Advisory Opinions - What Is Religion?

Episode Date: January 25, 2024

Sarah and David discuss ~vibes~ from a recent emergency docket ruling on razor wires along the Texas border plus Judge Newsom's latest concurrence on discrimination and religious advertisements. The Agenda: -Judge Kyle Duncan ruling and a SCOTUS reversal -Judge Kevin Newsom and religious advertisements -Raising highways in Texas -No Labels sending a letter to the DOJ -Fifth circuit divided in free speech case -Honoring former Solicitor General, law professor Charles Fried -Is it okay to cry at work? Show Notes: -Anti-Trump Lawsuits Are 'Greatly Mistaken': An Interview With David Boies Learn more about your ad choices. Visit megaphone.fm/adchoices

Listen closely. That's not just paint rolling on a wall. It's artistry. A master painter carefully applying Benjamin Moore Regal Select Eggshell with deftly executed strokes. The roller lightly cradled in his hands, applying just the right amount of paint. It's like hearing poetry in motion. Benjamin Moore. See the love. Introducing the first ever Mazda CX-70.

Our largest two-row SUV. Available as a mild hybrid inline six turbo or as a plug-in hybrid. Crafted to move every part of you. Ready? I was born ready. or as a plug-in hybrid, crafted to move every part of you. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isker. That's David French. And we're back in our respective podcast studios. David, thanks so much for coming on the podcast. Thank you, as always. Well, I wouldn't, I can't say always because sometimes you've

mercilessly excluded me from the podcast. That's right. But every time, thank you for having me, Sarah. All right. Exciting pod today. We're going to talk a little bit about what's been going on at the Supreme Court. I have an interesting case I want to mention, but in a different context, and I think people are thinking about it. We'll definitely talk about that Texas immigration case at the Supreme Court. You know, had a little 5-4 going on with Judge Judge Newsom, what is religion? But you know what? The majority opinion and the other concurrence, also fascinating in that case. So we're going to

try to get through all of that. No labels, the third party ballot access groups, and a letter to the Department of Justice asking for an investigation into RICO and all sorts of civil rights violations of people who they said are trying to intimidate them from having their group. Finally, David, I wanted to ask you about crying at work, but we'll get to that at the end. Okay. David, let's start with the big Supreme Court decision from this week. Texas had put up concertina wire, razor wire, whatever you want to call it, along the border at the Rio Grande. And the federal government, the Department of Homeland Security and the Department of Justice had wanted that

taken down. The Fifth Circuit, Kyle Duncan writing, had said, no, while the litigation's pending, Texas can keep up the concertina wire, given two reasons. One, the border patrol had said that you know it's their job to apprehend people and the concertina wire was you know messing with that kyle duncan in that opinion said no it's not because in the places where you've cut holes in the concertina wire you've just been letting people go through like hundreds of people and then sort of pointing them to, you know, a mile up the road. You can't actually even see them. At one point, they put a rope down into the river to help people climb up. And so Kyle Duncan said it was not preventing them from doing their job of preventing people from crossing the border, quite the opposite. And second, Kyle Duncan said that medical emergencies could be a thing, but

those needed to be raised at the moment, and that Texas had agreed that they would take down the wire or allow the federal government to take down the wire in the case of a medical emergency. So the Supreme Court, on their emergency docket, reversed this 5-4 with no writing, as in the federal government can take down the concertina wire, but noting their dissent, but again without writing, Thomas, Alito, Gorsuch, and Kavanaugh, which was a bit of a surprise. So, A, let's just talk vibes here because Kavanaugh's a surprise to me because I see the emergency docket stuff that he doesn't like anymore or never did. But I'm surprised if that wasn't the reason that this was sort of a process reason for him that he wouldn't have written one paragraph. Our emergency docket litigation has flim flammed around. We need to have consistency and that's why I'm voting

this way. Rather than leaving it open to the interpretation. This was on the substance of the question, which is where I assume the other three justices were, though, again, no idea because they didn't write. And all the more interesting that it was Barrett and Roberts on the other side instead of Kavanaugh and Roberts, which is what we've seen in the past. Very interesting. I really wish, as you said, Sarah, that there would have been at least a paragraph from the dissenters, because I'm very curious about this 5-4 split. I'm very curious. And it might be worth talking about, because there's a subject that's come up.

Wait a minute. How is this any different from the sanctuary cities? And is it any different from the sanctuary cities? And is it any different from the sanctuary cities? And if so, if sanctuary cities are acceptable, isn't additional border measures by Texas, aren't additional border protection measures by Texas defensible constitutionally? It's a really interesting argument that goes down to the

difference between anti-commandeering versus impeding. So, and the law essentially is that the federal government cannot commandeer state officials to accomplish federal objectives. It can't enlist county sheriffs or state police to enforce federal law. That's what the federal law enforcement apparatus is for. But the supremacy clause and the supremacy of the federal government means that even if the states can't be commandeered into assisting the federal government, they cannot obstruct the federal government in the perform of its duties. And so that really is going to be a big part of this argument, which is, does the, as a matter of fact, does a sanctuary city policy

actually obstruct to the government or just prevent commandeering? And the same with this, is the extra border security obstructing the operation of the federal government, or is it just an additional state measure that's permissible for it to do? And so I think that's going to be, that's the core essence of the dispute. And I would have loved to have seen some writing on it, Sarah. Well, this also tells us that it will get to the Supreme Court after it's decided on the merits as well. You know, in this case, I think it's really hard to separate the insane policy happening at the border from the legal side. So look, on the legal side, I find the medical emergency to be

so obvious that no, you don't wait for a medical emergency to then cut the wire. That takes additional time. If you agree the wire could cause a medical emergency and the federal government, who is actually responsible for enforcing the border, says that that has the high potential to cause medical emergencies, then that's the ballgame there. Now, I do want to note, you know, there was these headlines that the concertina wire caused the death of three people trying to cross the Rio Grande. I believe it was a woman and two children and that federal law enforcement couldn't get to them in time, which is not true. In fact, federal law enforcement was unaware of the entire situation until they were already dead. And while the Biden administration put out a statement that it was Texas's fault that these people died and that federal law enforcement couldn't get to them in time.

In fact, in their DOJ filing to the court, that is not what they said at all. So yes, we're aware of that. But regardless, but look, David, the policy here is so insane at the point that you're saying we need this wire taken down. And in the places where we've cut holes in it, we're lowering ropes to people. Here's what I think is insane about that, which may be counterintuitive to some. At the point we're lowering ropes and saying we're not going to put up barriers and pointing people a mile inland through horrible conditions, by the way, why are we not just letting them in? Right?

