Advisory Opinions - Unprovoked War

Episode Date: June 17, 2025

Sarah Isgur and David French break down Israel’s latest strikes on Iran and the legal questions surrounding them. Was it a justifiable preemptive move, a murky act of prevention, or simply part of an already ongoing war? The Agenda:—Hypotheticals and lawful acts of war—The role of international law—Iran’s response—Trump’s national guard deployment—Raiding Los Angeles—Wrong, wrongy wrong, McWronger face—Time for some role play—Justice Amy Coney Barrett: A New Era in the Supreme Court Learn more about your ad choices. Visit megaphone.fm/adchoices

I'm not big on trends, but I am big on clothes that feel good and last. That's why I keep going back to Quince. Their lightweight layers and high-quality staples have become everyday essentials in our house. Quince has all the things you actually want to wear this summer, like organic cotton silk polos, European linen beach shorts with husband-of-the-pod won't-get-out-of, and comfortable pants that work for everything from backyard hangs to nice dinners. The best part? Everything with Quince is half the cost of similar brands. By working directly with top artisans and cutting out the middleman,

Quince gives you luxury pieces without the markups. And Quince only works with factories that use safe, ethical, and responsible manufacturing practices and premium fabrics and finishes. I'm telling you, these shorts, the linen shorts that husband of the pod is obsessed with are incredible. I also have a quilted blanket for the brisket on his bed. It was just like this gorgeous color that matched with the whole decor I was going with. It's really been a game-changing website for clothes, home goods, all of that. You guys aren't going to believe the prices.

I still don't understand how they're doing this. I mean, I'm pretty cheap. This meets my budget. Stick to the staples that last with elevated essentials from Quince. Go to quince.com advisory for free shipping on your order and 365-day returns. That's q-u-i-n-c-e dot com slash advisory to get free shipping and 365 day returns. quince dot com slash advisory. No Frills delivers. Get groceries delivered to your door from No Frills with PC Express. Shop online and get $15 in PC optimum points on your first five orders.

Shop now at nofrills.ca. on your first five orders. Shop now at nofrills.ca. Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French.

We're doing laws of war in the Israel-Iran conflict, then a little laws of domestic military deployment. We have an opinion out of the Northern District of California on Trump's deployment of the National Guard, which is on hold in the Ninth Circuit as they hear that as we're recording. And then a fascinating piece from the New York Times about Justice Amy Coney Barrett that we need to do nearly a line-by-line deep dive into. And finally, lawyer etiquette in the courtroom, gum. We'll be right back with all of that after this break. the country to stand up for freedom, justice, and opportunity for all. We've discussed some of their wins against government abuses on this podcast and David and I have a lot of respect for the work

IJ does. The Institute for Justice defends the rule of law no matter who's in power and doesn't back down from the hardest legal battles. IJ's work is powered by more than 12,000 supporters across the country who believe in the Constitution and the ideals it enshrines. The Institute for Justice is asking you to support America's nonpartisan civil liberties law firm with a tax-deductible donation of just $5 a month at ij.org slash dispatch. At Desjardins Insurance, we know that when you are a building contractor, your company's foundation needs to be strong. That's why our agents go the extra mile to understand your business and provide tailored solutions for all its unique needs.

You put your heart into your company, so we put our heart into making sure it's protected. Get insurance that's really big on care. Find an agent today at Desjardins.com slash business coverage. David, first question on the law of war. Is Israel at war with Iran? Yes, by every conceivable measure short of a formal declaration of war existing, we are watching an actual war, an actual armed conflict between two nation states.

So this is a lot more like Russia, Ukraine, than it is like, well, Israel Hamas, which is a war against a quasi state, but really a terrorist organization. This is a war between nation states. This is the classic example of when the laws of war were created. This is the kind of conflict that the architects of the legal framework around the law of armed conflict had in mind. When you read the law of war, it's nation-state war. Yeah. In that sense, it's different than, for instance, attacking the Houthis, which might be funded

by the Iranian government, but they are not the Iranian government. And you mentioned Hamas. I take your point that they are a quasi-government, but also there was a certain asymmetry there as well. Here you have two full accepted nation states going to war with each other. Right, exactly. The Hamas conflict is more what you might call irregular warfare or guerrilla warfare

or in some instances not all counterinsurgency warfare. You had Israel taking on an armed force for sure, but it was one that did not wear uniforms, that was not tied to a particular nation state, that does not comply with the laws of war. Neither does Iran, by the way. But this is more like what Israel was facing with Hamas, was much more like what we were facing with Al-Qaeda and Iraq when I was there. Then it was like the initial invasion where we were taking on the regular forces of Saddam Hussein and the nation of Iraq. The Israel-Iran war is much more like that. It's regular forces versus regular forces. Okay. So then let's break down some things we know that Israel has done,

some things we know that Iran has done. Let's start with Israel. Would you say that their initial attack last week was unprovoked? Like did they start this war? Yeah. So this is the whole, this is the guts of the whole thing because there's sort of three different analytical frameworks for apply, to apply to the attack on Iran this past week, analytical framework. Number one would be to use the keywords that Israel used when was talking about it, preemptive. So a preemptive war is

essentially a war designed to stop or a preemptive attack is an attack designed to stop an imminent attack. So you don't have to wait to be attacked as a nation-state under the laws of war. If you know that attack is imminent from the other side, you can strike first. A paradigmatic example of that would be the 1967 Six-Day War where Egypt had massed immense forces, was threatening to destroy Israel, war was deemed to be imminent, Israel struck first. That's preemptive and that is legal under the laws of war. Then there's preventative war.

Preventative would be a much longer time horizon that we believe there's a threat to our nation, we want to strike before the threat can become fully realized, but the threat is not imminent. So an example of preventative war would have been, which is unlawful under international law, would have been Pearl Harbor. We were not about to attack Japan in any way, shape or form. We are not moving forces to attack Japan. Tensions were very, very high between the countries, but war was not imminent. They decided to, we were an existential threat and decided to try to neutralize as much as our fleet as they

could. That's preventative war. That is not generally lawful under the law of armed conflict. But then there's a third thing going on here, Sarah, which is, wait a minute, the war didn't start this week. It's already been going on. And I think that's the actual more sound view that we've had an ongoing conflict between the nation of Iran and Israel. Since October 8th, probably, I mean October 7th you could say, although there's no real evidence right now that Iran triggered that assault by Hamas, but certainly when Hezbollah opened fire almost immediately afterwards and Iran was actively cooperating with Hezbollah. And then if you say not then, and later on in April of the next year, in April of 2024,

Israel struck some Iranian assets in Syria, and then Iran directly attacked Israel with missiles, drones, et cetera. Well, that would have been an act of war. And that war has never really stopped. And so I think the more sound view is that this is an expansion of an existing armed conflict against valid military targets. So I don't think that either the preventative or the preemptive framework applies.

I want to live in zone two for a second here because it sure sounds familiar, but I guess I'm sort of shocked that it's unlawful. So I want to push you on when I'm in zone one versus when I'm in zone two, zone one, preemptive loss, lawful zone two. What was the word you used? Preventative. Preventative. Yes.

Not lawful. They both start with P's. That's going to be hard. Fine. Yes. Not lawful. They both start with P's, that's going to be hard. Fine. Um, so I'm, this is not, this is not reality, but I want to present you my hypothetical.

