure textualism, 100%, no additives, no sugars, textualism. Okay, now here's Alito. The court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of sex is different from discrimination because of sexual orientation or gender identity. In any event, our duty is to interpret statutory terms to, quote, mean what they conveyed to reasonable people at the time they were written, unquote, citing Scalia.

who thought that discrimination because of sex meant discrimination because of sexual orientation, not to mention gender identity, a concept that was essentially unknown at the time. It's so perfect as an explanation of originalism because you're getting those red flag words of originalism, understanding what it meant at the time. if you did a survey of the meaning, those are all big, big keys that you're listening to originalism at work. Yes, exactly. You're listening to originalism, which originalism is more properly the sort of contemporary. When you hear originalism in contemporary legal discussions, you're usually referring to something called original public meaning. And what original public meaning is, is quite literally, what is the meaning that the public took from this constitutional provision or statute at the time that it was written?

And so here's where Alito, I mean, this is where judicial philosophy matters a ton. And I do not like the stuff I've been seeing on Twitter that says Gorsuch just wanted to please the New York Times editorial board or he wants the approval of polite society. No, these are different legal philosophies. This is not, I do not believe that Gorsuch or Alito in either case is driven by how do I want this case to turn out. I think they're driven by what is the dominant legal philosophy that governs their jurisprudence. discrimination because of sexual orientation or gender identity, but discrimination because of sex is still inherent within discrimination because of sexual orientation or gender identity to a degree that applies Title VII, that brings Title VII to bear. He was not arguing that the

discrimination was exclusively on the basis of sex. He was saying that sex was inherent and inescapable within the discrimination that takes place when there's sexual orientation discrimination or gender identity discrimination. I think that's your difference right there. And then you enter Justice Kavanaugh with his separate dissent, which is actually, I mean, this opinion obviously has profound implications on civil rights laws moving forward and statutory interpretation, other things. But in terms of like your first reading, what you're really getting is this intra-family argument on judicial interpretation among the conservatives. And Kavanaugh's dissent is about textualism. And so he's not dealing with the Alito originalism points. He's dealing just with Gorsuch

textualism and says that this is bad textualism because textualism isn't literalism. Right. And so he's trying to sort of apply some originalism love to a textualism, you know, originalism glaze to a textualism table, let's say. And, you know, first, courts must follow the ordinary meaning, not literal meaning. There is no serious debate about the foundational interpretive principles that courts adhere to ordinary meeting, not literal meeting when interpreting statutes. As Justice Scalia explained, the good textualist is not a literalist. Yes. We told you this was peeling an onion here. And the other aspect of this, going back to what we earlier said, we speculated, and again, it's total speculation, that the political process that was rolling into place on qualified immunity might have had an effect on the court pulling back

from ruling on qualified immunity to leave it to the political process. Well, to the extent that the political process has rolled on this at all, it has been a decades-long effort to amend Title VII to include sexual orientation and gender identity, which has in essence been a congressional, there's been a congressional argument for year after year after year that says that no, sexual orientation and gender identity are not in Title VII. And so there's been sort of this political process to amend Title VII to include sexual orientation and gender identity, something that Alito pointed out at some length and that the court was— Also, imagine the political process, by the way, just like fun little side jaunt. What if the Equal Rights Amendment had been passed? Yes, yes. Now, we talked about the Phyllis Schlafly, Gloria Steinem television series on Hulu and all of that. And like for so it was closer to the top of my mind

that it would have been anyway. But talk about a political process that did play out and actually kind of still is. And it would have had, I think, a meaningful impact on today's opinion. Now, here's another interesting twist, and then we're going to get into some of the other implications. So here's an interesting twist, though. So there is a lot of argument online about, and in academia and philosophically, over whether biological sex in the trans context is a valid marker at all. In other words, you've heard the phrase, like, a trans context is a valid marker at all. In other words, you've heard the phrase like a trans woman is a woman. And these cases and the argument made by the plaintiffs was that

biological sex and gender identity are two different things. I didn't think about that. Yes. I didn't think about this as actually a legal win, but a philosophical loss for the transgender community in particular. Yeah.