Like, which is it? Are we going to try to prevent people from coming or make them do really dangerous stuff fund the cartels in the meantime but also help them toward the end but only a little and using a rope right like either help them cross the rio grande or don't it's a mess it's such a mess it's such a mess everything about this immigration our immigration system right now is an absolute ludicrous freaking mess. And, you know, one of the, you might say, well, why aren't they just turned away immediately? Well, one of the, one of the issues is, well, there, there is this asylum law. There is an asylum process that does and has to exist by law. And so. And 85% or so of people

who cross the border have been told and are very good at saying, I claim asylum. I have a credible fear of returning. That's literally all you have to say. It is magic words. Once you say those magic words, the asylum process kicks in. You cannot be returned to the other side of the border until your asylum claim has been heard. And then we go through this, you know, I don't know if y'all are aware of how cranberries work, but I took a tour of the ocean spray facility one time. And I don't know if this is still the way they do it, but they have these wooden slats. It's like a tube with wooden slats that are pointed downward. And basically you pour the cranberries down and good cranberries bounce.

But obviously like a cranberry could have a bad day. So there's five or so slats in there. And so cranberries have five times that they can try to bounce out of the tube. That's a little bit how our asylum process works. You get a lot of chances to get asylum through this process. Yeah, and so it's a situation, gosh. I mean, when are we gonna just change the name of the podcast to Congress Do Your Job?

Well, they're really trying to not do their jobs this week with everyone pointing fingers at why this current immigration, even concept of a compromise, can't move forward. Oh, it's amazing. And so this is, immigration is just Congress Do Your Job in all caps. And there's just no way through this until it does. And by the way the uh i've seen some right wing what do we want to call them whatever whatever term you want to use here pointing to constitutional provision that says you know the federal government will ensure states have a republican form of government and are safe from invasion and that therefore the federal

government has violated the constitution and that states can take up arms or secede or yada yada yada um yeah once again if the problem can be solved by congress then that's not what's happening here that's a congress problem not an executive branch problem and don't get me wrong it's also an executive branch problem but like at the margins frankly it's an executive branch problem in the main it is a congressional problem yeah and i'm seeing calls it's saying that abbott should totally defy the supreme court and this is a no-brainer um guys what are you doing here also that's not how this works the what this was about is whether the federal government can cut the concertina wire what's abbott gonna do like he can put up more i guess that would be defying the supreme court's

order maybe maybe not even um but regardless like unless we're gonna actually come to arms uh no yeah it's absurd okay david i want to talk about another supreme court case that was argued last week i'm gonna tell you the facts of the case, but then I'm going to ignore the facts completely. But we had many people say they always want the facts of the case, and I get that, especially because it's in my, you know, hometown in Houston. So I'll read this from SCOTUSblogs. I thought they did a really nice job explaining the facts. All right.

In response to increased flooding, the Texas Department of Transportation raised I-10 near Houston to build a concrete median barrier. During heavy rainfall, these changes worked to maintain the highway as an available evacuation route. So far, so good. Farmers and landowners, however, argued that the concrete barrier also worked, as the state intended, to keep water off the highway and create a dam. When the center barrier blocked water from moving south into the Gulf of Mexico, water remained on the north side of I-10 and flooded the land. Landowners sued for compensation, alleging the flooding during Hurricane Harvey and Tropical Storm Imelda was a taking of their land under the Fifth Amendment. Texas, they argue, deliberately used those farms, ranches, and homes as a sprawling stormwater detention pond, and the takings clause is the proper remedy for the government to compensate them for damage.

So A, just right off the bat, I kind of agree with them on that. But that's not the question that's going to get to the Supreme Court. The question is, they sued under the Fifth Amendment. So basically, Texas removed this. They sued in state court. Texas removed it to federal court. Their claim was under the Fifth Amendment, like not a statute. There were other claims actually in the case, but our purpose is here at the Supreme Court. Is it the Fifth Amendment?

Is it self-executing? Do you see where I'm going here, David? I see where you're going, Sarah. Because I think there's been some confusion, even among listeners of this podcast, over what self-executing means in an amendment context. So, and by the way, congrats to Aaron Nielsen. He's definitely a friend.

Whether he's a friend of the pod, I'll let him decide. But he is now the Texas Solicitor General, and so he argued this case. And I'm going to read from his opening statement and this is texas so the the team that's going to say that the 14th amendment by the way is not self-executing but the fifth amendment um they're gonna say is also not self-executing. Okay. For one, it ignores what the Constitution says, meaning the other side is ignoring what the Constitution says. Governments must provide just compensation, but the takings clause says nothing about how they must do it, whether through commissions, private bills, or litigation. So, right, I mean, the Fifth Amendment's about as

clear as you can get private property will not be taken without just compensation like if that is not self-executing let me tell you what's definitely not self-executing in section 3 of the 14th amendment um now the reason that this is not maybe as apropos as i want it to be. In some ways, this turns not really around whether the Fifth Amendment is self-executing, but whether it creates a cause of action. But the two are going to kind of be related, maybe sort of kind of. So a cause of action is what allows you, private citizen, to sue the government. In this case, the state government through the 14th Amendment. Don't get confused. The 14th Amendment just incorporates the Fifth Amendment against the states, not the 14th Amendment for any of our

ballot purposes, certainly not Section 3. Okay. So does the Fifth Amendment create a cause of action? Now, causes of action are also really, really confusing because they're different than claims. They're different than jurisdiction. It's basically like, do you have a legal claim that has a remedy? And that's why Erin Nielsen's saying here, no, the Fifth Amendment alone doesn't do that because Congress could have said there were all sorts of other different ways to do it. In fact, Congress has, the state of Texas has. I will just tell you right off the bat, the Supreme Court Texas has. I will just tell you right off the bat, the Supreme Court hates implied causes of action in the Constitution. The one, or the most famous at least, cause of action, implied cause of action is Bivens, right? This is Bivens versus six unknown named agents in 1971 case about

whether you could sue the federal government under the Fourth Amendment for unreasonable search and seizure, the Supreme Court said that you could in that case. But they've only actually upheld Bivens claims three times in 1971, Bivens, in 1979, and in 1980. Since then, no more Bivens. And David, we talked about this because there were two Bivens-ish cases in the last couple terms. And in one of them, it was sort of like, well, but this guy's name wasn't Bivens, so it's not really the same case. I mean, the facts were so similar to Bivens, they were really reaching for how it wasn't like Bivens without overturning Bivens. So look, I think that this case, for those who are curious, will say that, in fact, the Fifth Amendment does not have an implied cause of action in it, which presents all sorts of interesting problems for how then the plaintiffs in this case are going to get money for their land being flooded, which kind of everyone agrees they should.

