Advisory Opinions - Watching a House of Cards Collapse

Episode Date: November 16, 2020

A segment of the right-wing public has morphed into a conspiracy theory machine that is—in David’s words—propagating baseless voter fraud allegations at “a geometric rate that [bears] increasingly no relationship to the real world at the same time as the actual claims in court are just evaporating.” Why are people on the right and the left so susceptible to electoral conspiracy theories? After David and Sarah play catchup on the latest developments involving election litigation, they dive into a 1st Circuit race-based admissions case at Harvard, the latest updates on DACA, and The Mandalorian. Show Notes: -Andrew Fleischman thread on election lawsuits -Harvard affirmative action case, DACA decision, history of discrimination with SAT and Jewish applicants Learn more about your ad choices. Visit megaphone.fm/adchoices

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getaway at ottawatourism.ca You ready? I was born ready. Welcome to an action-packed advisory opinions podcast. And it's, Sarah, it's not going to be action-packed exclusively with election fraud litigation analysis. In fact, that might not even be 40% of this podcast, may not even be 30% of this podcast. We're already moving on. Not everybody's moving on, but we're already moving on. Would you say that we have a vote fraud quota system? Oh, now that's a nice tease for the core of the podcast. So here's what we're going to do. We are going to begin by talking about vote fraud litigation,

and there were pretty significant developments towards the end of last week and moving into the weekend. We're going to talk about that. Then we're going to talk about the First Circuit race-based admissions decision at Harvard. And I know we both have some thoughts about that. Then we're going to talk about a decision that blocked DACA repeal from the Trump administration here in the closing days of the Trump administration. And we're going to wind up with a little bit of a pop culture discussion of the one show that until recently, Sarah, was uniting all of

America, and that is The Mandalorian. They canceled Baby Yoda, David. They canceled Baby Yoda. You cannot cancel Baby Yoda. Babies are going to be babies. I mean, come on. But we'll get to that. We'll get to that.

But let's get started. All right. to that. We'll get to that. But let's get started. All right. So the sort of the nutshell summary of what happened over the last few days is that the core key claims of the major lawsuits challenging the results in Pennsylvania and Michigan, and to a lesser extent in Arizona, detonated. So in Pennsylvania, this was sort of the really big development. The Trump campaign filed an amended complaint that we can go into that removed from the field some of their major allegations that could impact enough ballots to change the outcome in theory in theory if everything went perfectly for them and it was never

going to but in theory could alter the outcome of the state of the presidential election in the state a Michigan judge eviscerated just eviscerated the affidavits filed in support of a motion to prevent the certification of Detroit's or Wayne County, Michigan's election results. And then a lawyer for the Trump campaign dropped its so-called Sharpie Gate lawsuit in Maricopa County. So we're going to go through that. Not so much Maricopa County. We're going to go through that. But Sarah, I have a unified theory of what's happening right now in the vote fraud allegation arena. I'm here for it. evidence of thousands of dead people voting. In some instances, no evidence of any dead people voting or no evidence of violations of the Constitution on observer requirements or

no evidence to support all of the Twitter rumors about ballot dumping, blah, blah, blah. Nothing has really slowed down on the right in believing that the election was illegitimate. So what this reminds me of is Skynet. Skynet, Sarah. James Bond Skynet? Nope. Skynet, the Terminator series.

Oh, Terminator. Sorry. Yes. So if you remember, Skynet, once they plugged it in, became a self-aware, a self-aware entity

engaging in trillions of computations per second, perceived humanity as a threat, and launched thermonuclear war. Okay. What I'm saying is that a segment of the right-wing public has become its own self-aware vote fraud conspiracy theory computational machine and is now creating and fabricating and loosing upon the land vote fraud theories at a sort of a geometric rate that bear increasingly no relationship to the real world at the same time as the actual claims in court are just evaporating just evaporating but the conviction of vote fraud

is not it's just the theories are constantly morphing so what we have is Skynet, an independently existing, self-aware, vote fraud, computational conspiracy machine. very online segment of Trump favoring Republicans who want to believe this. And because they want to believe this, they're willing to jump from fraud lily pad to fraud lily pad as each one sinks or gets debunked or fails in court, etc. And so the one that I got really into was this Benford's Law theory. David, are you aware of the benford's law theory so this is benford's law is a real thing though bizarre in which um in any set of naturally occurring numbers naturally not necessarily like in the natural order of things but it can be the length of rivers in the world or um a part of an accounting book, the leading digit is more likely to start with one than two,

more likely to start with two than three, et cetera, all the way up to nine, which will be the least likely number. And it follows more or less a logarithmic scale on that. And so folks were looking at precinct data and saying that Biden's vote totals violated Benford's law, that they were in fact more likely to start with four, five and six than they were with one, two and nine, let's say. wildfire because like say it's a law and it violated the law and they do use this in accounting not to convict people of accounting fraud but to spot it in the first place to say like hey it's worth digging into this and seeing if there's accounting fraud because the books don't seem to be following benford's law um in terms uh, let's say in a medical, um, reimbursement practice, the claims that

they're making for reimbursement don't follow Benford's law. And as long as there's, you know, enough of them, here's the problem with the precinct data. Of course, David, um, precincts are intentionally created to have approximately equal numbers of people in them. So they are not naturally occurring groups of people. They all tend to be about the same size. The other problem is, of course, in an election, you're talking about two people vying for votes. So it's not a random set of numbers that Biden's getting, really. He's getting the inverse of whatever Trump is getting. For the most part, that's going to split roughly 50-50 in a close election. And so let's say that generally speaking, you're looking at about

1,000 people per precinct. You're going to end up with 400 to 600 a lot more often than you're going to end up with 100 to 900. And so for a lot of reasons, yep, Benford's law does not apply to voting. Shout out, by the way, to the guys at Radiolab for their awesome work on this. And they talked to one scientist who actually is looking at whether you can, and he's done this for decades, so this is not like this 2020 election, but he has looked at whether you can use the second digit of precinct data to look for election fraud

in other countries across the world. And it is Benford Law-esque, you would say, for that second digit, which is fascinating. And by the way, when he looked at his Benford Law-esque way of looking at second digits and precinct data, I know you'll be shocked to hear this, David.

