transcript

Speaker 1:
[00:03] The judicial power of the United States shall be vested in one Supreme Court. If there is any more question, we have to find an argument in this case.

Speaker 2:
[00:11] All persons having business before the Honorable, Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

Speaker 1:
[00:27] And I'm Dan Epps. Back in the studio, after another successful live show, I think.

Speaker 2:
[00:35] Was it successful? We didn't get, nobody threw anything at us.

Speaker 1:
[00:38] Yeah. I did, you know, have a fun little game where I tried to convert the issues in a couple cases into, you know, the UpGower 5 language with only the top 10 hundred words. But apparently the list that Claude was using was wholly inaccurate, which is too bad. So next time, next time I'll, I'll, I'll try that, try that again. I, you know, when I was reading it, I was like, this does seem a little off, but already gotten an email about that from listener Chris Peterson. So, you know, maybe that that experiment will have to be revisited at a future time.

Speaker 2:
[01:16] You know, maybe the top 10 hundred words changes over time.

Speaker 1:
[01:20] Yeah, maybe or maybe there's, there's a, I googled it and there's like a list that is, you know, kind of like one of the top Google heads that seems like totally wrong. Okay. Okay. So, we are recording on Thursday morning. We just released an episode this morning, and I imagine our listeners were hoping that was our emergency birthright citizenship recap episode, which it absolutely was not. It was an episode we recorded last Friday. So, we're never quite as timely as you would like us to be, listeners, but we do our best. And we've got another episode in short succession, shorter gap than we usually have.

Speaker 2:
[02:05] Well, we got to keep them guessing.

Speaker 1:
[02:07] Okay. So, game plan for today, we're going to try to keep it relatively constrained in terms of our ambition. Briefly discuss the oral argument in the Barbara case, the birthright citizenship case, and then dive into one opinion, Chiles versus Salazar. And that's it. Did you have anything else on your to-do list for today?

Speaker 2:
[02:31] No. That should be enough.

Speaker 1:
[02:32] Okay. Great. So, that keeps it simple. So, step one, we had the argument in the Barbara case. So, Trump versus Barbara. So, let's talk that through. You know, I think I can say at the outset that the conventional wisdom is it's now looking like maybe a kind of 6-3-7-2 win for the challengers. Does that line up with your expectations?

Speaker 2:
[03:02] That seems right. I think it wouldn't be inconceivable for it to be 8-1 or 9-0 for the challengers.

Speaker 1:
[03:08] Justice Alito seemed pretty hostile.

Speaker 2:
[03:11] He asked the most skeptical questions. I agree. If I had to bet on a line up, I guess I'd bet on 7-2. But I thought the argument certainly didn't make me think the president had a chance.

Speaker 1:
[03:25] Sitting in the room.

Speaker 2:
[03:28] President.

Speaker 1:
[03:29] Yeah. The first visit by a president to a Supreme Court oral argument, as far as anyone is aware of.

Speaker 2:
[03:35] I think that's right. So I have many questions about this. So I think he talked about attending the tariffs argument and decided not to at the end. So my guess is, you know, he wanted to attend the tariffs arguments. People told him, you know, don't attend, it won't help, it'll just irritate the court. And then he lost. So he figured, A, people were wrong. Maybe it would have helped if I had been there. And B, I lost anyway. So why not? What do you think?

Speaker 1:
[04:02] Worth a shot. Yeah. I would love to have been there to see how he was kind of reacting in real time.

Speaker 2:
[04:08] Yeah.

Speaker 1:
[04:09] And see if he was kind of muttering.

Speaker 2:
[04:10] Right. So the other questions I have are, so it sounds like the court didn't acknowledge him at all. So they didn't put on the audio. And I think people who were there said, you know, there wasn't any, you know, any official welcome or anything. Do we know? Was he allowed to bring a phone? I mean, normally nobody's allowed to bring a phone in, right?

Speaker 1:
[04:26] I can't imagine they ran the president of the United States through a metal detector.

Speaker 2:
[04:32] I assume he had Secret Service with him who had weapons, which of course you normally wouldn't be allowed to have? Or what do you think?

Speaker 1:
[04:39] Yeah, I think that's right. Although I remember I was in the court room with President Obama during Justice Sotomayor's investiture ceremony. So presidents have come to the court for ceremonies like that.

Speaker 2:
[04:51] Yeah.

Speaker 1:
[04:52] And the security was laxer than I expected, in that I was able to get in the room as a law clerk without ever having gone through any security screening. Because as a law clerk, you know, at the time at least, I did not have to go through a metal detector to get in the building. And I did not have to go through any kind of additional security to get in the courtroom, which I thought was kind of surprising.

Speaker 2:
[05:16] So, I mean, if you really put your mind to this, right? So normally the rule that nobody can have a phone means you can't get like real time advice or whatever and give it to the advocate. But in principle, if the president had wanted to pass, you know, the president had been checking his phone to see how things were playing or something, you know, whatever, and then wanted to pass John Sauer a note, do we think he would have been allowed to?

Speaker 1:
[05:39] I can't imagine the Supreme Court police physically stopping him from doing so.

Speaker 2:
[05:45] Anyways, that was interesting. My understanding is he left a few minutes after the end of the SG's argument. He also posted a truth shortly after leaving the argument, I think.

Speaker 1:
[05:58] Do you have an account on there?

Speaker 2:
[06:00] On Truth Social?

Speaker 1:
[06:01] Yeah. No.

Speaker 2:
[06:03] Okay.

Speaker 1:
[06:03] Me neither.

Speaker 2:
[06:04] Do you think I need one?

Speaker 1:
[06:05] Well, can I go view his tweets without his truths? Or I don't know whatever they're called without an account. I mostly see them when people repost them on other forms of social media.

Speaker 2:
[06:18] Yes, I believe you can. I believe his truth is available for all to see.

Speaker 1:
[06:25] Maybe I should make an account just to claim the space. I feel like you should make an account over there that's like at based Will Baude.

Speaker 2:
[06:34] Uh-huh.

Speaker 1:
[06:35] And you could just kind of go off.

Speaker 2:
[06:37] And should I post based things?

Speaker 1:
[06:39] I don't know. Do you have a lot of based thoughts that you're not posting? I feel like you must have some. Uh, no comment. That's an admission.

Speaker 2:
[06:51] Anyway, do you think, some people were quite upset the president was attending the argument. Do you think that was bad, good, indifferent?

Speaker 1:
[06:59] I thought it was, it was, you know, strange. I don't have an inherent objection to it. There is, as I understand it, there actually is a seat at the court that is reserved for the president of the United States.

Speaker 2:
[07:11] So people said that-

Speaker 1:
[07:12] I remember, I remember being told that when I was clerking, and then I'd forgotten that until somebody mentioned it.

Speaker 2:
[07:17] Right. Although, as I understand, he did not sit in this reserve seat, whatever it is. He sat at the public gallery. I think the reserve seat, since the president is previously only intended for ceremonial occasions, it must be for the kind of ceremonial setup.

Speaker 1:
[07:28] Okay.

Speaker 2:
[07:29] Here's the truth he posted shortly after leaving the argument. We are the only country in the world stupid enough to allow birthright citizenship, President Donald J.

Speaker 1:
[07:37] Trump.

Speaker 2:
[07:39] So I take it he was not happy with how it went. The other funny thing about this truth is that it's sort of off message because of course his position is that we don't allow birthright citizenship. I mean, he claims to be interpreting the law as it is.

Speaker 1:
[07:55] Yeah, that's a good point.

Speaker 2:
[07:56] And claims that the law as it is does not allow the thing he's complaining about. So now again, it's a, you know, as all lawyers we can understand like, well, this is my legal position, but I understand this is happening anyway. But I feel like the message discipline is a little lacking.

Speaker 1:
[08:12] Yeah. I mean, that is an interesting fact that I think relates to a larger problem, which is that in a world without consistent rules about citizenship that every country follows, you can end up with these conundrums, or you can end up with stateless people. Yes. Right? If someone is born in a country that doesn't have birthright citizenship, and is the child of some country that doesn't automatically give citizenship to all children of citizens, you can end up with someone that has a passport from, has no passport, right? And I think that's deeply problematic. It seems like whatever your views about immigration and citizenship are, we should not have a system where there are some people that just cannot be citizens anywhere. And like, I don't know what, in a world without birthright citizenship, if there are a bunch of folks born in this country, who maybe don't have citizenship or not granted citizenship by wherever they come from, like what happens to those people?

Speaker 2:
[09:23] Yes.