So to win, they had to recognize the validity of biological sex as a legal concept. And so they would say, for example, that a person who's, say, a trans woman, they're biologically male, which is where the sex discrimination aspect of this pops into play, but they're a trans woman.

And that is a distinction philosophically that much of the trans community flat out rejects, just flat out rejects. trans community flat out rejects, just flat out rejects. Well, this was why, you know, I didn't think of it that way. And I think that's such an interesting point. But overall, I thought it was a fascinating high wire risk act to bring the gender identity case in the first place, instead of bringing them separately, like in separate, you know, not pushing this one from the advocacy standpoint. if I had been advising them behind the scenes, I would have said, look, on the one hand, I think the gender identity case is an easier case of sex discrimination. But on the other hand, to David French's point that he makes of, you know, this is like a, maybe a side point on bad facts make bad law.

You know, if the culture isn't there yet and we're not even close politically, the court is just going to be far less inclined to jump into something that hasn't been fully litigated, not just legally below, but also culturally. And sexual orientation, I really feel like has in a way that gender identity has not. It is a much more recent cultural issue. And so that's why Justice Gorsuch, for instance, at the argument even sort of distinguished the two. He said when a case is really, really close to the textual evidence, at the end of the day, should a judge take into consideration the massive social upheaval that would be entailed in such a decision and the possibility, is it more effective and more appropriate to have a legislative rather than judicial solution? Isn't this a question of judicial

modesty is basically what he said. And so I thought that, you know, I would have said, take the less, the more risk averse position here, just bring the sexual orientation case, wait on the gender identity case. And they didn't. They pushed ahead. And it's interesting, David, because they won, and that, I think, is surprising to some. But to your point, did they think through all the implications of what winning would mean? Yeah, that's a really good question. And I would also say that this, law student listeners and young attorney listeners is a very interesting example of how effective advocacy and litigation strategy is so important to case outcome. These things are not for written. And I thought when I read the oral argument and I read the briefs, I thought, ah, the plaintiffs in this case have decided that their audience is a man named Justice Gorsuch.

And everything that they are writing, everything that they are writing is designed for his ears. And, you know, that's a very interesting tactical choice because the swing— And it can backfire. Oh, absolutely. Because if you're going to say who's the swing vote on the court, this sort of the quick, like fast statement. Oh, is it's Justice Roberts? Of course. That's what you would say. But in this case, is this the institutionalist position here that he's taken? I think maybe your analysis that he jumped on board to provide that sort of additional weight of the 6-3 may be important. It's not self-evidently obvious walking into this case that Justice Gorsuch is your swing vote, but they argued it as if he was the,

it seemed to me they argued it as if Justice Gorsuch was the only person in the room, was the way they argued it. And they turned out that was a smart, smart strategy. It also, I thought, was helpful that they picked two cases where you do assume the allegations of the plaintiff are accurate, that you just assume that they were fired

because of sexual orientation and gender identity as part of the legal doctrine. But it helps when the facts back that up. And these were two cases where that appeared to be the case, you know, that when this goes back to trial, there's not a whole lot of question now of whether they can prove their case at trial. And that stuff matters as well. Now, the other the one of the very first questions you began to see that came out of this case is, okay, now what does this mean for religious liberty? And so here's where Gorsuch dives in again. Okay. Now remember those of you who are, are dedicated advisory opinions, listeners, and which, you know, I'm sure is all of you. Um, we'll be now, you remember that I have spec is all of you. Will be now. You remember that I have speculated

that one of the things that might end up happening is that the Supreme Court is going to ultimately enhance religious liberty protections even as it enhances the reach of Title VII. And there's some signal here that it might be doing that. And I'm going to, Sarah, if you forgive me, I'm going to read another paragraph. This is Gorsuch. Go for it.

Separately, the employers fear that complying with Title VII's requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of free exercise of religion enshrined in our Constitution that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with the religious liberties are nothing new. They even predate the statute's passage. As a result of its pre-deliberations in adopting the law, Congress included an express statutory exception for religious organizations. This court has also recognized that the First Amendment can bar the application of employment discrimination to claims concerning employment relationship between a religious institution and its ministers.