self-executing thing really interesting because there's this, I think, idea from listeners and even sort of lawyers out there that, well, if there's a right in the Constitution, there must be a remedy. And that's not true. Not always true. Correct. Yeah, that's what I mean. It is not self-evidently true. It is not always the case. And therefore, if it's not the case in the Fifth Amendment, you need to grapple with the potential that it's not the case in the 14th Amendment. Right, right. Yeah. No, it's really interesting. And what's fascinating was early in the oral argument, there's this back and forth with Justice Gorsuch and the lawyer for the plaintiffs, basically talking about this whole concept of what is a cause of action. Which I found very confusing, I'll be honest. I always find cause of action confusing, but I found it

really confusing this time. I found it really confusing as well. And what was interesting is the question really seemed to revolve around well if there are ways to do this that sound in state law so for example historically using like laws like trespass and others there if there are ways of accomplishing this in that sound in state law well you've got your rights or you've got sufficient protection for the right if it's the question is, what is the sufficient protection for the right? And does it require the existence of a federal cause of action? Really interesting discussion. Really interesting.

I'll look forward to the opinion. But man, I will tell you that exchange with Justice Gorsuch was spicier than anything we've seen from Justice Alito in oral arguments. So, I mean, Spicy Alito may be spicy on the page, but Justice Gorsuch, that was, I mean, he was bringing the high heat at the oral argument. Yeah, I didn't listen to it. I just read it and it was spicy on the page. Well, let me recommend getting a little sandwich baggie for your cell phone and taking it in the shower with you and then taking a really luxurious shower.

Because that's how I've been doing oral arguments of late and it's delightful. Oh, interesting. Just while we're on the topic of the 14th Amendment Section 3, David Latt from Original Jurisdiction just put out an interview he did with David Boies. And for those who don't know with David Boies. And for those who don't know, David Boies, I mean, it would take the whole podcast to list the accomplishments of David Boies. But for our purposes, he is the founder of the law firm Boies Schiller, which is a very, very famous law firm, very profitable as well. And he argued Bush v. Gore on the Gore side. I remember that. Yeah. Yeah. Right right like it's going to be his claim to fame

forever um but he's done so much else uh regardless david latt's asking him about what he thinks of this whole thing and i just thought so let me start out with this premise davis and i'm curious curious if you agree in general when there are seven arguments within uh you know a question when someone thinks that all seven are good or bad i start to question whether it's just an outcome based right that's not always the case because sometimes arguments you know there might be seven arguments but really only one's good and the other six are sort of Hail Marys. But you know what I'm saying? Like if someone finds a way for all seven to come out the way that they want, I'm going to look behind the curtain a little bit.

So I really appreciated David Boies' take on this. First of all, his take on whether this is at all like Bush v. Gore, I think you will find fascinating. And David, to the question you had asked the last pod, he says, the Colorado decision is anti-democratic in the sense that it is preventing the voters from deciding who will be elected president. Whether something is anti-democratic or democratic is not the same as to whether it's constitutional or unconstitutional. We have many provisions of our constitution that are anti-democratic. The Electoral College is anti-democratic. The fact that small states and large states get the

same number of senators is anti-democratic. He goes on with many other examples. So y'all are on the same page on that one. But here's a fascinating thing he said. In this case, the Trump case, the Republicans are trying to get the state to permit people to vote. So there's a sense in which this is almost the reverse side of Bush v. Gore in the sense that in Bush v. Gore, what you had was the Republicans trying to stop the vote count and the Democrats trying to enable the vote to go forward. Whereas in the Colorado case, the Democrats are trying to keep the Colorado voters from being able to vote for Donald Trump for president. So already you can kind of see that Boies is looking at this definitely without partisan uh you know glasses on so he talks about the policy of it and all of that he says you know the prospect of criminally indicting a former

president is something that is better left to other countries for instance interesting but when he talks about the constitutionality of the colorado, which is, you know, really where his wheelhouse is going to be here. Really fascinating. So one, he says, my view is that probably this was not an insurrection in the sense the drafters of the 14th Amendment intended it to be understood. This was drafted in the context of the Civil War. January 6th was much more of a riot than it was an insurrection. Not every riot is an insurrection. And I worry about over-pleading some of these events. If somebody gets on a box with a megaphone following an event and shouts, no justice, no peace, and people then pick up Molotov cocktails

and torch buildings and overturn cars, maybe trample people, does that make it an insurrection? Does it make the person on the soapbox guilty of a crime? If people force their way into the Capitol or a state house and chain themselves to the desk to demonstrate, that's a crime. It probably should be prosecuted. It probably has to be prosecuted, but isn't an insurrection. Not every bad thing, not every terrible thing, not everything that threatens our democracy, that threatens our democratic principles, is an insurrection. So I tend to be dubious about whether this is a properly described insurrection.

Now, there's also an argument being made that in order for somebody to be disqualified for participating in an insurrection, they've got to be charged with that crime. I don't think that is supportable. I don't think that the drafters thought that, yada yada. And then he goes on to say, now, independent of how you define the constitutional provisions, you have to figure out who gets to decide things. In our society, ordinarily, that's the courts. And ordinarily, if you want to enforce a constitutional provision to keep somebody off a ballot, you might go first the administrative person in charge, the Secretary of State, for instance, but ultimately that would end up in the courts. And I think that's probably the right way to

decide it here, although it's not 100% clear. The Constitution gives Congress the responsibility to count the votes. And you could make an argument that says that this decision should be made at that stage. David, again, it's that seven argument thing, right? I just really appreciate when someone says, I agree with this one, I disagree with this one, and I think I disagree with that one, but it's a really close call. Boy, do you build credibility when you do that, and it's why I think David Boies has generally been considered one of the best litigators in the country. No, I thought he made that argument quite well. I think, just to go back on my argument, I get the slippery slope argument, like when does a protest turn into an insurrection? When does a riot turn into an insurrection?