Speaker 1:
[09:24] Are they just like detained forever? Or are they just allowed to go about their business, but can't really do anything, can't work, can't travel?

Speaker 2:
[09:33] Well, I mean, many countries might allow you to be present there, especially if you have nowhere else to go without being a citizen. But just to be clear, it's not actually a fact. There are various news stories immediately afterwards that say there are like 30 countries that do have a similar role to the US role.

Speaker 1:
[09:50] But I mean, it is true that like in Europe, it's not the way it's done there, at least. Right.

Speaker 2:
[09:57] Well, it's still true. You could imagine there could be people who are born here who don't have, for whatever reason, who are not eligible for citizenship in the country where their parents are from and then.

Speaker 1:
[10:08] Yeah. Because they're like an illegitimate child or who knows.

Speaker 2:
[10:12] Right. But there are all sorts of inconsistency problems that are hard to totally resolve. Like back in Wang Kemar, the precedent that is the most central to this case, one of the asserted features of Chinese law at the time was that it was just not possible to lose your Chinese citizenship. You were just a lifelong subject of the Chinese Emperor, whether you liked it or not. Of course, other countries do let you renounce. There are a whole lot of conflict of laws, conundrums.

Speaker 1:
[10:41] Yeah.

Speaker 2:
[10:42] No matter what you do.

Speaker 1:
[10:43] Conundra? Ooh.

Speaker 2:
[10:46] Maybe. Or is that one of those made up?

Speaker 1:
[10:49] It's possible, yeah.

Speaker 2:
[10:50] Yeah. I did not think, so I did think the SG John Sauer, sort of as a lawyer, did a very good job. You know, he had answers. I got him.

Speaker 1:
[11:02] Although he was criticized for seemingly not having some answers to questions that, you know, at least the commentariat thought he should have anticipated. Like most notably Justice Gorsuch saying, do you think, you know, Indians today are birthright citizens? And he sort of stumbled on that.

Speaker 2:
[11:22] Yeah, so he claimed then and maybe one or two other times to have never thought about that question before, like to be thinking about it for the first time, which I do think was, that was odd. My first thought was, is that even true?

Speaker 1:
[11:37] Yeah.

Speaker 2:
[11:37] You know, you might have thought about it, but then claimed to be thinking about it for the first time to excuse yourself for not having a good answer.

Speaker 1:
[11:45] That just seems like a poor argumentative strategy.

Speaker 2:
[11:48] I guess so, and I think, I mean, you know, to lie about whether or not you've thought about something before, as the general seems like a bad idea. That said, I think previous solicitor's general, like Prelogger, I think she was almost never surprised by a question, you know, she'd been asked.

Speaker 1:
[12:05] Yeah.

Speaker 2:
[12:06] And I think that SG's office traditionally goes through so many quite aggressive internal moots, that, you know, the idea of him showing up and not having been asked that question before in a moot really made me wonder? Maybe wonder, do they not do as many moots as they used to? Do the people who do the moots, are they afraid to ask tough questions because the general sort of like atmosphere of distressed? Are they? I don't know. If it's true that he showed up without having, you know, ever been asked that question, something is going to ride.

Speaker 1:
[12:40] Which is a question that people said you've got to expect from Justice Gorsuch. Like, you know, this is maybe, as far as we can tell, the issue other than reining in meddlesome bureaucrats, the issue that he cares about the most, which is, you know, the rights of Native people in the United States.

Speaker 2:
[12:56] Yeah. I mean, now I will say the flip side is also true of the ACLU's lawyer, Justice Barrett, asked her, you know, for the Native American exception, is it based on whether you're born territorially on the reservation, or is it based on whether you're born, you know, to parents who are tribal members? And she proceeded to ramble at length that answer the question. So it just strikes me, you know, everybody knows that the sort of status of Indian tribes is one of the historical examples here, and everybody's willing to hand wave to some extent about what's going on there. But they're like basic questions about how that exception works, and what the rules are for it, that you would think if you were arguing the Supreme Court case, you would, at least to figure out what your position was.

Speaker 1:
[13:35] Yeah, I was a little underwhelmed by her performance. I actually, you know, wasn't able to log in to listen to the argument until, you know, towards the tail end of the government's argument, and then the first part of ACLU's argument. And, you know, I actually came away thinking that maybe the government was on better footing based on that and I texted you and you were like, oh, you know, you missed the first part, actually, you know, it's going to, the government's going to lose. And so I had to go back and look at the transcript. But, you know, it didn't, at that point, to me, just based on the kind of inadequate information I had, it didn't seem like a route.

Speaker 2:
[14:14] Yeah, I agree. And I mean, in any case, the justices certainly didn't, they didn't say, you know, how dare you come here and defend this un-American policy, or, you know, they didn't express outrage towards the Solicitor General of the kind, some of the commentary I might have been hoping for.

Speaker 1:
[14:33] Yeah, but, you know, there were some interesting lines in there. You reposted one of them kind of without comment on your Twitter feed.

Speaker 2:
[14:44] Yeah, so one of my favorite exchanges was, you know, what to make of the fact that illegal immigration was not really a thing in the 20th century or the 19th century, or it was later in the 19th century, but, and there are a few examples, but the current set of immigration problem was different. And so Chief Justice Roberts said, you know, this wasn't a problem in the 19th century. And Solicitor General Don Sauer said, no, but of course we're in a new world now. As Justice Alito has pointed out, we're eight billion people or one plane ride away from having a child who's a US citizen. And then the chief responded, well, it's a new world. It's the same Constitution.

Speaker 1:
[15:21] Which is funny, but maybe a tiny bit pointed.

Speaker 2:
[15:24] I think it's a little pointed. Yeah, well, I think it's a good, I mean, I think it's exactly right, of course, that in thinking about Constitution interpretation, the meaning is unchanged and you have to apply it to new circumstances. But the fact that it's the same Constitution means you can't just assume that the Constitution amends itself to contain the amendments we wish it contained in light of the world we face. Some people thought that that line was clearly prepared, like that he had been... He was waiting to deploy that one. I don't know if you have a view about that. And some people thought that line was clearly delivered to President Trump, that the purpose of that line was as a... You know, I don't know about that either. But it's a good line.

Speaker 1:
[16:04] I don't either. Yeah. I liked it. You seem to like it.

Speaker 2:
[16:09] One of my long-term projects is going to be to do a sort of a tribute to the chief, just including sort of like analysis of all of his best, his best zingers.

Speaker 1:
[16:20] He's got a number.

Speaker 2:
[16:21] Yeah. That's the part of the fun of it, figuring out which ones, you know, there's obviously umpires, there's obviously the parents-involved one, and then exactly which other ones.

Speaker 1:
[16:32] I think there's a good list you could come up with. You should start writing them down now. I have been. Okay.

Speaker 2:
[16:39] Okay.

Speaker 1:
[16:40] More to say about that. It seems like, it does seem like the common wisdom really has centered, you know, kind of huddled up around the prediction that the government will lose. Friend of the show, Steve Vladeck, had an op-ed in the New York Times, basically in the headline saying the government's gonna lose, but then arguing that, you know, because of the CASA decision, you know, the whole, you know, ultimately the government is gonna win in a bunch of other ways, right? The Trump administration will do other stuff that is unconstitutional or otherwise illegal. And here the government, you know, via John Sauer had promised at the CASA argument that they would appeal any loss, so that there would be an opportunity for the court to weigh in on the constitutional question, even in a world where it was impossible for courts to give, you know, kind of universal relief. But, you know, Steve's argument was, well, they didn't make a promise about that for all sorts of other issues. And so we should, we should expect to see that. The government will do unconstitutional stuff, people will sue. Maybe, you know, those plaintiffs will get, you know, judgments in their favor striking down whatever government action it is. But because of CASA, that relief will only run to that particular plaintiff, and then the government will just let it go and continue enforcing the policy against other people.

Speaker 2:
[18:07] Yeah. Now, I do think it's noteworthy in CASA also, there was universal relief under the lower courts, essentially a nationwide class action using the class action exception to CASA. So even if the government had not appealed, they wouldn't have.

Speaker 1:
[18:22] Yeah. Yeah, it depends on how much room you think there is in terms of the doors that the court in CASA left open. If it becomes easy enough to get class action certification and to get class-wide injunctive relief, which is not always easy, right? There's requirements under federal rule of Civil Procedure 23 that not every putative class satisfies.

