Advisory Opinions - Ultimate Supreme Court Nerdery Part II

Episode Date: May 22, 2020

David and Sarah finish their preview of a number of upcoming Supreme Court decisions from the Consumer Financial Protection Bureau to DACA and the Title VII cases. The two also discuss the debate over moves to expand vote by mail, and the new Hulu miniseries Mrs. America. Show Notes: -Texas vote by mail lawsuit -A Guide To the 10 Biggest Supreme Court Cases of This Term -A Glossary of Important SCOTUS Terminology Learn more about your ad choices. Visit megaphone.fm/adchoices

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Well, what about two? Right now, get a small, organic, fair trade coffee and a tasty bacon and egger breakfast sandwich for only $5 at A&W's in Ontario. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. We are going to finish our 10-case analysis of key Supreme Court cases today. We're also going to pop in with a little tiny bit of politics and have a robust discussion of the Hulu show, Mrs. America, about Phyllis Lafley, the battle over the ERA, Gloria Steinem, Bella Abzug. It's going to it's definitely stay tuned for that discussion because I cannot wait to hear what Sarah has to say about it.

because I cannot wait to hear what Sarah has to say about it. Cannot wait. But before we get started, I just want to remind you all again to rate our podcast, to leave us a review, rate us five stars and leave us a good review. Helps us out a lot. And last time I made that request at the top of the podcast, we got some really great feedback. So please go to Apple Podcasts and do that. That would be very, very much appreciated. But without further ado, let's begin politically slash legally before we dive into Supreme Court nerdery. And I'm just going to begin by reading a presidential tweet.

Michigan sends absentee ballot applications to 7.7 million people ahead of primaries in the general election. This was done illegally and without authorization by a rogue secretary of state. I will ask to hold up funding to Michigan if they want to go down this voter fraud path. Sarah, you wrote about this in the morning dispatch today. So let's start with your thoughts. Well, first of all, I loved the Secretary of State's response. Every Michigan registered voter has a right to vote by mail. I have the authority and responsibility to make sure that they know how to exercise this right. Just like my GOP colleagues are doing in Georgia, Iowa, uh, uh, Nebraska and West Virginia. Uh, yeah. Interesting that that tweet went to

Michigan and not Georgia, Iowa, Nebraska, or West Virginia. I also particularly appreciated Jan Barron. He's a great election lawyer in D.C. The Las Vegas Review-Journal, because Trump also tweeted a very similar tweet to Nevada. And the Las Vegas Review-Journal reached out to him. He said, I don't know how to respond to this tweet. I have no idea what Trump means, and perhaps he doesn't either. Withhold which funds? How much? On what basis can funds be withheld if they have been authorized and appropriated by Congress? Some pretty basic legal questions there. Yeah, yeah. You know, I just wanted to highlight this briefly because this kind of thing just kind of gets stuck in the background. It becomes like the background noise of our lives when it's the actual president of the United States issuing a what looks like, again, I don't know what funds on what legal authority, what looks to all the world like a punitive threat against a secretary of state from the opposing party that is not based in law or fact.

And we just kind of go on with our lives. Well, and there are lawsuits going on, though, actually, before we get to those, let's talk about the politics a little. I am bewildered by the political decision to do this when two things at play. One, we know that more people are going to vote absentee and or by mail this time around. That's just a fact that's going to happen. Pennsylvania has seen a 14-fold increase in requests for absentee ballots over 2016. That's a state Trump needs to win. That was a clincher in 2016. And at the same time, we had this great conversation with Rachel

Kleinfeld a couple months ago. Actually, I'm not sure it was a couple of, it might've been one month ago or five years ago, you know, whichever. And, you know, she made the great point that the biggest demographic who vote by mail are the elderly. And the biggest shift in Trump's polling that we've seen since coronavirus started is amongst the elderly. He's lost 20 points in his approval rating for those over 65, which is bonkers time. Yeah, that's unbelievable. So why, why is he antagonizing vote by mail? And there was an interesting write up from Reuters, I believe, where it is becoming this partisan thing for voters where Democratic voters feel very comfortable requesting an absentee ballot, and Republican voters aren't.

But it's still going to be more difficult for some of those hardcore Republican voters to go vote in person if they're afraid of the virus and everything else. It just seems like a weird thing. And of course, the Trump campaign is encouraging Pennsylvania voters to vote absentee. So I don't understand the politics of this one. Seems like a big loss. And then let's add this layer to it. Trump won Minnesota, Michigan by a tiny amount of votes,

like a tiny amount of votes and such a small amount of votes that, you know, even a new cycle shift can shift a few thousand votes here and there. And he goes ahead and he threatens the whole state. Like he just threatens the whole state that which, by the way, is one of the harder hit states by the coronavirus and which, by the way, is suffering from pretty catastrophic flooding in parts of the state right now. Oh, I know that flooding would lead the nightly news, but for coronavirus, it looks incredible. Yeah. So weird political decision. But David, so in Texas, this is my home state. So obviously I'm a little keyed up. So in Texas, this is my home state, so obviously I'm a little keyed up.

In Texas, one of the ways you can request an absentee ballot is if you say you have a disability. And so there's a big conversation over whether fear of coronavirus should count as a disability, legally speaking. The Texas Attorney General has said no, it is not a disability. And groups have sued saying yes, it should be considered a disability. There's also another way you can vote absentee in Texas. And that's if you're over the age of 65. And this is actually clever. I will let you decide. There's also a lawsuit arguing that that is a violation of the constitution uh and perhaps the equal protection clause because it's age discrimination now interestingly of course it's age discrimination against those under 65 right which we don't see a lot of but cool plan so uh this is like a quirky

non-lawyers this is going to confuse you and in fact lawyers this is confusing like even if you understand it but we have two parallel lawsuits going we have a federal lawsuit and a state lawsuit and they're moving at like nearly the same pace which makes it even weirder. So on Monday, we get an opinion from Judge Beery in San Antonio. David, you had a chance to glance at this opinion. Do you have any words of like how you would describe this? There is something about this pandemic that is bringing out, and now two judges, some of the most extraordinary, and I'm not even going to call it legal rhetoric because it wasn't specifically legal rhetoric, but some of the most extraordinary rhetoric that I've ever seen in a judicial opinion. rhetoric that I've ever seen in a judicial opinion. And yeah, it was one of the more, unfortunately, I don't have the opinion in front of me. Oh, I do. I'll quote some. Okay. Please, Sarah, deliver the goods. No, I mean, first of all, the order itself is about 11 pages long and there's no case citations.

So I enjoyed that. Now, there's like some appendices that are attached that run 74 pages total. That, eventually, you do get to some Anderson-Burdick analysis eventually, although it's kind of buried, to be honest. But the order itself starts with, we hold these truths to be self-evident that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness, dot, dot, dot, dot.