Riot turn into an insurrection? And one of my answers is when you're trying to change who is the chief executive of the nation unlawfully and violently. You're hitting it there. But what about that statehouse example? You know, you change yourself, you chained yourself to the desk and you took over the legislative room, which we've seen happen before, right? People chain themselves to the desk in that legislative well.

They've committed a crime. But is that an insurrection? They were trying to stop the you know movement of bills there's a lot of consensus that the whiskey rebellion for example was an insurrection um and i agree i agree that the whiskey rebellion was an insurrection and uh in that circumstance you you know you have a uprising have an armed uprising related to the payment of a tax. And it really is how far do you go? And I have to say, Sarah, I find sort of like the, oh, no, what if somebody is barred from office who was urging on a crowd,

protesting maybe a cause that I don't like, and it turns violent. I don't, you know, what does this constitutional provision say? If you've already taken an oath of office and then you engage in or you're aiding or providing aid or comfort for an insurrection or rebellion, which is the definition as we understood it from the original public meaning was of a violent act designed for a public purpose or a political purpose i'm not i i'm not losing one second of

sleep not one second of sleep that people having taken an oath of office and provide aid or comfort for a violent act aimed at influencing public policy, then don't get to run again. Fine. Fine. I'm thinking of the Tennessee example. This is your home state where there's the, what do you want to call it? A riot, a protest that turns into a riot in the state house. And there were members of the legislature involved? There was no violence. There was shoving and pushing and things like that, and people who refused to leave and got into it with the police who were telling them to leave. People were absolutely arrested, both for trespass. I'd have to look and see if they were charged with anything beyond trespass. Look, I will tell you, I think you know this, right?

My own views on the insurrection thing, I'm where David Boies is on the who gets to decide part. I think there's pretty good arguments on both sides, and I'm pretty torn on the insurrection question, actually. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting. We pride ourselves on items from different parts of the world. From hard-to-find specialties

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Okay, well, let's move on, David, to something really in your wheelhouse. What is a religion? Oh, man, this is interesting. So this case coming out of the 11th Circuit is a pretty direct circuit split with the DC Circuit in a case that we talked about with the Metro in DC, for those who have ever been into DC and visited, you may have taken the Metro. They had a rule about no religious advertisements. And when the archdiocese tried to put up something, I think it had a picture of a sheep and I don't know, something else. And it said, the perfect gift for the season. And the DC Metro refused to put that up, citing their policy. They sued, arguing that this was discriminatory, First Amendment, free exercise, all those things. And the DC Circuit said,

no, it's content-based, not viewpoint-based. Well, very similar thing that's about to happen here in our case in the 11th Circuit, except we have a unanimous 11th Circuit opinion saying, are you kidding me? Of course that's viewpoint based. So David, will you walk us through this? Man, I really enjoyed this case because the Newsom concurrence, and I promise this is not becoming the Judge Newsom fan podcast, but there's been some really interesting stuff of late. The Newsom concurrence is really interesting because the question is, if you are excluding a religious point of view, is that viewpoint discrimination or content discrimination?

And if there is a distinction between viewpoint discrimination or content discrimination? And if there is a distinction between viewpoint discrimination and content discrimination, then don't we really need to know what religion is? And the interesting question, or that when he worked through it, he came out with not really truly a definition of religion that's sort of universally applicable, but definitely much more of the you know it-it-when-you-see-it analysis and also an interesting question of why are some of these cases being brought in a free speech context as opposed to the specific religious liberty context?

And the answer to that question is because the religious liberty case law isn't as strong as the religious liberty case law isn't as strong as the free speech case law and so a lot of what are actually religious liberty cases if you really drill down are brought under free speech and this is a post smith litigation strategy strategy change that occurred because smith eliminated the previous test for a free exercise clause violation. It's a great question, Sarah. What is a religion? And it's something that I've talked about a lot, and I have kind of punted on the question.

Like if someone asked me, what is a religion? I feel like that's much easier for me to say, what is religious liberty? What is religious liberty versus what is a religion? And I define religious liberty as the ability to think, speak, and crucially act in accordance with your deepest beliefs so long as the speech and actions don't infringe on the rights of others. And that's how I've thought about it, because if you look at the case law around religion, essentially what the Supreme Court is doing is essentially saying that what is religion is your sense of what is the ultimate truth.

What is ultimate truth? So it isn't just, is it deistic? Do you believe in a higher power power or do you belong to a particular church there are lots of religions that are don't have that sort of monotheistic construct or aren't terribly deistic at all um don't have church formal churches there are a lot of different ways people express ultimate beliefs but when i think think of religion, I think of it in the terms of ultimate beliefs. That's how I would define it. But it's a fascinating discussion, and not just because of what is religion, but also it's fascinating because it plunges into

that really difficult question of what's the difference between content discrimination and viewpoint discrimination. So I wanted to read the section of Judge Newsom's concurrence that's interesting on this, almost because of how he wrote it. So I'll just read this section. Consider, for instance, one definition of religious that the majority opinion posits, having or showing belief in and reverence for God or a deity. That, as I understand things, would eliminate many Buddhists and Jains among others. Or another, belief in and reverence for a supernatural power or powers as creator and governor of the universe. Again, I could be wrong, but I think many deists and Unitarian Universalists would resist that explanation.

And so it goes with other defining characteristics one might propose. Belief in the afterlife, I'm pretty sure that would knock out some Taoists and presumably others as well. Existence of a sacred text, my research suggests that at least in Japan, Shintoism has no official scripture. Existence of an organized church with a hierarchical structure, neither Hindus nor many indigenous sects have one. Adherence to ritual, Quakers don't. Existence of sacraments or creeds, many evangelical Christians resist them. A focus on evangelization or proselytizing, have one. Adherence to ritual? Quakers don't. Existence of sacraments or creeds? Many evangelical Christians resist them. A focus on evangelization or proselytizing? So far as I understand, Jews typically don't actively seek to convert non-believers. Relatedly, what truly distinguishes

religious speech from speech pertaining to other life-ordering perspectives? Where does the religious leave off and say the philosophical pickup? Is Randian objectivism religious? My gut says no, but why? How about social justice fundamentalism? Same instinct, same caveat. Scientology? TM? Humanism?

Transhumanism? You get the picture. I think that's wonderful writing. And I think there's a reason it's a cone shaped writing. It's the longer explanations at top. And as you get down, the sentences get shorter and shorter and the questions get shorter because now you understand the purpose. I think it's incredibly effective. As he said, it's like he speaks, but it's a little bit more than that. It's almost like you would write a persuasive essay or teach people to write a persuasive essay.

