Advisory Opinions - Will Temporary Protected Status for Immigrants End?

Episode Date: March 19, 2026

Live at the University of Pennsylvania's Carey Law School, Sarah and David are joined by Third Circuit Judge Stefanos Bibas to break down the Supreme Court's temporary protected status cases. They also debate whether a federal "defender general" would level the playing field and play a round of Marvel "What if?" with landmark Supreme Court moments. Order Sarah’s book here. The Agenda:–We await Gov. Chris Christie's return–TPS Cases: Cert Before Judgment for Haiti and Syria Nationals–Defender General: A New Office for Federal Public Defenders–Black Robe Syndrome–What If? Supreme Court alternative universes Show Notes:–"The Defender General" by Daniel Epps and William Ortman 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 access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. At the University of Pennsylvania's Penn Carey Law School. We have quite a show for you today. We will start with the Supreme Court's cert before judgment grants in the temporary protective status cases, as well as introduce our special guest, Third Circuit Judge Stephanos Beavis,

who will talk to us about whether the federal public defender's office is about to have a defender general and black robe syndrome. Do we need a call again for judicial humility and how that's working out on the legal right? As well as our what ifs, if we change just one little fact when it comes to the Supreme Court's history,

what is the butterfly effect or the Marvel universe effect, which will make David feel right at home? And with that, we'll jump right in. Okay, David, before we get started, we were having a little advisory opinions thing going on for the last two weeks. We were raising money for the Supreme Court Historical Society's hometown program where high school students apply to this program and they learn about a Supreme Court case

that happened in their hometown. They moot the case. They hear from legal experts and judges. And Abriel skipped school to tell us all about her experience in that disrespect for the flag case. And we said that for every book of Last Branch Standing that folks bought during that two-week period, that we would donate $30 to this hometown program. And if we got to $7,500, Chris Christie agreed to come back on and, you know, do shenanigans. And David, I will totally admit to you, this, like, kept me up at night because I was like, oh, no, like, if we don't reach this, like, this was,

you know, a sort of ambitious goal that that's going to be really awkward. And, like, are we not going have the governor on. I don't know. And after the first week, we were like, it was like 140 books. And I was like, guys, we raised over $12,000 for the hometown program. That's tremendous. That's wonderful. So, and Abriel, if you're listening, this is all due to you. You were incredibly persuasive. So that'll be $12,000 to help do the hometown program in new cities and have more children. We're kiddos join it. So we're super, super pumped about that and we will give you more updates from the Supreme Court Historical Society's hometown program next year as well. So, David, Chris Christie will be coming on to do shenanigans.

Outstanding. Yeah. Let's move to our first topic here. David, the Supreme Court has agreed to hear arguments in two of these temporary protected status cases. The administration tried to end TPS status for Haitians and Syrians who had had TPS status in the United States, and two courts had stopped that. Now, there's a bit of a, I don't even know if we're going to call it a circuit split, given that this is on the interim docket, but other courts had allowed TPS to be de-designated. And by the way, that term is going to become quite important. Did they terminate it? Did they vacate it? Whatever. But de-statistized for TPS, for other countries, the Supreme Court at one point,

had weighed in on this as well. But now we have two different countries, Syria and Haiti. It's actually just a couple thousand Syrians that this affects. It's 350,000 Haitians that this affects. And this is on the interim docket, as in the administration had tried to terminate TPS status. These courts had stopped them from doing so while the cases were pending. So the administration went to the Supreme Court and said, please let us terminate TPS status as this case is pending. What the Supreme Court has said is we are going to treat this as an application for certiorari before judgment. So we are now setting it onto the merits docket. We will hear argument in late April. And in the meantime, nothing changes, as in the application to terminate the status is what becomes the

argument in April. So TPS status remains, those lower court. orders remain in effect. So nothing changes for the Haitians or Syrians. In the meantime, arguments in April. I would expect then decisions in the usual course late June at, you know, the earliest, this could even become the last day of the term type thing because that's such a shortened time frame when you're hearing arguments in late April. David, thoughts on the substance of the case themselves. Yeah, this is a case where we're going to talk about this and we're going to have to separate out two terms. Can. and should. Okay, so there's a very big difference between can the administration terminate TPS status

and should the administration terminate TPS status. This case is entirely about the can. It is not about the should. And when you're looking at the underlying statute here, it's, the underlying statute seems pretty clear, Sarah. Here is a quote. There is no judicial review of any. any determination of the Secretary of Homeland Security with respect to the designation or termination or extension of a designation of a foreign state for TPS. So that seems pretty clear. There is no judicial review of any determination of the Secretary of Homeland Security with respect to the designation or termination or extension of its designation. So if that is what the statute says, how do we have the DC circuit, the second circuit, stopping the termination of TPS status?

Well, part of it is rooted in the argument that what we're not dealing with here isn't so, what we're dealing with isn't a termination, but a vacatur. I'm not so sure that's a distinction with a truly meaningful difference. Well, also we're questioning whether or not the process leading to termination. can the process be reviewed even if the actual ultimate decision cannot be reviewed. But we're dealing here with as a statute that on its face, though, seems to give an enormous amount of unreviewable discretion to the Secretary of Homeland Security. Is that wise? I absolutely do not think that is wise. But that is not this, the Congress do not consult with me before passing the statute. The statute is what it is. And the case that's coming to my mind right now is the travel ban case from Trump's first time. term because if you remember the travel ban case, the big question was, did Trump have the ability

to, and essentially at his sole discretion, bar from entry certain classes of individuals? And the statute at issue gave the president, which dates back to the 1950s, Cold War era statute, the statute at issue gave the president huge discretion, just on the president's own determination to bar people from entry into the country. And the question was, was there a constitutional issue or a constitutional doctrine that could trump that statute in that case, an argument was establishment clause? If you're banning Muslims, could that violate the establishment clause? Well, he wasn't banning Muslims. He was banning people from a certain list of countries. That some of them were not entirely Muslim countries or not even majority Muslim countries like in North Korea.

But the statute gave him extreme levels of discretion. I'm getting the same sense from this case. You have a statute that gives wisely or unwisely. The statute gives the Secretary of Homeland Security enormous unreviewable discretion. And so the question is really going to be, in my mind, is there going to be an argument that's going to capture five that can you count to five in an argument that says, in spite of that very straightforward language, is there a procedural hurdle? that they did not pass correctly? Or does the word is vacature really different from termination? And I got to say, Sarah, I mean, of course, we're going to wait and we're going to hear the arguments. It's tough for me to see how you get around that language of the statute. Let me read to you from the district court in D.C. that saw this, and again, was the one who issued the initial stay that's being appealed up. Plaintiffs charged that Secretary Nome preordained her termination decision and did

so because of hostility to non-white immigrants. This seems substantially likely. Secretary Nome has terminated every TPS country designation to have reached her desk, 12 countries up, 12 countries down. Her conclusion that Haiti, a majority non-white country, faces merely concerning conditions, cannot be squared with the perfect storm of suffering and staggering humanitarian toll described in page after page of the certified administrative record. She ignored Congress's requirement that she review the conditions in Haiti only after consulting with appropriate agencies. Indeed, she did not consult other agencies at all. Her national interest analysis focuses on Haitians outside the United States or here illegally, ignoring that Haitian TPS holders already live here, and legally so.

