Advisory Opinions - ‘Who Has the Pen?’

Episode Date: July 12, 2024

Could Joe Biden sue a faithless delegate? Would Brown v. Board exist if a supermajority had opposed integration? Is the next generation of lawyers doomed? In a special live recording at the American Enterprise Institute, Sarah and David contemplate a series of worst-case hypotheticals and answer audience questions. Bonus: originalist David French (somewhat) defends the Warren Court. Agenda: —Bound, free, and faithless DNC delegates —How the 12th Amendment could cause a 13th-hour, three-way race for president —What the 25th Amendment might mean for Vice President Kamala Harris —The legitimacy of a counter-majoritarian Supreme Court —SCOTUS as a lagging indicator —The fairness problem of the “Stolen Seat” —Common-good constitutionalism, originalism, and the battle for the legal right —Expertise and the elites Show Notes: —Brown v. Board of Education —Plessy v. Ferguson —Advisory Opinions’ “Chevron is Dead, Long Live Chevron” —The Dispatch’s fact-check of Project 2025 —Gallup & Pew’s SCOTUS polling —New York Times: “Donors to Pro-Biden Super PAC Are Said to Withhold Roughly $90 Million” —Bostock v. Clayton County —Whole Woman’s Health v. Hellerstedt —June Medical v. Russo —Buck v. Bell —The Atlantic: “How Liberal College Campuses Benefit Conservative Students” —Kamala Harris’ viral “coconut tree” moment Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur and oh hey, it's my frequent guest, David French. This is our second live podcast of the week. Second live podcast of the week. And I'm a little disappointed, Sarah. You didn't use my new name.

So we're here at the American enterprise Institute. David has been teaching here all week. And so David came over for dinner at my house on Wednesday. We made fajitas, very Texas meal, and my four-year-old called him Steve the whole time. And then after giving Steve a tour of the house, which Steve has been too many times actually, on the way down the stairs from my son's room,

he turns very inquisitively and says, are you my great-grandfather? Yes. Yes. And so I thought fully I was going to be introduced in the podcast today as in my frequent guest great-grandpa Steve. It makes it sound like I've inculcated my son into believing you're as old as I think you are. But no, it was from the mouth of babes. I know, it was completely organic.

Now I'm questioning a lot of my health choices. Great Grandpa Steve. He really enjoyed having you though. Oh good. He thought having his great grandfather around was really neat so We are here at AEI this fine Friday and We had sort of two things we wanted to accomplish and then we just wanted to answer questions from you guys Because part of the fun of the live podcast is questions, but also

We have done the live podcast here several times and the questions are way better than anything we have to offer. So we're gonna do two things. First, we're gonna do some legal issue spotting between now and let's call it January 22nd, 2025 on the campaign front. And an overarching philosophical question about the Supreme Court. Yes.

So let's start with some issue spotting. Obviously all eyes are focused on Joe Biden and whether he will remain the Democratic nominee. So let's start with the first one, which is, is there any legal issue heading into the roll call at the convention? There's 3,964 pledge delegates to Joe Biden according to the DNC rules. If you remember the super delegates, y'all are too young. But anyway, the first ballot is now only pledge delegates.

If a candidate gets a majority of those pledge delegates, they become the nominee. If they don't, then we get into super delegate world. So let's just focus on that first ballot. The DNC rules, and I don't have them right in front of me, but say you are committed to voting for the candidate that you're pledged to vote for in good conscience, basically. And it's that conscience clause. So my question to you, David, first up,

can someone sue if a delegate does not vote for Joe Biden? They can sue, but they'd lose. Now, but with, let me, let me add a caveat to that. So if the Democratic National Convention has a vote, Let's just imagine that they have a vote, and with these pledged delegates, that a majority of them do not vote for Joe Biden, that he does not get a majority of the convention. Under no circumstances would I see a situation

where the Biden campaign could run into U.S. District Court and Northern District of Illinois and have that vote reversed. But why is that? Because the DNC is going to be seen District Court in Northern District of Illinois and have that vote reversed. Why is that? Because the DNC is going to be seen as the authoritative interpreter of its own rules here and authoritative interpreter of what in good conscience means because there's the clear... Now, if there was no out clause, then you could have a conversation.

There might be some hope that there was no out clause. But even then, a court's going to be super reluctant to interfere. The one interesting question that I have is some states have laws related to their presidential primaries. We're getting to that. OK, all right. I don't want to jump ahead. So the short answer, in my view, is yeah, you could sue,

but you're going to lose if you're challenging the faithless delegates who are exercising rights of conscience. Okay, next up is the reason that they're having that roll call vote ahead of the convention is because of Ohio state rules that require the political parties to turn in their candidates by, I believe it's August 7th, it might be August 8th,

whatever it is. candidates by, I believe it's August 7th, it might be August 8th, whatever it is. Um, so let's assume that they, uh, you know, have the roll call vote. Joe Biden doesn't win yada yada chaos. It's August 9th before they send a candidate to Ohio and it's not Joe Biden. Um, can the RNC sue to remove that candidate from the Ohio ballot? Yes. Yes. the RNC sue to remove that candidate from the Ohio ballot? Yes, yes. Now again, can they sue as the, would they sue? Yes, could they win?

Possibly, possibly, because the court is gonna take a look at this and realize with the presidential election we have 50 state elections. And these 50 state elections are governed by the states, not the state legislature alone as sort of the independent state legislature doctrine has argued. State supreme courts are the arbiters of their state's laws. And so if the state supreme court of Ohio says, sorry, Democrats, we gave you till August 8th, that is not unreasonable.

That is not infringing on your constitutional rights. You just didn't meet our deadline. I think that that, I actually think that's a problem for the Democrats. There's then the problems of once ballots get printed, if something were to happen to a candidate. We have experienced this on the Senate level many times of dead candidates being on the ballot and getting elected

and that all gets handled in state law because basically other than the president, everything is a state issue of sorts. I wanna leave that to the side because that is frankly the messiest. That's messy. Of all the scenarios. So here's my next scenario, which is Joe Biden

wins the election. And on Thanksgiving, something happens rendering him alive, but incapacitated under the 12th Amendment. the electors meet on the, I believe it's the first Tuesday after the second Wednesday in December, because we always like doing it that way. And it says that the candidate who wins the majority of electoral college votes out of all of the electoral college members shall become the president.