Also, it's just fun. Imagining the Newsom clerks having to Google a lot of religions. That's true. But David, before we left this case, again, circuit split with the D.C. Circuit now. Good chance this is going up to the Supreme Court, though maybe not on this case. If you think the Supreme Court would uphold the 11th Circuit, why take the 11th Circuit one? They did not take that D.C. Circuit one. There was a cert petition. It was denied with a Gorsuch dissent. And the second concurrence on this case, because every single judge on this three-judge

panel wrote in this case, I thought the second concurrence was also needed and delightful. This is Judge Grimberg writing. Sorry, Judge Newsome. Someone's nipping at your heels here. Uh-oh. Because he walks through what we'll call the Holy Trinity, David. I mean, it's really called the trilogy. But Holy Trinity, why isn't it called the Holy Trinity of these religious cases?

This is Lamb's Chapel, the Rosenberger versus Rector and Visitors at UVA, and the Good News Club cases. He really walks through those one by one. I'll do a quick version. In Lamb's Chapel, a school district allowed use of facilities for social, civic, or recreational purposes, but not religious purposes. On that basis, it denied the use of its facility to a church that wanted to show a film series on family values and child rearing. The government argued that the school's ban was permissible subject matter exclusion rather than a denial based on viewpoint. Supreme Court disagreed. According to the court, the subjects, family values and child rearing, were permissible, and the school therefore engaged in viewpoint discrimination by excluding the church from addressing those same topics from its Christian viewpoint.

Then Rosenberger, UVA subsidized the cost of some student publication but declined to fund those that primarily promoted a particular belief in or about a deity or an ultimate reality. The Supreme Court held that this constituted viewpoint discrimination since it precluded a religious perspective as to subjects that could otherwise be discussed and considered from a secular perspective. And then finally, in Good News Club, a local Christian organization applied for use of a school cafeteria that had been open for community use, but the school's community use policy foreclosed use by any individual or organization for religious purposes. The Supreme Court held that this constituted impermissible viewpoint for discrimination. The unconstitutional nature of the policy was rooted in its acceptance of groups that would promote the moral and character development of children, but its exclusion of the club's activities, which also promoted the moral and character

development of children because they were religious in nature. Boy, David, that's going to turn a lot on how general you want to be. And so in that DC Circuit case, the Archdiocese of Washington versus Metro area, that was 2018. We've talked about it briefly on the pod right when we started this podcast, actually. Oh, yeah, right. Because there was this Gorsuch dissent.

And I'll read now from the concurrence in this case that's quoting the Gorsuch dissent, the silhouette of three shepherds and sheep, along with the words, find the perfect gift, and a church website URL. So that's what the D.C. government would not allow them to put up. So Justice Gorsuch, writing in the dissent of denial from that case, wrote, no one disputes that if Macy's has sought to place the same advertisement with its own website address, DC would have accepted the business gladly. Indeed, DC admitted that its views Christians as having a secular half and a religious half, and it has shown no hesitation in taking secular Christmas advertisements. Where the same advertisement with the same content is

welcomed when reference to religion are removed and replaced with secular ones. I see no way around concluding, based on the trilogy, that the public transportation system engaged in unconstitutional viewpoint discrimination. That last part by Judge Grinberg here in the concurrence. I don't know. Kneeling it, man. Yeah. No, I thought that was really good. And it did show, you know, when we talk about the difference between content discrimination and viewpoint discrimination is this religious content or religious viewpoint

that was a really good way of sort of thinking through so if if you're saying a christmas celebration cannot be religious or a christmas message cannot religious, then that is an interesting level. That's when content discrimination can become viewpoint discrimination because you're saying you can speak about this particular holiday from every perspective except the religious foundation of it is a viewpoint discrimination issue. But I also understand the idea of, wait a minute, is religion a content or a viewpoint? Because there, as Judge Newsom pointed out, there has been case law saying it is acceptable to say no political advertisements,

but you couldn't engage in viewpoint discrimination. And the difference would be content discrimination is saying no political advertisements, and viewpoint discrimination would be saying no Republican political advertisements. But those kinds of really neat distinctions are harder to draw in the religious context because as Judge Newsom pointed out, even what is religion gets kind of difficult to draw the content line. So it's a fascinating discussion. All right, next up, David, that Texas en banc case. We finally got the opinion. This is a woman who is a Facebook reporter down at the border. She had a law enforcement source

that told her the identities of a suicide and a deceased motor vehicle accident victim. Well, that turned out to run afoul of a law in Texas that makes it illegal to solicit information that has not yet officially been made public with intent to obtain a benefit. Now, if you remember at the panel level, David, we had Judge Ho saying, are you kidding me? Having Facebook followers is not obtaining a benefit. And, you know, then all journalism is obtaining a constitutional rights. So there's a few layers here. But David, the case goes en banc. We have Edith Jones, who I clerked for, writing for the majority, and a pretty big majority at that, saying, there's no problem here. And you have Judge Ho writing in dissent saying, are you kidding me?

But like even louder this time. This is really setting up, I would say. And look, this is hard, right? Because this is my judge who I clerked for and a judge who is also a good friend. This is looking like the battle lines in the Fifth Circuit are being drawn, David. Yeah. There's the Edith Jones contingent on the one side. And this is looking like the battle lines in the Fifth Circuit are being drawn, David. Yeah, yeah. There's the Edith Jones contingent on the one side. There's the Judge Ho contingent on the other.

It's notable, I think, that Judge Willett joined Judge Ho's dissent, as did Judge Graves, Elrod, Higginson, and Douglas. I mean, hmm. Yeah, you know, and this is also distorted by the qualified immunity issue because a big part of Judge Jones' opinion was, well, wait a minute. No one has invalidated this Texas statute. So if this Texas statute hasn't been invalidated and the arrest warrant, et cetera, was secured according to normal process under the authority of a statute that's not been invalidated, then you can't possibly sort of strip qualified immunity from these guys. And the dissent's kind of like, wait, whoa, the statute is really wildly unconstitutional, just wildly unconstitutional. And it cannot be the case that you're going to grant qualified immunity when something is wildly unconstitutional just because the statute hasn't been struck down yet.

because the statute hadn't been struck down yet, really, and I actually found the Judge Graves dissent to be the more interesting, although I very much agreed with Judge Ho in his dissent. There were a lot of dissents. And by the way, I forgot to list Oldham as one of the dissenting judges. So it was actually seven of the 16 judges dissenting. There are 17 judges on the Fifth Circuit, but one of them who had just joined declined to participate in the case.