Speaker 2:
[18:49] Right. Now, I think what this is a problem, though, also depends on whether you're so sure the Supreme Court would rule against the Trump administration in all these cases. Because you can imagine there are other cases where if the lower courts grant the universal relief, the court would feel compelled to take them and upon taking them, there's a 10 or 20 percent chance that the SG would pull it out. But in a world where it's not universal relief, then justice can be done in the lower courts and escape the-

Speaker 1:
[19:13] But for a small number of people, right? Well, it depends on the scope of what the lower court does.

Speaker 2:
[19:20] Yeah, it could be not universal, but still apply to all the people who care about it the most.

Speaker 1:
[19:25] Yeah.

Speaker 2:
[19:26] So, I don't know. Obviously, it's complicated how it all plays out. And then of course, in some places, the real obstacle are where even people who could sue, are afraid to sue because what's at stake? The law firms that settled or the universities that settle, it's not that they can't get relief, it's just that they could get relief, if they just don't want to sue. I guess now they don't have the ability to piggyback off of somebody else suing and so on.

Speaker 1:
[19:54] But... Yeah. So let's accept the common wisdom that this is gonna be not a five-four. And if that's the case, do you think there's any pressure on the court to kind of have this come out sooner than the final day of the term? You know, it's obviously quite late in the term, and, you know, it would be hard to get an opinion out, you know, sooner than the end of the term, given that it's April. But, you know, is there any urgency that the court might see in resolving this?

Speaker 2:
[20:27] Oh, I don't think so, particularly. I also think the court may realize this is an opinion where they're gonna score some points. They're gonna do the right thing and the popular thing and I think a lot of the detractors want them to do. And so, if they were going to have any, to think about the timing at all strategically, there might be some incentive to let it come out the last day of the term. So it blunts the impact of the destruction of the Voting Rights Act and the immigration cases and whatever else they're gonna do that people may feel mad.

Speaker 1:
[20:57] Yeah. Although if the Voting Rights Act case goes till the last day of the term, that will have taken a very long time.

Speaker 2:
[21:05] It's already taken a very long time.

Speaker 1:
[21:07] Yeah. But I mean, that would be like an extraordinarily long time.

Speaker 2:
[21:10] Yes, I agree. But whatever, you know, how about the executor? In fact, yes, I guess if you're at the same time saying you're gonna give President Trump for the first time consolidated control over the unitary executive, you might want to make sure that shortly after that you could say, but don't worry, we're not giving him control over the babies.

Speaker 1:
[21:29] Yeah.

Speaker 2:
[21:31] I do think also before this, I think the, at least my view was a sort of statutory ruling was maybe more likely than a constitutional ruling.

Speaker 1:
[21:39] Yeah, I was wondering why that didn't get more play.

Speaker 2:
[21:42] Yeah, but certainly it didn't get a lot of play and there were several questions from the justices kind of trying to get both sides to say, no, we'd prefer you to decide the constitutional question. I think so that I think the narrowest way to decide it was when Justice Kavanaugh floated, which was, he got the SG on record saying, we are not asking for Wong Kim Ark to be overruled even if you read it against us. So you could read an opinion that says, Wong Kim Ark is against the SGs, is against the executive branch. They are not asking for it to be overturned. We are not going to decide whether to overturn it. Therefore, you lose. And if you want to come back and ask for it to be overturned, you can try. I don't think they'll do that.

Speaker 1:
[22:22] And we got an email in the inbox from listener Jack Wilson asking why, why did the government not say as a fallback, if that's really what Juan K. Mark said, please overrule it. What do you think about that?

Speaker 2:
[22:36] I think there are some times when there's an argument that like theoretically would help you like to put it on the table. But in terms of optics, it just makes you sound extreme and un-American. So it's a bad idea. Like similarly, you never ever show up and say, look, we think Brown versus supportive education favors us, but just in case you disagree, like we're willing to return it. Even if you make that as your backup, backup, backup, backup argument, your willingness to put it on the table just like makes it easy to dismiss you. And my guess is, given that the conventional view is that the Solicitor General's Office is going against all the history and conventional wisdom with this kind of radical, crazy argument, it would seem like slipping the mask to say, we want Juan Camarque to be overruled, especially because the truth is they want Juan Camarque to be overruled. But the truth is all their arguments suggest Juan Camarque was wrong, and they're willing to live with it because it can indeed be distinguished as blind domiciliaries. But I mean, I was struck by this when I taught Juan Camarque last week. It's just like reading the dicta at Juan Camarque, it sure seems like Juan Camarque has a view about this that is not the President's.

Speaker 1:
[23:50] Which class are you teaching that in? Is that like a 14th Amendment class?

Speaker 2:
[23:53] Yeah, I'm teaching our Con Law 14th Amendment class.

Speaker 1:
[23:56] Cool. How much time have you spent on the birthright citizenship issue in the class?

Speaker 2:
[24:02] One day, I mean, we're only two weeks in, because we're on quarters. It gets a day, a day for the citizenship clause, a day for the political immunities clause, and then we move on to equal protection.

Speaker 1:
[24:11] How much did you talk about, you know, depending litigation?

Speaker 2:
[24:14] I mean, we read Elk, we read Juan Camarque, and then we read the executive order, and talked about all three. And then, this was before the argument, so I tried to describe what the arguments would be at oral argument, and I think it was pretty predictable.

Speaker 1:
[24:29] Yeah. I'm curious to see, you know, the academic discourse about this issue has been unbelievably heated. I think more heated than the academic discourse about maybe any other constitutional issue that's come before the court in recent years. Is that right? I mean...

Speaker 2:
[24:50] Comparisons, right?

Speaker 1:
[24:50] I think more so than the health care decision.

Speaker 2:
[24:54] Uh-huh. More so than section 3?

Speaker 1:
[24:58] I don't know. I mean, in terms of, like, seeing the kind of vituperative personal attacks that I see regularly on social media.

Speaker 2:
[25:06] Yes.

Speaker 1:
[25:07] I feel like I've seen more of that than I've really ever seen in the Academy. Just the kind of utter contempt people are displaying for people on the other side of these debates.

Speaker 2:
[25:18] Uh, well, isn't the contempt kind of one way?

Speaker 1:
[25:23] More so, yeah. But nonetheless, still, it's been striking to me. And I kind of wonder what happens, how, if the government loses, how people on both sides of those debates react. Obviously, there will be kind of a spike dance, by the Defenders of Birthright Citizenship. You know, how does the kind of anti-birthright citizenship takes age? I don't really know.

Speaker 2:
[25:55] Yeah, I agree. I mean, it's, it's, uh, it's tricky also because, I mean, it does have this dynamic, like the, um, healthcare case, where sort of at first, you know, the debate was, is this challenge off the wall or on the wall? Like, is this sort of beyond reasonable debate or not? Which both is therefore sort of inherently contentious. If you're, if, if your position is this is beyond reasonable debate, then people who are debating it are, you know, violating a norm of reasonable debate. Uh, but it also means in some ways, if you're the, the contrarian, you know, you've kind of now got a helpfully low bar. Like, you don't have to be right. You just have to show that it's complicated. Now, I do think the people who did that then sort of slid from, it's one thing to say it's complicated, which is true. It's something else to say that in the end, those complications are sufficient justification to uphold an executive order, which I think is not even plausible. But yeah, but I agree, there's a sort of a toxic character to some of these debates.

Speaker 1:
[26:57] Do you think there's almost, I mean, how many constitutional issues do you think there are such that if they were kind of reconsidered, there's no way you could say it's complicated? Because I feel like almost any issue, someone comes up with an argument, like, can the president serve three terms? I mean, people put on the table this possibility that the president and the vice president could swap places, and then the vice president could resign, like...

Speaker 2:
[27:26] Well, I guess that's it. I think, I mean, there are many things that are not complicated. I think it's not complicated that the president can't just directly serve three terms. I think it's also not that complicated that the president can't run for vice president because he's not eligible president. I think, can the president...

Speaker 1:
[27:41] Yeah, but people make that argument.

Speaker 2:
[27:42] No, people make claims that are uncomplicatedly wrong. But I was just going to say, now the claim, can the president become the speaker of the house and get in the line of succession that way, that's when it starts to get complicated. But I think a thing that often happens is like, the object question is uncomplicated, but there's a bunch of adjacent complicated things that don't actually get you there. But if you spend enough time kind of throwing up dirt over the adjacent things, then you can kind of confuse the whole thing.

Speaker 1:
[28:12] Yeah, I just think this is a problem with constitutional laws, that if you get enough motivated, smart people to get there in a room, you can come up with arguments for a lot of things. It's not mathematics, right?