The Declaration of Independence, paragraph two, U.S. 1776. 244 years on, Americans now seek life without fear of pandemic, liberty to choose their leaders in an environment free of disease, and the pursuit of happiness without undue restriction. We, the people of the United States, in order to form a more perfect union,

dot, dot, dot, dot, U.S. Constitution preamble, union, dot, dot, dot, dot, U.S. Constitution preamble. Of the 3,929,214 original Americans, we the people, as the new sovereign with the power to prevent a new despot, belonged in the hands of only 235,753 white males who owned property. It goes on. That, for those listeners who are just beginning a legal career or never contemplating a legal career or just legal curious, that is not typical judicial rhetoric at all. At all. Wait, I have one other. This is pretty good.

There are some among us who would, if they could, nullify those aspirational ideas to return to the not-so-healthy-on days and not-so-thrilling days of yesteryear of the divine right of kings. Footnote five. Trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill. Footnote six. And the footnotes, by the way, are also worth their own podcast. Please read me footnote five. One moment. Footnote five.

moment. Footnote five. The divine right of kings is the doctrine that kings have absolute power because they were placed on their thrones by God and therefore rebellion against the monarch is always a sin. Citation Oxford reference dot com, et cetera, et cetera. Last visited April 27th, 2020. Shining city on a hill. Footnote 6. On April 11, 1989, President Ronald Reagan referred to America as a, quote, shining city upon a hill during his farewell speech to the nation, quotes it at length. A city upon a hill is a phrase derived from Jesus' Sermon on the Mount, quoting at length. Citing Matthew 5, 14 through 16, this scripture was cited at the end of Puritan John Winthrop's lecture, A Model of Christian Clarity, delivered on March 21, 1630 at Holyrood Church in Southampton, England, before the group of Massachusetts Bay colonists embarked on the ship Arabella to settle in Boston.

He said, you know, long quote, I mean, David. Well, you know, there's a certain egalitarian aspect to an opinion like this, because what it does is it essentially obviates the need for law school. If you can wax eloquent, if you can have a hot take, you too can be a federal judge. If it's it really I don't know. We need to move on to the Supreme Court, but. But real quick, David, do you want to know how long this opinion stood? Oh, how long?

Approximately 20 hours before the Fifth Circuit stated in its entirety. In addition, like within moments of the Fifth Circuit staying this opinion, the Texas Supreme Court also heard oral argument. And again, this gets a little messy of why we have two separate systems hearing this nearly identical case. But generally speaking, the Texas Supreme Court ruling on an issue of defining a term in Texas Constitution is going to get some weight here. Right, right. Absolutely. And, you know, we've seen parallel proceedings in more than one context, such as gerrymandering.

Always, yep. A state Supreme Court can strike down under the state constitution a gerrymander that the federal Supreme Court or federal courts find perfectly fine under the federal constitution. And that has happened. So these kind of parallel proceedings that are defining the electoral environment in any given state are not at all unusual. And while there are some other legal skirmishes happening, Nevada sort of has one. Texas's is the most fully formed at this point. So if you're interested in following litigation around vote by mail, Texas is probably the way to go. And we'll follow it. We'll keep you updated if things get interesting again, as they did this week. I suspect we will not see another court opinion like that, but

I could be wrong. David, don't dash my dreams. I'm so sorry. I'm so sorry. Shall we move to the Supreme Court? Let's. Okay. So listeners, last, we did a deep dive into started a deep dive into the 10 most important Supreme court cases of this term with one case that'll be next term. And we did numbers 10 through six. So we're going to be doing the top five. Now I tend to agree with Sarah on the top five. I might quibble a little bit on the order. I like it. Let's quibble. But let's begin with number five, which I agree with you of this five. This is number five. I feel like Casey Kasem. The Consumer Financial Protection Bureau, Elizabeth Warren's crowning achievement in her political career is under threat.

Do you want to describe the case? Sure. So, and we've talked about this on the pod before, but the CFPB is both unique in some ways and not unique in some ways. And the real legal question is, how unique is it? unique in some ways. And the real legal question is, how unique is it? Because if it isn't unique, then it's constitutional. We have independent agencies, plenty of them out there, but they tend to be like a board of directors, et cetera, not exercising executive power. The issue around this is the CFPB has a single director appointed by the president for a five-year term who can be removed by the president only for, quote, inefficiency, neglect of duty, or malfeasance in office.

And so really the question is, is that taking over the president's executive power from Article 2, therefore it's unconstitutional. If it's unconstitutional, then the question is, is the whole CFPB unconstitutional or just the director and the director can be removed at will and that would fix the constitutional problem? This is what we call severability. Severability doctrine is a whole ball of worms. And Justice Thomas, not surprising to anyone who follows the court closely, he has feelings on severability. So that's where that is. from the enabling statute of the CFPB, the four-cause limitation on firing, and everything else stays the same so that the CFPB remains, the CFPB director remains, but he can just be removed at will by the president, like any typical presidential appointee.

And that will be that. any typical presidential appointee. And that will be that. That will. So there's almost, yeah, I mean, there's almost no question that Thomas will vote for that ground because that's his severability jam. Here's a quote from the chief at argument. Wouldn't the normal principles of constitutional avoidance suggest that we might want to scrutinize a little bit how rigorous a limitation inefficiency is before we get to the point of striking down the statute. David, do you want to explain constitutional avoidance, the canon? Because I think if, like we talked about last week, if there's this new era of a non-entanglement court under, you know, the Roberts Court of Non-Entanglement, that constitutional

avoidance will be one of its pillars. Yeah. So there's a sort of a technical definition of this and then like a colloquial, like the technical, you're going to say, hey, look, if we can decide something on non-constitutional grounds, we're going to decide it on non-constitutional grounds. constitutional grounds. We're going to decide it on non-constitutional grounds. What that means is essentially judges aren't using the Constitution in hunter-killer mode against congressional statutes, against presidential regulations. And the practical result of that is it sort of keeps the other branches of government more responsible for their own function. It's going to defer to the operations and the actions of the other branches of government that are in their control. And so when you're a constitutional litigator and you are

challenging any governmental act, if your only argument is unconstitutionality, if that's your only argument, you're starting off from a position of judicial skepticism. Yeah. You often want to have- It's why you'll see, yeah, it's why you'll see RFRA along with the First Amendment in almost any case, because judges would prefer to decide something on a statute like RFRA than the Constitution like the First Amendment, because that's constitutional avoidance. Exactly.