And it's pretty close to reality. Uh, Iran doesn't touch Israel, right? But, um, 20 years ago, they say our goal as a nation state is to destroy the country of Israel as well as bring down the country of the United States. But we're really focused on Israel here because they're our neighbors and we hate them. However, due to the history of the last 40 years, we don't think we can win a conventional war against them. So we're gonna wait to destroy Israel until we develop nuclear weapons.

And as soon as we do, we're gonna destroy Israel. And it's like a memo they send out to the world. And they're like, so we're gonna work on that. Give us a second. And they turn around and go to their little laboratory in the mountain mountain in Fardo and start working on their nuclear weapons. And we know all of this for fact, let's again say for sure.

So as soon as they get nuclear weapons, they will destroy Israel according to them. Is that zone one or zone two? It's not imminent in a traditional sense, but it is definitive. Yeah. It's a very good question, Sarah. And a lot of people would immediately answer very quickly. It's not lawful. If there's no preexisting conflict, there's no, um, indication of preparations

for some sort of imminent launch or even short of launch, imminent deployment of weapons into immediately launchable forms. A lot of people would say no to that. However, let's go back all the way to 2003 in the Iraq war. Now, there were more reasons for the war in 2003 than weapons of mass destruction, but pulling away those other reasons, Saddam Hussein was,

Iraq's forces were firing on American forces with regularity and violation of Gulf War ceasefire accords. There are a lot of other things going on, but let's just focus on the WMD issue. The Bush administration argument, and again, I'm oversimplifying long and complicated debates, was essentially that, wait a minute, once you're dealing with WMDs

as opposed to conventional forces, the zone of tolerance has to diminish. In other words, the level of risk that you're gonna ask a nation state to take when you're talking about weapons of mass destruction, this is gonna change the calculus because the cost of even waiting for eminence could be utterly, utterly catastrophic.

Well, because it's not imminent until they already have it, right? They're not going to amass along your border or otherwise until they have the thing that would make it an existential for human existence type war potentially. So you have to wait till Iran has the nuclear weapon to say it's imminent, that makes no sense. Yeah, and also I would say there's something

very important about the laws of war that a lot of the sort of activist side don't properly acknowledge. And that is if you try to bind nation states hands beyond the point of what I would call self-defense common sense, they're just going to do it anyway, right? Oh, this is my point. International law doesn't exist. That's why we have nation states. If we had an international law, we wouldn't have 180-ish nation states.

So I think international law, not a thing, but let's pretend. Yeah. So if you constrain nation states and you say the law constrains nation states, past the point of self-defense, common sense, they will every time disregard it and you'll have the entire system be in shambles. The entire system will just crumble if you basically say to a nation state,

you know, there's this entity that wants to destroy you, make you utterly extinct, kill millions of people, but you got to wait until they're just about to do that. No, no, that is not going to work. And so I would look at it. This is like a speed limit on the freeway. If you set it at 45 miles an hour, the speed limit doesn't exist. If you set it at 65, well, maybe the speed limit exists. Or if you're Texas, you set it at 90.

And then people do abide by it. But you wonder what the point of the speed limit is because very few people were going to go over 90, regardless of a posted speed limit. I guess that's how I feel about what you just said. At some point, it becomes the 90 mile an hour speed limit. We've made a speed limit that people would abide by naturally so that we can say we have a speed limit, but we actually don't because if anyone feels like they need to go 95,

they'll just go 95, in which case we say it's unlawful, but meh. I honestly think in this circumstance, if you're going to make the point that Israel doesn't have a right to strike these Iranian facilities, you're really undermining the very concept of the law of war because the fundamental argument of the law of war is that it is you are capable as a great power or of power of any kind of actually defending your citizens without engaging in behavior that is inhumane, that is unnecessarily cruel, but the bottom line is nations will defend themselves and nations have a right of self-defense.

And if you're going to look at a nation state like Israel and say after they've had that, you know, more than a thousand people massacred on video with no provocation October 7th, after you've had tens of thousands of rockets raining down on populated areas for the very purpose of depopulation of parts of your country, rendering parts of your country uninhabitable. When you have active participation, including command and control facilities and command and control authorities on the ground helping direct this attack from another country, that other country has actually attacked you twice with ballistic missiles, and then is threatening to get a nuclear bomb to annihilate you forever,

while you're engaging in ongoing conflict with that country to then say, well, you can't strike those nuclear facilities because that's a new preventative war. You're stretching the law of armed conflict to a point where it's almost becoming a weapon against Israel, not a neutral arbiter of fair rules under which all nations can live and abide and at least introduce some measure of humanity to war. No, instead it becomes a weapon. This is this concept that a lot of people have used and now abuse, but lawfare. And if you're not putting intense pressure on Iran and you are putting intense pressure on Israel, you're giving the game away here, man. You're giving the game away because the entity in between these two nations,

if you're looking at these two nations, the entity that has violated the laws of war, almost every second of every day that they fight is Iran. And you have this country that is utterly lawless, vowing to destroy another country, vowing to eradicate it from the face of the earth and they get the weapons, they're on the verge or close to getting the weapons that might allow that to happen.

I don't, what country allows that to happen? Now people might say, well, India and Pakistan didn't go to war. Well, they had huge militaries, both of them that would have defended. It would have been futile. The ability to actually attack and bait and defeat would have been absolutely catastrophic casualties, similar to, I think we had greater opportunity to stop a North Korean bomb, I really do. And I think we made a mistake not doing it,

but it's a harder call because the immediate ability to North Korea to respond with extreme force to an attack on their nuclear facilities. Iran doesn't have that anymore. After Hamas got decimated, after Hezbollah got decimated, this was a moment of weakness for Iran. I feel like it would have been almost crazy for Israel, foolish for Israel not to take advantage of this window of vulnerability.

Okay, let's talk about individual tactics. I've got one on each side I wanna ask about. One, Israel targeting nuclear scientists. Great question, Great question. You know, this gets to the questions that we talked about in World War II, hitting factories, where civilian factory workers were making munitions. I think as a general matter, we have determined that if you're attacking someone who's engaged in the ongoing production of weapons, and definitely including weapons of mass destruction, then yes, I think that is going to be a lawful strike. Now, where things got really vicious and nasty

in World War II was then the concept of area bombing designed to with that the Brits did more than us but we did as well especially against Japan which was destroying cities and neighborhoods so that you're killing the factory workers in their homes and not in the factory. Man, okay. That's pretty close to what was happening here. They were targeting nuclear scientists at their homes. These nuclear scientists were not at the facility. They weren't working there at the moment they were killed. And presumably, let's assume for the sake of argument, their families were with them.

They were at home eating dinner, putting their children to bed, and Israel targeted their apartment because they had been working on creating a nuclear bomb that was going to be used to wipe out Israel. Lawful or no? Because it's a very precise targeted strike at the specific apartment, that would be proportional, a proportional strike. If you said, okay, the nuclear scientist is in the apartment building, so we're going to detonate, blow up the entire apartment building.

Or if you're going to take like the World War II example, was a bunch of nuclear scientists live somewhere in the city so we're gonna firebomb the city that's a different kind of analysis. Now I gotta tell you the difference between hitting the apartment with the family and children and presumably the apartment next door you know just because that's how rubble works versus the building feels like a difference in degree, but not a difference in kind. Well, that's the whole purpose of the proportionality.