Speaker 2:
[28:26] It's not mathematics, but one question is, can you come up with plausible sounding arguments? And then the second question is, can you come up with arguments that are in objective fact plausible? And I do think there are a lot of things where you can come up with a plausible sounding argument that is objectively implausible. But that rests on our ability to be able to tell the difference between the truth about the Constitution and what people think about it. And of course, that's very hard and very contested.

Speaker 1:
[28:52] Which side of the line do you think the birthright citizenship issue is? I mean, I think, you think that the challengers are correct. You've said that to me. But do you think that the arguments on the other side are plausible or just plausibly plausible or seemingly plausible, whatever you want to put that?

Speaker 2:
[29:09] I think the defenses of the executive order are not plausible. I think there are defenses of things like new legislation that would be somewhat plausible.

Speaker 1:
[29:19] Because you think the statutory question is not close, regardless of what the constitutional question is.

Speaker 2:
[29:24] Well, not just the statutory question, but the constitutional question ultimately turns on jurisdiction. And I think it is just not plausible to say that the United States does not have jurisdiction in a relevant sense over any of the immigrants in question, who we regularly both give the protection of our laws to and hold to account for violating our laws. In a world where Congress did something weirder, like treat undocumented immigrants more like we treat Indians or diplomats, then you get us in a complicated, like can you expand the category? Is this like it? But like the fact that that would be complicated doesn't mean this is complicated. I mean, the same way like, could Congress enact a statute requiring Americans to eat broccoli every day? Maybe that's complicated. Could Pam Bondi herself go personally house to house and force everybody at gunpoint to eat broccoli every day? That's not complicated. The answer is no. And the fact that the broccoli question is complicated doesn't mean that it suddenly becomes complicated just if Pam Bondi screams broccoli.

Speaker 1:
[30:18] I thought the broccoli question was supposed to be not complicated. Like it was supposed to be this parade of horribles type argument where you say obviously not, therefore, and then it kind of leads you down the path to saying the Affordable Care Act must be unconstitutional for the same reason.

Speaker 2:
[30:32] Ah, well, you see, this is... And actually, I think maybe the right answer is, and then maybe I spoke too quickly, maybe the eating the broccoli has to be broken apart from the buying broccoli, I should think. I think maybe the right answer was, Congress probably can make people buy broccoli, but it can't make you eat it.

Speaker 1:
[30:50] Is that it? Would that be a substantive due process limitation?

Speaker 2:
[30:53] Well, also a commerce is necessary and proper. Like, there are economic reasons for Congress to boost the broccoli market by effectively imposing weird broccoli excises and direct taxes or something, but then, you know, if you want to compost your broccoli rather than eat it, what's it to anybody?

Speaker 1:
[31:11] I feel like broccoli is the wrong vegetable to pick because it's, you know, it's out of date to say that it's a vegetable people don't like, right? I feel like it's actually a pretty popular vegetable. My kids like it. I think it's one of these things where, you know, it's a vegetable that people used to make badly.

Speaker 2:
[31:28] It's the only vegetable my kids consistently like. So we will...

Speaker 1:
[31:32] I mean, my kids like Brussels sprouts, and Brussels sprouts were usually, you know, in my youth, they were mocked as like the most disgusting thing. And the reason is it's because they were boiled, right? Once you roast them, they're delicious.

Speaker 2:
[31:42] I think it's also that genetic engineering means Brussels sprouts are better than they used to be. I think they used to be more bitter, and they're not as bitter as they used to be.

Speaker 1:
[31:50] That's possible, although I do think, you know, we didn't roast vegetables that much. I mean, that just wasn't the kind of 1950s way to cook.

Speaker 2:
[31:58] Yeah, look, my kids don't like roasted broccoli, to be clear.

Speaker 1:
[32:02] What are they? They like boiled broccoli?

Speaker 2:
[32:04] Microwave frozen broccoli. Crisp tender microwave frozen broccoli with just enough salt.

Speaker 1:
[32:10] Salt is key. Maybe I think we didn't salt food enough back in the day.

Speaker 2:
[32:15] That's probably true. Okay, should we talk about the other case?

Speaker 1:
[32:22] The actual opinion that we're going to talk about? Yeah. Chiles versus Salazar. This is commonly called the gay conversion therapy case, although whether it's fairly described that way is, I think, arguably, an issue in the case. So, lots to talk about here. I don't really know where to start. Other than saying this is a Colorado law that bans, purports to ban, various types of therapy that include under the text of the statute, any practice or treatment that attempts to change an individual's sexual orientation or gender identity, as well as any effort to change behaviors or gender expressions or eliminate or reduce sexual or romantic contractions towards individuals of the same sex. That's the statute. And this case seems like it's a huge culture war case, right? Which it is to some degree. And so you would expect this case to be decided on purely partisan lines, which it was not. This is ultimately going to be an 8 to 1 decision with everyone except for Justice Jackson in the majority and saying that this law is unconstitutional.

Speaker 2:
[33:48] Because it violates the free speech clause, right?

Speaker 1:
[33:51] Yes. The First Amendment. And we'll get to the reasons why in a second. And it's interesting because I had the same, without having dug into the case, I had going into the oral argument, I was like, okay, this is going to be another kind of flip side of scrimmety type case. And it wasn't. It wasn't. Even at the oral argument, I came away thinking, okay, this is more, a stronger First Amendment claim than I might have thought. And so, that's interesting. And maybe, to get there, we need to explain why that was true, right? What exactly, specifically was the Colorado law supposedly doing with respect to the particular plaintiff here? And why did that make it a seemingly easy case for eight out of nine justices on the Supreme Court?

Speaker 2:
[34:44] Right. So, I mean, it's easiest to see also by, so Justice Kagan and Justice Sotomayor, as you said, joined the opinion, and they write a short concurrence, you know, explaining their willingness to join the opinion. And to say, if Colorado had enacted a content-based but viewpoint neutral law, this would be a different and more difficult question. So, it is if Congress, if Colorado had said something like, you know, it's not a legitimate subject of therapy to talk to young children about their sexuality, or I don't know exactly how you would define it.

Speaker 1:
[35:12] Yeah, I mean, reading that concurrence, I was a little puzzled by exactly what category of treatments they were imagining. Yeah. I mean, your example is maybe the best one.

Speaker 2:
[35:24] Well, but so, because in particular, the law as written forbids therapy designed to change a minor sexual orientation or gender identity, but it allows therapy that's gender affirming or affirms identity exploration. And so, you know, in the known culture war between, I guess, you know, conversion therapy versus orientation affirming therapy, Colorado has picked a side. And under modern doctrine, the worst thing a state can do on a matter of speech is to pick a side. There are other things that are unconstitutional too, but picking a side and saying, this side is a lot of talk and this side is not, it's not okay. And so I think that makes it both easier to strike it down, and it also makes it easier to see, like, on its face the way this precedent could be helpful to progressive causes in some places. Like, it's not hard to imagine a red state passing a law that also, if you point, discriminates, you know, in the opposite direction, right? Or even, yeah.

Speaker 1:
[36:26] But can we just make sure we explain clearly what the plaintiff was doing and how the law was applying to the plaintiff before we get too deep into the first minute question?

Speaker 2:
[36:35] Okay.

Speaker 1:
[36:36] So, this plaintiff was not like a psychiatrist who was prescribing drugs, doing some of the practices that came into disrepute in, you know, the last few decades, you know, the true kind of aversion therapies, right? Where, you know, you would take, you know, gay youth and, you know, give them drugs to make them vomit, while, you know, looking at gay material, you know, kind of like stuff like A Clockwork Orange, classic movie where they convince, they make Alex unable to appreciate violence as well as Beethoven. You know, electroshock therapy, a lot of things that, you know, in retrospect, and even at the time seem quite disturbing. So this is not what this plaintiff was doing. And so this is, you know, the court is very clear, this is an as applied challenge. So there, I think that there's still some categories of things that this law is going to be allowed to forbid, just not what the plaintiff here was doing, which is talk therapy.

Speaker 2:
[37:45] Yes, and...

Speaker 1:
[37:45] Just purely talk therapy.

Speaker 2:
[37:47] And voluntary talk therapy, I guess also. Because, you know, some of the kind of aversive things could be done, you know, making you watch terrible movies is, in a sense, just speech, but it's different if you force people to watch them than if you...

Speaker 1:
[38:01] Well, in A Clockwork Orange, they like strap Alex down and they like put the things on his eyes so he can't even close his eyes.