And that's, you know, you'll often see these mixed statutory and constitutional claims. But in public imagination, you're always thinking Constitution, Constitution, Constitution, which is one reason why, for example, the Hobby Lobby case, people still talk about that as a First Amendment case because it dealt with religious liberty. But it was a statutory case. It was a RFRA case. So, OK, so on the flip side of the Roberts-Thomas severability, maybe not the flip side, but let me read you what Justice Gorsuch said as well at argument. If we were to approve single member agencies without any presidential removal power, we would run into questions about the cabinet, for example, which are just agencies, right? The idea being that if you uphold the CFPB removal language, Congress could then pass a statute that says you can't remove the attorney general

except for fraud or willful malfeasance or who knows what. And this is the president's cabinet we're talking about. Right. Which is why going back to what I said initially, I think the clean, simple resolution to this case is there is a CFPB, the four cause termination provisions for the director are gone, and we roll forward. Now, the interesting question is, what does that mean? Another interesting question is, what does that mean for decisions rendered by an agency when the director had an unconstitutional quasi immunity from termination and that when i'm less clean i think there i think that just as a matter of uh we don't want to have to to unring that bell yeah well and another canon so to speak is

retroactivity is disfavored. Right. Exactly. Exactly. So you're running into, yeah, exactly right. And I think this one, I would be really, really, really surprised. And it's one of those predictions I have a pretty good degree of confidence on, so much so that if I'm wrong in this prediction, order of business number one on our podcast would be to make me eat crow if I get this prediction wrong. That'll be fun. All right. Let's move to number four now that we have that promise.

Okay. This is your four. It's my one. Ugh, David. Yep. No surprise there. All right, listeners, Number four for me. This is the Louisiana abortion here. But basically, this turns on whether the question of admitting privileges is going to be a factual question where we look at the states and their individual evidence, or whether it's an overall legal question. And if so, that was answered in a 2016 5-3 Supreme Court opinion called Whole Women's Health versus Hellerstadt. David, I want to jump into why this is number one for you. I understand it's like number one in your heart, like playbook style.

But as far as its effect it will have on legal doctrine in the future, you think it's number one? So here's why I think it's number one. I think, so yeah, obviously, as you were saying, like the abortion issue is number one in my heart, but I think that from a legal slash cultural slash political posture, this case is more important than the narrow question of the viability, the continuing viability of whole women's health, or, and it's certainly more important than the very practical

question of will there or will there not be an admitting privileges requirement. And here's what I mean. There has been an enormous impact. The abortion question has had enormous impact on presidential races and national politics because of the judicial nomination and confirmation process, which is centered, again, I would say Roe becomes one of the primary issues with almost any nominee. That's one of the primary issues with almost any nominee. That's one of the primary issues that people are thinking about in their minds when they go to vote. It hovers over American national politics, maybe more than any other single issue, especially amongst base voters.

Not all voters, but the people who are going to walk over broken glass to get to the polls one way or another. This issue is the 800-pound gorilla. And my theory of this case is that it will tell us a lot about how much this present court is going to be willing to adjust abortion jurisprudence materially in one direction or the other. And I think it's almost a perfect case for telling us that because there is such a recent precedent in whole women's health. And if the court overrules whole women's health,

what it is going to broadcast is that it is ready to make material changes in abortion jurisprudence. If it upholds whole women's health, regardless of how, whether it upholds the Louisiana statute or not, it is telling us all it is not willing to make material changes in abortion jurisprudence. And that's very important to know, to me. To me, that's very important to know because then it tells us, is it really the case that this incredible distortion of judicial-life movement for a long time, and it's had such a hold for such a very long time with really, frankly, Sarah, minimal, minimal judicial progress. Minimal, in my mind. Moving from a Roe standard to a Casey standard is not much of a victory for the pro-life movement. to a Casey standard is not much of a victory for the pro-life movement. You make actually a very compelling case on the future impact of it. We'll see if listeners agree as they hear our next three. I do want to read, so Whole Women's Health, as I said, was a 5-3 decision from 2016. One of those five votes was Justice Kennedy, who has left the court and been replaced by Justice Kavanaugh. So I want to read you a question from Justice Kavanaugh at the argument. Assume all the doctors who currently perform abortions can obtain admitting privileges. Could you say that the law still imposes an undue burden, even if there were no effect?

So David, if, for instance, we follow this Kavanaugh line of thinking and it becomes a sort of whole women's health factual inquiry into effect undue burden, not theoretical undue burden, where would you say that falls on your line of options? Where I would say that would fall would be a de minimis victory for the pro-life movement. So in essence, if what Kavanaugh, let's say, imagine you have a Kavanaugh opinion that is sort of based in the principle or the, you know, the sort of the guts of this question, it could be something like in Hellerstedt or in Whole Women's Health, the court found that there would have been an undue burden on abortion under the

facts of the case of Whole Women's Health. Here in Louisiana, what we find is that there's no impact of this law. So there is no undue burden. It is de minimis an impact. So therefore, we can uphold the law because there's no impact. At which point the pro-life movement goes, yay? Because yay-ish. Yay, I guess. Because what? What's the yay?

Because the yay would be, well, we won the case. But what's the question mark at the end of it? Oh, because we did really nothing to the abortion regime in Louisiana. And this is, you know, there's also the next quote that you highlighted. You pulled out the right quotes that make somebody like me really feel like this case is going to be a disappointment. Before you do, that's really, that's like the most underhanded compliment. You really did a great job of picking out the quotes that I hate. According to Supreme Court bingo right now, the only two people who we have a pretty good sense

aren't going to write the June medical opinion are Justice Ginsburg and Justice Gorsuch. So hold out hope for your favorites, but Kavanaugh is very much still in play. So sorry, read the next one. Counsel, this is from Chief Justice Roberts. Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed case by, or state by state? So again, that is a question that implies we can uphold Hellerstedt and then do the factual undue burden analysis. It's a sort of a very similar way of asking the Kavanaugh question. So I could easily imagine

a 6-3 opinion, I mean, sorry, a 5-4 opinion that upholds the Louisiana statute, but a six-justice majority that is upholding whole women's health as precedent, if that makes sense. I think you could end up with more than six, but okay. Yeah, I think that's, yeah, I think that's, let me put it this way. That is me being optimistic saying that there are three justices who would reverse whole women's health. I think it's probably maybe more like two. And I might even be optimistic about that. To overturn a precedent from 2016? Yep. a precedent from 2016.

Yep. Woof. That's an uphill battle. Okay, well, you made your case for that being number one. Again, listeners. One last thing about that, Sarah. Yeah?

You have no idea the takes that are stored in my mental hard drive. You have no idea the takes stored in that mental hard drive if what I think is going to happen happens. This is the main difference between David and I. If you're just tuning in to Advisory Opinions, he goes with mental hard drive.

I go with mind grapes, which is a reference to Tracy Jordan on 30 Rock. So you've got some good takes in your mind grapes. We'll look forward to them. Number three. This is my two. This is my two. This is your two. OK. The DACA case. Can the Trump administration rescind the Obama era legal protections for children who were brought here illegally? And David, let me. So you refer to a base that is the abortion voting base, if you will, which I think, by the way, exists on both sides of the spectrum. The reason that I put this higher is because I think there is a larger immigration base at this

point on the right. I think it overlaps with the abortion base, but I think that the immigration base has grown substantially in the last 10 years on the right in particular. And DACA is a salient term for a lot of voters. So this is a little bit messy of how the case got here. We haven't spent a lot of time on it, but after Justice Scalia passed away, the court heard the deferred action for parents of Americans, DAPA. So this is, you had a child in the United States who's a United States citizen, but you yourself were not here legally. Those are the DAPA parents. It was a 4-4 decision. And in the per curiam opinion, again, go check the glossary for all this, because I wrote a great glossary if I do say so myself.