And Congress has gone a step further yet in the Religious Freedom Restoration Act. That statute prohibits the federal government from substantially burdening a person's exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, which is a fascinating way of describing it, displacing the normal operation of other federal laws, it might supersede Title VII's commands in appropriate cases. Okay, David, I kind of zoned out in the middle of that. Tell me what that meant.

So basically what he is saying is that if you can mount a religious liberty objection to the application of Title VII, that you have a strong argument, is essentially what he's saying. With Justice Gorsuch, he's like, come back and I'll help you with that one too. Is essentially what he's saying. With Justice Gorsuch. He's like, come back and I'll help you with that one too. Exactly. And so it's sort of, so we have other cases where this could kind of line of reasoning can come into play.

We talked about the ministerial exception case where, again, this is religious institutions defining who functions as a minister and whether the courts are going to defer to the religious institutions' definition of who is and isn't a minister. Fascinating now that that's going to come out after this. Yes. Because now we're going to read that opinion knowing this opinion, which I did not think would be the case. And to your point, implications abound. Abound. We've got the adoption agency case out of Philadelphia, which is not really a Title VII case. It's involving state and local laws, but will tell us an awful lot about the court's view of the strength of the free exercise clause. Actually, to your point on that, though, there's this great little section in Justice Kavanaugh's dissent where he touches on what we're about to deal with in Philadelphia, I think. And he says, over the last several decades,

the court has also decided many cases involving sexual orientation. But in those cases, the court never suggested that sexual orientation discrimination is just a form of sex discrimination. All of the court's cases, from Bowers to Romer to Lawrence to Windsor to Obergefell, would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore receive the same heightened scrutiny as sex discrimination under the Equal Protection Clause. This ties in, by the way, Justice Thomas's point about how the Second Amendment isn't getting heightened scrutiny, even though everything else

does at the lower courts. But also, I read that and I was like, oh, well, he does have a point there. If we have now just collapsed sexual orientation into sex discrimination. Why all the pretzel doing for this whole line of cases on sex discrimination? Are they gone now? Did that just obliterate the reasoning, at least, and the legal standard from Windsor and Obergefell? in Obergefell? And if so, that has actually a lot to say about the Philadelphia adoption case, where Philadelphia no longer will allow the Catholic Charities Adoption Agency to function within the foster and adoption system because they will not refer children to a gay couple. But now it's not about whether the couple's gay. It's about them discriminating on the basis of sex. I don't know. Are we going to follow the sexual orientation line of cases? Are we going to follow this newly created sex discrimination line of cases? And like, boom, mind blown. There's now a lot that's going to have to be sorted out with this. And the other thing that's going to be very interesting and quite contentious, by the way.

So it's one thing to say, OK, and wave the flag and say, OK, we're extending Title VII into sexual orientation and gender identity. And oh, by the way, religious people, sexual orientation and gender identity, and oh, by the way, religious people, I'm giving you this hint that we're not going to be diving into religious organizations to try to adjust hiring and firing practices in religious organizations. Doesn't say that, but strongly implies that there's going to be a different analysis involving RFRA, involving First Amendment factors when dealing with religious organizations. What if you are an ideologically conservative organization but not religious? Let's say you're a think tank and you are opposed to the idea on a philosophical but not religious basis that say a man can become pregnant. Or you're making arguments in opposition to various aspects of trans ideology and public policy, etc., etc.

It seems to me under this reasoning that if a trans person applies to that ideological institution, they're going to be protected by Title VII. speech of an institution that doesn't agree with and affirmatively dissents from various elements of gender, you know, gender theory and gender identity philosophy. Interesting. I mean, I think those are very distinguishable, but you've come up with a good hypo on the hostile work environment side. Not that they're getting fired because they don't agree with these philosophical things as opposed to who they identify as. I think those are very distinguishable. But there's, you know, other parts of Title VII that aren't just about getting fired for being transgender, but in fact creating a hostile work environment. Interesting. I think it's distinguishable, but you raise a good point. Yeah. I mean, there's a lot that is going to be, let's just put it this way.