It looked just fine. He said it was a near perfect election. Yeah. Yeah. Yeah. I'm glad you explained that because that has been going. It's really hard because you feel like you're playing whack-a-mole there's you know you'll you'll see this online and and and you're exactly right to emphasize this is very as very online which so you'll see something online it'll be like i noticed something fascinating about the precinct results in so and so so and so counties buckle up for this thread on bemford's law one out of 25 and you look at it and it has this veneer of expertise it has this veneer of sophistication in much the same way like the that the dominion voting systems conspiracy theory does the hammer and scorecard conspiracy theory does and one of

these these i think about when you're talking about mathematical laws or when you're talking about software, who is it that said that technology, when sufficiently advanced, appears to the public as if like it's magic? Right. Well, that's some of the problem with Benford's law. It looks like anyone should be able to put in these numbers into an Excel sheet, look at Benford's law, and then just look at the first digit. And what a bunch of these professors were saying was like, that's obviously too simple. Yeah. Yeah. But the problem you have is when you have expertise, jargon versus jargon. Exactly. And the lowest level of trust and expertise in our lifetime. Zero level of trust and expertise, jargon versus jargon. You don't truly understand the allegation,

and so therefore you don't truly understand the rebuttal, but the allegation matches with who you trust and distrust. You reach a position where it's virtually impossible. And this is also the true with anecdotes. I had this really interesting exchange with somebody I'd known for years and years and years. Awesome, just awesome guy. And he sent a note sort of out of the blue saying, I was really convinced by these dispatch fact checks until I saw this. And he linked to a story, not a story, a Facebook entry from somebody who's saying, well, my wife, someone voted under my wife's maiden name in a state we used to live in. And now there's no really evidence given to

support this. The state wasn't even explained. It turns out the allegation, it wasn't even in a swing state. But the fact that one person could make a claim that their wife, someone voted in their wife's name in another state, threw everything back open again. Like the fact that that allegedly could happen to one person, even though it wasn't proven, there wasn't any evidence, could just threw it all back open again. Like the fact that that allegedly could happen to one person, even though it wasn't proven, there wasn't any evidence, could just threw it all back open again. And I think that's part of the power that you see, for example, when Tucker Carlson will get on TV and he'll say, John Smith was dead and voted anyway. Well, that's one person, even if it's true. And local news showed that a couple of his examples were just flat out not true

and we're still investigating the others. That's just one example. But what ends up happening is that one example works in a mind and it says, if one person can do it, can't 150,000 people do it? And it opens that back up again and it becomes incredibly difficult to deal with. Now, David, can I,

we've said why the fraud allegations are not substantiated in the facts, why these cases are all going to fail in their goal of overturning the election, even if they prove occasional voter fraud, which very much can and does exist. But here's where I think they are in the... Here's where I think what they're feeling.

And I am sympathetic to it. Four years ago, Donald Trump was elected in surprising fashion. And the Democrats, and I don't mean like the elite Democrats, I mean, online Democrats said that Russia had meddled in the election and given the election to Donald Trump. Not that they had influenced it on Facebook, like the indictment said. But that, you know, if you asked most

Democrats in 20, late 2017, early 2018, they would say that Russia itself changed the results of the election to give it to Donald Trump. And for four years, they basically pursued that as a theory, if you will. And elite Democrats did too, of course, with the Russia investigation. I mean, going on Rachel Maddow's show every night, you would think that they were moments away from proving that that election had been fraudulent. And even when the Mueller report came back and said that the campaign had not worked with the Russians, that the Russian influence campaign had been successful, but that that campaign's goals were to sow discord through online, through Facebook and things like that,

that didn't really stop this idea that Donald Trump was an illegitimate president to huge swaths of the left. Then you have Stacey Abrams' election campaign in Georgia where she lost by a wider margin than Donald Trump did. She never conceded the race and instead spent years on cable news saying that it was a fraudulent election. And what happened in both of those cases was that the mainstream media, and you know what, David? Even folks like us treated that, maybe we said it was wrong, but we treated it as not crazy. We were like, well, Stacey Abrams lost

and maybe she should concede, but voter suppression is bad. And there was a host over the weekend, or on Friday, I forget, on CNN who said, yeah, but she then started a nonprofit to turn out voters, to combat voter suppression. And she really turned that to good. Why is that relevant if you're these folks on the right when she never conceded the race and instead undermined trust in Georgia's election system.

Now, do I think there's a big difference between the sitting president of the United States doing it and a candidate for Georgia governor who did not hold elected office and could sit on just cable news? Of course I do. There's a huge difference

in the impact of those things. But it's incredibly frustrating, I think think if you're a Trump supporter to be told that, well, yours doesn't count. And I can see why then they're like, well, that's the game we're playing. Then we're just going to play it. And yes, it means every time similar to the Russia thing that they disprove one allegation, we're just going to move to the next one because that's what gets rewarded right now. And so, by golly, we're going to follow that playbook. I see why it's frustrating to them. I think that there is some hypocrisy here that the left is unwilling to recognize, even though I do think there is, again, a huge difference between a sitting president of the United States doing it.

even though I do think there is, again, a huge difference between a sitting president of the United States doing it. Yeah, I think what I'm glad you brought that up because that's a really important emotional issue that's underlying a lot of this is that, you know, for a long time, there were an awful lot of people on the left who believed that Russia didn't manipulate the didn't just manipulate the election by introducing by the hack and leak, for example, or by the memes, but by actually going into the voting machines and monkeying with the vote totals. There was a point, I think, at which there was sort of like this, let's just be completely honest about this. People are willing to believe conspiracy theories in the absence of evidence that support their side. And so there was some abundant amount of polling immediately after 2016, where a lot of Republicans just flatly disbelieved that Russia interfered at all. And a majority, I believe two-thirds of Democrats, believed that the Russians

monkeyed with the actual results themselves. They actually adjusted the results, the vote counts themselves. So both of them were wrong, and yet both of them were believed by overwhelming majorities of people. And the vote suppression thing with Stacey Abrams, you know, this is part of this dysfunction often in left-wing media that essentially says, we're going to fact-check the heck out of the right, and we're not going to hold some of the wildest claims on the left up to the same level of scrutiny. And in fact, we're not even going to really believe or argue or discuss them as wild at all. I mean, what Stacey Abrams did in Georgia was refuse to concede an election where it was patently obvious that she lost, patently obvious, and refused to concede and then became a heroine in part for her refusal to concede.

And so, yeah, I totally get it that at an emotional level, the pounding on the right for its conspiracy theories was noticeably not so diligent on the part of elite media outlets. But the problem that I have with that is... And those same people are waxing poetic about how important it is to accept results. And when you press them on the Stacey Abrams example, it's like awkward silence, some reasons, well, it's different. I don't have to tell you why. There is no answer for why, again, set aside that one's president and one was a candidate,

why it's okay for one person not to accept the results of the election and for all of us to say that that was fighting for democracy and for the other person not to accept the results of the election that was by a smaller margin and say that that is undermining democracy, it's breaking norms, it's unprecedented. I think to a lot of these people it's pretty rich yeah no it unquestionably is the problem that i have is we then say but then therefore it's okay for me to escalate like it's not even a fight fire with fire anymore it's you lit a bonfire and that was wrong so i'm gonna light a house fire and then when you when you call out my house fire, I'm going

to say, well, look at your bonfire over there. And that's true. But I think this is where what the media did had an impact. Because by doing that, by treating them so differently, what that signals is maybe there was fraud, maybe there wasn't fraud, but if they could have done it, they would have done it. They are, they so hate Trump voters. They so hate Donald Trump that they would have done anything to ensure that Donald Trump didn't get four more years, whether they did or didn't hard to say. And I think there's a plenty of Republican voters out there who totally understand that

a, this election is not getting overturned and B that, that, yeah, probably Joe Biden won fair and square. But that doesn't mean that they don't believe that if Donald Trump had been winning, that something would have happened to prevent him from winning. You know what I mean? Because they spent four years saying that he wasn't a legitimate president and that the people who said he wasn't a legitimate president were given a fair airing of their thoughts and not a lot of pushback, you know, despite increasingly little evidence to support it. And that Stacey Abrams was invited on cable shows over and over and over and over and over again. You know, one of the things I think is absolutely true is if you had the same, if you had the polling miss just a little bit bigger and Trump won and we'd already had pre-election intelligence reports that Russia was wanting to interfere. Right now, there would be an enormous,