So that's the 270, right? You see the map's 270 to win. We all look for 270. So that's the number that you have to get. Under this scenario, though, electoral college members have a bit of a problem. Some electoral college members come from states where the state law binds them to vote for the winner

of their state's popular vote. And the Supreme Court just said that that is in fact binding in a unanimous opinion in 2020 looking at Colorado and Washington. But other states don't have those rules. Some states that do have those rules don't have enforcement mechanisms. There's a whole variety of state laws around this. So the problem is, under my scenario, Joe Biden cannot serve. He can't be inaugurated as president. So some of those delegates are bound to vote for Joe Biden. If you look at Colorado's state law, for instance, there is no exception for death or incapacitation.

It just says you, as a member of the electoral college, are bound to vote for the candidate that you agreed to vote for, whoever won the popular vote of the state, and I forget whether it was Washington or Colorado, like there's real penalties. Penalties that you're not gonna wanna incur. No.

How's that gonna work? Because it's not like, if you can't be inaugurated, it's not like it just falls to Harris, right? Harris at this point would now be acting president if the president's incapacitated. You don't get to become president, by the way. We'll get to that more, but you would only be acting president as long as the president is alive

and has not resigned. So she's acting president right now, but she can't be inaugurated on inauguration day just because she was there as vice president. The 12th Amendment also says that the person who receives the most number of votes as vice president, the majority of votes, sorry, becomes vice president, and that that person can't also be president. So you'd have to have the delegates picking Like, do they want to put in Harris,

but then they can't vote for her as vice president? And if nobody receives a majority of the electoral college votes for president, as in if the unbound delegates switch their vote and they all, I don't know, pick Amy Klobuchar, and the bound delegates have to pick Joe Biden, and the other delegates who come from Trump 1 states pick Donald Trump, the top three vote getters basically go to the House, and the other delegates who come from Trump one states pick Donald Trump the top three vote getters Basically go to the house and the house has to pick among those top three vote getters of the electoral college

How's that gonna work? So? Is God help us a legal answer to that? I think we don't really know to be honest I think we don't really know if the president honest. I think we don't really know. If the president, now here's a potential scenario. The president's incapacitated and wins reelection. He wins reelection, becomes incapacitated, and he's incapacitated at the time

the Electoral College votes. My view would be the Electoral College goes ahead and votes for him, and then he's immediately 25th amendment hid Following the inauguration So you would still inaugurate the incapacitated president rate him and then you 25th amendment him immediately The only flaw in my plan there is how could he be inaugurated? How could he take the correct? He can't take the oath in my scenario. Take the literally cannot. Yeah, so he can't be inaugurated? How could he take the oath? Correct, he can't take the oath in my scenario. He can't take the oath. He literally cannot, yeah, so he can't be inaugurated.

So let's talk about prepping. Because that's when it gets viable. And I just have to, I'll be honest with you, Sarah, I'm actually more interested in your answer to this question because I don't I honestly don't know Where this would lead us. Okay. So strategically the first thing you're gonna do is make an impossibility defense That you as a bound biden delegate From the electoral college it is impossible for you to vote for joe biden because he can't be inaugurated

It is impossible for you to vote for Joe Biden because he can't be inaugurated. I think that might work if he's dead. He no longer exists. Therefore, it's an impossibility defense. But impossibility defenses for those who are super into contract law, you know, if you and I have a contract that says, you're gonna rent my house for $500

and then my house burns down, the contract is void because it cannot be fulfilled. But if the contract says you're going to rent my house for $500 or I'm going to owe you $500, well, the contract isn't void then because I can still pay you the $500 even if the house doesn't exist. So impossibility defense A is very, very hard to get to. It really needs to be not a thing in the world anymore.

And because he's still alive in my scenario, Joe Biden still exists. It is still possible for you to vote for Joe Biden. And I also think the impossibility defense is undermined because the 12th Amendment anticipates this situation at least to some extent, the House picks among the top three vote getters. So it's not that someone had to get a majority

of Electoral College votes at all. Okay, so assume that the impossibility defense doesn't work. So now if you're the DNC and you're organizing these Electoral College members, you have the unbound delegates who are strategically all need to pick one person because they need to get into the top three. By the way, the majority of states do have binding rules,

again, with different enforcement mechanisms, but 33 states or so do say that you must vote for Joe Biden in this scenario. Okay, so the minority now coming in at number three will be whoever they all organize to pick. And then in theory, coming in at number three will be whoever they all organize to pick. And then in theory coming in at number two is Joe Biden, coming in at number one is Donald Trump. And remember the House, by the way,

doesn't vote as individual members. That would be controlled by Republicans right now. They vote as state delegations. Guess what, that's also controlled by Republicans. So the Republican House would be picking between the top vote getter, Donald Trump, the second vote getter, Joe Biden, who can't be inaugurated, and the third vote getter. What would the Republican House do at that point? I would like Donald Trump. I mean, come on.

So if you're the DNC, you're just, you're in fervent prayer following the election if Joe Biden wins, that everything stays okay, that he's at least capable of taking the oath when, and this, I'm just very conscious of how all this sounds right now, to be honest. I'm very conscious of this, but I do think we're at a point where, if you're looking at a situation where obvious,

you believe the testimony of your eyes and ears, we have to have this conversation. OK, so let me give you the third one. Joe Biden is inaugurated and is incapacitated after Inauguration Day, but not to an extent that he believes he is. Now the choices are leave him in as president or Vice President Harris needs to invoke

the 25th Amendment. Now remember under the 25th Amendment you need the majority of the cabinet. Doesn't matter who in the cabinet. It doesn't matter how big the cabinet is, just a majority. But you must have the Vice President. That's a deal breaker.

So Vice President Harris basically has to be the one to start this process because there is no process if she's not voting for it. Even if she does that, as I mentioned, she does not become president unless Joe Biden resigns or dies. There's only then an acting president under the 25th Amendment until the vice president and the majority of the cabinet give the power back to the president, which in my hypo isn't gonna happen.

Do we think there are constitutional limitations on the powers of the acting president? I don't think so as a concrete matter. I mean, as a concrete matter, if you're gonna go with anything like a, I'm not, I don't. She's not sworn in, she's never taken the oath of office as president. As a constitutionally, she is the acting head

of the executive branch. And so as the head of the executive branch, at the acting head of the executive branch, she's gonna exercise all the authority of the head of the executive branch. It's just in a temporary mode. So she would get the nuclear codes. She would get the pardon power.