So, yeah, it was seven of 16 in dissent with a lot of different written dissents. Yes. And the first dissent, the one that I found so interesting and compelling, I found it interesting and compelling because it did something that you actually don't see as much in First Amendment authority is it really doubled down on, wait a minute, the First Amendment not only has sort of a free speech, it also has a freedom of the press element as well. So it's not true, of course, that reporters are sort of super citizens who get to do whatever they want, but it does matter that there is a separate segment of the First Amendment dedicated to the freedom of the press. And what does the press do? If you had a rule where the press could be barred legally from getting non-public information, you don't have a freedom of the press. A huge segment of what a big chunk of what a reporter does is tries to secure non-public

information. And so I found that very interesting because rarely do you sort of see an exploration of, wait a minute, here's these words in the First Amendment, freedom of the press. What kind of distinct meaning and role do they have? And I thought, um, I thought that, uh, that the judge did a good job of sort of boring down on the fact that this really does get to the core of what a reporter does. Like what, what is it that a reporter does? They're, they're trying, a good one is trying to get information out to the public that's not previously public. So on the one hand, I would say the question

over the Texas law is right for SCOTUS consideration. Oh, yeah. But on the other hand, there's the 1983 part in qualified immunity sitting over this that may mean that it doesn't get SCOTUS consideration. So that will be an interesting part of this. Although generally speaking, when you have an en banc court that is splitting and having this many dissents a la, you know, Article 3 cert petitions, certainly ups the chances that the Supreme Court would consider it. Yeah. No, I agree with you. I agree with you. I mean, this was a spicy, interesting case, and I hope we've not heard the last of this case. Yeah, I mean, again,

a very interesting lineup of the Fifth Circuit judges to have Ho, Willett, and Oldham, the three Trump appointees all on the same side, maybe a good indication of where, for instance, Justice Gorsuch is. They have tended to line up together, perhaps. On the other hand, having Jones and Smith in the majority generally tells you where Justice Thomas is. Now, it's not to say that Justice Thomas and Justice Gorsuch are always on the same side. They're absolutely not. That should give you some indication of why this fifth circuit split is so interesting to us because in some ways it's telling you that there's a split in of that three three three court in the conservative three there is a app there is a also a generational difference i think in some of the conservative just uh judges and this is something that a lot of people don't realize, but a lot of Republican appointee judges, and this was especially true, like the fourth circuit had this reputation for a while.

A lot of the Republican appointee judges, on the one hand, they might be pro free speech in some ways, but they're also as a general matter, a lot of the, the disputes back in the day, um, a Republican judge was considered to be one who was less pro-plaintiff, and they were also more pro-law enforcement. And so, one of the interesting aspects of going and arguing in front of some of the, for example, Reagan appointees and others is you often didn't know which sort of side of their jurisprudence was going to dominate. Was it going to be the defense protective, qualified immunity, government protective side? Or was it going to be the free speech, originalist, constitutional

conservative side? Which one would dominate? And for a lot of years, if you were a civil liberties plaintiff, let me put it this way, it is a lot better to were a civil liberties plaintiff let me put it this way it is a lot better to be a civil liberties plaintiff in front of a modern fedsoc judge than it is under an older school conservative judge of the 80s or 90s uh certainly true and and just in case anyone is um concerned so those are not the only trump judges duncan and engelhardt of course were trump appointed judges on the fifth circuit they side with the majority it's mostly that ho willett and oldham are kind of seen as the new legal conservative free speech interested yada yada i i consider them a separate three if you will yeah no that's that's a separate three, if you will. Yeah, no, that's a separate three.

You're always finding separate threes, Sarah. I guess that is my number. It's like your gift, right? Yeah. and shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month. Hey, you paid for it, so keep it. Try the other side.

Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. Certain conditions apply. Details at phys.ca. Okay, next up, David, did you get a chance to read this letter that no label sent to the Department of Justice? Yes. I want to read one part of it. And remember, the overall thing is, hey, dear Department of Justice, open a civil rights investigation into our enemies.

Yeah. And I think it also is worth noting, David, you and I are pretty sympathetic to the no labels cause, having a third party, not really into Trump or Biden. So we're all for it. Hey, Sarah, you and I were almost a team. We were almost a no labels team in 2016. No labels before it was no labels, man. That's right, man. Okay, so reading from this. Although the pattern of unlawful behavior traces back nearly a year, the most recent and most disturbing example occurred just weeks ago. On December 19th,

the Semaphore online news site reported an audio it obtained of an 80-minute call organized by Matt Bennett, co-founder of Third Way, a left-of-center think tank. During that call, which Mr. Bennett convened with the assistance of other organizations, including MoveOn, End Citizens United, Lincoln Project, American Bridge, Public Citizen, and Reproductive Freedom for All, attendees laid out their plans to harass, extort, and intimidate no-label supporters and potential candidates and take any steps necessary

to prevent the formation and success of a no-labels unity presidential ticket. In addition to Mr. Bennett, the meeting was attended by such prominent individuals and campaign operatives as Sarah Longwell, Bill Kristol, former Senator Doug Jones, and Demetri Melhorn. Mr. Bennett stated during the private meeting, quote, what we want to do with no-labels donors is continue to build the idea in their minds of the political elites and the people that they talk to is that if you get involved with this, you are throwing, you're really risking your entire reputation and your legacy. candidates in the filing of baseless IRS complaints with the intention of inflicting, quote, a huge hit to No Label's entire operation, end quote, crossed all lines of acceptable conduct into a conspiracy to commit extortion, voter intimidation, and other criminal behavior. As one article quoted one attendee in explaining how they would dissuade candidates from running

on the No Label's unity ticket, quote, through every channel we have to their donors, their friends, the press, everyone, everyone should send the message. If you have one fingernail clipping of a skeleton in your closet, we will find it. If you think you were vetted when you ran for governor, you're insane. That was nothing. We are going to come at you with every gun we can possibly find. End quote. Now, David, switch out no labels for the Republicans said this about the Democratic Party or the Democrats said this about the Democratic Party or the Democrats said this about the Republican Party. And I think we'd all be like, that sounds pretty tame. But is there something unique here? Do we get in sort of the Alabama versus NAACP harassment and voter

intimidation? Or is this just run of the mill? Hey, you want to play with the big boys? Here's how the big boys play. We do opposition research on your candidates we try to convince your donors not to give money to you yeah i mean it's a political hardball there's no question about that but i kept waiting for the illegal part um that's you know i was reading it waiting for the illegal part and there was a one bullet point that had a bunch of bullet points of actions that have been taken and there was one bullet point that had a bunch of bullet points of actions that have been taken. And there was one where somebody went and got a no labels web domain that could have some intellectual property issues. But basically what we're talking about is just really aggressive politics here. As I was reading it, I was thinking, that sounds a lot like just what politics have become. I don't love it. I don't love that kind of notion that politics means getting that aggressive. But again, aside from the intellectual property issue, I just can't, I can't see the legal issue here,