The proportionality analysis is a degree, not kind. So it is essentially the way to look at it. And a lot of people just confuse this all the time. Proportionality is not, if someone shoots you with a pistol, you have to shoot back with a pistol. Where proportionality is, is no more force than is necessary to neutralize the threat. What if they didn't have the technology to target the apartments, which is insane

when you look at like it looks like a Jenga block like missing one of the pieces. If you don't have the technology to target apartment 12B but you know the nuclear scientist lives in that building, could you take out the building if you don't have the technology? Because then you're neutralizing the threat. I mean, this gets to your aerial bombing campaign. Like, they didn't have the technology to find out where those people lived and only bomb them.

So can they take out the threat? Because it's all the only option that they,. It is the most targeted option they have. It's just not very targeted. Yeah. Well, and that's why I want to circle back to World War II briefly. We are talking about laws and laws and customs created in part because we have the capacity to do different things. So for example, in World War II, if you wanted to destroy the industrial

capacity of the enemy, which was absolutely necessary if you wanted to win the war, there were no, there were zero, zero precise ways to do it. And we tried to do it. We really tried. If you, you know, if you go back and you watch Masters of the Air, which was based on the Apple TV series, based on the book named Masters of the Air, which was based on the Apple TV series based on the book named Masters of the Air, which is just really a phenomenal book about the Allied bombing campaign over Western Europe. We went over there thinking we had this technology called the Norden bombsite,

and it was putting the bomb in the pickle barrel. That was the phrase. And because when you were flying over, say in Arizona desert on a clearing cloud, it's a cloudless day and you used the Norden bombsite, it could be incredibly accurate. Well if you're flying over say Berlin and you've got flak bouncing you around and maybe fighters attacking at different points and bad weather conditions and terrified pilots,

you're not hitting within miles sometimes of the target. And so it began to push the allies towards area bombing. The Brits got there long before because they had no capacity for precision. Well now we have a capacity for precision and so it changes the equation. It changes the legal equation a lot. And what I would say, Sarah, is you're going to hate this answer. It depends on how important the target is. So if you're talking about a apartment building, let's imagine

Hitler was in an apartment building. Do you not kill Hitler because of the commander in chief of Nazi German forces, because of you might kill 50 or 100 additional civilians. That's one kind of proportionality analysis versus it's a random soldier in the SS who's in an apartment building. Would you kill 50, 100 civilians to get at that random soldier? And that's the proportionality analysis. It's weighing the military advantage gained versus the harm to innocent people.

It's a very, it all sounds very cold, Sarah, but it is, and it is all very cold. Okay. I want to give you the Iran example I wanted to ask you about, which is, Israel has now taken out any number of Iran's defenses. Their population potentially also faces a, Israel has now taken out any number of Iran's defenses. Their population potentially also faces a real immediate threat. And they have limited options in how to stop Israel from continuing to bomb their population, take out innocent civilians, children who happen to be related to nuclear scientists related to nuclear scientists or just live next door to them,

let's say. So what they have are these hypersonic missiles. And sure, they can shoot them into the desert at some facility, but like, that's not going to deter Israel at this point. To deter Israel, they need to send them into Tel Aviv and show Israel that this war will be more costly and you need to come to the negotiating table

and we need to stop killing civilians and the best way to do that unfortunately is to kill some civilians. You know, they know that the vast majority will get hit by the Iron Dome but 10 to 15 percent will make it in and it will cause some civilian casualties for the purpose of ending the war and bringing Israel to the negotiation table, lawful or unlawful? Unlawful, unlawful. The deliberate desire to kill as many civilians as you possibly can for a military object that would be unlawful.

Now you're sitting there going, okay, next question, Hiroshima and Nagasaki. Boy, okay. Also, before I get endless emails from our listeners from either side of this, I hope you understand I'm trying to make these hypotheticals as interesting as possible that are within the realm of someone who might be defending Iran or Israel, but please do not send me emails about how well actually that's not what Iran want. I know, I know, I get it.

But this is the conversation. This is what you do in law school. You push the hypotheticals, exactly. So, essentially, if you're gonna say, I've got hypersonic missiles and I've got a choice between targeting an Israeli air base and targeting somewhere in downtown Tel Aviv, your only lawful option, your lawful option is the air base.

Now, I will say that they did strike a Ministry of Defense target in downtown Tel Aviv. That's a lawful target. So, if somebody hits the Pentagon in an armed conflict with the US, the fact that the Pentagon is super close to that Pentagon city and apartments and the mall and all of that, if you're targeting the Pentagon, the Pentagon is a legitimate target even though it's nestled in there amongst a bunch of civilian stuff. What if I hit the Pentagon with a nuke knowing that the fallout will be miles and miles around the Pentagon? Fine? Not fine. Okay, well then I do want to do Hiroshima because our point was a ground invasion would cost

hundreds of thousands of lives. We felt like we didn't have a choice. You saying that was unlawful. I know I'm not saying that was unlawful. I think so I we had a situation in heading into Japan about our dilemma approaching Japan was unlike anything. It's just so different from what we're facing now. It's, they're different universes. Yeah, I get that. But I want you to, I guess I want to find a world in which David will say that the good guys

did something unlawful. And it was for the greater good and it's okay to violate the rules of war sometimes. Like the white hats sometimes break the law because they're looking at their spreadsheet and they're like, I'm not, I'm not going to put a hundred thousand American lives in the ground because I want to maintain the laws of war. Yeah. So I think that if you're looking at World War II, I've never heard a good justification for the area bombing of Dresden in the closing days of the war. I've never heard a good justification for that. The problem that- To get them to surrender. That's the justification. It's not that different than Japan.

I mean, no, you know. It should be your people, not my people. That's how war works. It's very, the difficulty with both of these countries, both Japan and Nazi Germany, but to a greater degree, Japan, a lesser degree Nazi Germany, but still present with Nazi Germany, was a sort of idea that it's going to be the whole people, all of the people are going to rise against you. That in Japan, there was this thought even of civilian uprising, civilian attacks on

allied forces. They had seen in the battle for the Mariana's as well as Okinawa, just extraordinary, the Japanese demonstrating just extraordinary disregard for civilian life. The civilians themselves having been propagandized, there's this horrible moment where there was a civilian mass suicide jumping off cliffs, thoughts that you could have. After Okinawa, the thought was that if you invaded Japan, it wouldn't just be hundreds of thousands of additional American lives, it would be millions of Japanese lives.

And at some point, I am not a consequentialist when it comes to ethics, but the idea that you don't consider consequences in ethics is itself also a big problem. And so I think that if you're looking at Hiroshima and Nagasaki, it was the least worst of multiple horrific options. I don't have the same analysis for Dresden. I don't think that Dresden played any real role in ending the war at all. I think that had a lot more to do with the Soviet army taking Berlin and Hitler shooting himself. So yeah, I think World War II,

it's so different on 19 different fronts than what we're dealing with right now. It's just so difficult to put yourself back into that position. All right. Next, we're going to do Donald Trump's deployment of the National Guard in Los Angeles. But first, David, we have a branded content segment with friend of the pod, Chris Bogart, the CEO of Burford Capital. This is going to be about that descent from the dig in the LabCorp case, David, and a little more about how class actions interact, nationwide injunctions, and the rise of multi-district litigation. So think about it this

way, nationwide injunction stops the president from doing a thing anywhere, like it prevents him. A class action goes with the individual people and puts them in a little bundle together. Multidistrict litigation can be 100,000 people all filing individual lawsuits and then we bundle the lawsuits together. So with that, David, this will be a new experiment on advisory opinions, but I think it's pretty interesting. Chris Bogart, welcome back to the pod.