Speaker 2:
[38:07] Right, exactly, so they're not doing that. It's not even, so just to be clear, it's not even like, you know, talk therapy where you're forced to talk. It's just, yeah.

Speaker 1:
[38:16] Yeah, and so that if someone, if a client came to a therapist and said, look, I, you know, am struggling with, you know, same-sex attraction, I kind of don't like these feelings, I'd like to talk it through and figure out how to kind of see if there's a way forward or if someone had, you know, made some steps towards, you know, gender reassignment and then was interested and, you know, wanted to talk about maybe walking that back. Those would, at least as the law seems to have been interpreted, although I think Colorado maybe tried to back away from that a little bit, would have been forbidden.

Speaker 2:
[38:55] Yes.

Speaker 1:
[38:56] And so the therapist can't have that conversation.

Speaker 2:
[38:58] So I agree that's, the majority relies on that, that makes this seem like an easier case. But should it? So I guess it does seem like there's a ton of stuff done through just speech that we do still sometimes think of in a different framework. Like if you were a counselor and your shtick was you talk to people and convince them that they're possessed by demons, and, you know, basically ruin their lives because you then convince them to do various things, to exercise themselves, and you do all just to talking to them.

Speaker 1:
[39:26] Or told them to commit suicide, right?

Speaker 2:
[39:28] Yeah, right. I mean, maybe we would say, okay, strict scrutiny applies and suicide is so bad that you shouldn't be able to do that. I'm not so sure about the demons, depending on what, you know, if you convince people that you're possessed by demons and exercise yourself, you just need to buy a membership and, you know, your most level marketing scheme or, I don't know, or lawyers, like lawyers do. A ton of what we do just through speech.

Speaker 1:
[39:51] Yeah. Yeah. And if you were to, you could be disbarred if you, as a lawyer, counseled your clients that, you know, 16th Amendment is a fake amendment, you don't have to pay your income taxes, blah, blah, blah, blah, blah, right?

Speaker 2:
[40:06] Yeah. I think even if you were, I think you could be disbarred even if you were, yeah, even if you were honest, you should look at them, and the courts have rejected these challenges, but you should know they're true, they're valid, and, you know, I think you get into trouble. So now the court has already kind of rejected this, well, some of this path in an earlier case called Nifla versus Becerra. The court sort of generally cast a quite narrow view of the, what we now call the professional speech exception to the First Amendment, which I'm not sure if this is a helpful framing. And so having done that, this kind of seemed to follow, like once again, Colorado is trying to sort of say this is a form of licensed therapy that therefore doesn't get normal First Amendment scrutiny, and the court's already said, as I said, well, we're skeptical of that kind of thing. But I don't quite understand under this theory what happens to lawyers.

Speaker 1:
[41:00] Yeah, I'm genuinely puzzled by that. And then what about doctors who recommend therapies, treatments, that are clearly inconsistent with the standard of care, right? Like someone has cancer and they say, you absolutely shouldn't treat it because that will make it worse, and then they die.

Speaker 2:
[41:23] Right.

Speaker 1:
[41:24] Are you telling me that can't be forbidden?

Speaker 2:
[41:26] Now, you could say that to the extent there really is an objective standard of care, that the doctor really is wrong about, that's different, and that the truth is, this is just such a contested area, that there is no objective standard of care. I don't think the majority turns on that, though. And I don't think the court claims to be able to know what the standard of care is, and to use that as a basis for constitutional law. So, it's funny, the opinion is, in a sense, totally reasonable, 8 to 1, but is it right?

Speaker 1:
[42:01] I do feel like the result on these exact facts feels right to me, but I do have a lot of concerns about, what are the limiting principles here, for all the reasons we just talked about.

Speaker 2:
[42:14] Right, and again, on the fact, it's hard to see how, like, the flip side is, if you allow the state to say, talking to people about whether or not they are or not gay, and trying to convince them to change course in various ways. That's the thing only doctors can do, and it's the thing doctors have to do by doing it our way. And therefore, nobody else is allowed to talk about or express views on this, that are sort of inconsistent with our standard of care. Even in a one-on-one sort of setting, that seems like a trouble and slippery slope, the same way that, if you said to lawyers, we can regulate the practice of law, we can regulate claims about what the income tax is constitutional, therefore, the state is entitled to decide what is constitutional truth and to forbid anybody, lawyer or otherwise, from stating anything contrary to constitutional truth. If you want to claim the 14th Amendment was not properly ratified, that's either the unauthorized practice of law or malpractice, and you'll be disbarred for daring to say so. I mean, that obviously can't be right either.

Speaker 1:
[43:10] Yeah.

Speaker 2:
[43:10] But I don't know that the professional speech exception and strict scrutiny are the right framework for this problem.

Speaker 1:
[43:18] What would the right framework be?

Speaker 2:
[43:22] I don't know. I guess if there is a basis for kind of drawing a line, it probably does have to do with kind of taking on a client and acquiring some sort of a fiduciary responsibility in a lawyer's context to a client and in a doctor's context. So we'd say in some way, we enter this certain kind of relationship that comes with a responsibility. So you can spout your truth to the world as much as you want. But then it's some way when you get into a one-on-one relationship with somebody, we get to have some views of what you say, even if...

Speaker 1:
[43:56] Isn't that counseling against the result here?

Speaker 2:
[43:59] Well, I don't know. And maybe not every one-on-one relationship, because again, if I have a website where I talk about how we're all possessed by demons, presumably that's okay. And then you send me an email, and I'm like, even me? Presumably I'm allowed to write back, yes, even you. So I don't know. And again, maybe it's only a subset of relationships. Maybe it's only doctors and lawyers. Although then, what are we going to do with the unauthorized practice of law? So I don't know the answer. Maybe this is just a place where modern first-woman doctrine has gotten hard to understand.

Speaker 1:
[44:32] Yeah, I mean, but I guess maybe those are cases where strict scrutiny applies. I don't know. I mean, it just... Or maybe those are situations where this comes up a bit, where there is a longer tradition of regulation that would kind of put it square... Put it... You know, the idea that you can, you know, say that lawyers can't give incompetent advice, you know, maybe that has a longer tradition than exactly what the state was trying to do here.

Speaker 2:
[45:03] Yeah, although if we go to tradition, I think tradition suggests, you know, you can get mad at lawyers even for just saying the judges were bad. You know, someone contested, but the lawyers got in trouble for that all the time.

Speaker 1:
[45:14] Yeah. Okay, yeah, so I was hoping that you had some answers here, but apparently not. Yeah, I mean, it's a case that really gets deep into the elaborate doctrinal edifice of First Amendment doctrine.

Speaker 2:
[45:31] Yeah.

Speaker 1:
[45:32] But as a result of that, it just struck me as, you know, gets a little bit lost, and I would really like to have stepped back and gotten a clear answer. I mean, this case, and I've really, I think I've been radicalized recently about the length of Supreme Court opinions. I think it is utterly out of control. And this one, I mean, this one is actually not that long. I'm saying this more because there's a super long descent by Justice Jackson. But like, you know, I think we could like go back to, you know, ten page opinions. I'm not sure that would be worse. I mean, I just feel like there's this impulse now that, you know, you have to basically walk through answers to every single little argument that was made. And then it just ends up becoming so complicated. And that sometimes, like, if you can't step back and just like tell me a little bit more simply what's going on briefly, you know, maybe we get a little bit lost.

Speaker 2:
[46:43] I'm with you on both counts. And I do think...

Speaker 1:
[46:44] And I don't think this is a bad opinion. Like, I think this is a Gorsuch opinion. You know, I sometimes have, in the past, criticized his writing. I thought this was perfectly well written.

Speaker 2:
[46:53] Right. I do think, I think you asked this question on Twitter this morning, is there an inverse correlation between the length of a dissent and its persuasiveness? And I think the answer is definitely yes.

Speaker 1:
[47:04] Okay, I'm glad, because I got a lot of pushback from people on both Blue Sky and X about that. But I mean, yeah, I think, what do you think is the most famous dissent of all time?

Speaker 2:
[47:17] Ooh, Justice Holmes' Lochner dissent?

Speaker 1:
[47:20] Yeah, which is like four paragraphs.

Speaker 2:
[47:22] Right. I was going to say, they're outliers. Like Justice Curtis' dissent in Dread Scott is very long. And I think it's effective in part because it's long. Because when the majority opinion is sort of nuts and full of a bunch of misstatements of fact and law, sometimes you need to go through them all. So I think the correlation is exceptions. But I do think in general, right, being able to say in the dissent, like here is the crux, here is the point, here's the thing they're missing is much more effective. Now, I wonder though, if part of the issue is, are dissents written to persuade? So you could imagine somebody who already thinks the majority is wrong, like being more satisfied the longer the dissent is, because it's like now you're really letting them have it.