I had a lot of fun writing the glossary. It was very good. Yes, it was awesome. So the lower court opinion, the lower appellate court opinions got upheld. And that said that DAPA and the expansion of DACA were likely unlawful. from the acting DHS secretary rescinding the program, citing a letter from the attorney general saying that he believed the program, the DACA program, was likely unlawful based on this pending litigation and this Fifth Circuit opinion. Then there's this lawsuit saying that that would be arbitrary and capricious under the Administrative Procedure Act. So then you get another letter from then-confirmed DH Secretary Kirstjen Nielsen saying that she also felt the DACA program was unwise. So making it just like her discretion, I just don't want to have the DACA program versus we're rescinding it because

we believe it's unlawful and unconstitutional. Okay, so we've got a few questions here. First question, is rescinding the program totally within the DHS secretary or the executive branch's discretion? Obama administration does this as a non-enforcement policy, according to them. So can you just non-non-enforcement the policy? So can you just non-non-enforcement the policy? If it is reviewable, then the APA says the government can't change its policies for arbitrary and capricious reasons. So then it would need to decide whether DACA was lawful. unlawful. And that, you know, you could end up letting the executive branch get rid of DACA under either rubric, if you will, that they had just the discretion to get rid of it entirely or that they had the discretion to get rid of it because it was also unlawful. And because this

was argued in November based on our Supreme Court bingo card, we've got a really good chance that the chief justice is writing this opinion. So reading one of his quotes from argument here, you've got a court of appeals decision affirmed by an equally divided Supreme Court. Can't the attorney general just say that's the basis on which I'm making this decision? Which is, in fact, what the attorney general said in his letter. Exactly. So I think this case, to me, this is the- And wait, sorry, David, one thing, full disclosure, I was working at the Department of Justice when the attorney general issued that letter to the DHS secretary. So I just want to explain my own

issues there. So I think this is the easiest case legally in the whole list, and it's one of the toughest politically as far as its real-world impact. So what doesn't make sense to me, so the position essentially is that a policy that was announced not through any mechanism of the Administrative Procedure Act. It was just a memorandum announcing a form of prosecutorial discretion that this policy that was announced and implemented outside of the Administrative Procedure Act cannot be revoked without applying the analysis of the Administrative Procedure Act. I don't think that flies.

I don't think that you can say, under the letter of the spirit of the Administrative Procedure Act, that an unlawful memorandum has to remain in place until there is a procedure that is kosher under the APA. I say no to that. And then on the fallback, even if you're going to apply the APA, to then say that after a circuit court of appeals struck down a very similar program that was affirmed in a per curiam, a 4-4, affirmed 4-4, that then to say it's arbitrary and capricious to raise constitutional concerns about that, I think, is stretching the definition of arbitrary and capricious to its breaking point. And so I feel like this is an easy case. In the absence of the real world, if you're just looking at this from just, let's just

make a, let's pretend this didn't involve the fates of hundreds of thousands of real people. If you're just talking about the law, this strikes me as an easy case. But you know what? Judges are human beings. And this is a case that involves the fates, potentially, of hundreds of thousands of real people. And that's where I think this gets delicate.

Now, why extremely delicate? Also, I think it's the second most important case of your 10 list, and maybe with a strong contender for number one, because this could go in the real world. If you strike down DACA, there's this could go bad fast in American politics. Politically. Yeah. I mean, this is going to get one way or the other decided with less than six months to an election. And again, it's a highly salient issue, And again, it's a highly salient issue. DACA itself, but also immigration policy. And the initial program had a wind down period. It's unclear whether the Supreme Court would stay their opinion for some amount of time. The wind down period, of course, has expired.

Would they stay their opinion and say this opinion will take effect in three months to give Congress some amount of time to try to address the question? It's unusual for them to do something like that, but not outside the realm of their power. And so I just think like heading into an election, you could end up with a very messy situation where Congress is scrambling to fix the problem. The court has kind of thrown this jump ball. And oh, and also don't forget, there was a, I'm forgetting what the Supreme Court equivalent of a 28J letter is called, but there was another, an additional brief sent in after the argument about a month ago from a law student, I believe, actually, citing the number of DACA recipients who work in the healthcare industry and saying that

that should be put on hold because we have so many frontline healthcare workers during the COVID crisis that shouldn't be affected by this. Yeah. So I so here's here's the train wreck that I could see potentially happening. So you you rule and you strike down DACA and a Trump administration that is going to be very, very busy trying to shore up its base, because I think one theory of Trump's reelection is if he just keeps his base, he wins, immediately starts to announce, hey, yeah, we're going to start deporting DREAMers. And maybe they prioritize sort of like maybe some of the less sympathetic cases, but, you know, the push to say, yeah, we're going to start to get serious about this and we're going to deport dreamers, which then would lead to an immense reaction, an immense reaction from Democrats,

actually on an issue where I don't think the public at large is super on board with deporting dreamers. Correct. The polling's actually pretty lopsided on this, so much so that I think you'd see some senators, some Republican senators, also feeling a lot of pressure to have a legislative solution. And so I could see this going well, and I could see this going very poorly. And the way I could see it going well is because of the popularity of protecting DREAMers, you might could actually reach a point where the logjam over immigration, where meaningful legislative reform seems to be impossible, could potentially be broken because there is no conceivable executive fix to it anymore. Now, that's me being wildly optimistic, Sarah. Yeah, that's sweet.

I know. I'm patting you on the head through our video chat after I just and it's so funny as I was saying these words, your face. I mean, OK, so this is this is what's going to fix immigration. Have you have you been here for the last 10 years? I know, I know, I know. But, okay, so you remove any meaningful executive action from the table. Okay, maybe there's a 1% chance of my scenario, but the 99% chance is... This is bad. This is just bad. This is just bad. And so the most realistic bad is Trump just doesn't actually start deporting dreamers at scale.