Chris, you are the CEO and director and co-founder of Burford Capital. Why are we doing this? Well, Sarah, we're doing it. I've been following advisory opinions for a for a long time, and I've obviously been on the show several times. But with the dispatches move into SCOTUSblog and what you're calling the extended universe, I think that's a pretty exciting thing for law in general and law media. Erfurd, as you know, is probably the largest buyer of legal services in the world now. And so reaching lots of lawyers, which is what you do, is important to us.

Well, you and I were having a conversation about this LabCorp case that I've talked about now for two episodes that nobody except me seems to care much about, except you. So this is that case about whether a damages class for class actions could include some potentially non-injured parties. The case was digged by, it appears, eight justices of the court, and you had this little spicy dissent from Justice Kavanaugh. But you kind of think none of this matters that much. Well, I'm not sure that I think it doesn't matter, but I think that what you're hearing from Justice Kavanaugh is what I'll call

the traditional opposition to class actions. And the opposition basically goes as he framed it, a class action is a big scary thing because if it goes against you as a defendant, it could cost you a lot of money. And therefore there's always some pressure to settle instead of litigating things out. The problem though, I think, and I enjoyed your riff on this last AO, where you thought there was more to it than just this one case. You thought that in fact, Justin Kavanaugh was basically laying down a marker about class actions more broadly because you might start to see them coming up in some of the nationwide injunction context as an alternative. But I think the issue that the courts really have to confront here is between the balance

between class actions and mass torts or MDLs. Because what's happened is defendants, and I used to be a defense lawyer, defendants have pretty successfully limited the scope and use of class actions. The reality is class actions today make up only about 3% of the federal court docket and about two-thirds of the settlement dollars that get paid out in class actions are paid out in securities cases. So class actions are not really a huge economic vehicle any longer in US federal litigation. What's happened instead is we've created a little bit of the wild west with respect to MDLs.

And so now MDLs have gone from being about a quarter of the federal court docket 20 years ago to being a clear majority now. I know judges who are having to ask their court for extra clerks to help handle their MDL multi-district litigation docket because they're getting so many of these cases. And the reason I think that's a potential problem is that you lack a number of controls and judicial supervision that you have in class actions when you go down the mass tort MDL road. How did we lower the temperature and the number

of class actions and MDLs popped out? Well, I think that's exactly what happened. The claims have to go somewhere. So if you have, if you're a claimant with an injury, you're going to seek redress somehow or other. And if the courts make it really difficult now to do that in the form of a class action, then enterprising lawyers are going to figure out

how to file those cases individually. That's why you have such high case numbers. I mean, what if we end up in a, also going back to last episode, a Bivens and Federal Tort Claims Act world where judges basically poo poo both options? Well, I think that you're going to find it difficult when you've got a tangible injury. You've got to have some way of having that injury adjudicated and compensated. And you can do it in a class action or you can do it in an individual case, but you can't just sort of wave a wand.

A torts, a torts, a torts, a torts. Exactly. You can't wave a wand and have it go away altogether. So what's your solution? Well, I think judges should not be so hostile to class actions. I think frankly the defense bar was too successful, probably for its own good, in getting certification to be so difficult. And I think that's deprived the courts of the ability to supervise some of these cases more closely and more strenuously than they are today

in the last tort context. Chris Bogard, thank you for giving me an excuse to talk once again about LabCorp, what is quickly becoming my favorite case from the term, which was a dig somehow. And I'm gonna have to now come up with more and more creative ways to mention it on every episode for the rest of this term.

My pleasure, always nice to be on Advisory Opinions. Thank you so much again to Chris come up with more and more creative ways to mention it on every episode for the rest of this term. My pleasure. Always nice to be on Advisory Opinions. Thank you so much again to Chris and our presenting sponsor, Burford Capital. We'll be right back with Donald Trump's deployment of the National Guard in Los Angeles. And now we'll take a moment to hear from our friends at FIRE. If you're a lawyer and believe academic freedom is worth defending, FIRE,

the Foundation for Individual Rights and Expression, invites you to join the fight. FIRE is a nonpartisan organization that defends free speech nationwide with a special focus on college campuses. Through their Faculty Legal Defense Fund, FIRE provides legal help to professors whose rights are threatened.

And right now, they're expanding their network of attorneys who are ready to step up to defend faculty. If you're an attorney who cares about protecting open debate, rigorous scholarship, and the rule of law in higher education, this is your chance to make a difference. Join a national effort to protect the rights that make universities and our democracy stronger.

Learn more about the Faculty Legal Defense Fund and how you can join at thefire.org slash network. That's thefire.org slash network. That's the fire.org slash network. Academic freedom is worth fighting for. And it starts with lawyers like you. Whether it's a family member, friend, or furry companion joining your summer road trip, enjoy the peace of mind that comes with Volvo's legendary safety. During Volvo Discover Days, enjoy limited time savings

as you make plans to cruise through Muskoka or down Toronto's bustling streets. All right, David, as promised, Donald Trump calls up the National Guard to move into Los Angeles. Was it lawful? Is it lawful? We now have District Judge Charles Breyer from the Northern District of California who weighed in on that question last week. Within hours, the Ninth Circuit put an administrative stay, meaning they're not weighing in on the merits at all. Just like, hold on, we're going to

think about this too. And in the meantime, status quo is that the National Guard is under the control of the US Northern Command, so under federal control right now. But I wanted to walk through some of the reasoning of Judge Breyer's opinion. And yes, he is the brother of Justice Breyer. I have met both of these brothers, by the way, and like fascinating. In so many ways, they're similar.

And in so many ways, they're very different people. Both very charming, I will say say that David. That is a similarity between the Breyer brothers judges. Let me walk through how Judge Breyer held that putting the State National Guard under federal control was unlawful. So through the Militia Act of 1903, Congress authorized the president to call into federal service members and units of the National Guard of any state in such numbers as he considers necessary, but only if 1. The United States or any of the commonwealths or possessions is invaded or in danger of

invasion by a foreign nation, 2. There is a rebellion or danger of rebellion against the authority of the government of the United States, or 3. The President is unable with the regular forces to execute the government of the United States or three, the president is unable with the regular forces to execute the laws of the United States. So this is the Militia Act of 1903. It is how Donald Trump is going to justify federalizing the National Guard, particularly under two and three, right? That rebellion provision and the unable to execute the laws of the United States. So the first

question is who gets to decide whether there's a rebellion? Who gets to decide whether the president is unable to execute the laws of the United States? Now we get to justiciability and political question, Dr. David. So in Baker v. Carr, that was the decision where the Supreme Court famously in I think 1967 held that in fact judges can review redistricting for equal protection violations. Now of course in Rucho in 2018 they're gonna say they can't. There is a political doctrine problem with partisan gerrymandering. But racial gerrymandering?