I was, can you have an enormous cottage industry? You cannot. There would be a huge industry of speculation about how Russia altered the results. That would be rampant right now. I don't think there's any question about that. people like you and I is to say, whoa, whoa, where's the beef? Where's the evidence? Where's the evidence? And that's something I spent a ton of time in 2016, 2017, 2018 writing about. And that was to say, look, there's evidence that Russia tried to interfere. No question about that. You got to acknowledge that it's there. I mean, you know, you had the indictments, you had the hack and leak, but there's just no evidence that they messed with the voting results. There's just no evidence. And moreover, it's impossible to say that that influence operation affected the outcome of the election. When you have an election that close, affected the outcome of the election. When you have an election that close, 15 things could impact the outcome of the election. So you spent week after week, month after month saying, on the one hand, you can absolutely condemn the Russian influence

operation. On the other hand, you have to also say Donald Trump's a legitimate president of the United States. You can acknowledge both of those things at the same time. And, you know, one of the things I think is happening right now, it's almost as if there is an argument that Joe Biden is not legitimate, but without the Russian influence operation. And that's what's so distressing, is that the predicate for the next stage of the conspiracy theory doesn't even exist at all. In 2016, you did have a Russian influence operation that then people took too far. And in 2020, you don't have that sort of predicate mass of wrongdoing that then people take too far. They're fabricating the predicate mass of wrongdoing and then taking the fabricated predicate mass too far, if that makes sense.

Well, back to our voter fraud cases, by the way. So over the weekend, Donald Trump tweeted, many of the court cases being filed all over the country are not ours, but rather those of people who have seen horrible abuses. Our big cases showing the unconstitutionality of the 2020 election and the outrage of things that were done to change the outcome will soon be filed. David, is there any, will you fact check that tweet for me? Well, I mean, it's impossible to fact check because soon is not a defined term. Well, how many are the court cases that fact check because soon is not a defined term. Well, how many are the court cases that are currently being filed on behalf of the campaign?

Some of them are, yes. Yeah. Yeah, absolutely. Including the ones that we have spent a considerable amount of time talking about. So, yeah, the campaign itself has fired its shots. Maybe not all the shots it intends to fire, but it has fired many shots at the process. So, yeah, that is a, how shall I put

this, charitably, a deceptive. It is a deceptive tweet. Speaking of imminence, that we're not sure what soon means in that tweet, next week, or sorry, Thursday, Thursday this week, we will be talking about eminence in the First Amendment context,

which I think will be very exciting. Yes, it will. I'm actually really looking forward to that conversation because you will not believe how many times I'm asked about that as somebody who has engaged, you know, done First Amendment litigation for years and years.

Well, let's, because we need to get the First Circuit, let's quickly look at some of the details of what's happened in these two big suits. We said earlier, the Sharpie Gate, Arizona case is being withdrawn. So forget about it. Let's go to the big ones. Big one, number one, the Pennsylvania case that we talked about, and this was the case where the Trump campaign had alleged that they were unable to adequately review the mail-in ballot counting process, and that there was disparity in the opportunities given voters to cure defects in their absentee and mail-in ballots. Those were the big claims, and they sought an order of relief that would refuse certification of the results of the Pennsylvania vote on that basis, on a Commonwealth-wide basis. Well, in the last couple of days, the campaign filed an amended complaint. And the amended complaint, very interestingly, it still asks for this giant relief that refuses to certify the results of the entire election. But it changes the claims that they're making and limits them to and removes the sort of sweeping challenge to all the ability to observe the mail-in balloting process, counting process, and limits it to this much more narrow category of those people who are allowed to cure defects and absentee and mail-in ballots and those who were not. And therefore, as a practical matter,

it made the case not relevant to the results because the number of ballots of which this cure issue is relevant is much, much, much smaller than the margin of the case. And so what the Trump administration did, or Trump team did, is amend this complaint into actual electoral irrelevance. At the same time, they denied that they've done that. But they did that. This is not the most surprising thing that happened this week to me. No. No. Then the other interesting development is a Michigan, there was a order in a state court case, Michigan state court case, which was responding to a Trump complaint about the absentee mail-in balloting process in Wayne County, which is where

Biden racked up a huge margin. And there is, and we'll link to this in the show notes, but there's a really interesting thread from Andrew Fleischman where he kind of walks through the affidavits that the Trump administration filed, and it shows the problem with sort of throwing rumors into court and swearing, affidavits are sworn documents, swearing and attesting to the veracity of essentially rumors. I'll give you a good example. So there's this one individual who

swore that she's witnessed misconduct, serious misconduct. As the court says, Ms. Jacobs' allegations made by Ms. Jacob are serious. However, Ms. Jacobs' information is generalized, asserts behavior with no date, location, frequency, or names of employees. In addition, she offers no indication of whether she took steps to address the alleged misconduct or to alert any supervisor about the alleged fraud. She only came forward after unofficial results of the voting indicated that Vice President Biden was the winner of the state of Michigan. That's the difference, Sarah, between Twitter evidence and court evidence. Also, there was interesting allegation that some of the concerns that were raised in the complaint would have been addressed and had the observers attended the orientation program.

And they could have been better equipped to deal with the counting environment. I mean, you talk about watching a house of cards collapse, read that case, and we're going to put it in the show notes. Yeah, that one in particular reminded me of, you know, a whole lot of people don't know how this works. And 2020 is the first time they've tuned in to how ballot counts come in, how precinct numbers are reported. And so they see things that seem fishy to them that aren't fishy if they had participated at this level of detail in any previous election cycle. And that can be very frustrating. frustrating. I know in an era where we don't trust experts, but a whole bunch of quote-unquote experts out there are banging their heads against a wall because you don't need to be necessarily an expert. You just need to have participated. And that's frustrating.