He just, the sword of Damocles is kind of hanging over their heads. So he doesn't like, you know, go to like UC Davis and starts rounding up college students. But I hope not. They don't, they don't feel the security that they're allowed to be here. So that's. Well, and the work permits, that's a huge part of DACA. It's not just that they're not getting deported. They can work legally in the United States, which if you take away DACA, it's why calling it a non-enforcement policy was always a very iffy proposition

and why the Fifth Circuit found DAPA and DACA so legally lacking. It wasn't just that they're not deporting them it's that they get additional rights that congress never granted and then where it gets even worse is if you start to then have some stephen miller starts gives an interview at on fox where he talks about that you know in the new the administration is going to begin systematically uh you know, ramping up enforcement of ramping up deportation. And then and there's still no legislative will to block a logjam. And then everybody goes and then everything just escalates. Now, there's a less apoplectic version of this, which is that we go back to just the pre DACA era where the president says,

I don't have the authority to do anything about these people. Congress, do something. That's what Obama said over and over again. And it's, you know, that was what gave rise to the Gang of Eight bill that probably changed the course of American politics. But we can't go back to pre-DACA because pre-DACA, Obama was president and nobody thought that Obama might potentially go on a search and deport mission on Dreamers. And a lot of people would think a Trump administration would go on a search and deport. Okay, well, this was my number three. It was your number two and grasping at number one. Yes, yes. Nipping at the heels. Here's my number two. And it's number two for me only because of the short-term political implications.

I do think it has some long-term legal implications, but without being able to foresee the future 20 years in advance or 10 years in advance. It's a little hard to say how far flung those will be. These are number two, the Trump finance cases. Can a president's personal financial records be subpoenaed while he is the president? So we've got the congressional subpoenas. This comes after Michael Cohen testifies that the president was inflating and deflating his personal assets to obtain bank loans. The Intelligence Committee was one of them, one of the committees that subpoenaed it. And they said this was part of their investigation into efforts by Russia and other foreign entities

to influence the U.S. political process during and since the 2016 election. That becomes important because some of this question is going to turn on, does Congress need these for any congressional purpose, or is this just a political purpose that the Democrats took the House, so now let's screw with the president? New York, the New York County District Attorney's office convened a grand jury as well, subpoenaed the exact same material like word for word. But in addition, also asked for the president's tax returns as part of their criminal investigation into alleged hush money payments. The president at that time, not the president was making two women during the 2016 campaign, shorthand, Stormy Daniels. Now, David, there's legal questions about this, but I also have huge political questions about missed opportunities for the Democrats that I don't understand here.

So for instance, New York could have made the case that they were looking into specific property tax related issues because Trump has properties there. incorrectly, that's a really specific need that is not as politically, I don't know, whatever, as Stormy Daniels' hush money payments. At the same time, these three congressional committees could have put together a very clear statement of what they needed, why they needed it, instead of letting all their members run around and say, we're going to get his tax returns. Yeehaw. Pew, pew, pew. I don't remember the pew, pew, pew part of the quote. I do seem to remember a yeehaw or two. So you just end up with some bad, unhelpful facts around this. Also, Congress waived the impeachment argument, which is crazy to me. So impeachment isn't part of this discussion.

Clearly, that's a core congressional power that we're not even going to litigate here. OK, then. So this all legally turns around the really Clinton v. So this all legally turns around the really Clinton v. Jones, which was that the president is not immune from civil lawsuits based upon his private conduct. So this is now how far does that go? You and I have had some interesting arguments over whether presidents can be indicted while in office, arrested while in office. The New York County district attorney, or district attorney's lawyer, made clear that they are not arguing that they can try the president or arrest the president, charge the president. They just want this

for a grand jury investigation. So lots of interesting quotes from the argument. Gorsuch, why should we not defer to the House's view about its own legislative purpose? Ginsburg, the aura of this case is really sauce for the goose that serves the gander as well. So how do you distinguish, say, Whitewater, even President Clinton's personal records were subpoenaed from his accountant, or even Hillary Clinton's law firm billing records were subpoenaed? Take the Nixon tapes. So you have the Clinton v. Jones opinion. It was unanimous from 1997. Thomas Ginsburg and Breyer are still on the court from that case. And then you have the president's lawyers on the one side saying he's totally immune from everything while he's president. When he leaves the White House, you can do whatever. And then you have the solicitor general taking the less extreme version, which is they just need to show a heightened need that they didn't meet here.

Congress needs to show real legislative, like legislation they're considering. And the New York folks need to show a heightened need. Like, why do they need it now versus when he's left office? So, yeah, we've talked about this and I kind of see these cases being resolved pretty differently. It's hard for me to say, it's hard for me to see how a grand jury subpoena that where the grand jury records are, of course, secret. So this is not, you know, provide getting his getting his personal financial records and then dumping them on the Internet for all the world to see. And a grand jury subpoena in a overarching case that on the federal side anyway, already has somebody sitting in jail

over it and how it would be consistent with Clinton v. Jones or the Nixon case to deny the DA these records. It just seems to me that prior precedent think this is where the facts are. The bad facts element of this is particularly the bad facts element is particularly egregious. And you mentioned one waiving the impeachment argument, which impeachment is clearly a legislative purpose. I mean, it's right smack there in the Constitution. a legislative purpose. I mean, it's right smack there in the Constitution. I could easily see an opinion here that comes about as close to an advisory opinion, as you'll see from the Supreme Court, one that just sort of says, we're going to remand this for consideration along the lines of X, Y, and Z principles. And just as about as close to a punt as you can get while still

rendering an opinion. Which might delay the result until after the election. Right. Which would almost certainly, because you then would have the lower court decision along the new lines, which is then appealed and which is then, yeah, I mean, it would certainly delay it. And so it's hard for me to see the Supreme Court drawing a hard and fast restriction against the legislature in this circumstance. I think the question from Justice Gorsuch is well taken. Why should we not defer to the House's views about its own legislative purpose? That's, I think, very well taken. But at the same time, it's hard for me to see them deferring so completely to Congress under these facts. So that's where I am. Either way, I think this has the potential,

at least, to upend the election, second only to COVID. Well, you know, it depends on what's in those records, doesn't it? Yeah. Now, if you're right and they punt, and that would be the ultimate non-entanglement. Yes. There's an election coming up. We can't possibly. Dear district court, please tread water. Okay, last up. This was my number one.

These are the Title VII cases. Does sex discrimination include discrimination on the basis of sexual orientation or transgender identity. It's three separate cases. Two are gay men. One is a transgender woman. All claim to have been fired for those reasons. And it's a really simple question of law. And it's a really complicated argument on how this could come out. Title VII from the Civil Rights Act of 1964 bars private employers from discriminating on the basis of sex. This is going to transition very nicely into our Mrs. America conversation, by the way. Yes. Does that necessarily include sexual orientation or transgender identity? Because by its very nature, that discrimination involves gender stereotypes. A man should marry a woman. Therefore, being gay is all part of a gender stereotype that someone's not matching up with. is all part of a gender stereotype that someone's not matching up with. And I think even more strongly, the transgender woman who was fired was really turned on some dress code issues.