And though she states that the analysis must include economic considerations, she ignores altogether the billions Haitian TPS holders contribute to the economy. David, if history of this Supreme Court had started in 2020. What really, actually, I've deemed sort of the second Roberts court. Justice Barrett joins the court. I think we have like a Roberts Part 1 and a Roberts part 2. So if we only looked at the Supreme Court Roberts Part 2, it's hard for me to imagine a paragraph that they find more galling coming from a district court, that that district court

is putting in their own policy preferences and their own views of how they would have weighed the balance of interests and the considerations that belong to the executive branch. This is like not a unitary executive point, but it is like a, this is clearly within this branch and not your branch. It's a stay in your lane point. Stay in your lane point. Yeah. Yeah. But to your point, David, if we were still in Roberts part one, the court that did the travel ban case, the DACA case where they prevented the First Trump administration from ending DACA status because they didn't. dot all their eyes and cross all their T's disclosure. I was at the Department of Justice during that. And the census case, same thing, right? It's a dotting eyes crossing T's decision. Like, on the one hand, this looks like DACA and census and that the policy prerogatives belongs squarely in the executive branch.

But you've got to follow the perfect process. And maybe they can find some process failures here. But we're in Roberts, too. We're in the second Roberts court. And I don't think, I mean, he was the swing vote at the end of Roberts one. He's not the swing vote here. I don't think that there's going to be this like, oh, she had to consult other agencies and she didn't consult enough of them. And so just go back. And if you consult other agencies, then you can end TPS status.

I kind of just think we're, that was always a silly part, frankly, of the APA, this idea that if a court can come up with something else you could have thought of, that you didn't write in your memo, that the court can stop you. you from doing something under the APA, the Administrator of Procedure Act, I think we're just not doing that in Trump, sorry, in Roberts 2. Well, if you look at Roberts 1, you had the travel ban case that came out for the administration, but then they did the census and they did DACA. And you and I talked about this because this was an early inception of the podcast.

This is an original podcasting material here that between census and DACA, what that message that the court was sending was, I'm kind of tired of the Trump administration's process. Don't be amateurs, be professionals about this. And it felt like Roberts was sort of stepping in and saying to the Trump administration, I'm just over you guys. Do things the right way. And so that's when we saw this very amped up rational basis review that almost wasn't rational basis review anymore. But I'm with you. It's a, it's a different dynamic now. I don't know that this current court, the Roberts 2.0 court and Trump 2.0, is going to have the same impatience for procedural corner cutting in the face of a statute that clear. Okay, last thing on this, so this is on the interim

docket. They grant cert before judgment. So we've moved it now over to the merits docket. There's going to be argument. They will have full briefing and opinions, albeit on an expedited basis. A, do you think that's a good thing? Yes, it's a good thing. Because what we talked about in response to the case involving gender transition at school, when we talked about this, we said, was this the right kind of case for an emergency docket slash equity docket resolution, or is this one that they should have granted cert before judgment? And I had said, I agree wholeheartedly with the outcome of the case, but it was really a candidate for cert before judgment, pull it out of that emergency docket context, a field of very much the same way. Or when you can pull something

out of the emergency docket and put it into the regular course of business, they should absolutely do that. I'm turning a little bit on the interim docket, not, of course, it has to exist. and when they do need to decide these applications, right? When an application lands at the court, they're making a decision either way. If they decide not to decide, that's a decision. If they decide to decide, that's a decision. So the interim docket has to exist. I am sort of like turning on like maybe less is more, maybe less writing, less transparency

actually will turn out to have been better because what's happening now is that we're getting rid of the lower two levels of federal court. like the Supreme Court just reaching down and grabbing cases and putting it on their merits docket. I want them to take more merit stocked cases. I agree this doesn't really have any factual disputes. So if we're going to grab one, this is a pretty good one to grab. The lower courts don't have a lot to offer in terms of their specialties. Aside from having just other smart people weigh in on these questions, we have opinions,

sort of from the D.C. Circuit and the Second Circuit here. And as we said, there were other circuits. that came out the other way, that had opinions as well. So, like, as the choices go, this isn't a bad one. But I'm getting kind of squeamish over all of the, all of the interim docket cases that the court is now taking. And I do think they're creating more interim docket cases for themselves. I don't know that we couldn't have just done another year or so

with the TPS status on hold as they are leaving it on hold. And let this come up through the normal course. I'm not locked in, as it were, to that opinion. It's just how I'm feeling right now, and I think I'm feeling that way because of the New York election case and a bit because of the California case, that I'm having trouble figuring out what the line is when the Supreme Court thinks that they should weigh in and when they shouldn't. Because if they're just going to weigh in on everything, I don't know really what we're doing here. Well, I think there's sort of a spectrum. You have the, on the one hand, true emergency docket where they're weighing in on a preliminary basis. Then you have this middle ground, which is this one. which is cert before judgment and put it into the more normal course of the oral arguments and the briefing, et cetera. And then your course of action, which is, no, no, no, just keep the stay in place and let this all work its way through. I think in this circumstance, given the urgency and given the sort of lack of factual disputes, that this is appropriate for that middle ground. But I'm with you,

I think the fewer cases we have on that first ground, on that first, that truly, that truly, that We need that to diminish. The middle ground and the third ground should be where the vast, vast, vast majority of these cases are decided. But by granting cert before judgment, all they've done is encourage every case to at least try to argue that they need cert before judgment too. Because as I said, I don't see the emergency here. This could have waited a year. Every administration policy that gets put on hold is now going to be up for serp before judgment. because the irreparable harm to the government to not be able to terminate TPS status is no different than any other federal government policy that is put on hold, in my opinion. There's no unique irreparable harm, I don't think, in terms of a foreign policy argument that maybe existed in the Venezuela case, for instance, but it doesn't exist in the Haiti case. But what about your argument from an episode or two ago that says that the administration only has four years? I know.