There is a lot of litigation and court cases ahead to figure out the extent of this. But again- Well, 2020 really has been the lawyer full employment year. I mean- No kidding. And the other thing I'll say about this is – well, to finish the thought on this, we've been speculating that the court is heading towards something akin to a fairness for all analysis or the Utah Compromise analysis, which is there is a strong protection against discrimination in secular contexts, a strong protection against discrimination on the basis of sexual orientation and gender identity in a secular context, but a much more hands-off approach for the state. The state is mandating, or the court will mandate from the state a much more hands-off approach to religion, which is essentially the Utah compromise on sexual orientation and gender identity discrimination laws. And it's, I speculate, and you can take the speculation for what it's worth, exactly nothing,

but I speculate that's where we're headed. Well, and, you know, this is a good opportunity for me to wrap on the different judicial philosophies because we didn't talk about purposivism versus legal realism. But that's, I think, where this goes from here, because we didn't hear from any of the four liberal votes on the court on this question at all. Not in the majority, not in the dissent, not in the other dissent, and there were no concurrences. But, you know, what they, I think, would argue, first of all, you have Justice Kagan, who I think has really adopted textualism in a very savvy way to get some votes from her colleagues from time to time.

So there's like a liberal textualism, which I think I'm referring to as maybe more purposivism. Right. uh, maybe more purposivism. Right. Um, what was, you know, the purpose at the time is sort of their like original, like, uh, uh, or anti-originalism thing. Um, and that's, you know, even goes further than textualism or originalism in saying it's not just what the meaning would have been at the time. It's like, what's the purpose? And then legal realism is outcome oriented. It's not fair that people are getting discriminated at work. So this is a question of fairness. And yeah, we're, you know, reading into this statute

that they meant to have some fairness as well. And so the legal realism is the outcome matters and the outcome should be the fairest outcome. And the fairest outcome here is that Title VII was about protecting people from discrimination. If this is a close call, then let's protect people from discrimination. And those are, I think, the four arguments that have to be grappled with, argued to, to your point, about who the swing vote is going to be on these future cases. But let's assume it's not going to get to the Supreme Court now for several more years, which I think is accurate. These lower courts are going to have to grapple with all of this. And we're going to see a lot of circuit opinions in the next two years. Yeah. Oh, yes,

we are. And, you know, we're going to have just this term. We're going to have, you know, the, the, the ministerial exemption exception case is going to have a real bearing on this. Yeah. There's a lot to a lot of contentious case law to follow. Let me take a short break to thank our sponsor, Gabby insurance. We are all looking for ways to save money, especially now.

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It's totally free to check your rate. There's no obligation. Take two minutes right now to see how much you can save on your car and homeowner's insurance. Go to Gabby.com slash advisory. That's G-A-B-I.com slash advisory. Gabby.com slash advisory. Thank you to Gabby for sponsoring the advisory opinions podcast. So do we want to talk, uh, let's, let's talk briefly about another really, uh, tragic, uh, police shooting. Um, this is the, the shooting in Atlanta, uh, involving a African-American man

who was sleeping in his car in a Wendy's drive-thru line. And I've watched, Sarah, watched the whole thing unfold. And it's just, when you know the ultimate outcome, when you watch the first, all the, what, first 19, 20, 25 minutes of it, and you find it hard to believe it ends the way it does. So a man is- I know, especially in, yeah, in the first 15 minutes, you can't believe this is going to end the way it does. You don't see how we're going to get from here to there in the next 15 minutes. Yeah.

And in fact, even up until the last three minutes, I don't quite see how we're getting from here to there. Yeah. The last 30 seconds. I mean, so the basic train of events is that African-American man is asleep. He's intoxicated. He's asleep in the Wendy's parking lot or in the Wendy's drive-thru line. Police officer is called.