Speaker 1:
[48:06] Yeah.

Speaker 2:
[48:06] Whereas, you know, maybe that long dissent versus also to be read by somebody who already agreed at the majority opinion. I agree with the majority opinion, I want to see what this has to say. You know, give me your best argument, but don't give me 80 pages. But again, since dissents presumably serve multiple audiences, one to persuade people that the majority is wrong, but another to kind of like create a rallying cry or to be cathartic or whatever for people who...

Speaker 1:
[48:30] I feel like you can accomplish that goal in a shorter opinion, though. I mean, the thing, the best way to accomplish that goal is to have some good lines in there. Yeah, right.

Speaker 2:
[48:39] Well, the good lines again, are more likely to persuade, are they?

Speaker 1:
[48:43] I think they're more likely to give people rallying cries too. People can excerpt them on Twitter.

Speaker 2:
[48:49] The longer it is, the more options you have to excerpt. So if you just, you put all your material on there.

Speaker 1:
[48:54] They're more buried.

Speaker 2:
[48:56] Well, let me ask you this question. How do you feel about director's cuts of movies?

Speaker 1:
[49:00] Depends on the movie.

Speaker 2:
[49:01] Are there any movies where the director's cut, the long version was better than the short version?

Speaker 1:
[49:06] Maybe Apocalypse Now. Some dispute about that. There's the kind of like big combined cut of The Godfather. I mean, it's hard to Godfather and Godfather Part 2.

Speaker 2:
[49:16] Right, but that version is not longer than the two original movies.

Speaker 1:
[49:20] I mean, the director's, well, I think it might have some extra scenes. Director's cut of Apocalypse Now, definitely longer. Final cut of Blade Runner, I think is maybe longer.

Speaker 2:
[49:30] Okay. But like Lord of the Rings, were you a person who thought those were better in the long version?

Speaker 1:
[49:35] No, I mean, those obviously needed a lot of editing and certainly the Hobbit turning 200-page novel into 16 hours or whatever of movies is totally out of control. Yeah, I guess I'm not ready to embrace the argument that shorter movies are always better. But I mean, I do think tight editing does help. I mean, the director's cut of James Cameron's Aliens, I think, is worse.

Speaker 2:
[50:03] Yeah.

Speaker 1:
[50:03] In part because there's parts of the story that in the tighter version are left a little bit to your imagination and the more you explain, the more you show the less mystery you leave in some ways. That's less narratively satisfying.

Speaker 2:
[50:20] This is Matthew Glesias, who I read a lot, has this as a general theory about the spirit of movies to TV. This is the thing, as TV became good, what's happened is that most TV seasons of prestige TV are essentially 12-hour-long movies.

Speaker 1:
[50:37] Yeah.

Speaker 2:
[50:38] But real movies, even when they're two and a half or three hours long, where somebody was forced to decide in advance where you're going to go, have an arc, stick the whole thing, do it in three hours are much better art than a shaggy 10-hour movie where maybe you figured out the back half as you were going.

Speaker 1:
[50:54] I think that's totally right. I also, the impulse to have the story keep continuing and definitely, I think, ultimately makes TV less satisfying. A movie is supposed to be a complete story, and it doesn't have to end in a satisfactory way, but it is supposed to be a complete story, whereas I feel like TV shows are the opposite of that. They're supposed to want you to keep going indefinitely. And it's kind of like the difference between a full and satisfying meal versus a bunch of just like high sugar snacks that don't actually fill you up.

Speaker 2:
[51:33] What about like those 12 to 18 course tasting menus where you got a bunch of little bites, but you never really got up?

Speaker 1:
[51:38] I'm over those. I did a string of those when I was a law firm associate, and they rarely were as satisfying as I wanted them to be. And often, you know, kind of like, you just kind of leave, you're still hungry, or either you feel disgusting or you feel still hungry. It's really hard to calibrate. You know, Comey and DC, that was incredible. But other ones have kind of underwhelmed me, especially given how absurdly expensive they are.

Speaker 2:
[52:07] Right. So I guess the case for, and also against, these long opinions is something like, look, I would be happy to include my one best argument if it was clear what the one best argument is, but either in a world where people come at opinions from so many different assumptions, like different arguments will resonate with different people, or just I, the author, you know, don't really know which of these is going to land, so I got to put them out there. And that's why you put it all out there. Then you let, you know, Blue Sky and Twitter sort of zero in on the pieces they really like. You let casebook authors pick which part they think really works. But you as a justice just have to kind of give us all the legos and then let us construct the best pieces out of it. And Oliver Wood to Holmes maybe had enough genius that he could, you know, he could build a lego machine himself, but maybe we just can't do that anymore.

Speaker 1:
[53:04] Maybe, I'm skeptical of that. And I think ultimately, you know, rhetoric is more effective when you, you know, kind of have to make hard choices to pick your strongest points. I mean, like a two-hour speech in response to something you disagree with is, I think, is just going to be less effective than a really focused, you know, 15-minute oration.

Speaker 2:
[53:25] So on the substance, and this is the first paragraph of the Justice Jackson dissent, so hopefully everybody read that, even if they didn't read the whole thing. Justice Jackson leads her dissent with, There is no right to practice medicine, which is not subordinate to the police power of the states. Lambert vs. Yali, this was true 100 years ago, and it should be true today. So I'm curious what you thought about this line, and I'm especially curious what you think about it coming from somebody who dissented in Dobbs and Scrametti.

Speaker 1:
[53:58] Yeah, that is a significant question I had, which is how to line this dissent up with that larger framework. I mean, that quote also like leaves some things unanswered, like first of all, is this practicing medicine? And is this someone claiming the right to practice medicine versus the right to speak in the course of practicing medicine?

Speaker 2:
[54:21] Right, and does the police power of the states entail the right to engage in viewpoint discrimination about which speech under the police power?

Speaker 1:
[54:27] But I mean, if the claim is that police power extends to categorical right to regulate medicine in every way possible, yes, then both Dobbs and Scrametti are arguably wrongly decided, unless you find some other, you point to some other hook. You say the First Amendment doesn't work, but you substantive due process and equal protection work.

Speaker 2:
[54:52] Or they'd be rightly decided because they came out against the-

Speaker 1:
[54:56] Yeah, sorry. Your position in them, the liberal position in those cases would be-

Speaker 2:
[55:01] Right. Now, is it possible that this opinion is written that way on purpose? So what it says, it contains a quote. Then it says, this was true 100 years ago, and it should be true today. Is it possible, Justice Jackson thinks, look, it shouldn't have been true five years ago. Five years ago, I thought we were in the business of enforcing constitutional rights even when it's called medicine, but apparently not anymore. Apparently not in Dobbs, apparently not in Skirmetty. Given that, given Dobbs and Skirmetty today, as of this year, but not last year and not 2022, we should go back to the Police Power Review because we've already, is it possible that's what she means? And she's just kind of cleverly bearing that?

Speaker 1:
[55:38] No, I don't think so, because if you look at footnote seven on page 21, she reaffirms the dissent in Skirmetty. She says, of course, when the state discriminates on the basis of sex and transgender status with respect to the administration of specific drugs, that discrimination implicates the Equal Protection Clause and requires heightened scrutiny for purposes of the 14th Amendment.

Speaker 2:
[56:00] Okay.

Speaker 1:
[56:01] So, I mean, I think maybe here's the defense I would offer if I was trying to rewrite this a little bit. There are some regulations of the practice of medicine or maybe the practice of health care, broadly understood, because I don't think this qualifies as medicine, maybe it qualifies as medicine, that implicate the constitutional rights of the recipients of care, right? And that would be Scrimetti, that would be Dobbs, the dissent's position in those cases. But there's not a right belonging to the health care provider. Although- Is that a better way to kind of ground this? I mean, here, the whole claim is, I'm a talk therapist and I want to be able to say whatever I want.

Speaker 2:
[56:49] Yeah. It's interesting because famously, in many of the abortion cases, the plaintiffs are doctors bringing-

Speaker 1:
[56:57] But they are, I mean, they are asserting the rights of female patients, right?