Right. One of the evidentiary claims is that there was sort of this ballot dumping and someone brought in ballots from a vehicle with an out-of-state plate. And the evidence was actually that a city used a rental truck to deliver ballots, which, Sarah, I don't know how many trucks you've rented over the course of your life, but I don't think I've ever rented a U-Haul that had a plate from the state in which I was renting the U-Haul. Not once. So I would just encourage you, go down this Twitter thread, which pulls out segment after segment after segment of the opinion, and it just really does show the difference very starkly between Twitter evidence

and court evidence. What's sad is I think the number of people who have read and listened to and absorbed the Twitter evidence is going to be the tiniest fraction of the number of people who read and absorb the court evidence. But we're doing our part, Sarah.

By the way, since we've been taping this podcast, one of the Michigan lawsuits was voluntarily dismissed by the Republicans bringing it. And one of the Georgia ones as well. And then also a Wisconsin one. So right now the Trump folks are one and 24 in court. Yeah. I mean, what that sound you're hearing is the air going out of the judicial balloon and there wasn't much air in it to begin with. But judging from the president's statements over the weekend, there is absolutely no error going out of his own vote fraud balloon, that he is still doubling down on the idea that he won the election. Which, ultimately, his belief about that is completely irrelevant.

It doesn't mean that he can't do nefarious things between now and January, but there is a process in motion that he cannot stop. And the interesting part has been, will continue to be, when Mitch McConnell, Senate Republicans, etc., what will they use as the hook? I think at this point they're planning to use the state certifications to say that the election's over. That will be coming shortly. That's sort of the first next hook, if you will. But it will be very frustrating, David, if they say that, you know,

no, it's when the electors are chosen by the state legislature, or no, it's when the electors the state legislature or no, it's when the electors send their votes to the president of the Senate, which is actually basically the last step. That, to me, is pretty unacceptable. Could you condemn it in harsher terms? Let's take a moment and thank our sponsor, the Act In Line podcast. Act In Line is the flagship podcast of the Acton Institute for the Study of Religion and Liberty, dedicated to the promotion of a free and virtuous society characterized by individual liberty and sustained by religious principles. With episodes released every Wednesday, Act in Line brings together writers,

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You ready for some affirmative action? Yes, I'm so ready for this because do you know what, how much I'm looking forward to getting to a point past this election where we're diving into things that really matter to people's lives and legal doctrines that really matter to people's lives and legal doctrines that really matter to people's lives that have no bearing and no relevance to an individual named Donald Trump. Well, then today's your lucky day. So as we mentioned last week,

the First Circuit ruled on this Harvard affirmative action case. They upheld Harvard's policies. We're gonna dive into that opinion. But first, let's do a little walk down memory lane, shall we, David? Yes, let's do. So in 1978, there was the decision

on affirmative action and racial quotas. That is Bakey. This was about the set-asides for minority students by the University of California, Davis School of Medicine. And what that case said basically was that specific racial quotas are unconstitutional. So racial set-asides, unconstitutional but the idea that you could use race in some way was upheld um and it was a messy messy opinion uh one two three four five six seven eight opinions were written in that um you know so and so joins us to parts two three b three, three C, four, five A, five B, and six was not uncommon in Bakey. So this left a ton of questions.

So that's 1978. Fast forward to 2003, you get the Grutter and Gratz opinions. These are two separate opinions, both coming out of the University of Michigan. One is University of Michigan undergrad, which used basically a point system. And if you were a minority student, you got a plus number of points in this 20-point total to ensure that they were having diversity

in their undergraduate class. In a 6-3 opinion, that was held as unconstitutional. Interestingly, that was Rehnquist, O'Connor, Scalia, Kennedy, Thomas, with Breyer joining in part. The dissent was Ginsburg, Souter, Breyer joining in part. Oh, Stevens, sorry. And Stevens. So 6-3 that the point system was too close to a racial set-aside. But then in Grutter, that one was for the law school. And this was like this, you know, holistic admissions policy. And that was race conscious. And that one they upheld.

And that was O'Connor, Stephen, Souter, Ginsburg, Breyer. Right. With Kennedy joining the dissent. That's going to be relevant in a minute. So that's 2003. They basically race conscious. Okay. But a racial point system was like a racial set-aside.

Okay. Fast forward to 2013. These are coming in closer succession, by the way, David. Yep. And we have Fisher 1. This is the University of Texas case. There's going to be Fisher 1 and Fisher 2. So 2013 is Fisher 1.

This is where the Supreme Court held that strict scrutiny applied to affirmative action admissions policies and higher education. They avoided the lower courts ruling and sent it back to apply strict scrutiny because this was race conscious. That case, Kennedy, Roberts, Scalia, Thomas, Breyer, Alito, and Sotomayor, all saying that you should apply strict scrutiny. Ginsburg was the lone dissent. Kagan took no part in it. Cool, cool.

So they send that back down, like I said. And in a surprise to no one, three years later, Fisher, too, comes back up. This time, the lower courts applied strict scrutiny. Kennedy flips his vote from the Grutter and Gratz days and joins with the liberals upholding the University of Texas's race-sensitive, quote-unquote, policy. So that was Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan took no part again. So it was 4-4, but that upheld the lower court one. Okay. That brings us to now, this Harvard policy. So let's walk through a little bit of that. And then David, I'm turning it over to you. Here's just some fast facts about Harvard's policy. Basically, Harvard has a race-conscious admissions policy. And in doing so, they claim that they're

trying to create a holistic body, that they've looked at race-neutral options, that none of them will work. We can walk through some of those later. They've looked through using socioeconomic status instead of race, and that won't work, which we can walk through later. And so using the Supreme Court's, you know, bakey, grutter, grats, Fisher 1, Fisher 2 line, the things that, in this case, the appellate court, the First Circuit was applying are, one, that you can't use racial balancing or quotas, and two, that you can't use race as a mechanical plus factor. And three, that you don't have any workable race neutral alternatives. So in this case, it was a two judge panel. The third judge who heard the case has passed away. And so it was two zero. One was a George W. Bush appointee and one was a Clinton appointee. And they held that Harvard does not

intentionally discriminate against their Asian students, despite lots of evidence that they discriminate against Asian students. And so the question is, David, before we dive into the nitty gritty of this case, do you think that there are four votes on the court to grant cert in this case? If so, who? Man, this is one of those court prediction. So I, you know, Sarah, how much I love court predicting. Love it.

Yes, love. Love court predicting. This is one where I have to have to confess I'm I'm honestly stumped is essentially what courts are saying is you can take race into account as long as you're not so brazen and obvious about it, as long as you're sort of dumping it into this almost impossible to decipher stew of factors that surround your decision-making process, even though the output like these, you know, racial, the demographic output of your entering class has remarkable racial uniformity, for example, around Asian Americans and consistently discriminates against Asian Americans on all of sort of the objective factors,

test scores, GPAs, etc. That that's just the happenstance of this incredibly complex process, which doesn't make much sense to me. It's just that the jurisprudence seems to be saying, if you make it complicated enough, we're going to leave you alone. And are there four justices who have confidence that there will be a radical revision of this incredibly complex process or that there's the will on the court? I don't know, Sarah. I'm honestly completely stumped by that. And I don't know if Justice Gorsuch wants to dive into it.