No, that's, but that's the thing. irreparable harm is always there when the government has been prevented from putting its policy into effect. Like, a reparable harm box is always checked. But that doesn't mean that it's so much irreparable harm that we need to move it out of the normal course or else everything should be moved out of the normal course. I don't see why this irreparable harm warranted cert before judgment. And, you know, of the, what, the tariff case, I'm trying to think of how many interim docket cases we moved over to the merits. docket this term. And it's at least two, right, because Cook is still interim docket. This is now Sirp Before Judgment. Earthright citizenship. The tariff's case is like an in-betweene. One of them was and one of them wasn't. So, but on the other hand, I'm getting more cases on the merits docket, which is just not the way I wanted. All right. With that, we'll take a quick break. And when we get back,

Defender General, it's an argument people have made. Do we need someone on the other side of the V to balance out the Solicitor General, that 10th Justice. In short, do we need an 11th justice? And Judge Bebis will be here to tell us. Welcome to the podcast, Judge Bebus. We're so happy you're here. Thanks for having me. All right. We've got a lot to talk about. I want to jump right in. The judiciary, the third branch of government, has announced that they are going to create a special public defender office to handle Supreme Court litigation. But this is not quite the Defender General that some of us were hoping for that 11th justice. Tell us about this. Tell us where you are on this because I know you've thought a lot about it. For the last quarter century,

Supreme Court litigation has been revolutionized by having a bunch of high paid ambulance chasers. Have you been injured in a circuit split? We can be money for you. And historically, the government had this enormous advantage because the SG, the Solicitor General, is the repeat player in this area. So when the government says, well, we want to win this case, but we're concerned we might make bad law, it won't push a case up. And when the government feels like, okay, this is developed well enough and it's time to approach the court about cleaning up this area of law, then they can push the case ahead and in the hopes of making good law. Now, the government, as a repeat player, has a lot of criminal cases going on. And so the federal government

often will let some go by where it thinks, right, we lost here. We lost there, but we don't want to take a risk. About five years ago, Dan Epps and Will Orkman, both law professors, published an article arguing for a defender general saying, we need an institutional repeat player like the SG that will look out and say, what are the things that would serve defendants' interests to try to push up to the Supreme Court and what might we want to keep out? Now, the latest proposal is definitely not that. It is not going to be an institution that has ability to say no. to individual defendants or take over their cases against their choice. Rather, some public defenders have proposed creating a group that's going to help advise existing federal defenders. They might wind up keeping their own cases. It'll depend, it'll get worked out, apparently. Others have raised questions, is it authorized by statute? Are there appropriations? I'm not going to talk about that. I just want to note that in terms of leveling the playing field in individual cases, there already are a lot of people willing to volunteer and take these cases.

So, Nactyl and Jeff Fisher's Supreme Court Clinic at Stanford and many other clinics already do go toe to toe with the SG and often beat them. In fact, that's how we got Riley v. California, the cell phone search case. The SG was trying to push up a case involving searching a flip phone, saying, well, you can search containers, cigarette packs, you can search a flip phone. And their clinic went out and got a case that involved a smartphone out of California and made sure that we were both considered at the same time. And the Supreme Court unanimously decided we need a new rule for the smartphone era. You know, Sarah and I often talk in the podcast about this concept, bad man stays in jail where you have cases that come up to the Supreme

Court. Rahimi being maybe the best example of this, a very interesting question regarding the the applicability of federal gun laws to an individual defendant, and that individual defendant was a bad person. I mean, would shoot guns like Yosemite Sam on Looney Tunes. I mean, if he didn't like the response on a drive-through, literally at a drive-thru, the guy starts opening fire. Well, they declined his friend's credit card at a Waterburger. What else could he feel so emotional? Except open fire, right? And so you do have these cases where these critical issues get decided against a factual backdrop that sort of broadcast where you think the case is going. When you're talking about a sort of a defender general, it seems as if you might then have some of the converse going on, that you would

have actually somebody pushing forward in key and critical cases, people whose fact situations are much more sympathetic. Do you see this as really a something that's going to, you know, you've talked about sort of balance and level the playing field? How, as the practical matter, how much do you think it's going to I think it's always good to offer some help and advice. But I have to say people harken back and say, well, the march of the civil rights movement started with Sweat versus Painter and moved to Brown versus Board of Education. The only reason that Thurgood Marshall could pick and choose cases was because most of those aggrieved, wronged, sympathetic black plaintiffs just had no other alternative. And they just got no recourse. Nowadays, now that you have so,

many people willing to volunteer once a case gets up, it's not like you can say, oh, I'm sorry, you don't get to file your cert petition. The defenders are going to take their chance. And ethically, that's their responsibility to the individual client. They're not supposed to privilege a cause over this client's interest, even though others might complain, well, you're going to wind up making bad law. It seems to me there's a bit of a fix to that problem. As you say, like, that's the huge difference. The government is a single entity. So when they decide not to take a case, it's on behalf of themselves all as well ethically. A federal public defender should always be responsive to their client if that client wants to appeal.

They should do that. What I think the defender general role would be is to say, like, we aren't getting involved in that case. We are getting involved in this case. So there may be five cert petitions to the court from five different public defenders, four of whom have terrible facts, one of whom has much better facts. and the Defender General would write the brief, you know, sign the brief for that fifth case. And that would be a signal to the court. Oh, look, the Defender General's office actually wants us to take this one. And that would be the repeat player status, you know, advantage.

Why not that? I'm guessing that groups like NACDOL already do this, the National Association of Criminal Defense Lawyers, where when it looks like it's a good sympathetic case, you'll get a bevy of these amicus briefs organized. You have the brief wranglers and the brief whisperers and the folks who come together to get a coordinated effort to get the court's attention. And it does appear empirically that if you have a bunch of amicus briefs, you're much more likely to get your cert petition granted. Fair. Okay. So how do you grade this right now?

Is it a net plus, a net zero? I have a hard time seeing it doing any harm. It's always a good thing to make sure that the other side is well-lawed. But I have a hard time seeing it as transformative. All right. Next topic. What is black robe syndrome? So there was a story about a judge in Louisiana who was pulled over by a traffic cop.

And he started trying to pull rank and do you know who I am? And wound up getting censured pretty badly by the state court system. And there was a concurrence by the chief justice that said, hey, we have to watch out for black robe syndrome. It goes to our heads. We expect people to treat us specially because they're calling us your honor all the time. And I think it's really antithetical to this idea that we are public servants, that we should not be pulling rank or expecting special treatment. But we have to humbly follow the law wherever it leads and not where we feel like it. By the way, on our walk over here, the judge saw someone on a bike who was not in the bike lane and very gently pointed out to this person that there was a bike line right there and to please move on to the bike lane. and the guy was sort of, you know, a little bit cranky about it.

And I don't know. In my head, I was like, do you know who this is? But no, he did not, you know, pull out a badge or anything and say, by the order of the Third Circuit, get in the damn bike lane. But I kind of wanted you to. I had that impulse, but I try to resist. Okay. In our current iteration of the legal right, the conservative legal movement, there's been this tension. and it goes way back to like my earliest days in the Federalist Society, the difference between judicial humility, judicial restraint, and judicial activism.