Speaker 2:
[57:02] Right. But if the fulcrum is going to be the difference in the rights of patients and the rights of providers, it's interesting that we've allided that difference on the standing side. It also, there's a debate, I think, among First Amendment scholars about whether to think of there as being a right to listen, that's parallel to the right to speak. And I, if that theory requires Justice Jackson to think, you know, while there may or may not be a right to say these things, there's no right to hear them, that would be a big load-bearing move.

Speaker 1:
[57:40] Yeah, I guess so. I'm just, I'm struggling to come up with, you know, exactly what her theory is. I mean, I, this is a very long opinion.

Speaker 2:
[57:49] I assume her theory is there are right and wrong answers to these questions. Like, you know, gender affirming care is good and real and true, and everybody who opposes it is a bigot, and version therapy is false and bunk and nefarious, and everybody who does it is a bigot, and the state is allowed to fight, you know, for true things and against bigoted things, and the fact that half the country and half the court disagrees with me doesn't make you wrong. I assume that's her view.

Speaker 1:
[58:13] Yeah, and I think support for that is, you know, if you look at the opinion, the first substantive section of the opinion, part 1A, is basically a defense of the kind of like medical kind of, you know, policy merits of what Colorado did here.

Speaker 2:
[58:30] Yeah.

Speaker 1:
[58:31] Right? I mean, that does seem to be bearing the weight. And so, I feel like I never got a clear answer in all these pages about the flip side laws, right? Which are the laws that would ban, like, imagine Alabama law that says, a therapist cannot discuss any gender-affirming care, can only urge patients to remain with their biological gender assigned at birth.

Speaker 2:
[59:05] Right.

Speaker 1:
[59:06] Right? Is there a clear answer to that question in here? Maybe I missed it.

Speaker 2:
[59:16] Yeah, I don't know. I mean, she does, she talks about the, so Casey famously has a free speech holding, because there was also a sort of a counseling and speech aspect that the, and the court says in Casey that it's okay to regulate some of this like counseling about abortion because it's in some of the power to regulate the abortion.

Speaker 1:
[59:37] Yeah.

Speaker 2:
[59:37] And she doesn't, I don't think, I don't think she takes the position that Casey was wrong on that point. Yeah. Although she may think so. So, I could be wrong about this and it could have been something that I missed. I think she's committed to the view that such a law would not get strict scrutiny, but it presumably would still get some kind of scrutiny, at which point the court would have to decide whether or not the ban on gender-affirming care satisfied intermediate scrutiny or rational basis.

Speaker 1:
[60:06] And it would fail it because of her views on the merits.

Speaker 2:
[60:11] She doesn't say that, but that seems like the right way to bet, right?

Speaker 1:
[60:15] Yeah. Yeah, I found this a frustrating dissent. I mean, I feel like there might have been a more effective and shorter argument. You know, because I mean, I do think there's something here, right? There's something here that like, of course, the state is allowed to regulate. This has to be allowed to regulate in some way the content of medical practice, right? I mean, I do think that I would, I mean, I guess, you know, I imagine maybe this is a little controversial, but I would imagine I would want it to be the case that a state could say, you know, as a doctor, you are, you know, supposed to urge that people get vaccinated and not, you know, say that vaccination will cause autism, which, you know, I think there's pretty close to medical consensus that it doesn't.

Speaker 2:
[61:05] I agree.

Speaker 1:
[61:06] Maybe that's not true.

Speaker 2:
[61:07] Although do you think, not as to a doctor, but if you think if you were a licensed vaccine counselor and all you did was talk to people who were debating whether to get vaccines, so they should get vaccines, do you think it's clear the state could forbid you from saying vaccines cause autism?

Speaker 1:
[61:23] I guess it's a little hard for me to like understand exactly what that role would entail. And I guess I'm just having a little trouble with the hypo, so I'm not sure.

Speaker 2:
[61:32] All right, just make the person like a priest. So they just like, they come into contact with-

Speaker 1:
[61:37] Well, obviously not, it's not, you can't, no, they can't tell priests what they can say or not say.

Speaker 2:
[61:44] Okay, or obviously podcast.

Speaker 1:
[61:45] I mean, there's no police power to regulate the content of religious advice.

Speaker 2:
[61:51] A podcast host who talks about wellness, you have a wellness podcast, you talk to your audience about just sort of like wellness. And you know-

Speaker 1:
[61:57] Yeah, no, I don't think they could forgive that. I don't think they could forbid that. But I mean, I do think that when it comes to certain forms of professional advice, I do think the state has, in the same way that I think it's hard to distinguish from someone saying things about the law that are just demonstrably incorrect and inconsistent with the way the legal system works and not in client's best interests. I mean, we have to be able to say that, right?

Speaker 2:
[62:27] I agree. And that's why I think, for me, maybe the most persuasive version of this opinion would have been the even shorter version. It's just something like, you know, on the one hand, obviously you could stop a doctor from convincing everybody they're possessed by demons. On the other hand, you know, there's a right to be a crank on the street corner, even if you're talking about demonic possession. This case is closer to the, for various reasons, from its viewpoint neutrality, to the fact that it's talk-only, to the fact that it's a contested issue. This case seems to us, you know, clearly on the protected side of the line, and we'll, you know, work out other cases as they come up. I guess that opinion wouldn't be very persuasive to anybody, so you can see why they wrote that. This version, it's dead. Maybe it's just us.

Speaker 1:
[63:18] Yeah, I did get also, you know, frustrated by this dissent, but because by the time I got, you know, 30-plus pages into it, you know, it was just clear to me that this is a dissent that, you know, a good editor could have really trimmed a lot of fat out of. And I sent you a red line that I did of the beginning of part four of the opinion, where there's just, I, in my seminar, we have these writing seminars, and I red line my students' papers, you know, and they, you know, they do good jobs. But, you know, there's often a lot of words that can be cut out. And this is a habit that you get into as an appellate briefwriter, you know, which is something I've spent a lot of time doing in my life, where it turns out you can make the same point both more efficiently and more persuasively in a lot fewer words. And, you know, man, I got frustrated here, you know, so it's like, and to be completely frank, no one knows what will happen now. I mean, you can just say no one knows what will happen now, right? I don't need her to be frank. So I get frustrated.

Speaker 2:
[64:22] I think there are times that writing a little less compactly can be more persuasive. There are times, like rhetorically or in speech, you know, there are these famous red lines to get the Gettysburg Address, to get it down to like fewer lines, and it's not as good. But there are times that's not true. I have one other question about this case, which is actually, I don't know if you saw this, but Kristen Wagoner had, at the Alliance Defending Freedom, had a social media post, First Amendment 3, Colorado 0, and then it has pictures of the plaintiffs in Masterpiece Cake Shop, 303 Creative, in this case, you know, and sort of makes the, you know, the cake artist, the graphic designer, the counselor, three brave Coloradans represented by ADF, the Supreme Court, you know, et cetera, et cetera. Is it a coincidence these are all Colorado cases? Is there something about Colorado?

Speaker 1:
[65:10] Yeah, that's a good question. I mean, because Colorado is not California, right? It's not the most blue state in the country.

Speaker 2:
[65:18] No, I mean, arguably Colorado is the new California, but California used to not be the most blue state.

Speaker 1:
[65:22] Is that because all the California people have moved to Colorado?

Speaker 2:
[65:24] Yeah, that's what everybody says that, you know, Denver is ruined by all the Californians. And now you got to move to Salt Lake City or something.

Speaker 1:
[65:31] Yeah.

Speaker 2:
[65:32] That's true. Denver's ruined.

Speaker 1:
[65:34] Yeah, that's interesting. Yeah, that is weird. I would like to know a little bit more about what's going on out there. One other kind of amusing thing, which is that on Blue Sky, you know, which has become pretty, it's the kind of left-wing acts. You know, Mark Joseph Stern, who's the Slate columnist, who I've tangled with a little bit, who I think is, you know, critic of the court quite consistently, an advocate of, you know, a very kind of progressive left vision of constitutional law. He had some posts where he just like literally just described what the opinion did, right? He said, the decision applies only to talk therapy, not forms of conversion therapy that will involve physical interventions and really are abuse. It does not strike down Colorado's law on its face. Actually, it does not invalidate anything. Just holds to this kind of law subject to strict scrutiny. Okay, totally straightforward post. And then he got like pilloried for being a right winger from that, by the people on Blue Sky. He actually like posted something like initially saying like, I'm going to stop summarizing Supreme Court decisions on here as they come down. One comment has been plucked out of context of all my reporting, misread and use of the basis of a mean-spirited pylon. I'm not going to subject myself to this. If this was your goal, then congratulations. You know, I do think, you know, look, I am, as you know, I'm kind of, you know, politically hard to pin down, but more of a Democrat than a Republican. And that's certainly true. Vote Democrat. I've criticized, you know, conservative court, but it is a little bit, you know, funny. Andy Graywall had, who I don't, you know, often don't agree with on X, but he had a funny post where he said, didn't look all the left wingers left X to go to blue sky to escape the toxicity. But it turns out, you know, they were the toxicity. A little unfair, but I mean, it does say something about what these social media echo chambers are.