He wakes him up very pleasantly. The police officer is kind of chuckling, you know, at the guy. He pulls over into a parking spot. Police officer calls for another officer. They're having a pretty amiable conversation, all things considered. The guy is obviously quite drunk. all of the field sobriety tests, confirm what you suspect. He is, in fact, drunk. The man essentially asks to be given a break. He says, just let me walk. I forget, was it sister's house? Walk to a house, leave the car so he wouldn't be driving drunk, walk to a house. He just asked to be given a break. The officers decide to arrest him. And as soon as they begin to put him in handcuffs, everything goes south very fast.

He fights back very strong. There's two officers involved. Two officers. Very relevant. Yes, yes. Two officers fights. He, you know, the African-American gentleman fights back very strongly, very aggressively. During the fight, he's tased. It doesn't stop him. He wrestles away from one of the officers, his taser, and starts to run away. As he's running away, he's tased again. He yells, but he keeps running. Again, he yells, but he keeps running.

As he's running, he turns and he fires the taser back at one of the two pursuing officers. I believe it was the other pursuing officer then fires three shots, two of which hit the African-American gentleman, ultimately killing him. And number one, horrible. Number two, much more complicated than the George Floyd case. Much less straightforward and with a actual Supreme Court authority that will govern it, how it's determined, which indicates when can you shoot a fleeing suspect? And the answer is use deadly force on a fleeing suspect. And the answer from the court is we conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause

to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. That's the legal standard, Sarah. Yeah, this was difficult because when the news first started trickling out about this without the full video, it sounded a lot like the South Carolina case where the officer, it sounds very similar if you just give the top line. The officer pulls over someone. There was an outstanding warrant in this case. The guy runs out of his car after the officer asked him for his, you know, ID or something like that. He runs out of his car and he's running away. And the officer shoots him in the back

and said that he had taken his taser in a scuffle and a taser was found next to the body of the man in question. However, in that case, there was a bystander, unbeknownst to the officer, taking a video at the fence line that showed the officer plant the taser after the fact. Right. So when I initially heard this and with the skepticism of some of the statements that we've seen from the police unions or the police departments that have turned out under video to then not be true, the initial version you know, version of events we heard, I was like, well, let's see. I don't know. But in this case, the video backs up a much different legal story, which is almost, you know, very well covered by that Supreme Court opinion. Right. Yes. And so the question now, the only question is, yeah, right, is, you know, did he at the moment that he turned around and fired the taser back at the

officer, was he still a fleeing suspect at that point? I think that's actually probably a definitive question, because I think at the point you turn around, you're no longer fleeing, even though he was sort of he turned his torso around while his feet continued to move away from the officers. So a question there of whether he is a fleeing suspect. And two, does shooting the taser at the officer count in the officer's reasonable perception? Did he have probable cause to believe that his life was in danger or others? Yeah. And so Rayshard Brooks, who's the name of the African-American gentleman, if I choose to, and prosecutors are looking at this, and let me say, five years ago,

there is no question the officers would not be prosecuted under these facts five years ago they're looking at it now and if frankly david five weeks ago five weeks ago yeah exactly here would be the prosecution case and that would be that the phrase is significant threat of death or serious physical injury. And the prosecution case would be that a taser does not inflict serious physical injury. It's a temporary incapacitation and that what the officer was facing, one of the two officers was facing, was a temporary incapacitation at worst, not serious physical injury. Now, the presence of the second officer makes that important because it is just one-on-one at the point that you are temporarily incapacitated and someone can come over and get your gun. Exactly. It's a much different question. The presence of the second officer changes that. Does it change it enough? Well, and then you have the split-second

decision-making involved. There's another aspect here. He had already been patted down. So they knew they had a very high degree of confidence that he didn't have a gun. At that point, they had knowledge that he had the taser. Now, this is the kind of case where, again, five weeks ago, this thing is not prosecuted. I would actually be a little bit surprised if it was prosecuted even now. You don't think it'll be charged? I would be, I'm only going to say, I'm going to say a little bit surprised that it would be charged because he did fire the taser straight back at the officer. Yeah, and also, if you're the second officer,