I don't know. don't know if Justice Gorsuch wants to dive into it. I don't know. I don't think that, and you can tell me, you know, if you think I'm wrong based on their jurisprudence, but there's sort of nothing that I would recognize in Kavanaugh's jurisprudence unless I'm missing something, you know, incredibly, unless I'm missing something obvious. Kavanaugh's jurisprudence or Roberts's jurisprudence that says that they would love to revisit this completely mystified as to whether amy coney barrett would want to revisit it so i'm i'm completely i'm honestly stumped because for them to weigh in they would have to unring a bell that they've been ringing for a while and um and and sort of fix a jurisprudential mess that the court

has created for decades. Are they willing to do it? Are they willing to wade in like that in such a consequential way on a process that impacts so many millions of Americans? I'm honestly stumped. I mean, what do you think? Yeah, I think that's a good part of the question. On the one hand, good part of the question. On the one hand, you have O'Connor's opinion in Grutter, that Michigan case, where she said that affirmative action would, you know, most likely be unnecessary in 25 years. Well, we're pretty close. So, you know, we're eight years shy. Yeah. By the time this got to the Supreme Court, we'd be closer to six years shy of that. You also have Justice Roberts in a case called Parents Involved saying the best way to end discrimination on the basis of race is to end discriminating on the basis of race. He clearly feels that. And, um, you know, that being said, we've seen Roberts flip a few times, even when he's in the descent, um, as he was in some of these cases.

Uh, I think that it all turns on Gorsuch myself. I think you've got Alito and Thomas, obviously, as your two votes for cert, and then you're looking for two more. I think you've got Kavanaugh. And I think the question is whether you have Gorsuch interested in taking this case. It is a very well set up case because, and now we can dive into some of the facts here, but Harvard, as far as I'm concerned, is following what the Supreme Court has asked of them. is following what the Supreme Court has asked of them. It's just that I think what the Supreme Court has asked is an unworkable system. Yeah.

Yeah, it is. And so if the Supreme Court is going to say that you can take race into account, the higher admissions at a place like Harvard in particular, but at any of these schools, they have a certain number of students. So if you are taking race into account as a plus factor for some, you are by definition having to take race into account as a negative factor for others. How that is not discriminating on the basis of race, I do not understand. Of course it is. And the idea that they're not, quote, intentionally discriminating against Asian Americans, it doesn't stand up to logic.

Because again, if it's a plus factor for some racial groups, it has to be a minus factor for other racial groups in order to keep your number of students the same every year, which Harvard fully acknowledges that they do. So if you're only taking 1,500 students and you're using race for some of them, you're using race for all of them. And this is not, yeah, you make a great point

because this is a fixed pool. This is cannot possibly be an everybody wins scenario. That's right. And so I just, you can say that somehow it's okay to discriminate against Asian students, but I don't see how you can say that you're not. That's just not how math works. So here's where I think, here's how to unring this bell, I think.

And here's where I think the jurisprudence, all right, y'all get ready to dive in, okay? Because this is where this stuff is really evidence of, this is almost textbook example of judicial engineering of outcomes. If you go back 20, 30, if you go back through all of this, and here's sort of the fruit of the, one of the core issues. So Sarah and I have talked, and you've heard us talk many times about the test. So Sarah and I have talked, and you've heard us talk many times about the test. There's a test that's often applied when you're talking about constitutional doctrine, strict scrutiny, intermediate scrutiny.

And that, you know, we've talked about strict in theory, fatal in fact, although not in this case. But what's interesting here is there is a statute at issue. So Harvard is not a public university. It is a private university. So a constitutional argument against Harvard that you're violating the Constitution is not viable. But there is a statute. It's Title VI Civil Rights Act of 1964. And here's the key text to it. No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation and be denied the benefits of or be subject to discrimination under any program or activity receiving federal financial assistance. any program or activity receiving federal financial assistance. No person on the ground of race shall be excluded, denied the benefits of, or subject to discrimination.

This is not a statute that prescribes a balancing test, Sarah. No, and it's also important to note it says person, as the, it's an individual, not a group. Yeah. Yeah. And so this is not a statute that prescribes a balancing test. So why are we applying a constitutional balancing test to this that says, well, there's a, if there's a compelling interest that is,

you know, and this is the least restrictive means, yada, yada, yada. Why is that? Because what the court did is say, well,

really title six is the 14th Amendment. I mean, what we're going to do is we're going to apply constitutional that is co-equal to, it is essentially the same as bringing the Constitution to these private institutions. But it does on its face. And this is where I think the Justice Gorsuch position might come into play here. He might say, you know what? It says no person shall on the grounds of race, color, and national origin be excluded from participation and be denied the benefits of or be subject to discrimination under any program or activity receiving federal financial assistance. Where's the ambiguity there? Where does it say we apply? Yes. Yes. And so that's, to me, that's where, that's the fault

line in this case. It is not, did the court properly apply the constitutional balancing test? To me, the fault line is, does the freaking statute control here? And that's where the Bostock opinion becomes really important, because he was reading Title VII by its text. And so now the question is, do you read Title VI in the same strict textual analysis? Because I think you can argue over whether the court applied the balancing test correctly to Harvard. I think probably they did. Harvard does seem to have a fairly, you know, when you're only accepting 1,500 students, they can be pretty specific about each of the 1,500 students that is not a mechanical race plus and that is not quota quota based despite what seemed to be awfully consistent

numbers from class to class. But nevertheless, they can say that there's other things at issue there. Fine. Again, to the point you're having a balancing test, you've got to let these schools then do some racial balancing, I suppose. So the court has to allow some of it. Therefore, Harvard seems, you know, okay, at least you can, you can disagree with the court, but I don't think it's a wildly outrageous opinion unless you read the text of title six. Yes. Thank you. And then let me walk through some of the title six amended. That's right. If you don't like to, yeah. Let me walk through some of the stats that we're dealing with here.

So Harvard admitted a lower rate between 5% and 6% of Asian American applicants than white applicants, which it admitted at 7% or 8% from 2014 to 2017. It found that while Asian American students tended to score better on Harvard's academic and extracurricular ratings than white applicants, they had worse personal ratings than non-Asian applicants. And so they looked at a regression model that showed that there was a negative

correlation between an applicant's personal rating and Asian American identity, even when controlling for various factors related to admission. However, the court in this case, in a sort of sweeping, I have a question here, quote, the court found the correlation does not imply causation. It found that the correlation between race and the personal rating did not mean that race influences the personal rating. Hmm. Huh. Huh. That's odd to me.