Speaker 2:
[67:38] Yes, I guess this also, it reminds me of the line, I never thought leopards would eat my face, sobs the woman who voted for leopards eating people's faces party.

Speaker 1:
[67:49] One of the all time classic tweets. Yeah. Or was that, was that a Tumblr, was that a Tumblr post originally?

Speaker 2:
[67:57] I'm not sure. Okay. I know of it as a tweet, but, you know.

Speaker 1:
[68:03] It's something often screen capped. Yes. Yeah. It's interesting, I mean, like, you know, there's a lot to dislike about X. You know, there's a lot of trash in my feed and there's stuff on there that I think a privately owned company, this platform, you know, does not have to allow, and I would prefer not allow, right? Like actually white supremacist speech. But I do think it is a little bit more ideologically diverse, right? It's not the case that all left-leaning people have left X. I think it basically is the case that almost no one on Blue Sky is right-leaning.

Speaker 2:
[68:44] I don't know if that's right, but I mean, I'm on Blue Sky. And when I post the same things on Blue Sky and X.

Speaker 1:
[68:48] You know, this famous lib, you know, tried to disqualify the rightful president and winner of the real winner of the 2020 election.

Speaker 2:
[69:00] He was disqualified, Dan. It's just, it's not my fault that nobody agreed. But it is also, I think, to think still like the median law professor who's kind of in the weeds and not interested in drama or politics is more likely to be on Blue Sky. The next, so there are just values to the platforms. And, but there is a weird, and actually I think the Blue Sky thing is weird and as far as I can tell, these weird, unfair pylons seem to happen more to people who are not perceived as conservative. So I can post on Blue Sky and I get ignored because I'm already beyond the pale and beyond hope. But then Nick Bagley says something and people will like turn on him in weird and unfair ways.

Speaker 1:
[69:41] Yeah, which sort of happened to me. And sort of happened to me with respect to Stern, which I got annoyed because I felt like he was subtweeting me for not being sufficiently devoted, where I was criticizing what I saw as bad arguments on the left. I mean, which honestly do frustrate me a lot more than bad arguments on the right. I mean, I feel like bad arguments on my side, I really dislike because they make the views that I like less credible. Yeah. And which is honestly kind of why I find Justice Jackson a bit frustrating sometimes because I feel like she could be more effective than she is. You know, like if somebody on the other side is going to be ineffective, I mean, like, maybe I can live with that.

Speaker 2:
[70:30] Yeah. My suggestion, Dan, is to just try to make yourself sufficiently sort of notorious and full of bad takes that everybody is pleasantly surprised when, you know, it's not as bad as they thought and then people will ask them to buy one.

Speaker 1:
[70:46] Well, I have to kind of invest in the bad takes for a while to get to that point.

Speaker 2:
[70:50] Yeah. Well, I've been doing it for a while, so.

Speaker 1:
[70:53] Yeah. You've become more selective about social media. I mean, I do like, I mean, I miss the old Twitter. I do like these platforms, although it has not lost on me that in many cases, I mean, there's many ways in which these platforms do make people's work more visible. Dave Pozen and Julian Arico have a vertical paper saying it, Twitter use does boost citations to scholarship. But in balance, you think about it, for any given law professor who you've gotten to know better via social media, has their social media usage on average increased your perception of them or decreased your perception of them? And it's probably the latter on average, which maybe should make me more cautious about stepping into the fray.

Speaker 2:
[71:44] Yeah, I do think while social media has corrupted the brains of many law professors, it's maybe not as bad as it's corrupted the brains of many judges who are not on social media, but write things that go viral on social media and sometimes make you worry that they know that they're going viral on social media and want to go viral on social media.

Speaker 1:
[72:06] Yeah, the Lawrence Van Dyke opinion, which we're not going to discuss without losing our... I try to keep the episodes clean.

Speaker 2:
[72:18] I think the pile-on of that opinion is unfair.

Speaker 1:
[72:22] I mean, I would prefer that judicial opinion is not stooped to that level of vulgarity. You know, look, if you don't know what I'm talking about, listeners, just Google it, okay? I took the position that...

Speaker 2:
[72:34] Careful what you Google.

Speaker 1:
[72:36] Well, I mean, if you Google, yeah. I took the position that the rhetoric, the kind of vulgar rhetoric that he used in that case, which is about a Washington law that, as interpreted, was requiring a spa to admit people to this nude spa who were biologically assigned male at birth and had not undergone physical reassignment surgery. I took the position that that kind of rhetoric, vulgar rhetoric, was ineffective in terms of, if your goal was actually to get the decision reviewed by the Supreme Court and overturned. I mean, it's maybe it's totally effective if your goal is just to get more publicity for yourself. But I don't think it's, then it becomes the case about the vulgar rhetoric and not, it almost like distracts people's attention from the actual underlying issues.

Speaker 2:
[73:31] Yeah, I mean, I think the court probably won't take it, although I'm not sure. And I don't know what the causal relationship is, but yeah.

Speaker 1:
[73:45] Okay, well, I think that's enough for now before we go in for too long. We had ambitions going in, we rose to those ambitions, I think. We hit the things we intended to hit. We only gave ourselves two things, and that was sufficient for recording session that is now stretched on well beyond an hour. And I'm satisfied. Hopefully, the listeners are satisfied. But they did get a very short episode previously. It was a 37-minute episode. We had a very tight window with a full day of activities for the Wash U admitted students.

Speaker 2:
[74:29] So, well, now we've got a little bit more relaxed studio-paced director's cut.

Speaker 1:
[74:38] The director's cut of this podcast would not be great. It would just be a... There's a lot of long pauses where one of us says something, and then we're like, wait, is that true? And then we're typing and checking it. Or where one of us says something that's not quite right, and we have to say, oh, Peter, our editor, can you fix that? So there's not a lot of good stuff left on the cutting room floor, so to speak.

Speaker 2:
[75:04] No, but I do think one of our most popular, most downloaded episodes of all time is one of our longest. Like we have a multi-hour Dobbs and Bruin episode that begins to take off. Yeah, but it's not because of the length.

Speaker 1:
[75:18] It's not because of the length. How long was that episode? I've forgotten.

Speaker 2:
[75:22] It was long.

Speaker 1:
[75:23] Okay, but I mean that was the most high-profile decision in years. I mean, our episode about the tariffs case also has a ton of downloads.

Speaker 2:
[75:34] Yeah, but I think there are a lot of places you can go if you want concise, focused oral discussion of super court opinions. And there are fewer places you can go if you want rambling, unedited, sprawling discussions. That's a long lead-in appointment.

Speaker 1:
[75:52] That often skip key details. We often talk about a case for an hour without ever actually describing what the case was about and what it held.

Speaker 2:
[76:04] So maybe we shouldn't be quite so...

Speaker 1:
[76:06] I feel like we hit it fine this time, right? You were kind of going off on First Amendment doctrine. Can we at least say what the case is about first?

Speaker 2:
[76:15] I'm just saying, it makes me wish we could be a little easier on the justices. They just write like we podcast.

Speaker 1:
[76:24] We have editors, right? If one of the justices wants to hire me to just redline their opinions, I will do it for minimum wage, and I will make those opinions more effective. I love editing.

Speaker 2:
[76:39] Fair enough. I should hire you to edit my articles.

Speaker 1:
[76:42] Anytime. Okay. Thanks very much for listening. Thanks very much to our partner, SCOTUSblog, for hosting the show. If you like the show, please rate and review on the Apple Podcast app. Visit our website, dividedargument.com, for transcripts of the episodes. blog.dividedargument.com for commentary from the wider Divided Argument universe. store.dividedargument.com for merchandise. Send us an email, podd at dividedargument.com, and leave us a voicemail, 314-649-3790.

Speaker 2:
[77:17] Thanks to the Constitutional Law Institute for sponsoring all of our endeavors, as well as the University of Chicago Women's Board.

Speaker 1:
[77:23] And if there's a long delay between this and our next episode, it will be because the state of Missouri and or Illinois have decided to regulate our podcasting licenses because of the content of our takes.