And in particular, that difference back in the early aughts seemed to be more between the like Reagan conservatives, let's call it, and the libertarians. The Reagan conservatives wanted the judicial restraint, the Chevron deference type folks. and the libertarians were like, let's bring back Lochner, economic freedom. You know, why do you need a license to arrange flowers in the state of Louisiana? Why aren't these judges standing up by God? And that debate has moved on, especially in terms of who's on which side and all of that. But there's still that tension within the legal conservative movement. Are judges supposed to lean back literally and metaphorically in a restrained position?

picking, you know, their moments to move the law, or are they supposed to be judicial activists protecting our freedoms on the offensive? First of all, judicial activism, of course, has become a dirty word, and so people tried to rebrand and talk about judicial engagement or something else. So this comes out of an essay I just published at the Yale Law Journal Forum, and it's about a bunch of other benefits of humility. But I do think that picking a methodology, a neutral methodology, a neutral methodology, and sticking with it is the most important thing. And the methodology has to be faithful to the oath I took and the commission that's on my wall.

So, you know, the libertarians will point out fairly when you've got a constitutional provision or a statute. Don't under enforce it because you're afraid of conflict. So you've got to balance stay in your lane with do your job to big buzzwords of ale. And so if you've got the Second Amendment or you've got the Contracts Clause, it's a fair point that you should shirk from putting teeth in them and being willing to say this law runs afoul of that. At the same time, I think one of the things that the conservative movement long focused on is when you don't have that, you know, are you going to read a lot into substantive due process or unenumerated rights? And so courts have to be very careful that they've got a legal leg to stand out. This all came out because when my boys learned that I was being nominated to the court, they had this image of me as a cross between like Batman and Judge Dredd or Thor with a hammer going around town, writing wrongs. And when they say there's an outrage in the newspaper, it's not my job to reach out and fix it.

And there can be a lot of things that are wrong in the law, but we're in a reactive posture. This strikes me as a really interesting argument that's played out at the court. So, for example, Justice Alito in the page of the Wall Street Journal was talking about consequentialism. Are there judges who consider consequences in connection with their reasoning? And you saw some of this, and he was critiquing some of his colleagues in a very civil way for maybe considering consequences too much. And you saw an example of this in the, we're sitting right here in the city, relevant city, Fulton v. Philadelphia, where you had it appeared an opinion all teed up, ready to go to overrule employment division v. Smith, which would have been like, like one of my happiest days of that occurred. But instead, Justice's Barrett and Kavanaugh step in and

basically say, no, no, no, no, we're not doing that because we're not sure what's going to replace it. How much of judicial humility is related to that kind of consequentialism? How much of it is, okay, judicial humility translates into restraining actions that might have large-scale consequences in the real world. versus more what Justice Ginsburg, Ruth Bader Ginsburg, would have called an interstitial action, which is very incremental but consistent with an underlying principle. How much of judicial humility is sort of consequentialism? I don't think consequentialism is the right word, but I do think there are things about our method that make us appropriately cautious. We're much more willing to do things if they're unanimous. We're much more willing to do things if they've built on previous cases that have gone there.

It minimizes the risk of making one big mistake. And we're much more willing to do things if they've been briefed well, they've been argued well, always trying to think about what's the best argument on the other side. And frankly, if the lawyering's not there or the development is not there, there will be another case, there will be another opportunity. But consequentialism in terms of what is good overall, like no one elected me to be a philosopher, and I think I ought to be able to look at this case and sub out. Like, if we swap the plaintiff and defend it or a plaintiff I was much less sympathetic to,

could I say I would react the same way, I would reach the same holding, etc. So that's a useful check to make sure it's not coming out of my own feelings. Right. It seems to me that the conservatives liked Burkian minimalism, sort of what you're describing. You know, let's put one brick up and then see what happens and look around. and everything seems okay, okay, let's put another brick in the wall, and then you build Chesterton's fence one brick at a time, and then you don't take it down all once.

You take it down one brick at a time also. It seems to me that legal conservatives really like Berkian minimalism when they're in the minority, because really what you're doing is hectoring the liberal majority to be humble and only do things slowly or take things down slowly. Now that conservatives feel they are on the winning side of this is when all of a sudden I feel like, I'm seeing a lot more calls for judicial engagement, as you called it.

Shout out to Clark Neely's excellent book on the topic. So we talked in our last podcast about common good constitutionalism, maybe diverging quite a bit from what is now, you know, Mike Fragoso is called postmodern constitutionalism on the legal right. They think they're on the winning side, right? They're in the majority now. Why should they be humble? Well, if you're starting to frame it in terms of us versus them or sides, you'll worry, well, will you always be winning?

If you can frame it as a broader principle and you can get something that has super majority buy-in, it's going to be a lot more stable. And what if some people come on a court and they've got a different vision of what is common good? I'm not sure I want to sign up for whatever is going to come. But, you know, license people to say turnabout as fair play. You know, no one elected me to be a legislator. And it seems easy in the short term to say, well, let's take victories when we can. But that's going to be very dangerous. If some other judges with different approaches decide they're going to start quoting that backing you.

We're here in Philadelphia where I used to live, down chestnut, down the other towards Center City. and when I was president of fire, and I will never forget the conversations I had with administrators who were censoring students and where I was talking about this very turnabout as fair play dynamic, that the very doctrines that you try to manufacture so that you can censor mainly conservative students at that time are doctrines that will be flipped back on you and will end up censoring and suppressing speech you like very much. And the reaction to that was one of almost mind-blowing arrogance. I can't conceive of a situation in which the shoe might be on the other foot in academia. In other words, we're in charge and we're always going to be in charge.

And we're now seeing that that's completely wrong, that a lot of the very doctrines and ideas that were used to suppress conservatives are now being flipped around in the same theories are being used to suppress liberal speech on campus. It really does strike me, judge, that we live in a world in which the winning side is always thinking it's going to just continue to win. And if we could rob, if we could take from people that degree of confidence and introduce the humility that you're talking about, that, no, I might not always be on the ascendant, that you could really start to heal a lot of our breaches in this country, that we're just continually in one form of, it's competing triumphal. And it sounds like humility just completely counters that. But I don't want you to think of it just in political terms. You know, when they study medical errors, often the medical errors come because the

prima donna surgeon has intimidated the nurses so much that they won't point out, hey, this is 10 times the number of CCs we normally give of this drug. If my, if I had a chambers environment where clerks were afraid to say, hey, judge, I think you're making a mistake. I worry, I'd make a lot more mistakes. If my attitude were off-putting to colleagues who were pointing out, hey, you've got a problem, again, I worry I'd stumble a lot more. I have to be willing.