Because again, I think if you were dealing with a different racial group, that it would have... We use disproportionate impact all the time and say that that's racism. So to say that here it's correlation and not causation, not because we have any real way to say why that would be the case. But we're just I mean, it doesn't prove causation. No, it doesn't. That's why we have these impact cannons in law, which maybe we shouldn't have, but we do. We've got them. They're all over the place.

They're all over the place. So here's, though, the one thing that I think buffers against the plaintiffs in this case. The share of admitted Asian American applicants for the classes of 1980 to 2019

increased from 3.4% in 1980 to 20.6% in 2019. The share of applicants was 4.1 in 1980 to 22.5 in 2014. So there is some argument that they actually are simply reflecting their applicant pool. Right. I think that you'd need to overcome that. I think that that regression analysis showing that if you're Asian, they're using your personal leadership score to ding you when they can't use things that are quantitative, like your scores, your extracurricular activities, things like that is meaningful. But I think that applicant thing is interesting and that is a real weight on the other side. Now, when they looked at their non-race-based alternatives, David, though, that's where it, to me, got pretty laughable.

Yeah. So they have athletics, legacy, dean's list, and children of faculty. That's sort of that group of people who get in regardless of their merit, if you will. Nearly 70% of that group are white. Despite the normal set of applicants being only 40% white. the normal set of applicants being only 40% white. So basically the reason that they're having to give this racial plus factor is because they're accepting so many white kids on this ALDC side of things, athletics, legacy, deans. Deans list, by the way, is not what you think it is.

It's not academic based. And children of faculty. So, okay, That's silly. They say that that's just too small a number. Okay. I'm not saying it's the silver bullet here, but like we could get rid of it. They also said that that is important. So the athletics is important for building community in the school. The legacy is important for getting donations to the school. And the children of faculty is important for faculty retention. All of which means that it's not a viable race neutral alternative.

I don't see how that's like, okay, so you would get less money from your alumni. And then you also wouldn't be discriminating on the basis of race. Like, you have a $40 billion endowment. Maybe we should say that those two aren't the same thing, that that is a possible race-neutral alternative. Yeah, this is something, Sarah, that I've, yeah. I mean, I think we both could have

a whole album side on this, because one of the things that sort of happened when you're you're looking at these these IVs are are gateway institutions to they don't guarantee entry of success in the United States of America about they're about the closest you can come to go to an institution that is going to give you a giant leg up in the rest of your life and in your career. And there's always been some suspicion that, hey, this isn't really... I mean, as much as they've opened up from their days of overt discrimination and overt clubbish insularity, that they're not really as meritocratic as they like to present themselves

as sort of having this almost scientific admissions process designed to call out from this huge pool of applicants, the best possible people who then go on and do great things. There's always been this sense that, no, there's still a thumb out there on these scales. And there's still a thumb that favors people on the basis of who their parents are and et cetera, et cetera.

And this ALDC, which stands for Recruited Athletes A, Legacy Applicants L, applicants on the dean's interest list, which is basically, hey, the dean says, this person's an important donor or this person's particularly important because maybe they're famous for this reason or that reason. They're famous or the child of a senator, whatever.

Exactly, or children of faculty or staff. So what was stunning to me, because we'd always been assured, oh yeah, we still do legacy, but it's such a small factor. All of this is so small. But it says ALDC applicants make up less than 5% of all applicants who apply, but around 30% of admittees. 30% in a class of 1,500. That's just overwhelming.

yeah that is huge yeah 35 of applicants are around 30 of the admittees i mean that's not a thumb on the scales you know that is the whole fist on the scales that is the that's just standing on the scale and again it's around 70 white 11 asian 6 african-american and five percent hispanic so just to be clear if you got rid of the ALDCs, it would wildly help African-American students and Hispanic students. It would help Asian students a little. It would hurt white students a lot. And they are refusing to do it. Yes. And look, I mean, all of those interests that they identify are actual institutional interests. But don't blow smoke at us and say that what you're doing here is sort of implementing some sort of incredibly

scientific, rational, data-based engine of meritocracy. It is distorting the whole darn thing. It is distorting the whole darn thing. And so that's what people just need to be on. We need to level. They need to level with the American people about this because these are important institutions in our democracy. And look, I'm not an Ivy League hater. I'm not a Harvard hater. I'm grateful for the opportunity I got there.

I've taught in the Ivy Leagues. These institutions have a lot going for them. I'm not one of these conservatives who say, I hate the academy. I love the academy. I just want it to be better. And the problem is- I want it to do better.

Because that's 30% of their class and because it's 70% white, they then have 70% of the class left. And that's where they have to do serious racial thumb on the scaling in order to get a balanced class. And so that just throws off the whole thing. So, okay. Another thing that people often point to is why not use socioeconomic considerations instead of race? It correlates with race, but it's not race. And you could get students with really different backgrounds and perspectives who've experienced discrimination of all kinds, if that's important to what you think the

educational environment is, if you used simply socioeconomic. So here's what the court found. In order to reach a level of racial diversity similar to what it currently achieves, Harvard would need to give applicants from lower socioeconomic backgrounds such an extreme tip that it would overwhelm other considerations in the admissions process and result in significant changes in the composition of the admitted class. Harvard would admit substantially fewer students with the highest academic, extracurricular, personal, and athletic rating. The Smith Committee found, this was a committee that Harvard itself did internally,

found that using socioeconomic status as a proxy for race would result in many non-white students in Harvard's class coming from modest socioeconomic circumstances. Achieving racial diversity in this way would come at the cost of other forms of diversity, undermining rather than advancing Harvard's diversity-related educational objectives. So let's break that apart for a second, David. One, the assumption here is that you're just trying to use another factor other than race to achieve the exact same racial outcome, which to me is still racism. Like saying that's actually admitting that you have a quota, which is odd. It's saying,

is there some other way for us to get to the same quota outcome? No, there's not. That surely is not the standard. Two, and this is, they're dancing around this, but here's what that