Sarah. I cannot see the legal issue. You know, I just think you're very much in the free speech zone here. Now, the one thing is filing baseless IRS complaints. Maybe if they're really baseless, but that's their description of the IRS complaints, not, for instance, this group's description of the IRS complaints that they're going to file. But that's their description of the IRS complaints, not, for instance, this group's description of the IRS complaints that they're going to file. Right. And there are remedies, there are remedies for baseless complaints

that you can make, that you can seek when there is a baseless complaint filed. But to just sort of say, baseless complaints are coming, that doesn't get it. Yeah. All right.

Well, we'll see where that goes. It puts the Department of Justice in an interesting spot because, of course, the Department of Justice is under a Democrat, Joe Biden. And so if they say no to opening in this investigation when the investigation that they're asking for is against the party of the president in power overseeing the Department of Justice, I don't know. Messy. Yeah, it's a mess. It's a mess. Okay, David, just wanted to take a quick moment to honor Professor Charles Freed, who passed away this week. He was a long, long time professor at Harvard Law School. He was my professor. He was also the faculty advisor for the Federalist Society since the first day that there was a Federalist Society anywhere in the country.

He is, in fact, he was teaching for so long at Harvard. Do you know who one of his first students was? Who is that? Stephen Breyer. You are kidding me. Justice Breyer. So one of Charles Freed's first students

is retired Supreme Court Justice Stephen Breyer. He had an incredible career. He served on the Massachusetts Supreme Court Justice Stephen Breyer. Amazing. He had an incredible career. He served on the Massachusetts Supreme Court. One of my very good friends clerked for him and just thinks the world of him. So wanted to send out prayers and just to know that he absolutely, his memory is a blessing to so many of us, to his friends, his family, his former clerk family, is a blessing to so many of us, to his friends, his family, his former clerk family, all of his former students who are remembering him this week. Did you see the movie Maestro? I have not. I have not. I should, but I have not. Okay. So Bradley Cooper is playing Leonard Bernstein and sort of affects this patrician

1930s accent. That is exactly how Charles Freed talked. At all times, in the classroom, in private, in the gym. So whenever you hear someone quoting something that Charles Freed said to them, if you knew him, you can hear it in his voice. And I don't know, I love old movies to hear that accent again. I actually loved Cooper's portrayal of that accent in Maestro. And we're losing it, right? That whole generation is going to be gone before we know it. And we're only going to have it back in those movies. So the end of an era, certainly at Harvard Law School. Yes, yes, absolutely. My favorite Charles Freed memory, I've told this story before. I show up at the law school for debate over the case CLS v. Martinez, which is one of the last religious liberty losses

at the Supreme Court. And it was lost in large part because of a stipulation entered into in the trial court that was, I understand why the litigators entered into the stipulation, but it turned out to be a major decisive mistake in the case. And right at the start of the debate where I'm debating Noah Feldman on the case, he looks to me and says, David, who is the idiot who agreed to that stipulation? first question like um i did not i did not out the person because they're absolutely not an idiot but yeah no he was um when when i was at the law school he was considered along with marianne glendon who had was i believe on leave for much of that time when i was there he was considered

to be one of the only conservative faculty. And he was very much not a social conservative. And it was part of the fight back then in the early 90s was, was the future of the GOP more socially liberal and economically conservative? he was absolutely, you know, a representative of, or at least at the time was sort of viewed as a representative of, of the much more of the less socially conservative side of the conservative movement. Um, and Marianne Glendon was on the other side of that. And it was really interesting. It was a very interesting time and a very interesting debate along those lines. And it's something that's largely forgotten. I mean, there was a time, Sarah, when Christine Todd Whitman, for example, at New Jersey was sort

of viewed as the future of the GOP. But yeah, so Charles, he, but he was very much respected by students. And as you said, there might not have been a thriving federalist society at Harvard without him. So, and, you know, I shared already when he retired that I took that road trip with him from Cambridge to New York City. And he told me his favorite book was Uncle Tom's Cabin. So in his memory, I very much recommend everyone listening, go pick up a copy of Uncle Tom's Cabin if you haven't already read it. And if you were forced to read it in, you know, junior high or high school, just go read it again now that you're an adult and are choosing to read it. It really is an exceptional book. And I thought it was so interesting.

He didn't miss a beat. You know, and of all the things he's read, of the lifetime that he had lived, to say that that was the best book he had ever read in his life. Yeah, amazing. Yeah. He was also in his opera phase, listened to opera on his iPod at the gym. I'm going to share this one quote because I thought it was such a delight.

He was advising a friend of mine on her 3L paper and she'd worked for months on it. She finally gives it to him for feedback and he walks through it, gives his feedback, et cetera, and then says, now Beth, we must, as all good writers do, start over from scratch. I love it. I love it. In truth, of course, it's fabulous writing advice, but that's pretty gutting if you just spent months writing it. Yes, yes, absolutely, absolutely.

All right, last thing, David, I wanted to get your read on a question about crying in the workplace. And I'll use myself as an example. Okay. I'm not a big crier, but you know, like certain things hit you wrong or you've had a bad day already.

So I got a B- on my torts exam my 1L year it to this like it is this is the first era of my life where I'm really able to talk about this without the shame that I felt for decades about getting said B- it it just it was a shame on my family you? And so I walked in to talk to my professor about it and he basically said, well, your exam sucked and maybe you should consider dropping out of law school and going to do something else because it's quite clear that you're not cut out for this. My goodness. And if you think that was restricted to, you know, Scott Turow's 1L or something or paper

chase, not so much. Yeah. Though this professor was of that era era um so in that moment of course how are you feeling the shame of having the B- and being a 1L this was first semester 1L year and then having a professor say that to me I was angry I felt you know all the things right it just all wells up. And I thought, do not cry. You have to get out of this room without crying. So I basically like ran out of the room and, you know, cried in my own time. But I was curious, you know, is it a natural human reaction that we shouldn't be so keen to poo-poo in the workplace. Same as like anger or, you know, someone losing their temper.