And in print repeatedly, I've admitted, I made a mistake, or I changed my mind. And I think we all take an oath to do justice. And if we come to understand better, then we should eat crow or change our minds or not stand on trying to defend something that we were invested in and see more clearly now that we messed up. Random book recommendation, by the way, the checklist manifesto by Atul Gawande is like a great book for humility in general. And it weirdly will teach you to make checklist for everything, which I do and I make my staff do. And the DOJ, we had a whole like checklist requirement for all sorts of different things. But it actually, at a philosophical level, is really a book about humility.

Like, your brain can't keep it all, can't get it all right, and all these errors, whether it's medical errors, which he talks about a lot, pilot errors. They all kind of come down to an environment of humility problem. When we get back, we're going to talk about the what ifs. Each of us has picked out an alternative reality for the Supreme Court and what we think that new reality would be if one thing, one little thing, had changed along. the way. When we get back. When West Jet first took flight in 1996, the vibes were a bit different. People thought denim on denim was peak fashion, inline skates were everywhere, and two out of three women rocked, the Rachel. While those things stayed in the 90s, one thing that hasn't is that

fuzzy feeling you get when WestJet welcomes you on board. Here's to WestJetting since 96. Travel back in time with us and actually travel with us at westjet.com slash 30 years. Getting ready for a game means being ready for anything, like packing a spare stick. I like to be prepared. That's why I remember, 988, Canada's suicide crisis hubline. It's good to know, just in case. Anyone can call or text for free confidential support from a train responder anytime. 988 suicide crisis helpline is funded by the government in Canada.

All right, guys, this started with an email from a listener, and I just really liked it. Think of Marvel's What If series, where they flesh out what this counterfactual world might actually be like. I would love to hear what you and do. David would propose for an episode in a judicial what-if series. Well, good news, Chris, because we have Judge Bebis here to join us as well. So you're going to get three Marvel what-ifs for the Supreme Court. Judge, I'm going to start with yours. All right. So let's imagine that John Marshall, shortly after taking his oath of office, gets hit with a carriage and run over and kill. Well, Thomas Jefferson had taken over. He was appointed at the end of John Adams' term. And Thomas

Jefferson was rumored to be really interested in appointing Spencer Rohn to that position, who was a Virginia justice. And Spencer Rohn bitterly opposed Marshall and a lot of what he stood for. He criticized McCulloch v. Maryland and its expansive understanding of the federal government power and the necessary and proper clause. So we'd have a much more crabbed reading of the Constitution. He criticized Cohen's versus Virginia and oversight, a review of state court judgments that way. We probably wouldn't have had Worcester v. Georgia in which Chief Justice Marshall stood up for the importance of the Cherokee Nation against Georgia law's effort to intrude on it. So much as people have complaints about unfairness to Indian tribes now, it might have been worse. And Roan was a big believer in nullification, which was the state's rights position that was lead into conflict over decades and eventually led to the civil war.

So I don't know whether we might have had a civil war earlier or whether the federal judiciary would just not have assumed the co-equal status that it took. But he certainly was no John Marshall. Interestingly, you didn't mention judicial review in any of that. Yeah. Now, that's interesting. a lot of people say, well, John Marshall is responsible for judicial review. And he did it very deftly and he did it very diplomatically in Marbury, but there was judicial review in the states well before Marbury. The Privy Council was doing judicial review. And there were decisions like

where versus Hilton in the decade before Marshall came on the court, where the court reviewed whether a state law was compatible with a treaty. So if you look at Federalist Number 78, Alexander Hamilton expected there was going to be judicial review. So I think sometimes Marbury's place gets overplayed. Obviously, it was a coup the way that he did it. It was very deft. But I don't think that that's the main thing that we would miss. Oh, and by the way, Roan was also very much against the Bank of the United States.

And so the role of the Fed and the Fed's role in federal monetary policy and banking probably wouldn't be there. So I think two big things happen if Marshall is hit by that carriage in the first days of the Jefferson administration. The first is that I would argue that the Supreme Court as an institution, which was incredibly weak before Marshall, they're barely deciding any cases. And when they are, there are these like Penny Annie, like nobody cares things. There's a reason we don't talk about the chief justices before Marshall, and we sure don't talk about the cases before Marshall comes on the court. Now, part of that I've argued is because there's nothing for them to push back on. George Washington is the apotheosis of human spirit and dignity or something. So, like, we don't need a Supreme Court to be counter-majoritarian or counter the executive branch because it's George Washington.

But another piece of what builds the Supreme Court into what it is is that those first two real chief justices, Marshall and then Tawny, are on the court forever. two chief justices for more than half a century. That's what builds institutions because you're building norms and expectations and principles. And so when you have presidents switching in and out, but a chief justice lasting for as long as Marshall did, that's how the Supreme Court is going to move up the credibility ladder and that institutional counterbalance to the presidency. So if Marshall is hit by a carriage. I really question whether the Supreme Court becomes the institutional counterbalance that it becomes, I would argue, not just because of what Marshall decides, but literally just because he's there for so long. And the second thing is that I believe that Marshall played more of a role

than we give him credit for in preventing the conviction of Samuel Chase in his impeachment trial in the Senate. Jefferson, of course, wants Samuel Chase off the Supreme Court because he's a partisan hack. Samuel Chase campaigned with Adams and in fact delayed the Supreme Court's term because he was out campaigning for Adams. Like, you know, if you think everything, you know, is new under the sun in terms of partisanship now, like, welcome to the election of 1800. So Marshall is gone in this scenario. Instead, there's a chief justice who will hate Chase even more than Jefferson does, probably. And they, the Democratic Republicans, Jefferson's party, controls the Senate. I think Chase gets convicted under that scenario.

And then I think all bets are off. If you can convict and remove a justice when a president doesn't like his politics and think he's too partisan, thinks he rules against his policy interests too often, the independence of the judiciary is gone. And so we have a Supreme Court where it's not independent and justices feel like they have to at least be more solicitous of a president's policy interests. FDR's administration obviously looks wildly different if FDR can simply be like, no, no, no, you get GTFO off my court. And so what a difference? The court would no longer be countermajoritarian and it would no longer be independent.