All of those things would be imputed to her. I think the argument against, I would think that if you're going to say that not all of the power transfer, you would make that plain in the amendment itself. I think I agree with you. I think a bit more of, I've mentioned this before, who has the pen. It's only one person at a time

the executive power is vested in. So if the executive power is not vested in him, it's vested in her, end of story. Right. Okay, so that's a nice place to end on. That's a good place. We have a little clarity. A little bit of clarity. Very little, but that's a nice place to end on. That's a good place to end. We have a little clarity, a little bit of clarity, very little, but it's important.

All right, let me ask you a question now. And this is adapted from an excellent question I got from my class talking about the Supreme Court. We've had an enormous amount of conversation about the, quote, legitimacy of the Supreme Court. People are very mad at it. A lot of people are mad at it for the Dobbs decision. A lot of people are mad at it for the Dobbs decision. A lot of people are mad at it for Trump v. Anderson

or Trump v. United States. There are MAGA people who are mad at the Supreme Court. There are people actually on the right who have started saying Amy Cami Barrett instead of Amy Coney Barrett, believe it or not. So you do have a lot of people who are mad at the Supreme Court. And this is presented as a problem of legitimacy.

And here is the question that I thought was a really good question. I've adapted it, tweaked it a little bit. Our Constitution, we have a democratic republic, and what that means is our Constitution has a lot of counter-majoritarian measures. If the Supreme Court, the interpretive body tasked with interpreting the Constitution is going to faithfully uphold counter majoritarian measures time and time again, is its unpopularity both inevitable and perhaps a sign of health? Or how much should it worry about its popularity if in many ways it is

a fundamentally counter majoritarian body? Ain't this the problem for the Supreme Court? So on the one hand, like you said, you can think of it as a First Amendment type thing. We don't need the First Amendment for popular speech. We need the First Amendment for very unpopular speech. We don't need the Supreme Court if the majority is voting for all the good things and protecting all the minority beliefs and views

and people and processes. We need the Supreme Court to protect the people against majoritarian rule and against whatever the majority wants. So by definition, the majority isn't getting what it wants, and the majority, therefore, should be mad at the Supreme Court if they're doing their job right. But the Supreme Court doesn't have the sword or the purse.

It is the weakest branch, as Hamilton said. And so how are they supposed to have their rulings listened to but for the buy-in of the majority. And therein lies why Chief Justice Roberts gets that extra $10,000 a year to be Chief Justice and Chairman of the Smithsonian Board. Extra 10K, huh? He gets 10K than the other associate justices. Absolutely.

He's very proud of that. He'll tell you. He'll tell you. Yeah. No, I thought that was a great question. And you identify exactly, I think, the paradox, which is, of course, of course, we not just want, we need the Supreme Court to make

some unpopular decisions. One of the things, I grew up in the aftermath of the Warren Court and a lot of anger at the Warren Court. And when I got into law school and I began to drill down on a lot of the anger at the Warren Court, I realized, oh, I just kind of was mad at the Warren Court because I grew up a Republican. And then when I realized like what they were mad at the Warren Court for and compared it with my own reading the Constitution, I was like, wait, I'm much less sympathetic to this

anger because I'm realizing that a lot of it was rooted in we don't want to see criminal defendants get constitutional protections as outlined in the Bill of Rights. That a lot of what the Warren Court did was take the Bill of Rights, apply it to the states, particularly in the realm of criminal justice. And then now some of the things, the exclusionary rule is not in the Constitution, it's not in the Constitution, the Miranda warnings for example, but are these logical and defensible extensions of ways of enforcing the Constitution. And so I began to realize that a lot of the sort

of background anger that I had imbibed in sort of thinking about the Supreme Court was rooted and they just like disagreed with my community's preferred policy, but they were faithful in many ways. The headline of this is not, originalist defending Warren Court. But there were ways in which the actual guts of what was going on was an extension of constitutional liberty

into the states and local governments in a way that interfered with their autonomy in a necessary way. And that was one of the things that created so much unpopularity. And so I would draw a distinction as, is the decision that is made, by every indication,

is there any indication of bad faith or corruption in it? If there's an indication of bad faith or corruption, then unpopularity is warranted, questions of legitimacy are warranted, but if there's no indication of bad faith, and the anger that I have at the court is, I just wish they'd ruled differently, then I think you

should be less concerned about sort of waves of public anger. But as you said, Sarah, the sort of hanging out there is the Andrew Jackson scenario. Yeah, or let's use the Warren Court. Let's use Brown v. Board of Education. So on the one hand, in the immediate wake of Brown v. Board of Education, to the extent we trust the polling at that point, the decision is slightly more popular than it is unpopular. But of course, that was deeply regional. And in the southern part of the United States, there were impeach Earl Warren signs everywhere. And more importantly to our conversation, there was no school desegregation for 10 years.

Massive resistance. There was still desegregation going on in the 70s. Absolutely. Yeah. So Brownfeet Board of Education was a little bit like the Emancipation Proclamation in the sense that it was a statement of principle that didn't have a lot of effect because it was not accepted.

And just the Emancipation Proclamation, remember, is freeing slaves in the rebellious states. So they were like, no, come and take it type thing. And that's what desegregation was, again, for 10 plus years because there wasn't that buy-in. And I wonder, if we're doing hypotheticals today, what if it had been 90% against Brown v. Board of Education? Do you think the Warren Court would have decided Brown either at all or in the way that it did? And I guess, to back that up, don't you

think the evidence is in Plessy? I would say if you had 90% against school desegregation, you wouldn't even have the war in court because there is the democratic element of who's going to be nominated to serve on the court. And so if you had that 90% opposition, you don't have Brown because the people who would vote in Brown, who would vote against school segregation,

wouldn't have even gotten there in the first place. You'd have the Plessy Court. What's the difference between a judge and a lawyer? The judge knows a senator. I mean, Earl Warren is actually sort of an amazing story, the very short version being he's, I think the quick version that law students learn is he's the Republican governor of California. But more important, he was running for the Republican nomination. This was like almost a Teddy Roosevelt move.

Get your rival out of the way by giving him a life appointment over there. Yeah. Yeah. No, it is. So who's on the court is very related to the democratic process. Absolutely. But it's very imperfectly related as Democrats will, if there's any Democrats in the room, you're barely restraining yourself saying we've won a lot more presidential elections

than you have in the last 40 years, and we have fewer justices, which is true because there is a definite randomness to when these nominations come up. But it's still the case that the Supreme, it is very difficult for the Supreme Court to be 90% removed from the American public. It's a lagging indicator, but it is an indicator. Right. Right. Which is, again, but it is an indicator. Right, right. Which is, again, a point we've made about Chevron,

for instance, that for that to come out as a 6-3 decision on the administrative state is a very odd, lagging, odd proof of how the lagging indicator works, because everyone on the court was appointed when that was a point of ideological slash partisan conflict in a way that now, if it's not reversed, it's reversing where the right is super into the idea of executive power and the left is like, ah, Donald Trump.