But we sort of have gendered views on this, right? We think of men losing their temper in the office. It's unacceptable, but it's not career ending or we don't think of it as like, well, I can't staff him on that because he loses his temper. It's sort of like, oh, he needs to get a grip on his temper. Or it just shows he's really passionate about his work, that he would be so defensive about it or whatever. And women are going to be the ones who, again, tend to cry in the office. But there it's like,

oh, we lose total confidence in her. She's weak. She's being overly sensitive, feminine, et cetera. All these things that we think of as negatives in a law-type world, where do you fall on this? That's a great question. I think where I fall on this is out of controlness is bad. Normal human emotion is fine. So just to use your analogy of people don't tend to bat an eye if somebody kind of loses their temper, but they really do if somebody really loses their temper. If you punch a hole in the wall, that I think would be a deal breaker in most law firms. Yeah. Or ranting, screaming, these kinds of behaviors.

I remember one time I had somebody, a partner at a firm, just ranted at me at the elevator bank. So all of these people are going to the elevator bank. So they're just watching this unfolding rant and veins popping sort of rant. And that to me is unacceptable. It's sort of that sense that you're out of control. You're not in control. But there is such a thing as controlled anger, where sometimes it's actually important to express that there are emotions here. And I think

there is such a thing as controlled distress, like that I might be involuntarily tearing up, but I'm in control. I'm not going to flip out. And so there are just different ways in which people manifest emotion. And as long as the control remains, the emotion is fine. It's the out of control-ness that I think is what alarms people. So I went and asked a few legal women who are at the top of their professions in big law, in private corporations, in government. And I asked them how they would handle it if a female subordinate cried when faced with criticism, maybe even harsh criticism. And I wanted to share some of the responses because I thought they were surprising. Because these are women who, again, they're at the very top of the profession. I would have assumed they'd all be like, suck it up,

buttercup. There's no crying in baseball. And that is not the response. So one, she's now going to sort of speak in the voice of that supervisor. Hey, I can see you are receiving this a little hard. If it's okay, I'd like to just address that for a second before we go back to the substance. First of all, this is very normal type feedback. Everyone gets it. It's the workplace and you and I both really care about quality. So I know you want to grow. You're doing great. Second, I just want you to know it's okay to cry. Here's some Kleenex. Of course, let me know if you, if it would be more helpful getting feedback and writing, but reacting with tears is completely fine and we need to normalize it. Don't be embarrassed

at being a normal person. I'll give you a second and then we can continue. I mean, again, I was like, wow, that's actually excellent advice. Number two, I really felt badly that I upset you the other day, though it's such a testament to your character that you care so much about doing a great job. I have such belief in your future that I always want to be able to give you feedback, but I don't want it to be counterproductive. And then maybe ask questions such as, would you rather I didn't do so? Or is there a way I could give feedback that would be more helpful to you? Number three, acknowledge it, diagnose what the triggers are. If it's when she's getting feedback that is more

problematic, I think that could also be managed. If it's something that doesn't reflect eggshell sensitivity, then I think she could be upfront about it and take the other party off the hook emotionally. This was just advice or a diagnosis. Someone once told me that it's the same exact emotion that makes some people pissed off and curse, just comes out in a different way. Crying is the emotional equivalent of punching a wall, just judged differently. It is judged differently. I don't know that it's judged better, I guess, is what I'd say about the punching the wall i might fire someone if they punched a hole in a wall totally whereas i would not fire someone for crying no i punching a wall is a lot more dangerous like that indicates some sort of pin-up aggression i have one more and by the way all of these women had stories about how

they had teared up in a workplace environment some of them had gotten out of the room in time some of them hadn't almost all of course had been working for male bosses at the time because we're all of an age that there were really only male bosses around. So very fascinating to see how male bosses all handled it more or less in the way that they're suggesting with them. And that's why they're sort of doing this like pay it forward. Hey, it's okay. Like this is what happens. Like stuttering, worrying about the response will make it worse uh but they didn't want to be a crier even if it's seen as normal and i think there are ways to teach yourself not to at least in front of others not feeling the need to respond or apologize or explain yourself immediately when

emotional is one deep breath say okay thank you whatever walk away process it and come back later if needed to follow up if you don't want to punch a wall or curse at work, you may not want to cry either. Anyway, these are like the most badass women that I know. And I thought that was some really interesting advice and thoughts across the board, both as a supervisor, but also if you're a young lawyer or anyone starting out.

So the biggest crying fit I've ever seen in my entire life at work from a guy oh that's interesting encounter i actually do wonder if you're a guy crying whether you would be treated more harshly ended up in the fetal position okay well that seems like more than just criticism at work yeah well it was yeah it was a firing termination but um the the uh yeah i that that's the biggest crying i was i was i saw was from from a guy i've seen very little a very few tears very few in in professional settings it's it strikes me as pretty rare but I've seen more temper tantrums than I've seen tears, without question.

Interesting. One woman noted, I didn't cry at work until I was much older and had some credibility. That's certainly the case. If you're a senior partner at a law firm, yeah, you can cry because people aren't going to see that as inability to handle the stress or the workload or the difficulty. It's in fact going to be then seen much more as that emotional response. The same way, by the way, that I think senior partners are going to have a lot more leeway to get mad and maybe even punch a hole in a wall. Yeah. Yeah. There is a

zone, you know, one of the things about a law firm or a company or you name it, the more valuable you are to the organization, it always seems to work out that the greater freedom of action that you have, right until the moment it brings the whole institution to a world of hurt. All right. Well, with that, David, fun pod.

Yeah, fun pod. And you know, I don't have a like, dun, dun, dun for next episode yet. So I don't know. We're just gonna have to wait and see. I know. Well, I'm excited to find out what we're going to talk about.

Well, wait, I've got one. I've got one. Oh, I know. I just got one. I just saw it. Yeah, what's yours? Greg Abbott just issued a very defiant letter about the border

proclaiming Texas's right of self-defense, Sarah. So, yikes. Yeah, there we go. Next time on Advisory Opinions. All right. Thanks, listeners. Talk to you soon. Bye.