And I think we don't give Marshall enough credit for those two things. And on the judicial review point, one thing about the original founding is you had such a short time period between what you would call mission statement, codification, judicial affirmation. So mission statement, declaration of independence. codification, constitution. Judicial affirmation of the structure really is Marbury. That's like puts all the pieces into place. And it happened like historically speaking, relatively rapidly, cemented this early republic, provided concrete grounding for this very young republic. And I think if you delay that Marbury phase or if it comes in in a way that's less immediately credible, there's a lot of second order effects of that. So think about the second founding. You had a mission statement. Gettysburg Address. You had codification, civil war amendments. You didn't have real judicial affirmation of that till Brown v. Board in 1954, like 70 years later. And so there's an enormous amount of instability and injustice in that 70-year period. And so I do wonder if you have a John Marshall hit by a carriage. We've learned a lot about how influential individuals can be,

not just legally, but culturally as well. And I do wonder if there were. was be a a ramification of that that really renders the first founding much less stable. I'm going to go next. And mine is, what if John Marshall Harlan writes the majority opinion in Plessy v. Ferguson, i.e. Plessy v. Ferguson turns out the other way striking down the Louisiana Railroad Car Act and the Supreme Court holds that segregation by race violates the Equal Protection Clause of the 14th Amendment. And I picked this one because I think the answer is nothing. I think nothing changes. I think it looks a lot like Brown v. Board of Education where the Supreme Court can say something. And if the political branches do not feel it, if the

culture does not move that way, it will simply be on the books. We will look back on it with historical pride like we do with Brown. But of course, nothing, no school is desegregated because of Brown v. Board of Education for at least 10 years until the political branches start catching up. And even then, of course, it's not like they desegregate 10 years later by any means. So I think Plessy would have been a proud moment for the court. But the violence, the taking away of voting rights and everything else that we saw happening at that same time as Plessy, sadly continues regardless of the court's opinion in Plessy. What do you think? I know that there are economists who say that these laws were very unpopular with businesses.

Plusy was a collusive suit. The railroads wanted these gone because they drove up costs. So it required a kind of a cartel that was enforced by the government to keep black and white customers separate. So you probably get some more economic integration. But it's interesting, you know, it's a couple of decades after that that you start getting like the Scotsboro Boys case, Powell v. Alabama. And the federal courts, they're saying. some pushback, but most of those guys who are, you know, apparently innocent wind up serving substantial prison sentences. So again, you can put the decision on the books. It can be an important

symbol or landmark, but it takes some executive power to back it up. I think it would be more impactful than you might think. I think that if you combine the fact with we just had the Civil War amendments in people's lifetimes ratified. In people's lifetimes, we had had reconstruction, which included black senators, black representatives, black leadership in many southern states. We're not that far removed from it. We're not that far removed from the union troops still being in the south.

And so if you have a strong Supreme Court decision that says, the Equal Protection Clause means what it says. I don't think Jim Crow gets the momentum that it got. I don't think it gets the sort of 60 years of runway that it had by the time Brown v. Board is decided. And you have this deeply entrenched Jim Crow structured legally, culturally, economically that exists in the South, you would have had an earlier

disruption. You would have had an earlier legal and, by the way, moral assault on Jim Crow. Because I do think that the best Supreme Court opinions have a legal effect, but they also have a powerful moral effect. I think West Virginia v. Barnett, for example, has a powerful resonating moral effect. I think Brown v. Board has a powerful resonating moral effect. And when you do the opposite, Plessy, Dred Scott, Korematsu. It has a corresponding, powerful, immoral effect on our society. And so I don't think it would have been a panacea. I don't think it would have fixed segregation or Jim, I just think it would have not permitted it to take such firm root. All right, David, you're last.

Okay, I'm last. Here's mine. What happens if the Supreme Court had taken Ruth Bader's Ginsburg's advice many years later and not have struck down essentially every abortion law on the books when it decided Roe v. Wade, but instead it only struck down the Texas law, which at the time, as Ruth Bader Ginsburg indicated, and she gave a very famous lecture in the 1990s where she said, Roe was too expansive. It was, quote, breathtaking and scope and should have been decided on an interstitial basis. In other words, piece by piece, it could have struck down the Texas law and left it at that. Instead, it struck down everything, created a national environment of a permissive environment for abortion rights. And my question is, if it had been interstitial, if it had been incremental,

is the history the same? And I don't think so. I don't think that we would, for example, have the modern religious right as it currently exists. Because if you go back and you look at the history of the rise of the religious right, initially a lot of it began at a kind of a top-down movement to protect, and this is very sad but true, segregation academies in the South that had been created in the aftermath of Brown v. Board and the IRS had began to move against these whites-only Christian schools. And there was a good. deep alarm from southern elites about the loss of these segregation academies, but they were never going to be able to form a mass political movement to protect the segregation academies. However,

the Roe decision absolutely, absolutely created a mass movement that was very intentionally organized around the reversal of Roe. It created and spawned more than anything else the modern religious right, I think led to, in many ways, the culture wars that we're still embroiled in today. So my question is if Roe v. Wade is just decided a little bit differently. How different is our history? Judicial confirmation wars probably don't look anything like they look now. Judges probably aren't campaign issues. Yeah, I mean, this one's the hardest for me in a lot of ways because, like, everything changes.

Our two political parties ended up, you know, if you go back to 1973, the political parties are almost evenly split on the question of abortion, to the extent people had opinions about the question of abortion. And over the course of the next 30 years, they will slowly redefine themselves solely around that question, such that even in the 90s, there were, you know, pro-choice Republicans, a lot of them actually, and lots of pro-life Democrats. By 2018, the last major pro-choice Republican organization shuts its doors. Both parties are fully, you know, fixed on that. There's one pro-life Democrat. I think there's two pro-choice Republicans left out of 535 people. They have totally self-sorted. The only question I have is, would they have simply

sorted around something else? Therefore, judicial confirmation hearings turn out the same. It's just a different issue that we're just not able to imagine because the power of the tribalism and the partisanship and the sorting was actually what was driving it, not the issue of abortion, which honestly, now that we're on the other side of Dobbs, it's a little chicken and egg problem, right? But like, my God, they've picked up immigration very quickly as the sorting mechanism. Did that mean it was always going to sort, or did that mean that we simply learned how to sort and now we have a new sortor. I mean, that's a great question.

That's a great question. But I think without the creation of the so-called religious right, really the origin story is truly Roe. So you have created an enormous political force that is probably the most, it's easily the most powerful faction of the Republican Party easily. Nobody else is close. I mean, I'm not sure the federalist society starts. Bork doesn't get borked. I mean, nothing. Like all the things of our modern Supreme Court history.

Which full circle goes to your judicial humility point, Judge. There was very little judicial humility in Roe, and there was 50 years of consequences. All right. Let's take questions from you guys. Thank you all for coming. So I have another what if, if you want to take it up, which is, and I know, Sarah, that you'll maybe have some thoughts on this. What if Judge Jones wins out over Justice Souter? Okay. So this is the famous story where George H.W.