Yeah. Well, this is one of the tensions. If you actually open up and read, say, Project 2025 and look at it, you'll notice kind of a paradox because on the one hand, Project 2025 has got a lot of old GOP thinking, old conservative movement thinking about, quote unquote, dismantling the administrative state. And then it's like skin grafted with like common good constitutionalism.

The president shall wield power with confidence. And so wait, through what, if you've just dismantled the administration, it's very, there's a lot of issues there, but the bottom line is, is I've told a lot of my progressive friends who are very upset about Loper-Brite, which is the case that overruled Chevron,

which is the doctrine that mandates judicial deference to administrative agencies, that if you're very worried about things like Project 2025 or large sweeping Trump executive orders and things like that, then you should be pleased that Chevron is gone. This is something that should please you. And this is something that I've said for a long time,

if the thought of a particular power in the hands of your political opponent keeps you up at night, one thing that I would ask you to do is then ask if that power should exist. Now some of these powers have to exist, you know, a commander-in-chief power, for example, but a lot of the powers that we have handed up to the executive are not natural and inherently belong to the executive. Congress has punted them, has delegated them, and then everyone gets so worried about who

the president is because they got all of this power. Perhaps one of the things we should do, rather than constantly escalating the stakes of our presidential elections by making the president so powerful, maybe we can turn down the temperature by making the president less powerful. Interesting note on the Supreme Court's approval rating, which for all the reasons you said I don't put a lot of stock in, but also the fact that I just don't know that when you're randomly calling 1,300 Americans

and asking whether they approve of the Supreme Court, if you're sort of, I mean, this is my problem with issue polling in general. Are you getting the answer to the question? You think you're asking? Right. I don't think so, but nevertheless It is interesting to me that the Supreme Court's approval rating has dropped 20 points in the last five years But it's not when you think it was It dropped 20 points in the wake of the confirmation of Amy Coney Barrett replacing Ruth Bader Ginsburg. And it dropped both in the Gallup poll and the Pew poll

at exactly the same time. So we at least have two different versions of this same idea. There was no statistical change in the Supreme Court's approval rating in the wake of Dobbs. Yeah. So that tells me any number of things in sort of a Brown v. Board of Education way, actually,

that Americans are still willing to accept Supreme Court decisions that they disagree with. Because if you ask people whether they agree with Dobbs, no, 60% plus. Yeah, 60% plus. But it didn't affect the Supreme Court's approval rating. And I think that's a good, healthy sign. The 20-point drop in the Supreme Court's approval rating

came almost exclusively from Democrats, self-identifying Democrats, and independents. I don't know that that's shocking, given that Ruth Bader Ginsburg was replaced by Donald Trump. Like that's what that's a reaction to. And like, yep, you would expect to see a partisan shift. Yeah, I think it's a combination of two things at once. I think obviously if you replace a progressive hero,

I mean, Ruth Bader Ginsburg was revered. So you've got- Victorious RBG. I mean, people actually had RBG workouts. Oh, yeah. There was this thing called the RBG workout. During COVID, there was a sign not far from here, actually, a billboard that said, wear your mask.

Ruth Bader Ginsburg lives within five miles of this billboard. So she was a hero. And then, so there's going to be trauma when she passes away, for sure. But then it's right at the tail end of the Trump presidency, right after the whole Merrick Garland, blocking Merrick Garland nomination for about a year. And here you have Ruth Bader Ginsburg passes away

right before an election. And so there was this combination of lamenting her loss and really furiously convicted that what's happening was dirty pool. And I think what you and I have said about that is Donald Trump replacing Justice Scalia and Justice Ginsburg was constitutional, totally lawful.

Totally lawful. And not a politically stabilizing thing to do. Correct. So it makes the whole like stolen seat thing a bit weird and annoying. I think people are annoyed with us that we're like, wait, but there's nuance. The seat wasn't stolen, but I don't think it was a good idea. Yeah, if you have Lindsey Graham saying in 2016, if there's a vacancy in an election,

now this is not what McConnell, McConnell was- McConnell always had the nuance. McConnell might be the screenwriter for this whole show, miserable House of Cards meets Veep show that we've been living in for eight years, because he said it exactly right, which makes me suspicious. Yeah, so McConnell basically says, that we've been living in for eight years because he said it exactly right, which makes me suspicious.

Yeah, so McConnell basically says, if the opposing party controls the Senate and there's a vacancy in an election year, it should remain open until the voters essentially decide it. Lindsey Graham and others were like, if there's a vacancy in an election year, we're gonna wait. So those are two different promises, right?

Promise one is, well, we're gonna force a wait if we have the power to force it because you have divided government and we're gonna see if the voters resolve divided government. Lindsey Graham and others, by the way, was, no, it's just the right thing to do to wait for an election.

It's just the right thing to do. And so if you've been on the record saying that vigorously, passionately, and then all of a sudden there's a vacancy not in the year before the election but just weeks before the election and you're Lindsey Graham and someone says, you're going to wait, right? And he goes, what? No. We're going. It's fair to be ticked off at that in a legalism that says no, but you have they don't have the right to stop it that legalism doesn't Eliminate the fairness problem and that that is what has got a lot of people extremely angry and I totally see why I Totally see why?

Even though for the record, I'm very glad Amy Coney Barrett is on the court. Okay, I've got two, at least two lightning round questions for you actually. One, did Bostock lead to Dobbs? Or let me rephrase. Do you get Dobbs overturning Roe v. Wade, but for Bostock finding that sex included sexual orientation and gender identity discrimination in Title VII employment discrimination that caused a huge backlash among the right

and caused the birth maybe of common good constitutionalism. Would the court have taken on Dobbs but for that feeling that things were tenuous on the right? I don't think so. I mean, I've heard that super smart people have made that argument that in essence the right wing backlash to Bostock sort of put the court on the defensive in a posture where.

The conservative members of the court. Gorsuch writes Bostock, so it puts the conservatives on. Josh Hawley gets in the well of the Senate and says the conservative legal movement has failed. This is what we were fighting for. We weren't fighting for very much at all. Right. So there was this fury at the court from the new right.