Not a political... Judges can review that. It is not a political question. So these are the six ways in which a case might present a political question and be unfit for judicial review. One, if there is a textually demonstrable constitutional commitment of the issue to a coordinate political department. 2. If there is a lack of judicially discoverable and manageable standards for resolving it. 3. If it would be impossible to decide the issue without an initial policy determination of

a kind clearly for non-judicial discretion. 4. If it would be impossible for a court to undertake independent resolution without expressing lack of the respect due coordinate branches of government. Five, if there is an unusual need for unquestioning adherence to a political decision already made or six, if there is a potentiality of embarrassment from multifarious pronouncements by various departments on one question. That, I mean, that was quite loquacious there on the number six. Can I just say that somewhere Justice Thomas is screaming in anger

at this six-part judge-made test. Quite so, Justice Thomas. All right. So in the hearing, the government, so Donald Trump's side, contended that the president could invoke Section 12406 of the Militia Act of 1903 on no evidence whatsoever and remain immune from judicial review. And to be sure, Judge Breyer wrote, when the executive possesses a constitutional or legal discretion,

their acts are only politically examinable. So what do you do? Well, he looked to that decision from another district judge, Judge Rodriguez, about the Alien Enemies Act. Because it sounds kind of similar, right, David? Like, are the laws executable? Who gets to decide? Is there an invasion by a foreign country? Who gets to decide that? And remember Judge Rodriguez held that no, the president does not get to decide whether the Alien Enemies Act can be invoked. That basically you take all the facts as the president sees them and accept those as true. You don't get to second-guess the facts. But if those facts as the president sees them and accept those as true. You don't get to second guess the facts, but if those facts as true would not trigger the Alien Enemies Act or the Militia Act of 1903,

then that is what the judge's role is. So, and just again to read from Judge Breyer, the court here does not question defendants' factual assertions. The court considers only whether those factual assertions, if true, constitute a rebellion or make the president unable to execute federal law. That said, the court points out that this case is not one involving the kind of foreign policy or national security questions that traditionally are left to the president. It instead implicates the president's domestic use of military force, a matter on which the

court can certainly weigh in." So he found, nope, there's not a rebellion because there is, even with all the facts as Donald Trump has laid them out, there, no, there is no danger of an organized, violent, armed uprising with the goal of overthrowing the lawful government of the United States. Two, yes, he can still execute the laws, maybe not as effectively, but that's sort of how civil protest goes, right? That's where he came down.

Now, David, here's where this gets fun. We have a piece by friend of the pod, Jack Goldsmith, saying this decision is wrong, wrongy, wrong, McRonger face. And he, Jack Goldsmith, Professor Goldsmith of Harvard Law School, points to Martin V. Mott, an 1827 Supreme Court decision about the president's discretion under the Militia Act of 1795. It's an opinion by Justice Joseph Story.

This was a guy in the National State Guard, state militia. Madison had called up for federal service in the war of 1812, and this dude was like, I don't feel like it. I get to determine whether I think this is a foreign invasion in 1812, and I think, no, I don't want to. And as you can imagine, Justice Story gnawed dog that pretty hard. So I'm going to read you a couple quotes from this 1827 case. We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President and that his decision is conclusive upon all other persons.

The court also said that the statute does not provide for any appeal from the judgment of the President and that it makes the President the sole and exclusive judge of the existence of those facts related to the existence of the danger that triggers the law. Now, Jack Goldsmith has this amazing back and forth in his piece. And David, I thought we could do a little role play. Would you like to play the pro-Trump side or the anti-Trump side? I will do the pro-Trump side. Okay, David, you've picked your role. I'm going to read another quote from Martin V. Mott, and then we're going to role play our reactions to it.

You as the Trump gets to deploy the National Guard and me as the, no way this is insane. Okay. But here's just a story. It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself.

In a free government, the danger must be remote, since in addition to the high qualities which the executive must be presumed to possess, of public virtue and honest devotion to the public interests, the frequency of elections and the watchfulness of the representatives of the nation carry with them all the checks which can be useful to guard against usurpation or wanton tyranny." What's your reaction, pro-Trump David? Exactly right. Congress designated the president to determine the need for emergency use of military authority

in the domestic sphere and court should stay out of it. Yes, this power, like any power, can be abused, but there was violent disruption of law enforcement and the potential for much more. The elected president is best positioned to assess the public interest in deciding to federalize the National Guard to address these dangers and was given that task by Congress. It would be an abuse of power, of judicial power, for unelected courts to second-guess the emergency assessment. As story made clear, the proper remedy for any presidential abuse of this power is democratic politics, presidential and congressional elections, and congressional watchfulness, oversight,

and impeachment. And my reaction on the anti-Trump side? Exactly right, that quote. Stories stated the conditions that justified absolute judicial deference to the executive branch's assessment of the emergency use of military power in the domestic sphere, conditions that are entirely lacking today. The danger of presidential abuse and of usurpation or wanton tyranny is very far from remote in 2025 precisely because Trump lacks public virtue and honest devotion to the public interests and because the watchfulness of the representatives of the nation is entirely absent. Courts today, unlike in 1827, are other other than frequent elections,

the last line of defense against creeping militarization of the homeland and must scrutinize Trump's actions very carefully. Well, Sarah, this is exactly the logic story was refuting. The lines between proper use and abuse under both the 1795 Act and the 10 USC 12406 are contested. The point of absolute deference is that courts are in no position, especially by comparison with the president, to assess the public interest concerning the emergency triggers under either statute. Judge Breyer and the state and local critics of Trump's National Guard call are undervaluing the legitimacy of a massive deportation law enforcement effort and underestimating

the danger and the violent obstacles to that effort. And the power to make this call is, as story said of the 1795 act, of a very high and delicate nature that might not admit of strict technical proof and cannot be executed without a correspondent responsibility. That means, Sarah, Trump decides. The Constitution and the laws of the United States are not a suicide pact, David. When such a momentous and dangerous domestic military power is placed in the hands of a man with authoritarian aims and tendencies, when the power is admittedly and gleefully exercised in a way that serves White House

political interests, and when all other checks are gone, courts as the last line of defense cannot give absolute deference. Look, this illegitimate argument amounts to saying that courts in the name of the law can disregard the law because they think Congress, in its wisdom, authorized a presidential power too prone to abuse and too dangerous for courts to countenance. In addition to the other factors that distinguish Mott, nothing in the text of 10 U.S.C. 12406 demands absolute deference. And while, of course, courts should give some consideration to the president's views, they cannot eschew their responsibility to decide whether there is an actual danger of a rebellion

or presidential inability to execute the law with the regular forces, especially when the law is being used in a transparently and dangerously opportunistic way and in a context that defies stories' assumptions. Thus endeth our one-act play, David. And applause and we go to the curtain call. And right after this, we will discuss who had the better argument in our one-act play by Jack Goldsmith entitled The Larger Predicament. All right, David, we're back to give critiques and reviews to our own performance of the one act play,

The Larger Predicament by Harvard Law professor, Jack Goldsmith as written in his newsletter. Professor Goldsmith did not know that we'd be performing his play today, but I hope he enjoyed it. David, what do you think the Ninth Circuit will do? Do you think the Supreme Court will take this? Who has the better argument?