Bush has both Edith Holland Jones and David Souter at the White House to decide who is going to be the next pick for the Supreme Court. And there's just this sense, you know, Sununu is a New Hampshire guy. He vouches for Souter. This guy's the, you know, a sure thing, no problem. And, you know, Judge Jones doesn't have the good old boy, Patricia East Coast thing going for her. and she has literally shown the back door out of the office as Souter moves to the Rose Garden to be announced. Obviously, Souter within two terms has become, if not the most liberal justice on the court, part of the most liberal wing of the court. Yeah. So what does the world look like if it's, if it's Jones instead of Souter? Well, O'Connor's definitely no longer the swing vote. Then it's

Kennedy earlier on for those first few years. And then then Kennedy's pushed out as the swing vote. And what? Like Alito is the swing vote? Or does Jones get borked? Hard to bork Edith Jones. Although she's a bit outspoken. I love my job.

I love the understatement there. Yeah. I mean, it shifts the court importantly, but not dramatically, which I kind of like about the hypothetical. Right. It almost becomes the current 6-3 court, quote-unquote, that we have now, but it becomes that once O'Connor leaves and Alito is confirmed to that seat. Does that, and it does it at a time that is less polarized, at least at the time, you know, in 2020 that it actually happens. There's no Donald Trump when the court becomes, again, this like quasi-6-3 court. Well, the issues in 2006 are different. You still have the war on terror stuff and Hamdi and Hamdan kicking around. And so the limits on executive power and detentions are really coming to the fore. That's a tremendous question. I tend to think Jones gets borked.

Yeah, you don't even think she makes it on. Yeah. Which would just infuriate the right even more. Because you have bork Thomas and Jones as you head into the Clinton administration with Ginsburg and Breyer. Because this is pre-ending a filibuster, right? And so, you know, one is the- pre-ever using the filibuster, really. Right.

And so the, you know, the question becomes, this is something that would have precipitated a bork-like crisis when the Democrats knew they in their back pocket, they could block this person. And also, you know, we've seen from previous times that, for example, with Miguel Estrada, there is sort of a reluctance to have, give the Republicans a first or a allow Republicans to sort of diversify the court on their terms. And so it's referring to the memo from the Democratic Senate staff that said, we have. to prevent Miguel Estrada from getting on the D.C. Circuit because he's Hispanic, and this would give Republicans the chance to appoint the first Hispanic justice. So they prevent Miguel Estrada from getting on the D.C. Circuit. This causes all of the ill will heading into the Obama administration. Then Republicans prevent the Obama administration from being able to fill the seat that they prevented Miguel Estrada from filling on the D.C. Circuit. And that's when Harry Reid ends the filibuster in

2013 is to fill that D.C. Circuit spot. Yep. All right. Another question? Yeah. I was wondering when applying originalism and textualism to modern circumstances like in Kylo versus U.S. and Riley versus California, how should we think about that for AI like in copyright law and attorney-client proof? Okay, so you're referring to the fun Fourth Amendment case on the infrared technology where it was a fun oral argument too. But this idea of like, how do we think about originalism in the Fourth Amendment and searches and seizures where we have this technology that the founders can't possibly fathom, and we're searching for analogies and metaphors for infrared heat technology that you can use on a house to figure out whether there's people in the house. What did James Madison think of

that? And how do we apply that to AI in the same sort of searching in a darkly lit room for these analogies and metaphors? Judge, this one's definitely to you. So this is, it's ironic that people made fun of Justice Alito calling him Scolito because he's very different from Justice Scalia on these questions and Brown versus Entertainment Merchant Associations

how does the First Amendment apply to violent video games? He asked somewhat sardonically what would James Madison have thought about violent video games? And would he have liked them? Would he have liked them? That's yeah.

His point is there comes a point at which you can't honestly the original meaning runs out and you're at a very high level of generality. And I think trying to understand the legal regulation of AI in those terms, maybe someone will build a conceptual framework, but it's very hard to see how that connects to the 18th century.

Can I just use your very excellent question to go on a slight digression about AI? I think when I interact with AI designers, when I act with people who are really thinking a lot about AI, one thing that really stands out to me is they've really not thought enough about the interaction between law and AI. And here's what I mean. And you saw an example of this when Grok went wild recently. So I don't know if you followed this, but Grok turned a little Hitler-ish several months ago. Grock started sort of playing around with fascist themes and ideas and started, you know, repeating various kinds of, you know, just asking questions.

Rock went through his freshman dorm room phase. Yeah, GROC went through a freshman dorm room phase. Then GROC turned, went through its like, you know, freshman porn phase because it then allowed, began to allow people to undress and began creating images of, you know, we'd say GROC, put this person in a bikini. And then GROC would involuntarily undress women online. And everyone's talking about this. And I'm, you've been hearing me say, GROC is doing this.

GROC, no, no, no, no. X is doing this. and X is led by people. Okay. And so the law is not going to allow, for example, child sexual abuse material to be created by an AI and everybody go, oops, look what the AI did. No, they're going to say, look what you human beings allowed to happen with the AI. And I don't think the AI folks are realizing the extent to which they will be held accountable.

their corporations, their institutions will be held accountable for what their AI does. They won't be able to say, well, that was just the LLM, that was the model, that was the Cylons, that was the Terminator. No, they can't do that. And so I think ultimately in many ways the law is going to result in constraining AI through the imposition of human liability for a quote unquote AI decisions to a degree that people are not fully appreciating. that the actual, this entity is going to cut loose and do A, B, C, D, E, F, and G on its own is ignoring the extent to which the on its own part is going to have to be constrained by human agency because of liability. I find it interesting how quickly technology is changing when law is such a slow growth model and a lagging indicator on our social problems. Intentionally so, right? Not only does the Supreme Court want legal questions to percolate in the circuit courts, But law wants societal questions to percolate in society before becoming legally resolved. And so when you think about what the Supreme Court is dealing with right now, they're still dealing with whether the algorithms for YouTube and X are First Amendment protected. And all of a sudden we have all these AI problems and they're like, whoa, whoa, whoa, we're in 2012. Give us a second.

We're not quite there yet. So I don't know how that's going to go very well when the legal system, despite what we said about the interim docket, doesn't really have a faster speed to do this. And we don't want it to have a faster speed to do this to your point about Berkey and Minimalism and Chesterton's fence and all of these great ways that the law builds slowly over time to prevent unintended consequences and the foolishness of high emotions in a moment. And yet technology is moving so fast. It's not that we're trying to prevent the foolishness of emotions. We're trying to keep up at this point when a year ago, we weren't talking about AI at all. Right. But the bottom line is the AI companies are not going to be able to say in court, that wasn't me, Judge, that was Grock. That wasn't me. That was Claude. Well, who's Claude? How can I hold Claude liable? One of my favorite episodes at AO, you guys, I think it's the Gettysburg episode. You guys have Judge Newsom and Judge Sutton, and you guys are talking about, you know,

really giving good testimony to Justice Souter's life and his approach to the bench. It's not lost on me that he spent a big portion of time on the state Supreme Court. And someone mentioned earlier, Judge Justice O'Connor. I've also heard you guys talk about the hyper-professionalization or careerism of, you know, this sort of one-way track that that is the road to becoming a Scotish justice. I just want to hear you guys riff on what it would look like with the confirmation process might look like or what the courts as a whole perspective might look like if there were more state high court voices on it.