So by saying that she was going to show up to work, start showing up to work, abiding by the female dress code, was that simply a gender stereotype discrimination? It's, you know, it's a novel argument, but it's different than simply saying that the term sex in Title VII also meant homosexual. Yeah, so this is a really interesting textualist versus originalist kind of question. Because I don't think any, nobody says in 1964 that when they're passing this, the Civil Rights Act, that they had in mind protecting people from discrimination on the basis of gender identity and sexual orientation. So sort of this,

that this fits within the original public meaning of the law is pretty much off the table. But there's a word, there's sex, the word is sex. And so, so this, this is sort of the strict textualist argument. You have Brenda who has sex with guys, and you have Bob, who has sex with guys. The only difference between Brenda and Bob, because their behavior is identical, the only difference between the two is one's a man and one's a woman. And that's the textualist argument, right? Yep. And this is what Justice gorsuch gets to in what linguistic formulation would one say that sex biological gender has nothing to do with what happened in this case he's he's getting to exactly what you're saying there at the argument yeah and then the uh

the other one says but see then you have textualism there so you can really tell that justice gorsuch is looking at this from a textual standpoint. But then he asked this really interesting question, which kind of goes back to DACA. So the other quote you so astutely included is this one. When a case is really close, really close on 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 appropriately a legislative rather than a judicial function that's it it's a question of judicial modesty um so he's essentially saying if the text

is close do i kind of go outside the record of the case and consider the political and cultural effect, which is more of a sort of an argument. Yes. And more of an institutionalist argument in a way. Yes. Do we want the court in this making this big a decision to which he clearly is thinking? No, no, I do not. Yeah. No, no, I do not. Yeah. I have no idea how these cases are coming out. Like almost every other case,

I felt like I could be totally wrong, but I have sort of a strong to medium strong sense that I feel like where they're leaning on this one, I have no idea. No clue. So the reason I put this as number one is, A, I think that makes it so different from Windsor. I think everyone had the sense that gay marriage was coming out the way it did, frankly. Oh, yeah. And certainly it almost didn't matter because culturally we had moved in such a lopsided direction, supporting slash not even caring anymore about gay marriage for

the vast majority of Americans. This is different. I think that it will, again, be a very salient issue politically for a lot of people. And it will affect conversations around the transgender arguments that we're having, whether it's bathrooms, girls' sports, any number of other things, that this is going to be a weight in that argument of how this comes out. And I think that, for me, that made it, no question, number one case of the term. That made it, no question, number one case of the term. Yeah, the only reason I say not one, and I would put it three. So this is your one, it's my three, is large numbers of states already have sexual orientation and gender identity non-discrimination provisions in state law. True. So this is for federal law, Title VII. And so there's a big chunk of

America, maybe a majority of the population, that state law is already more all-encompassing than federal law. They're already under a legal regime that this case, even if this case comes out the way the Title VII plaintiffs want it to come out, in many jurisdictions, they're still going to have less protection under federal law than they have under state law. And it's in states like Tennessee. Tennessee does not have a sexual orientation non-discrimination provision or a gender-oriented non-discrimination provision. So it's in states like Tennessee where you're going to see a lot more, there would be more impact on this. But yeah, it's very, very important. It's a very important case. I just think on the real world, it has less application in much of the country. real world, it has less application in much of the country. We shall see. Indeed. Now let's talk in our remaining time. Less time than I thought we'd had, but these cases are interesting.

Mrs. America. So for those who don't know, it's a Hulu show. I started watching it just because I heard someone say it's actually really well done and far less agenda-driven than you might think in a show talking about hot-button culture war issues from the 1970s. And so I started watching it, and also it met my criteria of I like to watch things that have certain, even if it's not normally something I'll watch, if it has a certain like A-list roster of stars, I'm just going to watch it anyway just to see their work. And it's got Galadriel in it, Cate Blanchett. Oh, the look, there's nobody in this who you haven't seen before. Yeah. James james marsden i mean the women alone elizabeth

thanks just endless cool uh actors in it yeah and so it tracks it's sort of done on two tracks phyllis schlafly and the rise of the eagle forum and then gloria steinem bella abzug um and oh gosh why did i just blank on feminine, Betty Friedan and their allies. And it's like, you watch these two movements and I think what they do a really good job of portraying is that you're really, you're looking at two entirely different ways of living and viewing the world. And it doesn't, yeah, you know, like as a Christian conservative, some of this stuff's a little broad brush with the Eagle Forum ladies. And I'm sure there's folks on the left that would look at the way they portrayed, especially a lot of the infighting and some of the vanity in play in the feminist camp, maybe a little bit of, you know, object to that somewhat,

but it doesn't portray, it's not a black and white portrayal here. It's got a lot of nuance. And so as soon as I started watching it, I thought, Sarah has to see it. So this is funny, David. I've got a good story for you. So I'm trucking along because you've told me to watch this. And I agree with everything you just said. And it always makes for the best historical fiction when you treat the characters with the sympathy that they feel for themselves, if you will. And I think this movie does that pretty well. I also think the Betty Friedan, you know, I read The Feminine Mystique in, and I had no idea she was so cantankerous.

And now, of course, as you know, listeners, I spend most of my time watching these things, digging through Wikipedia and articles. And that turns out it looks pretty true. Pretty accurate portrayal. And also just Gloria Steinem back when she's in her 20s and stuff is fascinating. It never occurred to me who Gloria Steinem was in her 20s, I guess. So looking at pictures and all of that was really fun. Okay, so I'm trucking along last night. And you have to understand, I don't like Phyllis Schlafly. I have strong

negative associations with Phyllis Schlafly. We'll get to those. Okay. But I start feeling like I'm watching this and I've been watching a couple hours of it and I don't feel great. And as you know, I've got, you know, three weeks to go here cooking away on a little dude. And I'm like, you know what? I have this blood pressure monitor and that's like the one thing that can really go wrong at this point, other than going into labor or something, which I think I know. So I go and get the blood pressure monitor and I like call my husband over and we take my blood pressure. It's through the roof.

Oh no. So I have to, like, I call the, you know, answering service after hours to get the doctor and like doctors are, you know, whatever. Fast forward, by the way, everything is absolutely fine with me and little dude. It just turns out I really dislike Phyllis Schlafly. Oh my goodness. So explain why. Okay. I'm going to read you some Phyllis Schlafly quotes, David. Okay.