And so the theory would be, the theory that you're articulating, that the conservatives on the court said, huh, well, we got to show the right that we will stand up for your principles. Here, let's go ahead and reverse row. And I feel like that's like nine dimensional chess when Occam's Raiser says, originalist judges are going to generally make

originalist decisions and there was never remotely originalist defensive Roe. I mean, opposing Roe was not a Johnny Cum Lately aspect of the conservative legal movement. You know, it was not. In many ways, opposing Roe was one of the reasons for the birth of the conservative legal movement. And it would have been overturned earlier, I think, if the filibuster did not exist for judicial nominees. And don't forget, in 2015, you have the Hellerstat case, decided 5-4 with Kennedy as the swing vote, striking down Texas's abortion restrictions.

Well then, fast forward to 2019, Kennedy's off the court. So they bring the same case called June Medical. This time, it's a nearly identical law coming out of Louisiana, thinking, aha, change in court, change in ruling. It's decided 5-4. This time, the chief switches sides and says, precedent, and points to Hellerstat.

So there is this evidence in the run-up to Dobbs that the court wasn't interested in doing it. Until it got two more people. One more. Was Kavanaugh with you in medical? Kavanaugh replaced Kennedy, so that's why they thought. Okay. So our four dissenters were Kavanaugh, Gorsuch, Alito,

Thomas. You added one more to that four. It was Amy Coney Barrett. And I've never heard anybody ever argue that Amy Coney Barrett would, like, anything about her judicial philosophy pre-Dobbs. None of it indicated that she would uphold Roe. So if you add the four dissenters in June Medical, add Amy Coney Barrett, you've got the five who overruled Roe. So if you add the four dissenters in June Medical,

add Amy Coney Barrett, you've got the five who overruled Roe. And then Roberts is the cheese stands alone. He was like, yeah, let's uphold the Mississippi law, but let's not overrule Roe. And so I feel like it's just very straight ahead. You had a solid four. You added a fifth. End of story.

OK, next lightning round question. If I offer you $90 million for an official act. Oh. Sorry. That's called bribery. If I offer you $90 million and I'm only gonna give it to you after the official act, that's bribery. In fact, the Supreme Court just said so in a recent case.

Now that case also said that after you do the official act, if I then just happen to give you $90 million, that may or may not be against the law, but that's a gratuity. So for issue spotting purposes, do you see any legal problem with Democratic donors withholding, as it turns out, $90 million from the DNC until they drop Joe Biden as their nominee? Well, no, because this is a private entity, the Democratic National Committee, and it's soliciting donations to support its cause in the way that other private entities do. And there's no bribery. If we form the advisory opinions 501c3 and like a large donor came in and says we're gonna give you ten million dollars to stop being

originalist, that would be an ethical problem. It would not be a legal problem. It would not be a, but, so I think the private nature of this, this is donations to the DNC for the purpose of winning an election and the donors get to say to the DNC, we're not giving it to you if we don't think you can win an election. Fair enough. All right. Let's take questions from the audience, which is the part we've been looking forward to.

I wanted to ask you about, so you spoke about the upcoming election and you spoke about SCOTUS. Tying those two themes together, if Trump wins this next election, what kind of judicial appointments might we expect? Will we see a continuation of the Fed Soc type of justices and judges like Judge News among your podcast? Will we see more of that?

Or will Trump maybe move away from that into something, maybe like common good constitutionalism which you mentioned, maybe some kind of MAGA legalism, but anything in between those as well? Yes, those are the questions. I think it's pretty darn clear, at least, and I wonder if you think it's as clear, that the bloom is off the rows of the Federalist Society in Donald Trump's eyes. That in other words, this, I'm going to lean completely on the Federalist Society and I'm

going to get, I'm going to pull my justices, all my justices are going to come from this pool. I think that ended when the justices that he appointed did not hand him the election in 2020. And so I do think though, I'm not going to say there will be no Fed Soc appointees. Of course there will be. I think he's going to be fishing from several different ponds. And when it comes to the Supreme Court,

he is going to get extreme pressure from some of the core MAGA folks to nominate a MAGA jurist. And when I say a MAGA jurist, I'm talking there has, when Trump was sworn in in 2016, there was no such thing as like a MAGA legal community at all. It just didn't exist. The Fed Soc was the only game in town if you're looking at a significant pool

of top level conservative legal minds. That's all changed. Not at the law school level. I don't think you guys have to have a, if we have any law students, I don't think you have a Fed Soc and a MAGA Soc competing with each other. But at the more, in the legal community, you absolutely have an infrastructure

of very MAGA lawyers now. And I think that that is one of the main pools these are gonna fish from. Now some of these people are also still a part of the Federalist Society, many of them maybe most. But I do not see it as a Fed Soc sort of directed Fed Soc exclusive kind of nomination process. I see it as more much more related much more like pure MAGA influence in the selection

process than there was the first term. So I want to answer this from a different perspective which is what should the Federalist Society do now given everything that you just said David because they of course are looking for a new president for the Federalist Society. So the Federalist Society for the first time since its founding 40 plus years ago will have a transition. There has been no succession plan up till now. And so I think there's very different paths

that the Federalist Society could go down with that question really as the question that Federalist Society could go down with that question, really, as the question that Federalist Society members are often thinking about, which is, do you have someone leading the Federalist Society who can bring the Federalist Society back into the judicial selection fold if Trump were to win another term, or is the Federalist Society something different than that? And my suggestion would be if you look at the pro-life movement during the Trump administration, they made a huge mistake.

They wanted to be in the room. They wanted access for good reasons, right? They wanted access in order- Very defensible reasons, yes. To persuade and be representatives of their pro-life cause. And in the end what happened was, not only did they not, I think, get what they wanted, but they also undermined their own credibility.

By then all the things they had to do to get in the room were praising things that undermined their own cause. And I think that's a really good cautionary tale for anyone who has a cause that they care about heading into a second Trump term. So my suggestion to the Federalist Society would be go back to what you were doing in the 90s and early aughts. Make it a bunch of nerds sitting around talking about how

exactly originalism would work when it comes to section 4 to really think of. Is that how we sounded then? You'll have the smartest people. You'll be thinking about the smartest things. You'll be challenging each other and sharpening steel with steel. Someone will always need to come to you for those people and for access to those ideas.

You don't need to compromise to get in the room to be an influencer or a power player. You'll be a power player by virtue of the cream rising to the top. So I have a feeling about the Federalist Society that is a little bit bifurcated. So I think the student chapters of the Federalist Society and which what I think of, my experience of, and there's lots of sort of arms and elements of it, but to me the student chapters are kind of the beating heart

of the whole thing. It's gonna be hard for me to see them go full MAGA for a very interesting reason, and one that was written about in the Atlantic recently, and that is, if you're a conservative student in elite, more progressive institutions, you are under siege. Your ideas are under siege all the time, all the time.