So obviously you know that I desperately would like to see a broader pool of people being considered for the Supreme Court in general because not only have we. professionalized sort of who's eligible to be a Supreme Court justice in terms of experience and yeah, the over professionalization of that. I think we've even narrowed it further to that where we're starting to see justices replaced by their clerks. You know, the Chief Justice Justice Jackson replaced his boss. Justice Jackson replaced her boss. Justice Kavanaugh replaced his boss. When we talk about the leading contender to replace Justice Alito, it is Judge Oldham, who would be replacing his boss. My God, how much we have narrowed it. And by the way, I have this in front of me.

So this is in my book from the Brown Court. Let's just review who was on the Brown v. Board of Education Court. Five had received degrees from public law schools and one didn't even have a law degree. None had clerked. Only one had been a lower court circuit judge. On the other hand, eight had served in the military. Five had held elected office, one governor, three senators, and a congressman. Two had served as attorney general. In short, I said it was a bunch of guys who would never make it past the first round of today's judicial vetting process. Compared to the current court, by the way, eight went to Ivy League law schools, six clerked on the Supreme Court, eight were federal circuit judges, none have ever held elected office. Justice Alito is the only justice to have served in the military, albeit briefly.

Justice Kavanaugh, Gorsuch, of course, went to the same high school and had the same history teacher. If you have to have Mr. Oakes in history class to be on the Supreme Court, I think we've maybe made the qualifications a little too strict. What do you think of this? I mean, you're a circuit judge. You're on the great and narrow path here of people allowed to have these jobs. So my mentors were Judge Higginbotham and Justice Kennedy. both of them had tried a lot of cases. Justice Kennedy, for a while, as a solo practitioner and a three-judge firm, and he has a wealth of stories about traveling around the West and dealing with all different kinds of clients. And I think that the kind of Beltway focused practice misses out on people who have some of that breadth.

You know, at the same time, some might say that some of the excesses of the Warren court might have been connected. to, you know, Chief Justice Warren, reputedly asking, is it right? Is it fair? Approaching things more as a politician. So we've gained something, but we've also lost something important from not having people with broader experiences in the mix. And, David, you've talked about the writing is so much better. Yeah. I like professionalization. I don't like narrow professionalization. So, for example, we have heavily disproportionate prior experience in the executive branch. I think we need more experience also coming from the legislative branch. We have Justice Jackson, I believe the only person who's been a criminal defense attorney, for example. So there's a breadth of legal professionalism that isn't represented on the court. And so I like professionalism, but I like broad professionalism.

But I think overall professionalism has been good for the court. We have excellent briefing. We have thorough, comprehensive legal opinions. It is, in many ways, the way in which things are practiced, the way in which federal court practice unfolds now and the way in which Supreme Court practice is conducted, it's a credit to the branch. I just want it to be a little bit more broad in the credentialing needs to be a little bit more broad. I think state Supreme Courts would be a great place to make it a little more broad without trading too much. We obviously had our state Supreme Court episode, our Christmas school. treat to all of you.

So go back and listen to that for some great state Supreme Court justices. And of course, Justice, well, Judge Deal on the D.C.'s highest court wrote that Marmot, Second Amendment case we talked about. And by the way, one listener wrote in and said, you missed a great opportunity to say that Judge Deal protected the right to bear marms. Guys, come on. No, you can't groan to that, Judge. That's good stuff. That's good stuff.

These are the people we should be looking at for the Supreme Court. Yeah, I mean, I think we could broaden it while maintaining the great writing and the great legal reasoning. I totally take your point that maybe the people who have themselves been legislators and been in political office might be the cause of some of the problems. But surely we can expand past I clerked for that justice. One more? Yeah, there was one more over there. And then we'll call it a day. Thank you.

Going off the Defender General example, I was wondering if you have any view, if the U.S. took the U.S. took the Texas model and split the criminal appeals from the civil appeals, would that have any benefits? Or do you think that it would broadly remain the same? That's a fascinating question. So you're exactly right. In Texas, we have two Supreme Courts. We have the Texas Court of Criminal Appeals. And the Texas Supreme Court only does civil cases. And they've also broken off a business court in Texas now. So we are specializing the heck out of our courts in Texas. Has it been to the good? I'm curious what you think that would look like. You know, I gather the federal circuit is supposed to be this specialized place.

Their docket is predominantly patent-specific. But, you know, the Supreme Court sometimes reminds them that there are some more general principles that they have to be involved in. I was a counsel in a case in which, you know, the Supreme Court had said the principles of equity mean that you can't cut short statute of limitations with latches. and the Federal Circuit held a divided, oh, but surely that doesn't apply to patents. And the Supreme Court had to remind them that, no, actually, when we said that, that applies to patents too. So there is a benefit to their professionalization and their knowledge of patents, but there is also a need for some oversight to make sure that it's consistent with the way they apply these principles in other areas of law. I think I'm against specialization. But maybe that's because I'm a generalist and I am jealous of specialists who know a lot.

I like know six inches on a lot of things, but they know, you know, 30,000 feet on one thing. Boy, I'm torn. I think that's a great question. So on the one hand, I do very much like the idea. I like the idea of business courts, for example, where people can dive deeply into and understand at a granular level the layers and complexities of commercial litigation. Love it. At the same time when it comes to, and I can absolutely. see a similar appeal when it comes to criminal law. At the same time, however, if you're thinking about the U.S. Constitution, it would feel strange to me to have two different interpretive methods for the Bill of Rights, for example, to have the Supreme Court's interpretive method of understanding our fundamental liberties. And then you have a court of criminal appeals that might have a completely different interpretive method for the Bill of Rights. And I think that the possibility of such a starkly different approach to fundamental liberties would cut against having

a separate court for me. It also allows judge shopping, not in terms of the person suing necessarily, but in terms of confirmation process, that if we can divide out an exact specialty, then all you need to find is a judge who agrees with you on criminal stuff. You don't need to worry about what their thoughts on the First Amendment are. And I think that that can be poor for the judiciary as a whole. judge shopping of any kind, venue or the judge or their method, all of that is bad for the judiciary as an institution. Thank you guys so much. Thank you, Pencarry Law School and the Pencarry Federalist Society for hosting us. This has been a real treat despite it being freezing cold here, guys. So thank you so much. Okay, David, that's it for us today. If you

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