There's a reason why no woman has ever won our nation's highest award for valor. Okay. Okay. Next. Okay. At the same time, you have a woman who is touting the benefits and virtues and everything else of stay-at-home wifedom and of the domestic sphere, which I don't disagree with the virtues of those things at all. But she is denigrating feminism and saying that the feminist movement is actually the cause of a lot of the ills in America. How does she back that up? By taking all of the benefits

that feminism up till that point had offered and taking them for a spin. Like for instance, she goes to law school. Well, how delightful because the generation before her didn't have that opportunity. How does she think she got the opportunity to go to law school? And it also shows, you know, know, just to even call it sexual harassment in this day and age, like underestimates what was going on on the Hill. It's much closer to sexual assault, but it's somewhat consensual, I guess. And she says, well, you know, virtuous women don't put themselves in that position. Oh, how nice that you didn't have to have a job, Mrs. Schlafly, and that you were living in this nice, comfortable suburban lifestyle because you've benefited from all of these women who

came before you and fought before you for these very basic rights. And again, I have no problem with touting the virtues of the domestic sphere. And I have lots of problems with the feminist movement as well. But neither side recognizing the hypocrisy of the other side or of their own arguments just drives me up the wall and I'm going to go get my blood pressure cuff. So I've got to say, for somebody who grew up in the conservative movement, grew up in the Christian conservative movement, I really, you know, I came of age well after sort of the peak of Phyllis Schlafly. You know, she was sort of a, if you'd go to conservative events, people go,

oh, there's Phyllis Schlafly. But sort of her, the peak of her powers had passed. And, you know, one of the things I think that's really interesting about, so I never was able to form an opinion about her at all, other than, you know, what I'd read mainly in, you know, competing stories in conservative media that tended to really lionize her and stories in progressive media that really attacked her strongly. I've heard some really bad quotes that she said. She also was really, as the show illustrates, kind of a force of nature. as the show illustrates, kind of a force of nature.

She was hardly this submissive, you know, barefoot in the kitchen wife. Oh, she was an absolute force of nature. You know, and it reminds me of, and this is something I think I'm going to be writing about today in my newsletter. It reminds me of how much in some ways our culture war arguments have changed and are maybe even a little bit, things are maybe even a little bit and maybe not even a little bit, but kind of a lot better in some important ways. In the 1960s and 1970s, there was, let me put it this way. If Twitter existed, I don't know if the country would have stayed together.

Well, let's just fast forward 10 years and see if it still is now. Yeah, I know, I know. But the way the temperature of the time was so high, it was so high. of the time was so high. It was so high. And so it's sort of a position that said, hey, you know, I think living at home with your husband and raising your children and being a homemaker is a wonderful choice. I just would appreciate it if you supported and appreciated my choice not to do that, which is kind of an argument that is what I would say is like the cultural consensus now. You really have to go. Yeah, I mean, that's what the mommy wars are all about in some ways. But to compare the mommy wars

to this argument that was happening in the late 60s, early 70s. Yeah, I mean, that makes the mommy wars look like patty cake. Yeah, I mean, that makes the mommy wars look like patty cake. Yeah, I mean, there were people who were like, if you're a homemaker, there's something wrong with you. Yeah, you are to be vilified. You are to be vilified. And similarly, if you're a career woman, there's something wrong with you. You are to be vilified. You are unvirtuous. Correct. And so, what I saw here, and what was really interesting to me was less in the policy, you hear policy arguments made throughout the series. But what you saw was two sets of women who had made very different life choices, who were engaged in what they believed to be a mortal struggle to preserve their ability to have the life that they wanted. And it wasn't so much a legal struggle. That's where my beef is, because I don't think that they had made different choices.

I think Schlafly had made the same choice, but was using a platform to make the opposite argument. Well, I can see that with Phyllis, with Schlafly, but I think when you see all of her homemaker, her army of homemaker volunteers, that's the ethos with Schlafly from the beginning of the, and the show very deftly portrays this. You see that she is an extremely ambitious person and she makes her name known, you know, in the Goldwater era, and she makes her name known really as a person who, as the series portrays, as a person who is interested in nuclear policy. Yes, again, a great irony, by the way. She's trying to come up through this political

world on the right on defense policy. And she's clearly, I mean, they show her as being far more knowledgeable than any of the men she's talking to. But she kind of hits this glass ceiling, ironically, because she's a woman. So she switches over to this. Yeah, and that scene. But like, that's the irony. Yeah. yeah and that scene like that's the irony yeah and that there's a scene that portrays this in a way that is so well done so she's meeting with goldwater wanting to talk about nuclear policy

as they start to have the conversation they ask her to leave the room to get a notepad so that she can take notes because they presume she has better penmanship. And as she sees the dynamic of the room shift against her, she commandeers the argument towards the ERA where they're going to have to defer to her. And it was extremely masterfully done. But the interesting thing is the way they portray it is that, and again, this is historical fiction. So listeners, I know that, I know that, I know what you're going to say, but so this is historical fiction, but they portray the real concern about the ERA as being far more sort of grassroots up to her more than she saw it coming and sent it down to the grassroots, which I thought was an interesting way to portray it.

Yeah, which again goes to my sort of hypocrisy point. She would have loved to have been the defense, you know, KT McFarland of her day or whoever you want to point to, but couldn't do that because she was a woman. So what did she choose to do? Champion against feminism. Because that was where the opening was. That was her competitive advantage. And by the way, David, I've very much been asked to take notes in rooms with all men before, citing that exact penmanship line. It struck deep into my heart because I have the worst handwriting of anyone.

Like, like it looks like a serial killer. 13 year old boy is trying to like learn how to spell. Yeah. So I feel like I get out of it every time because I'm like, oh, oh, you have made a terrible gender stereotype misjudgment. We are better off not taking any notes than doing this. But that's where I think the Phyllis Schlafly thing hits home for me. Anytime I meet some of these women who came before me, I know you've been there when they've asked you to take notes because, quote unquote, your penmanship is better. How dare you not have fought for future me?

is better. How dare you not have fought for future me? And I think that I take very seriously my obligation in those moments to fight for future, you know, podcast listeners who may be in law school right now. Right. Now, let me ask you this about the portrayal of the feminists here. about the portrayal of the feminists. Here's what I thought was really interesting is I felt like they showed what they did well aside from demonstrating the truth of what any progressive will tell you is that, hey, we're not nearly as united as you conservatives think we are.

Both sides think that the other side is like this disciplined regimented army. Yes, it's amazing. Yeah, when in reality, it's circular firing squads all around. So they show the circular firing squad very, very well. They also show, I thought, an interesting preview of the problem of ideological bubbling that we have to this day. ideological bubbling that we have to this day, that there were, when Phyllis Schlafly first comes up and when the ERA is first coming up, it's like, who's against this? Like the presumption

of this is going to roll through. Oh, there's this person, Phyllis Schlafly, she's against it. Don't bother me with their relevancies. Like this complete, it's almost as if, you know, there was this, hey, everyone I know in this particular world is on board. We've won. And it comes, and so the rise of the Eagle Forum and the Stop ERA movement and all of that just comes as this, what the heck happened, followed by this unbelievable sort of underestimation of Schlafly,

which culminates in a famous debate between Betty Friedan and Schlafly, where Betty Friedan loses it. Loses it. Yeah, actually, yeah. And I, you know, so I did my, I do my Wikipedia rabbit trails while I watch stuff too. And that's based on, she did actually unleash that kind of rhetoric on Schlafly in a debate. Essentially basically said she would burn Schlafly. She believed that Schlafly was a witch, which is not a great way to, not a great way to win a debate. And so that to me sort of showed, it was an echo of kind of the