here's the question for me. Did the second officer have any duty to wait and see if the taser hit the first officer? Because at the point that it hits the first officer and your partner is now incapacitated, he can fire the taser at you. You become incapacitated, even temporarily. Again, you're both carrying weapons, guns that you can

be relieved of. I don't think we need to expect officers to deal with how they were supposed to get out of that issue. But there were two of them in the scuffle beforehand. The scuffle is real. Yeah. When they go to arrest him, there's people being flipped. One officer's flipped over his back. It's odd that you think two armed police officers can't control a single other person, but they can't. They don't in the video, regardless. It's hard to control a human being. It's hard to control a human being who's intent on escaping. It's very hard.

I think men probably would understand that more than women. I don't know. Like for me, I'm like, I don't really know what, if in a true physical fight, what two on one would mean. Um, uh, but it's, it is still stunning to me how quickly and how badly that went. It's just so tragic. Yeah, horrible, horrible, but substantially different from George Floyd, from Ahmaud Arbery, from the no-knock raid that cost Breonna Taylor her life, substantially different. that cost Breonna Taylor her life substantially different. And so one other, can I just brag on the guys I served with in Iraq for just one second?

So very difficult to control one person with two people. There was an incident in Iraq where one guy completely simultaneously manhandled two Al-Qaeda terrorists into submission in a raid. Broke in, was the first one in, jumped by an Al-Qaeda emir, who fortunately did not have his weapon close by, jumped by the guy's bodyguard simultaneously. And before, in the blink of an eye, before the rest of the squad could react, our trooper had both of them by the throat, had lifted both of them in the air, and was holding and threw them down on the ground and was holding them by the neck, incapacitated, in the blink of an eye. Sounds superhuman, but if you saw the guy, you would say, yeah, it seems about right. That seems about right. Okay, so. Well, we'll see how this plays out.

But, you know, as you said, legally, it's incredibly different from those other cases. You know, unfortunately, emotionally, when you watch the beginning of that video, it's not as different. Heartbreaking. So heartbreaking. Um, okay, Sarah, we got to get to, we got to get to the, the topic du jour that I did not bring up because I'm a terrible human being right from the start. You have a baby at home. I do have a baby at home. I thought we could, um, uh, you know, address, I don't know. First of all, there's like all sorts of things about the baby that are amazing and neat. And I would waste

all of your time talking about him for the full podcast to be clear. Uh, his name is Nathaniel Philip Henry Keller. And, um, we've been joking that he sounds like his Royal Highness, the Duke of McLean. We went with two middle names. And remember I said, the name was going to be a little dependent on when he was born because he was born on Friday. He shares his birthday with his 95-year-old great-grandfather, Henry Keller, who fought in Europe during World War II. And that was really fun. So we got to FaceTime with his great-grandfather, and they could talk about sharing a birthday and have a nice little discussion about that.

And his dad was wearing his World War II Army baseball hat, which was really cool. So I got some pictures of that Zoom call. It'll still probably be a while before we can all hang out in person under this virus situation, but that was really special. And so that's why he has two middle names. Also, I guess we're very pretentious. So there's that. But Nathaniel is after Nathan, my uncle, who was the head of the Jefferson Physics Lab at William and Mary. And the Isger theorem on quark theory is his theory. And I have lots of wonderful memories of my uncle Nathan, who passed about 20 years ago.

I was going to ask you one day if the Isger theory was named after your family. Really? No. No. Never heard? No. No. Never heard of it. Okay. Never heard of it. Well, you know, quirk theory, David, get on it.