You wake up in the morning and you have two choices. I can be silent or I can defend myself. Rarely is your choice gonna be, and I'm gonna join the crowd attacking somebody else. That's rarely gonna be your choice. And so what does that mean? What that means is when you are constantly being attacked, it sharpens your thinking.

It's in many ways a gift. It is, I look at my time in law school being attacked a lot as a profound gift And so what that does is it burns away the chaff and you're thinking and it leaves the wheat and so a lot of MAGA Legal theories are just chaff. They just don't hold up It's just raw exercises of power and wishful thinking and walk into a classroom at Berkeley With some of this stuff and it will not go well, right? and wishful thinking and walk into a classroom at Berkeley with some of this stuff and it will not go well, right? It's just not going to go well.

You're going to be not just on the defensive, you're gonna be defending things that are very difficult to defend in front of very smart people. But then if you hold onto the core ideals of the Federalist Society and sort of this core idea, what is the role of the judge, what is the role of the law, what is the role of the law. All of these things are battle tested ideas.

They are refined. They have faced a lot of scrutiny and in many ways come out stronger as a result of that. And so I think that day to day give and take that the students have, and it's one of the reasons why I love doing our Fed Soc traveling road show, because we interact with some of the sharpest people who have had a lot of their ideas challenged. Every now and then you read something and you're like, darn it, I wish I'd written that. But I read this thing in the Atlantic about how this is giving a lot of conservative students some real considerable advantages.

And so I think the student chapter, I'm much, student chapters I'm less worried about. I'm much more worried about some of the adult chapters, students or adults too, geezer chapters, where it's a lot more about networking, which is fun and fine and great, and I'm all for networking. I don't, you know, my classes heard, you know, bowling alone, don't bowl alone, network, right?

And so I'm all for networking, but when it becomes networking, when it becomes so intimately related to career advancement, there are less guardrails against sliding off into the pure careerism. This, if you talk to core Federalist Society members, the great shame when they will turn their eyes down to the ground is when you mention the fact

that the attendance at the National Convention goes up when a Republican has the White House. Mm-hmm. Because that means those are fair weather fed soccer's. Yep. And... Networkers. They're networkers. And so I think that it would be a real pride for the Federalist Society if the attendance at the National Convention was always the same. Okay, next question. Advisory opinions listener right there.

I see her, yes. Oh, hi, I'm one of David's students and a dispatch intern. But I have a question. So given the rift that's growing between the Federalist Society and the MAGA law movement, do you see a scenario in a second Trump presidency where it's the Federalist Society judges standing

athwart the MAGA law initiatives, where the left could give the court more legitimacy or help the image of the court on the left in the kind of strange new respect vein of Liz Cheney, for example. And do you think it matters? Look at what's being written about Amy Coney Barrett right now.

So yes, I think it's possible. No, I've already said that I think a lot of that's actually mistaken. That if you look statistically, Amy Coney Barrett is in dissent the same as she ever was, not that we have a whole lot of terms to go by. But yes, I think you're already seeing some of the forget the process, let's focus on outcome from litigators on the right. And the Supreme Court's notnaw-dogging nearly all of it.

I think that the common good constitutionalists came into existence in the wake of Bostock, and then they lost a whole lot of wind in their sails after Dobbs. I take your point that Bostock didn't lead to Dobbs, but you can absolutely trace the excitement and enthusiasm for common good constitutionalism from Bostock to Dobbs. Yeah, totally. I totally agree with that. Yeah. So I think that there are nearly no judges on the court

now who are not process people, of conservative judges, I mean. And I think that again, where judges are a lagging indicator, yeah, that indicator's gonna lag for a long time. And so it won't matter if Trump has a second term in that sense. Of course it will, because then his judges will be a lagging indicator some decades down the road. and his judges will be a lagging indicator some decades down the road.

But I would actually welcome the left coming around to seeing what I think you and I already believe, which is that a court that stands for process, even if you don't like the outcome, is a good thing, and you shouldn't be undermining the institution just when you don't like the outcome and then ignoring the cases when you do like the outcome or saying how actually they're only doing that

so they can buy timed for the bad outcomes in the sort of unfalsifiable narrative around the court that I see from the left. I hope very much that that will change. As you've pointed out David, in the wake of the 2020 election and Donald Trump's efforts to be re-inaugurated, it was Fed Soc judges that prevented that

and I didn't see a lot on the left acknowledging that point, let alone making it. Yeah, I mean, and I make this point so much and to my friends on the left, and after a while you're starting to get grudging acknowledgement, okay, okay, you can't fit this all into an easy narrative. But that's sort of how like they all like Mitt Romney right now.

Yeah. Like sometimes it's too little, too late. I think that the way to understand the court. And I said this in the previous podcast that we did our first live podcast the week. Think of the court as pre-MAGA right and pre-Woke left. So the six judges, six justices nominated by Republicans are pre-MAGA conservatives. They're classical liberals. This is old, this is the conservatism I grew up with, okay? And then if you look at the justices, including Justice Jackson, these are folks who they identified and solidified their legal philosophy, their political philosophy

decades before the current zeitgeist. Right, you don't ask when someone got on the court. You ask when they graduated law school. Right. You want to know what political moment they came of age in. Yes, exactly. And now, I'm not to say they're not influenced at all

by the current moment. I mean, Clarence Thomas has had probably more leakage of some MAGA legal ideas into him than maybe any other justice. But the court is the pre-MAGA right, and it is the pre-Woke left. And so it's almost like you have to do a complete mindset change when you approach it. And I'll give you a great example of how that works.

The NRA comes before the court with a free speech claim and wins 9-0 with the majority opinion written by Sonia Sotomayor. In a total outcomes-oriented world, which far right and far left are embracing, that doesn't happen. Sotomayor and her liberal colleagues find a way to rule against the NRA because the NRA is bad. NRA bad, NRA lose. And that's sort of the extreme right, extreme left in this country have a very similar outlook. Bad things lose, good things win. And I define the good.

And I define good and bad. And that is an incredibly reductionist, power-focused world view. And none of the nine hold that. None of the nine hold that. And I hope, and I'm praying, that we can get through this current legal moment with it still 0 for 9, or this current political moment with it still

0 for 9, and we can return a bit to regular order that does place a premium on our constitutional processes and our constitutional safeguards. Hi, I'm Caitlin. I'm actually the Adom of today. He's in New York, but I'm helping you guys out. Thank you, Caitlin. You're welcome.