Who should get to decide this based on the statutes and the precedents of the Supreme Court? Before I read Breyer's opinion, I was very skeptical of it. When I read Breyer's opinion, I had warmed to it a bit, not because of the mod argument, but because of the statutory construction argument. And here's why. The statutes at issue, so you have 12406, which allows the president to call out the National Guard under the conditions you outlined there, Sarah. And it says, when the United States or any of the Commonwealth or possessions is invaded or in danger of invasion by a foreign nation, not applicable here, there is a rebellion or danger

of a rebellion against the authority of the government of the United States. That's the key language there. That's number two. Or number three, the president is unable with regular forces to execute the laws of the United States. So the question here is, he said, is there a rebellion or a danger of rebellion? And so who decides that question? And the point that he made was that, well, if Congress wanted the president to decide that question on his or her own, they would write the law differently. So, for example, in the Insurrection Act, it says whenever the president considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States make it impracticable to enforce the laws, then he can call out the military. So, it's whenever

the president considers, or if you're talking about, say, remember the travel ban case, when you're talking about removing, putting some people from some countries on a travel ban list. It says whenever the president finds that the entry of any aliens or of any class of aliens to the United States would be detrimental to the interests of the United States. So there's that language. Whenever the president considers or whenever the president finds, that's not in this statute.

They could have put it in there. They didn't put it in there. So then therefore it becomes necessary for the court to decide, is there a rebellion? And why is this different from the War of 1812 case? Well, the War of 1812 case was a declared war, Congress declared war against Great Britain. There was an actual armed invasion. They burned the Capitol. This is a domestic law enforcement issue.

In domestic law enforcement, the president's authority is not the same as it is when you're talking about an armed invasion by British regulars, for example. And so I thought that that statutory distinction was pretty interesting. I still am a little bit nervous though, Sarah, about courts determining when there is a rebellion. The practicality of that makes me nervous. And so I'm still inclined to be, I'm narrowly leaning towards Goldsmith on this, but it's a closer call than I thought before I started reading the Breyer opinion. So I actually think that Breyer laid out the way

to make the decision perfectly. I thought he had the statute right. I thought he had the statute right. I thought he had the precedence that he needed. I will say that I thought the Alien Enemies Act was applicable only in so far as it's adjacent, if that makes sense. Also, it's one decision by a district judge. It's certainly not presidential in any way. It's helpful that someone else thought about it, but that's about it. Whereas he seemed to really rely on that.

No, I'd mention it more like, and notably I come out the same way as this other one, not. And look, this is now what we're going to follow. David, here's where I think he's spot on. You defer to the finding of fact by the president, but if those facts, if accepted as true, would not amount to a rebellion or that you're unable to execute the laws, then I think that is reviewable by a judge, but it is a very light touch. Where I think Breyer went wrong is he didn't actually accept the facts as found by the president. So for instance, there is a rebellion or danger of rebellion against the authority of the government of the United States. He holds that that has to be an uprising with the goal of overthrowing the

lawful government of the United States. I just don't think that's what rebellion can mean. You can have a rebellion, let's say, against the 18th Amendment on prohibition and just say, we're not going to allow alcohol laws to be enforced here. That is still a rebellion. Even if it's not to overthrow the entire government, it's two and three. It's a rebellion against the authority of the government of the United States and to prevent the execution of the laws of the United States.

The last time a president called up, federalized the National Guard without the consent of the governor was, of course, in Selma, Alabama against Governor Wallace, I don't see, I can see lots of feelings of why it's different. I don't see a lot of legal reasons why it's different. And if you accept President Trump's facts that the violence and shutting down, for instance, of 101 by 3,500 protesters who are unlawfully assembled doesn't prevent the execution of the

laws because they were still able to detain 44 people, but they say they would have executed more raids and detained more people and Breyer says, maybe you would have, maybe you wouldn't have. You don't have any proof of that. Then you're not accepting the facts as the president has found them. You have a light touch. You have to accept those facts only to ensure that he's not saying, didn't present any facts at all, for instance. There is no rebellion at all. There's no assembly on lawful or otherwise. There's no violence. Every other law enforcement officer federal is going about their duties just as they were. Well, then the president's got a problem because he has no facts to support this finding. Here, there were facts. It's just that Judge Breyer disagreed with the facts or the implications of

the facts. I think you're far astray of Martin V. Mott justice story territory at that point. I think there's a reason the Ninth Circuit put an administrative stay on Judge Breyer's opinion. I think if the Ninth Circuit comes out the other way, as an uphold Judge Breyer's opinion that the National Guard was federalized unlawfully, I think the Supreme Court will step in. What do you think, David? Boy, this one is close. I mean, that lack of the whenever the president considers language really is interesting to

me because then you're leaving it as okay, I do think it is correct that an analytical framework that essentially says barring on highly unusual circumstances, you're accepting the statement of facts, especially at an early stage of litigation that the president has presented, and that there's going to be some judicial determination of with deference, I would say with deference,

there's got to be some judicial review on the existence of rebellion, especially because there's the lack of that language. I don't see how, I mean, take my 1965 point for a second. The only one implicated was number three, the inability of the federal government to execute the laws of the United States in Selma, Alabama. But like, you know, they were executing them sort of. Like I don't see how that's even that different from what's going on in Los Angeles when it

comes to federal immigration enforcement versus federal civil rights enforcement in 1965 in Alabama. And if either they're both unlawful, which is a consistent opinion, I will grant you that, or they're both lawful, even if one of them you really, really like and one of them you really, really don't. And you know how much I love it when similar situations cut on different political valences like this. Yeah.

I mean, that's why when it push comes to shove on this rebellion issue, given that you had actual violence directed at actual federal workers designed to stop them from actually executing their duties and several. So in that circumstance, I mean, I don't like, is this a rebellion? No. Is this a rebellion with deference given as required? It's a rebellion against the enforcement of immigration laws of the United States. It's not a rebellion against the overthrow of the United States, but that's not what the United States. It's not a rebellion against the like the overthrow of the United States, but that's not what the statute requires. Right, but then

here's the weird, here's another part of this that is so weird, okay, which is, and by the way, man, this is such a poorly drafted statute because once you get from there is a rebellion or danger of rebellion and Judge Breyer gets into that it says the president may call into federal service members and units of the National Guard of any state and such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governor's or the state. Governors of the states. Okay. What the heck does that mean? Because if the president is calling out the guard, that means that the governor

has not called out the guard or the president deems that the governor's, the governor's command of the guard has been insufficient. So he's calling the guard into federal service, but he's doing it through the governor and the way the president that Trump tried to satisfy this requirement was by putting on top of the page through the governor, which as Judge Breyer said is not through the governor, just typing the words through the governor. I declare bankruptcy.

Right. But then he's like, then the opinion is really interesting because he's like, whatever through the governor means, it doesn't mean simply typing through the governor, which I think is absolutely correct, but then it doesn't really answer what through the governor means. And so-

And you have my 1965 problem. Why was it fine in 1965? God knows that they didn't federalize the National Guard through Governor Wallace. Yeah, yeah. And so it is, so here's the way he says it. In any case, the instant motion does not require the court to determine whether or how section 12406 would operate if Secretary Haggiseth has attempted to issue his orders through Governor News Newsom and he had refused as the president and secretary circumvented the governor and thus the procedure mandated by statute from the outset. Regardless of whether defendants gave Governor Newsom an opportunity to consult with them or consent to the federalization of California's

National Guard, they did not issue their orders through him and thus failed to comply with 12406. Which I think is actually correct, but what does that mean? What does this all mean? What does through the governor mean when you're talking about this kind of action? And again, this is where you have a really poorly drafted statute. And they went with this very badly drafted statute, but I'm actually glad they went with this one and not the Insurrection Act, which totally clearly gives him the authority to do this.