cultural divide and the sense of dismissiveness that a lot of people in, you know, not in the, you know, the cultural elite quarters feel and the way in which a lot of these folks are underestimated by cultural elites. And I thought that was a very interesting portrayal. So I found it interesting, and I would love to read someone's article about the ahistoricalness of this, because we've talked about how certain historical fiction almost reflects more what it's like to live in 2020 than it does what was going on then. And they're dealing a lot with intersectionality on the feminist side of the movement, which is a fairly modern concept. And when I say modern, I mean like really modern. like really modern. But it is perpetually shown as a tension point and one that they're all grappling with. And I just wonder how real that was at the time, how much they recognized it. Because it's interesting to watch, but then I'm like, I mean, they, you know, the straight women,

white women versus the lesbian white women versus the black lesbian woman and like each of them sort of want something else and and this i think um again became maybe to me far more the cultural moment when i think back to that era, they actually didn't. They very intentionally chose not to advocate for middle, upper middle class women. And that choice, I think, colored the feminist movement for a long time. And I would have been more interested to see that choice forming, because I think it far more defined the feminist movement in the 80s at least was that they had decided that these stay-at-home women or suburban women who maybe were working but not um you know uh on the you know new york

east coast stuff um that they were not going to include them in the movement yeah well and one thing that is that is historically accurate is the the extent to which they show conflicts between lesbian feminists and straight feminists yeah that was a real that was a thing like and now there's not you know now that you don't't see the feminist movement breaking down along those lines. But that was very much a source of controversy and conflict. And that's interesting to see. And, you know, it's also just, I appreciate the way in which the show also shows the constant conflict between idealism and pragmatism. Oh, yeah. It does a great job of that on both sides, across the board, the men, the women, everyone is struggling with that question.

Yeah. And so you have the various avatars of idealism versus pragmatism, and you've got, you know, the Bella Abzug character, she is the operator. She is the art of the possible. And then, you know, Gloria Steinem is much more, she's sort of drawn towards the pragmatic because she does well in that arena because she's such a good spokesperson, but her heart is with the idealistic. And then- And that's Shirley Chisholm. Yes, exactly. Exactly. And she's the one who comes through as like consistently the true believer in the cause, whereas Betty Friedan comes through as a kind of a true believer in Betty Friedan and the cause and the cause.

But and you see those same tensions in the, you know, in the Eagle Forum and the Stop ERA movement, although the people who are casting it are not famous. The people who are illustrating the tension are more composite characters because Phyllis Schlafly was such the dominant figure. There aren't sort of a constellation of other stars for her to play off of. And if we can end on just, I have a couple thoughts on the ERA itself because this conversation has come back up. And I think that looking back,

I don't think this could have necessarily been known at the time, but looking back, the conservative movement may have made a strategic error in opposing the ERA. And the reason is that you were going to, one of the main reasons against the ERA was we already have these protections through statutory protections, Title VII, for instance, and the Equal Protection Clause. But what that has ended up doing, to go back to my number one case, is that you end up stretching and expanding the Equal Protection Clause and Title VII of the Civil Rights Act to meet the moment instead of allowing courts to be able to point to this and say, look, Congress has been able to figure this out and amendments do get passed to handle these changes. So we're going to wait and defer to these structural and statutory accountable changes

to happen. But instead, what's happened in the last 30 plus years is this stagnation, no amendments, and no statutory moves by Congress to sort of keep up with the pace of culture. And that's how a lot of this has ended up in the courts. I'm putting a lot on the ERA here, I get that. But it is just one example where standing a thwart and yelling stop actually undermines some of your legal arguments 30 years down the road. Yeah, I get that. I think that the problem with the ERA, one of the problems with the ERA, and a critique that I think is well taken, is that the state equal protection jurisprudence, essentially, if you're going to boil down something super complicated, is something along these lines. Similarly situated people should be treated similarly.

And which is a pretty strong basic constitutional doctrine. And what the ERA basically did is say, which allows for things like an all-male draft, for example, because in an all-male draft, what you're saying is when it comes to war, when it comes to combat, men and women are not similarly situated. that was a, and not from a courage standpoint, you know, not from the Phyllis Schlafly quote that you wrote, but, you know, we're talking about just various facts of biological strength, for example. And then what the ERA would say is that principle, that's not the principle anymore when it comes to gender. The principle is male-female equality, which, yes, is an abstract principle of worth. Yes, 100% yes. But is that still the same thing as saying under the Equal Protection Clause, in essence,

similarly situated people should be treated similarly under the law. And I think it disrupts that in unpredictable ways. That would be my critique. Fair enough. You know, Phyllis Schlafly also had thoughts against equal pay for equal work. Like, that's crazy to me. So I think she, at least in the later years of her life, and again, you didn't know her during the heyday. I obviously didn't. It became almost a caricature of itself.

If you're against equal pay for equal work for women, I'm at a loss, man. And her argument, of course, was that was based on marriage, on marriage that men want, um, a, do not want a higher earning spouse and women do want a higher earning spouse. So if you pay women equally for equal work, you'll end up with some percentage of women who then can't find a spouse. I mean, I took the LSAT. That's not how logic works, but, um, uh, you know, your, your version of the ERA is an interesting one. I think it would have been interesting to see how it plays out. you know, your, your version of the ERA is an interesting one. I think it would have been interesting to see how it plays out. You know, they made a discovery, uh, this week or published discovery this week that might have some evidence of a parallel universe. So maybe we'll find out.

A parallel universe that runs backward in time. Correct. But, you know, maybe backward in time you get the ERA. I don't know. Right. Yeah. So maybe there is an Earth 2. We keep speculating about life on Earth 2. That's right. Yeah. And if there is an Earth 2... We'll ask them how the ERA went. Yeah, exactly. That's the controlled experiment, right? Perfect. Yeah. Well, this has been a particularly fun pod. I mean, rich with content. An embarrassment of content riches. But thank you for hanging in there and listening. And again, please subscribe to this podcast on Apple Podcasts or whatever podcast platform you prefer. And please go ahead and rate us, five stars, please, and give us comments and feedback.

We really do enjoy the emails that you send us, david at the dispatch, sarah at the dispatch.com. And I will note that one of the recent email exchanges included a debate that I had with a Marine Corps major, which I went into with all due respect and trepidation, all due trepidation and respect for the Corps, Sarah, over Grant's tactics in the Overland campaign in 1864. And, Sarah, it was a great conversation. Well, I just want to give a shout out to the listener who said that if she ever saw me in person, she'd have me sign a copy of her Federal Rules of Civil Procedure book. I am so there for that. That would be the highest honor. That'd be fantastic. I'd have to say I would love that, almost more than any, signing almost more than anything else. That would be, I'd have to say I would love that almost more than any, signing almost more than anything else. That would be awesome.

I know. I know. Well, that is our podcast today. Thank you guys for listening. This has been David French and Sarah Ismael. Bye.