Okay. It's neat. And he, my Uncle Nathan, was named after his Uncle Nathan who died at Iwo Jima. And when he died at Iwo Jima, he was childless and not married. He was very young and his GI bill benefits went to his younger brother, my great uncle, Eugene, when my uncle Nathan and my father and that side of the family, their father died when they were fairly young. And their mother then came down with a severe health issue, which caused her some paralysis. My uncle Eugene used that GI bill to go to medical school and was the first person, you know,

in my family to do that. And so he took in my uncle Nathan and my father and that part of the family and really helped out at that time. And so there's this, I don't know, wonderful family history for me of an angel in the whirlwind, if you will, David. But for my great uncle Nathan fighting in Iwo Jima, that provided this opportunity for my uncle Eugene that then benefited my direct family. You know, there's meaning even in tragedy sometimes. Yeah. Well, I mean mean it's an incredibly impressive family history my goodness that's uh to he will have no trouble having pride in his name and philip is his both grandfathers uh one first name philip my father's middle name is philip

so lots of lots of history in the naming we went pure family after reading lots of baby books with Greek goddard names and Xenon and all sorts of things we were considering for weirdo millennial names to name our kids. And then we went like pure family history. So... Well, and X-Ash-12 was taken. X-Ash-A-12 was taken.

Yes. So, you had to go back to the drawing board after that. I mean, it happened in the middle of the pregnancy. It was a real disappointment. Yeah. No, seriously. The nursery had it painted on the wall. So, the birth story is a little bit graphic.

We may want to skip that. But the short version is, didn't go super to plan. Long story short, I now know what a C-section feels like without pain meds. Oh my goodness. And you're laughing. Well, because you know what? Since then, David, everyone keeps asking how I'm doing and I'm like, I'm great. It's been all uphill since Friday morning. Oh my goodness. So because of coronavirus though, there's a bunch of new, I don't know, a bunch of things that are

very unique to my pregnancy, but now also my motherhood. First of all, there was no nursery in the hospital. You couldn't send the baby to the nursery, which made being in a little hospital room with me and my husband and a baby harder, I think. Yeah. Yeah. Like when he cried, it wasn't like, oh, my, you know, we can send him to the nursery and then we can get some sleep. Like my husband could be with him and I would sleep, which is what we did. But like, he's still crying in the room. Yeah. Oh, my goodness. So I opted for early discharge and we came home yesterday. And he is the best eater. We actually went to the pediatrician today and I had to ask like the crazy mom that I am,

is it okay that my baby eats this much? Uh, yeah. Yes. Is the answer was fine. Yeah. Well, and you said good sleeper.

Yeah. Well, I think the two are related, but yeah, he's a, he's a champ. I'm having trouble with this because, Sarah, we went through years. Years without children sleeping.

Like, I'm not talking a few weeks. I'm not talking like the first six months. I'm talking years with my two oldest kids. I'm talking years with my two oldest kids. In fact, when we adopted our third kid, the most glorious moment after, of course, the actual moment of where you meet your child is the glorious moment. But then the second most glorious moment was when she fell asleep immediately and slept through the night with no issue. Because that didn't occur for the, maybe the first five or six years. Yeah. Yeah. David, it's day three. I don't want to oversell Nate's abilities here, but, uh, to give you some indication, I sent Scott home

midnight to 8am for the two nights in the hospital so that he would get good sleep. And like, I was just fine managing this little dude because he would sleep so much as long as you fed him the amount he wanted, which was obscene. Uh, for the mothers out there, he's three days old and eating two ounces at every feeding. It's like, I don't know where it's going. I mean, I do because some of it's on my wall right now, but, uh, uh, but so this is all actually to get to a larger point, David, that like, there's some question of why I'm on this podcast today. Uh, and it's fair. And I just want to note that this is not a mommy wars issue for me whatsoever. This is, A, today's my Super Bowl, and you got to play in the Super Bowl.

And B, because of coronavirus, my situation is just really different. My husband's here full time. I'm here full time. We're all staying at the house. There's nowhere else to go. So I have, you know, help. I have an easy baby. He's upstairs right now. I'm in the basement

and, uh, you know, it just, it's so different, the situation that I'm in from a lot of people. And for instance, today I had to text you guys this morning. It was like, Hey, the pediatrician can only see him during our normal taping time. So we had to move the whole taping and you guys were all, uh, of course, flexible about it because it's a podcast taping. This isn't brain surgery that we needed to reschedule or a C-section as it were. Um, and so I have a very flexible job and flexible coworkers as well. So it's it, I just want to underline and make clear to every listener, those who expect the same from their future significant others, or are thinking that I have done a really dumb thing or a really,

you know, amazing, strong thing and all those things. Not really. It's very specific to my situation. So to be clear, you are not making a statement that real women podcast on day three. No. In any way, shape or form. Yes. Yeah. That being said, I will tell you the things that I am proud of, which is a, uh, the C-section. Uh, they did push morphine during it. Um, because at that point they, they, they did pause, uh, but they decided they had to continue. So I got morphine, but that's it. And I didn't take any pain meds after that. So no narcotics.