Like, there's no real debate. It says whenever the president considers. I mean, this is about as carte blanche as you can get in a statute and they didn't use it. And they use the much more limited statute that gives the federal government, the National Guard, no real law enforcement authority at all, just more of a self-defense authority. And it through this incredibly poorly written statute whose parameters are not defined and what its meaning is not defined. So it's a mess, Sarah, it is an absolute mess.

All right, so David, quick note before we move on to that New York Times piece about Justice Amy Coney Barrett. I had a couple dozen five-year-olds at my house this weekend for a birthday party, and I just looked over my shoulder and something caught my eye. It is a fully formed, uneaten cupcake in my bedroom. Why? one asks. How? one thinks. It's on a nice carpet. It looks fine actually but it's a it's bright blue.

Homemade bright blue cupcake. Sarah some ask why some ask why not. All right. In the New York Times by Jodie Cantor was a long profile with Justice Amy Coney Barrett walking through just how different she is or not, depending on who you ask. David, one piece of this stood out to me. First of all, that she's the only mother of school, of grade school children ever to serve at the Supreme Court. I just sort of liked that fun fact. You totally did not realize that. I mean, it's like obvious, but yeah, I didn't realize it.

Um, so David, I'll put all of these stats in a bucket. One, when justices Sonia Sotomayor and Elena Kagan agreed on non-unanimous decisions this term, Justice Barrett joined them 82% of the time, up from 39% of the time in her first term. Two, she is the Republican appointee who appears to have voted least often for Mr. Trump's position based on three cases decided last year stemming from his attempts to subvert the 2020 election, as well as 14 emergency applications since then arising from his sentencing in New York and recent blitz of executive orders. And her agreement on outcomes with Justice Alito slid from 80% to 62%.

All right. What do you think, David? How did this strike you? It was very interesting to me and it was also a sign of anytime I'm looking at measurements like this, I'm much more interested in what are the nature of the cases we're talking about. Because a lot of the cases involving, say, President Biden or President Trump, are not the kinds of cases that we have typically used to describe who is a judicial conservative and who's not. This is a point that we've been making a lot

on this podcast. That is, a lot of the traditional sort of culture war cases, of which there's a few this term, like Paxton and pornography, Scrimetti with transgender treatments for minors. These kinds of cases are becoming less prevalent and less contentious in the court. And the cases that are becoming sort of more prevalent are the presidential power type cases, the emergency docket type cases that are not falling along the lines. Like if you were, if you and I, when you and I were in law school, okay, I'm going to admit different eras, but when you and I were in law school, when we were talking about conservative judicial

philosophies and liberal judicial philosophies and how that dictated the outcomes of different kinds of cases, in almost every case we were talking about the kind of culture war cases, not the presidential power type cases that really are dominating the docket now. And so it's just a different measure. So while I'm very interested, I think it's very interesting and a very interesting data point that she is siding less with Alito than she used to. I'm wondering how much that's apples to apples

and more apples to oranges. I agree, because also like what's a conservative outcome versus a liberal outcome? I mean, I've skipped the ones that in the piece that determined that a outcome was conservative or liberal because I find those incredibly unhelpful labels. Is the eviction moratorium and the bump stock case, one of those liberal because it was under Biden and the other one's conservative because it was under Trump? They're both about executive power and what a president can do when the statute doesn't say that with one of his executive agencies.

Are conservatives for executive power and liberals against it? Seems to kind of depend who's president actually. So yeah, as you said, David, there's the culture war cases that I think fine. We can put those on a left to right spectrum easily. Okay. But even for a lot of those, there's some process element like standing or, you know, political question doctrine maybe, major questions doctrine. You're like, I don't know why that's on the left-right spectrum just because the outcome might help one side or another. You have to kind of be a real judicial realist on that front. And then on these executive

power ones, I don't see how you're putting any of them on a left-right spectrum unless you just decide liberals like the administrative state and conservatives don't, except conservatives love executive power in some areas, like foreign policy, for instance. Check out the Bush administration.

And they love executive power in removal of officers. And they always have. Humphrey's executor has long been on the Bush administration. And they love executive power in removal of officers. They always have. Humphrey's executive has long been on the chopping block. So I think I agree with you. I think it is too early to say exactly what type of justice Justice Barrett is. And I think that's a good thing for the institution, for the judiciary, for Justice Barrett, all of it. I think I would love more profiles like of Justice Gorsuch, who also has a totally independent streak in a lot of areas. Justice Kavanaugh, who's still the number one swing voter, although you'll notice in this piece,

they keep referring to Barrett as the swing voter in quote unquote, big cases. Again, you know that drives me crazy. So I think it's a really interesting piece. We'll put in the show notes. But I thought that some of the quotes from liberal academics were pretty meaningful. This one's from a friend of the pod, Professor Amanda Tyler out of Berkeley. When I think of Amy, I think of someone deeply devoted to family and faith who does not seek out the limelight, who is humble and just wants to quietly do the work.

And here's one from Professor Feldman from Harvard Law School. It's a mistake by ignorant conservatives and wishful liberals to believe she's moderating. She's exactly the person I met 25 years ago. Principled, absolutely conservative, not interested in shifting. That was actually my favorite quote. I thought that was a phenomenal quote because what it taught... Look, if you are somebody who has a very similar worldview that you had 20, 25 years ago, that is not going to map onto our right, left divide neatly.

I mean, you and I are examples of that in a lot of ways. I mean, if you look at my judicial philosophy that I articulated in law school versus now, it's more libertarian. That's the move that I've made has definitely been more libertarian. I have a greater appreciation for all of the bill of rights, not just some of the bill of rights. And so what does that make me, where does that map me now?

Well, the categories, the political categories of right and left and the political categories of conservative and liberal have been shifting more than the judicial categories of conservative and liberal, which are still broadly where they were some time ago, as far as like underlying judicial philosophy. So if she is that, none of this should be surprising.

None of this. This has started a big conversation though, among conservative legal circles, David. You know, we've talked about the no more suitors being a rallying cry for 20 years or so in the conservative legal movement. I'm starting to hear rallying cry is too strong a term, rallying whispers of no more academics, that academics are too focused on nuance,

interesting questions, and not enough focused on practical consequences and actually having a set philosophy ideology to move the law. I think that's so dumb it makes my head hurt. Look, all of these rallying cries are related to short-term outcomes that people want. Now, Souter, I get better more than Barrett because Souter, I think a lot of people thought, well, we want an originalist and they did not get an originalist. Well, with Barrett, you wanted an originalist. By go well, we want an originalist and they did not get an originalist. With Barrett, you wanted an originalist. By golly, you got an originalist.

You wanted a conservative. By golly, you got a conservative. But you also got somebody who's open-minded, who listens to arguments, who's independent-minded. And so when people are saying no more academics, what they're saying is how can I find a profile of a judge who will rule the way I want to rule? And however I want to rule, me, person sort of standing outside shouting often, I don't necessarily have a judicial philosophy. I just have a lot of preferred outcomes and how can I get to that?