So you mentioned none of the nine are from this current political moment, but we are all coming of age in this political moment. So what do we look like when a lot of us have gone to law school? Is there any hope? And how do we resist the current political zeitgeist? Not to be do-sat-er.

It feels like more of a commentary on your colleagues than one I can make. I don't know, I feel like we should just be asking you that question because you're in this room which already puts you in an odd group. For so many reasons, right? You're the one who spent all week together. I'm most concerned that your generation has never known a different political atmosphere. That I think is the most corrosive thing, not which side you're on or even what your set of beliefs are.

It's that you think this is the only thing you've ever known. And when it comes to running political campaigns, this is the only thing you've ever known. So a whole generation of operatives won't have learned how we did it before. That's, it's the process that concerns me that y'all don't know the process that we had. You know, and I have concerns and I have hopes and first I'll say the concerns and then I'll

say the hopes. We're all in many ways fish that don't know we're wet. Okay, so we are all products of our environment in ways that we spend often the rest of our lives understanding in many ways. In Christian theology, you talk about a process of what's called sanctification. In other words, it is the continual move from something less perfect to better.

You're never gonna be perfect, but there's a continual move from something less perfect to better. You're never gonna be perfect, but there's a continual move from less to better. But for you to know how to move, you have to know what's better. And so one of the things that I think of in the current moment is we're gonna have a lot of people who are gonna come of age in this political environment, as you were saying, Sarah, just sort of by default

moving towards really awful practices, that this is they know nothing else but that, that this is politics. And you say, well, there's a different way. No, I'm doing politics. This is politics. And so you have to sort of make the fish know that the fish is wet, that this was not.

This is an aberrational period that you rose up in. That is a bad period that you rose up in. It is a bad period that you rose up in. And by this is politics, just to clarify, hate the other side. If you're friends with the other side, you're a traitor to your own side, and that all means are justified to the ends of beating the other side.

Or it's like, you know, Leonidas in the movie 300. Another way of putting this here would take from them everything and give them nothing. That would be the current political. It used to be a proof that you were a repeat player in this town, that you were going to go somewhere, that you had friends from the other political party or or another way of putting the modern political philosophy now that I'm on quoting movies Conan what is best in life it does

to defeat your enemies to see them driven before you and hear the lamentation of their women that that would be another example of like the current zeitgeist. And I apologize Arnold Schwarzenegger, I know you listen to the greatest legal podcast in the history of the world and that was an awful Arnold Schwarzenegger impersonation. But that is the environment people are growing up in. And then it is incumbent upon those of us who have greater and larger experience to model a different value and to demonstrate different values are still exist and are still viable.

You know, when I was, you know, just to use again another religious analogy, I grew up in a much more fundamentalist tradition and as my friend who also grew up fundamentalist, Sheree Harder of the Trinity Forum says, we did not put the fun in fundamentalism. And I knew that what I was growing up in wasn't, it was off, there was something not right about it. This wasn't the way it was supposed to be, but at the same time, I didn't know what it was supposed to be.

I just knew it was off. And so I think it's very important that you have your antenna tuned enough to know this is off, this isn't right, the fruit of this is bad, it's bad. And then try, you know, turn that antenna towards virtue. What is the better alternative? And then it's so incumbent on us of us

who have more experience like great grandpa Steve here that we then actually model the values you wish to advance. So there's something to turn the antenna towards. Yeah, I mean, I think the moment you're in is proof that the burn it all down from both sides will not create a lot of stability, because you just have to move from one extreme to the other. So hopefully, you're realizing that probably there

is something different than that pendulum constantly swinging and creating political instability, legal instability, statutory instability, et cetera. By the way, I was laughing when you were saying that you're the Adam here, because it kind of makes us look like assholes that we didn't know that. Hi, can you explain what you mean by the MAGA legal movement? I mean, you mentioned the election litigation,

the common good constitutionalism, and you even said maybe Clarence Thomas. So what exactly do you mean by that? So some elements, when I talk about the MAGA legal movement, what I would say, so it has a couple of branches. One is just a raw Donald Trump wins and I'm gonna help make this happen. So this would have been like the election lawyers,

the people around Sidney Powell and Rudy and all of those, Jenna Ellis during the moment. All of these lawyers who flock to the team, I'm just gonna help you win. My service to the country is to help you win Donald Trump. So part of it is just help you win Donald Trump. So part of it is just Trump's lawyers, basically. Another element of it would be sort of your common good constitutionalists who say the conservative legal movement needs to be much more outcome

driven. It needs to say essentially what is the common good and then we're going to drive the law towards it. Also, and as a part of that, there are a number of legal theories that are part of common good constitutionalism that directly contradict the sort of classic legal theories of originalism and textualism and the original and the current understandings of the First Amendment. So where are you going to see the tension? You're going to see the tension on voting rights.

You're going to see the tension on things like the independent state legislature theory. You're gonna see the tension in free speech in a big way. So there is a, the more MAGA legal theorists would say, for example, would be fine with DeSantis' StopWoke Act. They would be fine with like the drag queen story hour bans.

They would be fine with regulating the ability of private companies to moderate the content on their websites. So all of these things would contradict traditional sort of conservative legal movement doctrines. Certainly contradict like the legal arguments I made for my entire legal career. And so those elements, and they have a common, they have a common commonality to them and

they grant the state more power over the individual. I don't have a better answer to that. I like a backbencher. I see myself in a backbencher. We can almost see you from back here. I'm an intern here. I study environmental policy and viewing the Loper-Bright decision from the left. I've actually been quite confused.

Like you mentioned, that a lot of my peers are very upset about this decision because to me, if anything, this prevents future administrations from doing something like gutting the EPA, something like gutting the EPA, something like that. And similarly on the right, the immunity decision, if anything, will empower future presidents from both sides to act in bad behavior. So my question is, why do you think that is? Is it some really profound short-sightedness from both sides, or is it something deeper about ideology?