I'm on ibuprofen and I'm feeling pretty good. Well, you're a champ. I mean, I'm just going to say it. You're a champ. And the other thing I'm most proud of is that I did my hair. Not since the baby. I did my hair, not since the baby. I did my hair before the baby. I just haven't washed my hair.

Uh, so like my hair is done for the first time in four months and, uh, and I'm up and moving around. So, you know, I'm not pride of, you know, it's not doing this podcast so much. If that makes sense, listeners, it's that my hair is straightened. If that tells you where things rank for me. So I will say this, Sarah, I have only had one surgical procedure in my life. I broke my nose playing basketball in law school. And I did not look nearly as great and vibrant as you do on day three afterwards. In fact, although people should know

those law school fouls, like if you've ever played a game of pickup basketball in undergrad, in any part of your adult life, actually, you have never experienced how hard people foul in law school basketball and then like make legal arguments about why it wasn't a foul. Yeah. That's crazy. That was a moment because I collided with a former East, a linebacker, former linebacker from East Carolina university at full speed, uh,

woke up in his lap. Like he was literally, I was going to say he didn't move and you bounced off. I totally, he was cradling my head in his lap. And the first words that I heard when I came to from being knocked out cold were, you okay there, little buddy?

Oh, gosh. So not only does he just fracture my nose without even like moving, not only does he knock me out cold, his first words to me are call him. Now it was affectionate, you know, like we were friends, but I'm like the little buddy. And so, yeah. So not only is my nose fractured, I'm just humiliated. But I'll never forget the drive. They cart me off in an ambulance because I'd passed out and

on the way in, and I'm trying to crack jokes to restore some dignity. And they call in the call and they say, probable broken nose, minimal bleeding. And there was not minimal bleeding. And I said, what do you mean minimal bleeding? And the ambulance driver just shot back. Is it ankle deep? And I said, oh, gosh, okay. Minimal bleeding. Yeah. Oh, man. Yeah. So it, there is something a little surreal about feeling like I took a long weekend, like I took Friday off and then got back from my little vacation with a third human in my house. Amazing. But he has hair and most of his personality, I would say at this point, does revolve around eating. So I'm not going to be one of those moms that like, he has such a little personality, unless personality say at this point, does revolve around eating. So I'm not going to be one of those moms that like, he has such a little personality.

Unless personality is, give me the food now. Yeah. We'll see. I mean, it's only day three. If you're a dispatch member, I don't want to speak for you, but on a dispatch live, can people get a glimpse? That's a really fun idea. Especially, yeah. Yeah, definitely.

Yeah, that'd be awesome. I think you got to give the people what they want and they want to see Nate. The brisket, yeah. Yeah, there's an enormous amount of interest. We really are. We're going to our butcher later this week and we're going to try to find

an eight pound, four ounce brisket. I love it. That's going to try to find an eight pound four ounce brisket. I love it. And that's going to be our celebration for ourselves since we can't have people over and stuff. We're the eight pound brisket and our, and our eight pound brisket. Uh, I'm sure there will be darker moments to come, but we're savoring all of the happy coos and little noises that he makes, which I will note, do sound a lot like my geriatric cat. Well, congratulations, Sarah. Thank you. We're thrilled for you.

Listeners are thrilled for you. And I'm sure we're going to hear more stories. And hopefully they're all going to be just as superior in his baby lifestyle to my kids' baby lifestyle over the next weeks and months. This has been the Advisory Opinions Podcast, and thanks so much for listening. Bye.