And that is what is irritating, frustrating, fruitless, annoying. Yeah. So, I thought the Feldman quote was just gold. I thought that was fantastic. David, her book, Listening to the Law, is coming out in September. I am fascinated by how she is going to describe her own jurisprudence. Because on the one hand, you read her concurrence where she talks about major questions doctrine last term

and it is like a fully formed law review article. Like she knows exactly what she thinks on this. On the other hand, I don't know, does she know what she fully thinks as a Supreme Court justice yet? And how will she talk about various aspects of the law? Or will she? Like maybe this won't be as like, I don't know. I'm very curious. I will be pre-ordering that book that's coming out in September for sure. And also David, I'm working on a new thesis in

my head that the filibuster killed off the Federalist Society and they don't know it yet. That the end of the filibuster. That basically the Federalist Society was the password. It was shibboleth that you could say at the door and it was the way you signaled what you actually believed about the law and learned about what you actually believed about the law. But with the end of the filibuster, you could skip that part or that part just isn't as important because everyone ambitious at some point joined the Federalist Society. So it no longer serves that shortcut. Everyone can say the word shibboleth suddenly and you say it out loud and you scream it really loudly. And so the purpose of the Federalist Society was really injured by

the end of the filibuster. That's interesting. Very interesting. I was thinking that the end of the filibuster, I have to ponder this because part of me was thinking the end of the filibuster was rocket fueled with the Fed Soc because you could join the Fed Soc without consequence. And that was the password that would get you through. However, with Trump turning on the Federalist Society,

that's not the case anymore. So I mean, maybe the combination of Trump turning on the Federalist Society and the end of the filibuster, I don't know, it's a very different dynamic now. To continue my prohibition analogy, like if prohibition is in effect, you need a middle man, like you need the speakeasy to give you your alcohol.

But once the 21st amendment is ratified and alcohol is legal, you don't need the speakeasy, you just go to the store and buy your booze. Like the Federalist Society was the speakeasy. Now, if you're a president, you just go to the store and buy your booze. Like the Federalist Society was the speakeasy. Now, if you're a president, you just go to the store and get your judge. It's true. They're all labeled right there. They're on the shelf. I did like this one quote from Sharif Girgis, now a Notre Dame faculty member.

She wants to be seen as apolitical. The method made me do it. The theory made me do it. Not my policy preferences." Just a really good one and that leads to the Justice Barrett quote. Justice Scalia used to say, and I wholeheartedly agree, that if you find yourself liking the results of every decision that you make, you're in the wrong job. You should sometimes be reaching results that you really dislike because it's not your job

to be deciding cases in a way that you'd like them to be seen. All right, David. Last up, we had a judge who is really, really unhappy about something that happened in their courtroom. This comes from the Northern District of Florida, Pensacola Division. I will read to you now. Dramatic reading, David. I have served as a judge for over 23 years. I have never had to write an order like this,

and I never dreamed that I would have to do so. But unfortunately, I do. Yesterday morning, I held a hearing on defendants' motion to stay. The hearing was uneventful and concluded around 12.45 p.m. Then at 1 p.m., I had a criminal sentencing hearing in the same courtroom. That hearing too was uneventful, or so I thought. After the sentencing hearing- Okay, time out, time out, time out. After that paragraph, what do you think is coming next? I had no idea.

I was really sitting on the edge of my seat, like literally. Yeah, yeah, it's like, this is gonna be good and big. Okay, keep reading. After the sentencing hearing, I was informed that the AUSA who was sitting in the chair Yeah, yeah. It's like, this is going to be good and big. Okay, keep reading. After the sentencing hearing, I was informed that the AUSA who was sitting in the chair in which plaintiffs sat during the morning got gum on her skirt when she brushed her leg against the underside of counsel's table. It was at that point that court staff determined that chewed gum had been stuck under the table.

The fact that there was chewed gum stuck under the table was absolutely disgusting. It also reflected a contempt, disrespect for the court and court facilities that could not simply be ignored. The gum that was not stuck to the AUSA's skirt was still stuck to and hanging down from the table after the incident. The court custodial staff then had the unenviable task of removing the remainder of the gum from the table, which they dutifully did. Court staff and I inferred that the gum had to have been stuck under the table at some

point during the morning hearing because there had been no hearings in the courtroom since Tuesday and the gum was still fresh and stringy. Thus, to get to the bottom of the incident, I ordered the plaintiff to, quote, "'File a notice identifying who stuck the chewed gum under the table and show cause why the court should not impose appropriate sanctions on the person who did so,' end quote.

Well, David, you can guess what happened next. The plaintiff did indeed fess up in their letter, admitting that she placed the gum under the table and sincerely apologized. Given the apology, the court accepted it and said no further sanctions will be necessary. A simple admonishment will suffice. Do not chew gum in a courtroom for so many reasons, one important one of which, when you're done chewing it, you cannot stick it under the table. Doesn't turn out well. No, no. Might've been a little bit of overkill issuing that order off of gum under the table, but... Disagree, David. That is disgusting. This was Judge Wetherill in Pensacola. And like, no, I actually agree.

That shows a contempt for the court. This is a federal courtroom. It is a place of business. You shouldn't be sticking gum anywhere on the sidewalk, on park benches. It's really, really like one of the most anti-social things you can do. It's like a day ruiner to step in gum

and have to get that off your shoe. And it doesn't come off. Like you have to walk then for a while with like that stick with every step. Gum chewing is anti-social. My mother told me that it was also, you know, not polite to ever chew gum in public. It's something you can do in private, in your car, in the bathroom, but you should not be out in public chewing gum. I mean, that's a bit much.

Not be out in public chewing gum. That's... It's pretty gross, David. Mastication is gross. Maybe I'm desensitized to it because I, from K- Are you a gum chewer? No, no, not typically, but K through 12, I attended schools where the underside of every desk was entirely gum.

It was a gum composite. So that proves my point because junior high students are feral creatures who have not been civilized. The fact that they stick gum under desks is proof that it's not a civil thing to do. Agreed. I mean, we're not disagreeing on the offense existing. We're disagreeing on whether or not the severity warranted a court order as opposed to just a verbal admonishment. I would have gone farther. This is only a three-page court order.

I think it could have gone on far longer. But congrats to Judge Wetherill for getting to the bottom of it. And special kudos. I'm glad he called out the custodial staff who actually had to do the work because that's kind of the point, David. Like your inconsiderate behavior caused a janitor

to have to come into court and get gum off the bottom of a desk. That's not their job. So don't make someone else do that. Go throw away your gum or like find some paper and put it in your pocket. Ew. Grow up people.

And with that, we will call the end of this advisory opinions episode. We will have our next episode on Wednesday with new Supreme Court opinions handed down. And if you're looking for something to listen to between now and then, could I recommend to you the last Dispatch Roundtable? Steve Hayes has taken over hosting duties. I am but a lowly panelist on this roundtable alongside David French and Jonah Goldberg. And we talked about, yeah, LA, Tulsi Gabbard, actually many of the same topics because we cover nuclear weapons

and whether it's a riot. So I don't know. Some kid rotting in there too. Do you know what kid rotting is? You can find out if you listen to the Dispatch Roundtable. We'll see you next time on Advisory Opinions. Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,