Smith Committee thing is trying to say, that if they use socioeconomic status instead of race, all of the non-white students would be from lower socioeconomic backgrounds. And I think what they're saying is they're worried that their other students would then associate being black with being poor, et cetera. And that it is important for the diversity of the class

to have black students and Hispanic students from wealthy families and from middle-class families and not just from the lowest socioeconomic rung. I don't disagree with that. I think it is a negative, I think it is a problem if all of your students of one race are also all from one socioeconomic background, by the way. They're also saying, of course, and their third little point here is that if they only looked at socioeconomic background

instead of race, basically the poor kids aren't smart enough. They don't score high enough on their SAT, so their average SAT score would fall. But here's the problem, David. Harvard is trying to have it all. They want the exact racial balance that they want. They want the exact same SAT scores that they have now. They want everything to say exactly as it is now,

but not use race. Well, guess what? I don't doubt that if you stopped using race as a plus up and plus down for certain students, that yes, your class would not look exactly the same as it does now. That's not a bad thing. That should be a totally acceptable outcome of all of this. Now, how Harvard wants to do that, if they want to say, well, actually the SAT score is the most important thing to us. Okay. Then you can use race neutral ways to get to that by getting rid of your legacies. Or if they want to us, okay, then you can use race-neutral ways to get to that by getting rid of your legacies. Or if they want to say that the socioeconomic diversity that they have now, having, let's say, a roughly equal number of students from each socioeconomic bracket,

though I don't think they do, if that's the most important thing, okay, well then change your SAT averages. That will help with that. But they're unwilling to change anything and then saying, therefore we must use race. That, that, no, no, no, no. That's not strict scrutiny. It is not. I reject it. It's very upsetting. Yeah. I mean, and I just keep going back to, um, the, the statutory interpretation. One of the things that, there are a few things that drive me crazier than flat out judge-made law that completely contradicts

democratically enacted statutes. It doesn't just tweak it, it just flat out contradicts it because the current jurisprudence in response to Title VI, which again says you cannot, you shall not be excluded on the basis of race or discriminated against on the basis of race. Shall not now means shall, shall, as long as it's done in a particularly sophisticated and not super brazen way. Or as long as it's, as long as it's done in a particularly sophisticated and not super brazen way.

Or as long as we can't find any other way to do it without changing anything else about what we're doing. We don't want to change anything about our admissions criteria, our U.S. News and World Report averages, nothing else. We're willing to not use race if you can find a way to keep everything else the same, including the racial makeup of the class,

the socioeconomic makeup of the class, the number of legacy admissions, as long as you don't change any of those things, if then you can come up with a race neutral way, we'll do that. Oh, you can't? Well, then we have to use race. Yes. Yeah. You nailed it. I can't improve on that. I can't improve on that. Well, we'll see if it goes to the court. I think it probably will. Interesting. Okay. I am, I'm so 50-50 on this.

Something in the back of my mind says maybe not, but. I know. I know. We'll see. Yeah. I mean, Fisher was just not that long ago. Yep. But,

Justice Kennedy is gone. So. Mm, yep. All right. Do we want to talk about DACA briefly? Cause we're already running long. We had that, but I'm glad we spent that time on the first circuit case. Cause you know, this, this is something that, you know, that impacts and it's not just the IVs.

It's not just the IVs. It is impacting selective admission schools of all kinds all across the United States of America. This isn't a Harvard thing. This is a selective admission school thing. If your school has selective admissions, then this comes into play. Well, there's a school, a high school here called Thomas Jefferson High School, TJ, it's called. It at one point was the best high school in the country. It's always in the top group of the top high schools in the country.

It's a magnet school, so it's public, but it uses test scores to take sort of the best and brightest into this magnet environment. And over the course of the last 10 or so years, maybe 20 or so years, it has, because they rely on test scores, it is now overwhelmingly Asian. It is majority Asian students. And so they just changed it and said they're no longer using test scores at all. Not at all. Not at all, because they don't want it to be majority Asian

students. They said that wasn't diverse enough. And again, they had no problem when it was that percentage of white students. Right. The problem was when it was majority Asian students. And I don't see how that's not insidious racism. That's very blatant. The second that the Asian students started succeeding by the metric that you gave them, you said, nevermind, we're going to find a different metric. And this happened with Jew quotas back when they first introduced the SAT, which by the way,

that was Harvard's whole thing about why they wanted to use the SAT was to be able to discriminate against Jews. Higher education has a long history of when a minority group starts to succeed by the metric that you've provided, then you change the metric to make sure that you don't take too many of that minority. And not that much has changed. So one day I should tell, I can't right now, but some of my funnier stories of being on the admissions committee at Cornell Law School. Because in addition to all of this, there is also the really amusing thing of reading how applicants try to make their life more interesting and fascinating and often truly artificial ways. That's completely off on a tangent. But one day I've got I've got stories, Sarah. I've got stories.

OK, last thing here is the DACA case. the DACA case. So if you remember, the Supreme Court with Justice Roberts struck down the administration's rescission of the DACA program. That is the folks, the children who were brought here illegally by their parents and was giving them a quasi legal status in the country during the Obama years. The Trump administration tried to rescind that program. The Supreme Court struck it down saying that they basically just didn't follow the proper procedure for rescinding the program. So then the Trump administration tried once again to do that over the summer with acting Secretary Chad Wolf. And once again, that has been struck down. And once again, that has been struck down.

This time in the Eastern District of New York, the district judge in that case held that Chad Wolf, the acting secretary, is not legally acting as the acting secretary because of the special law that dictates the line of succession in the Department of Homeland Security. And because he was not lawfully serving as the acting Secretary of Homeland Security, he did not have the authority to issue the memorandum. Although separately, it also found that that memorandum was arbitrary and capricious in violation of the Administrative Procedures Act. So, David, you know what? The legal side of this isn't that relevant.

The part that's particularly relevant here is that for four years, the administration tried to undo a memo by the previous administration and was thwarted by the courts for the entirety of the four years. Again, going back to the frustration that I think a lot of Trump voters feel about, you know, oh, why won't you just accept the results of the election, which we refuse to

accept from 2016 to 2019. I think that stuff like this, where you're unwilling to let a policy move forward because clearly you just don't like the policy being pursued by that administration is a real problem. I was thinking about this last night. I've used this example before, but this is what it reminds me of. I told you about my calculus class where I got a D and my friend got an A and the teacher said, oh, it's not that she got the answers right. I'm sorry. It's's not that she got the answers right. I'm sorry. It's not that you also got the answers right. It's that she also got the answers wrong. I just didn't grade hers wrong. And it's the same thing we see in some of these, um, uh, you know, racial claims about police work. It's not that you didn't maybe roll through that stop sign.

It's that lots of people roll through the stop sign. We just don't pull them over unless they're black. And this is the same thing. You're telling me that there's never been an APA violation in any of these memos done by any previous administration? No, of course there are. But we're going to call the APA violations on the Trump administration

because we don't like the policy. That is a problem, David. And it is a problem because you don't want to run government with this ticky tack legal stuff, thwarting policies of an elected branch by an unelected branch. And if the same thing happens for four years in the Biden administration, it will be bad for the country, I say. And the same thing is going to happen. I mean, I'll just go ahead and get to the spoiler alert. Look, we're in a position where there are urgent national issues that the legislature, and because of gridlock and because of polarization and divided government and blah, blah, blah, there is not going to be a legislative solution. One is not imminent.