I guess, why do you think we're so focused on the somewhat partisan wins that are a part of this? There is a battle going on over expertise as a philosophical question in the country. And I think you all saw it most playing out during COVID, of course. But this battle goes on for a hundred years this is the origin of the original progressive movement in the time of Teddy Roosevelt so there was progressivism on the right as much as there was progressivism on the left

during the Wilson administration and it's sort of the OG common good constitutionalism, right? It's this idea that we the powerful know what the good is and we will put that good on everyone else. So the most obvious example of that is eugenics. And it's sort of the thing we all know and react to is like, ew, bad. But think about it in the moment that they're thinking about it. And it's sort of the thing we all know and react to is like, ew, bad. But think about it in the moment that they're thinking about it. They've just discovered, really, that these genes are getting passed on, sort of a post-Darwinian

worldview. And like, yeah, you've got a lot of bad people, or undesirable people, or stupid people, or fat people, or whatever. Of course, in the actual case that made it to the Supreme Court, slutty ladies, who it turns out weren't actually slutty but raped, of course, by foster parents' nephew. Like horrible facts in Buck v. Bell. But regardless, they at least thought they were stopping promiscuous women, as they would have said it, not slutty ladies.

And so yeah, if you think sluttiness is inherited, eugenics makes a lot of sense because we are the elites, and so we want to stop the breeding of yucky yucky non-elites. And that's the most extreme example, but it plays out in every other form of the government as well. We need to put these experts in positions of power

in the government because they know better. That's how the administrative state, the brainchild of the administrative state is to have experts in government who know things that a member of Congress could know members of Congress are generalists, and here you have the experts. And so the battle for expertise

and what role expertise should play in our government has been going on for 100 years. As it shook out, I mean, remember originally I said this was actually on the left and the right, plenty. But as it starts shaking out in, of course, the Roosevelt administration, it becomes part of the left, which makes some sense because the left is then controlling

higher education institutions, et cetera. So that's where the elites are gonna come from, who are then in the government doing the things the left likes, and I'm giving a very high level version of 100 years of elitism history and expertise history. So it becomes on the left that experts are good, also experts are us.

The right is then going to come out with generalists are good and individualism is good and each person pursuing their own common good, their view of the good is the whole point of a democratic republic in a sense and the whole point of individual rights. And again, for those listening who are thinking that's not the version of the right,

how I would describe the right, totally understand. There's different versions of the right. I'm only talking about the battle over expertise. But you fast forward that to today and something that undercuts expertise and the reliance on expertise and deferring to expertise in the government, again, in that lagging indicator sense is still seen as hurting the left and helping the right's view of expertise, even though I would say especially today, the right would never call it expertise.

But it is, in fact, that they want their people in those positions making those decisions. I look at it, think of it like this. Think of the 2012 election as sort of the last gasp of the old right and the old left fighting. So Barack Obama essentially is saying, I'm going to oversimplify this debate. You didn't build that.

And Mitt Romney says, we built that. So Barack Obama's talking about, you know, all of the conditions of government that help facilitate free enterprise. So he's saying to an entrepreneur, your company is not something you created alone. You created your company in sort of cooperation with the government that creates the conditions and the regulations and the environment and the infrastructure that makes your company possible. So sort of don't get too big for your britches, dude. This isn't your entire creation. You are a participant in a larger system. The larger system helped enable your

success. And their conservative response to that is, whoa, hold on, don't diminish the energy, the creativity, the initiative of the private sector. And so you, and the private sector built it. Yeah, government, government's main job was just to not inhibit the private sector from doing it. And yeah, Greece this gets in some ways, but mainly the government needs to get out of the way. And then the sort of democratic response was, no, no, if you have the government gets out

of the way, it's just going to be worse for everybody, including you. And you have this battle where it's one is the party of government, more broadly speaking, and one's the party of the private sector, more broadly speaking. And so you can see the ideological valence of the Chevron decision. It's just plain as day. Chevron eliminates some of that discretion given to government, and that is going to hurt the party of government. But that's all done. There are still certainly conservatives,

old school conservatives. Hi, hi everybody. But that's not the major ideological battle right now. It's between two parties of government. It's the party of right-wing government and the party of left-wing government. And so that's why the Chevron, the ideological valence of Chevron,

so much of the argument about it was just like missing the moment. I never thought about this until right now, but the Barack Obama, you didn't build that, is the same as Vice President Harris's You didn't fall from a coconut tree Yeah, yeah interesting interesting, okay last question Yes, I want to go back to the Federalist Society and MAGA movement and this question assumes two things

And the first is Trump winning and 24 and also Republicans controlling the Senate. Which are two ifs I understand. Not really. Right. You mean the inevitable coming future? Right. I'm wondering if someone like Alito or Clarence Thomas would not relent their seat away and step down because that's kind of been the trend now with stepping down when you have the power, out of fear of Trump being able to nominate and actually have confirmed a MAGA justice in that future. There's the rational answer, which is, of course they will.

And then there's the Ruth Bader Ginsburg answer. No, they won't. Every president going back over a decade, I mean, at least Barack Obama, if not George W. Bush, also came in with their party controlling the Senate and the House. And it's just sort of stunning when you think about it that way. Barack Obama did Obamacare.

Okay. Donald Trump did Obamacare. Okay. Donald Trump did a tax bill. Joe Biden did infrastructure. That's first of all odd given the concentration of power. But when it comes to Supreme Court justices, it's also been odd. You see some retired, Anthony Kennedy retiring during the first Trump administration,

but Ruth Bader Ginsburg not retiring, obviously, at the end of the Obama administration. So I think it's really hard to guess what any of these guys do, because maybe I should call it the Joe Biden problem. It's the like, I'm not dead yet, see, I'm dancing. I don't know if anyone's, no, that was probably a weird reference

if you haven't seen Monty Python. That would be like, how many of you near have seen Monty Python in the Holy Grail? Okay, here. About a solid 40%. Glad that's lasting. But that was pure gold, sir. Bring out your dad, bring out your dad.

And like, you know, the son brings out his father and the father's like, I'm not dead yet. And he's like, you're almost dead. No, I'm not, I feel happy. And he's like, is there anything you can do? And he's like you're almost dead no I'm not I feel happy and he's like is there anything you can do and he's like I don't come around until next Thursday and so then they're like haggling over this and then the the bring out your dead guy just knocks dad over the head with a log and throws him in the back of the cart yep grim grim very grim the way you described it very funny on the screen. That's a comedy? Like, yeah.

Medieval plague humor is like the best humor, I guess. But yeah, no, that's a good question. And I would suspect that we might see retirement during the Trump term, because I'm not necessarily sure that everyone on the court Loves being on the court And we are all assuming they all just love it, right and they can't they don't want to leave at all But I do think that if somebody felt like okay

I'm gonna be replaced by someone from my own party and I'm not loving this anymore that I could see a retirement And with that, thank you all so much for joining us. It was such a treat to have you here, to let us be here.