So what each president does in his or her turn is then they say, okay, I'm going to use the huge executive authority that I've been wrongly granted by the judicial branch, by the way, to fix this, at least during my term. Well, they try to do that. They try to fix it. But then immediately you have a coalition of attorneys general or lawyers who then say, ah, not so fast. I'm going to sue you to stop it, but I'm not going to just sue you anywhere. I'm not going to, you know, just choose any place to sue you. I'm going to go to a favorable jurisdiction where the chances are quite good that I'll pull a judge in the random allocation that I'm going to be pretty confident is going to issue an injunction stopping

you. Who agrees with the policy outcomes that I am trying to pursue. That's the dangerous part. An unelected judge pursuing policy outcomes. So then the unelected judge pursuing the policy outcome, as soon as that initial injunction is issued, just even if you pursue appeals with all due deliberate speed or all due as expeditiously as you can, all of a sudden you have put the brakes on a process. And then the clock is ticking for the next presidential election. Well, and for instance, in this case, they do not have time

to appeal this before they will leave office. So this second memo that rescinded DACA is just gone now and that's the end of it. And so the administration got like one full bite

at the apple, one time up to the Supreme Court. They lost. And then the Supreme Court said one full bite at the apple one time up to the Supreme Court. They lost. And then the Supreme Court said, but here's all you have to do to get it right. They did that. And then a district court said, no, actually, there's other stuff, too. Yeah. Well, and and this is independent like this. This is independent of the policy merits of DACA rescission. Oh, yes. For example, I want Dreamers to be able to stay in the United States. I want people who are brought into this country, but through no fault of their own, who are contributing members of our society, I do not want them deported.

I want that codified by statute. I want that in a statute. codified by statute. I want that in a statute. If you have a series of memos from presidents, we're going to be dealing with this, competing court decisions, injunctions, reversals, more injunctions, more reversals, more uncertainty, indefinitely. And it's intolerable. It's not compatible with the intention of our system. And it puts the political system under strain for all the reasons that you've said, Sarah. Okay. Last thing, we'll give it somewhat short shrift, and that is canceling Baby Yoda. So this is not a spoiler in terms of the plot development, but it is a spoiler in terms of something that happens in the show. So if you haven't watched Mandalorian season two, episode two, just,

you know, maybe go ahead and turn this off if you plan to watch it. Okay. You've turned it off. Now, for those who are continuing in episode two, um, there is a character that is trying to get her unfertilized frog eggs to another planet and baby yoda it turns out thinks frog eggs are tasty and keeps eating the frog eggs and she says um that if she doesn't get these eggs to the new planet to her husband to fertilize them that quote her line will end we don't know if that means her family or her species i didn't give this much thought dav David, but all of a sudden in Vanity Fair, I mean, Vanity Fair must have changed quite a bit since the last time I checked in with Vanity Fair, by the way. But, quote, Baby Yoda canceled amid accusations of genocide. Yeah. So the claim is that by sort of having this light motif throughout the episode of humor, every time baby Yoda sneaks an egg, that they're making humorous stuff out of genocide.

Mind you, this is a fraudulent, I mean, a fictional 50-year-old baby eating a fictional unfertilized egg of a sentient frog being trying to get them through space and avoiding some very large spiders on an ice planet. And we're using this as genocide. Look, if you are a vegan, I was very willing to, I guess, maybe have like a it's not okay to eat other sentient species eggs conversation.

I guess I would have been interested if we were having this conversation about fertilized eggs. You know, where does life begin? David, maybe the pro-life community and the pro-choice community. We're going to have it out in this fictional episode. I am not here for the,

it is now, um, genocide to eat unfertilized frog eggs in a fictional universe. Um, and by the way, in episode three, it turns out they only fertilize one egg. They have plenty of eggs and they have a little tadpole and baby Yoda is

playing with the tadpole, not eating the tadpole. Yeah. I mean, maybe now that the 2020 election is over, we're just trying to find new things to be outraged over David. You know what it is, is as we have said many times, Baby Yoda, also known as The Child. And by the way, Baby Yoda is the name of my primary Wi-Fi network at my house.

The other one is Han Fired First. So here you have this pop culture sensation, really, that's one of the few things that we have left, Sarah. It's one of the few things that everybody likes. So we can't have nice things. We can't have a thing that everybody likes. And also the content monster must be fed. The content monster that says we need to find

and locate controversial, problematic, bad takes and purge them or bad art and purge it from society. And it's just exhausting. It's exhausting. But here's the thing though, I think more and more people are over it. I really do. This is something,

and I don't know if you think I'm wrong about this. I'd love your thoughts on this. But I do think the problematic pop culture take culture is maybe been checked a little bit, maybe in retreat a little bit. I don't know.

I'm going more by sort of like my gut feel and my gut instinct, but it feels like we've sort of had a peak of this. I'm going to find this problematic saying no matter how absurd and no matter how strained, and I'm going to highlight it and I'm going to force change or force some sort of apology. I don't know.

I just feel like it's, it's peaked. Um, this is something that resulted in a lot of sort of mockery of the critique. And in this next episode, there was another problematic moment, quote unquote problematic, that we can talk about. We don't really need to. But again, kind of roundly mocked and roundly critiqued. And so I don't know. I'm feeling like maybe I'm wildly optimistic that this hypersensitivity is receding, that

not all those who are hypersensitive are obviously receding, but our vulnerability to the hypersensitivity is receding, or the audience for the hypersensitivity is receding or the audience for the hypersensitivity is receding. I don't know. What do you think? Well, Vanity Fair did update their story. In the latest episode, which dropped Friday morning, Baby Yoda himself was swallowed alive by a giant sea creature, learning a valuable lesson about what it's like to be the appetizer. It ended with him playing nice with one of frog lady's new polywogs given the redemptive turn it appears his cancellation has itself been

canceled the tongue-in-cheek nature with which they wrote this i think uh is evidence to your point david yes i do not think that their take was popular. Even amongst the readers of Vanity Fair, which is probably not a, if there's a Venn diagram between dispatch readers and dispatch advisory opinions listeners and Vanity Fair readers, I don't think there's much overlap. So if even Vanity Fair readers did not like the cancellation of Baby Yoda, maybe, maybe there's light at the end of the cancel culture tunnel. So wouldn't it be fantastic if Baby Yoda canceled cancel culture? So perfect. Yes. All right. Thursday, we've got a lot lined up.

And no doubt there will be new developments in the never-ending, or at least never-ending until January 2021 saga of the election contest. So we'll have updates. We've got a discussion of eminence that I promise you will be more interesting than it sounds. It will be interesting. I get asked about this all the time. So looking forward to it. And so we will be back on Thursday. Please check out thedispatch.com. Please rate us on iTunes. We really appreciate, Not iTunes, Apple Podcasts. We really appreciate it.

And again, also, I want to thank our members for helping make our What's Next event last week a resounding success. We had some really outstanding conversations with opinion makers and newsmakers, and your participation was critical. We really appreciate it. All right. We will see you on Thursday. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos.

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