Advisory Opinions - A Cheerleader's Supreme Court Case

Episode Date: April 30, 2021

After reflecting on The Dispatch’s interview with former President George W. Bush this week, David and Sarah discuss Justice Stephen Breyer’s controversial pronunciation of the word “amicus,” Justice Brett Kavanaugh’s Second Amendment jurisprudence, and Justice Neil Gorsuch’s majority opinion in Niz-Chavez v. Garland, Attorney General. Stay tuned to hear our hosts chat about Supreme Court oral arguments for a First Amendment lawsuit involving a high school cheerleader. Show Notes: -Out of Many, One: Portraits of America's Immigrants by George W. Bush -George W. Bush Paints E Pluribus Unum on the Dispatch Podcast -“When a Justice Needs a Friend” by William Safire in the New York Times -Heller v. District of Columbia -Niz-Chavez v. Garland, Attorney General -Mahanoy Area School District v. B.L. Supreme Court oral arguments -Tinker v. Des Moines Independent Community School District -Morse v. Frederick -French Press: “How an Angry Cheerleader Could Help Cancel Cancel Culture” by David French in The Dispatch -Harper v. Poway Unified School District -Dariano v. Morgan Hill Unified School District -Saxe v. State College Area School District Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And Sarah's going to sound a little bit different because she is not in her home podcasting studio. She is in the great state of Texas, Tennessee's first and only colony. And Sarah, what were you doing in Texas? I mean, first of all, I came for the queso. As y'all know, my husband did not bring back the Torchy's queso that he was supposed to bring back when he was in Texas last. So I, in fact, booked a hotel next to the Torchy's taco and got myself queso and margaritas at 10.30 in the morning yesterday. The reason, however, David's face is like, wait a second.

I was just doing the math in my, did you get the queso and the margaritas before or after you did what you're about to say? Because I'm kind of hoping it's before. It's not before. It was a celebration queso and margaritas. celebration queso and margaritas. I took Steve Hayes and Caleb, the producer, after we had this wonderful interview with President George W. Bush. And then we were talking about his new book, Out of Many One, his portraits of America's immigrants. And then we were able to see the exhibit of his portraits in the Bush Library. And it was so super cool. And the book is the number one bestseller

on the New York Times right now, which is neat. The thing I would tell people, I think the stories are incredible. I think if you have, you know, sort of children who are old enough, it's one of those things that you can like read a two-page story over dinner with your kids. And I just think it's inspiring.

And, you know, you're going to be singing Lee Greenwood by the end of each page. But also the paintings are really neat and the colors he uses. And if you listen to the interview, it's the first question I asked. How he used color to convey these folks' American story and their sense of pride. And it was a really fun interview to talk to him about something he's passionate about, painting and immigration reform, basically. And of course, we get into some other topics

as one has to do. Yeah, so I wrote about this book. I'm holding it in my hands. You can't, Sarah can see it, but this book. I'm holding it in my hands. You can't, Sarah can see it, but nobody else. I'm holding it in my hands. I thought, I thought it was great because it was just so good to read something that wasn't just sort of crapping on the state of this country. Oh, and to be honest, I mean, there, according, like in this book, you would think there are no problems with the state of this country.

And David, but I asked him a question that I thought you would appreciate. Because in each of these stories, he emphasizes family. He emphasizes God in different religions. But then one of the things that's in every single story is the social capital it took for people to make it to the country, to assimilate into the country, to get a meal when they get here in this country where they don't speak the language, don't know anyone. And I asked him whether he thought that he was writing it that way to emphasize the importance of social capital because it's declining, or if he thinks it's actually more vibrant

in sort of the David French version of America. Things are better, and the people who are saying everything's terrible are just not correct. And he chose the David French path. He said, no, I don't think social capital is declining. I think that the story of America is actually just how generous and loving people are in their hearts to those, to their neighbor. Yeah, I can't wait to listen to the podcast and especially that part of it, because I do think that we have, you know, it's really interesting if you, and I know, you know, you can over-rely on sort of the disaster data point as far as like what happens when there's a natural

disaster and you sort of see communities rallying. But what's interesting about when you see communities rallying is time and time again, they're not creating institutions instantaneously out of whole cloth that are then being deployed. Now, yeah, there are people who impromptu rise up. But what's amazing about that is that's one of the few times when sort of this invisible social capital becomes visible. It's when you see, like, for example, here locally, we have this thing in the Churches of Christ called disaster relief. And my father-in-law spends a lot of time going and he's packed. He spends a ton of time pre-COVID. And now that they're all vaccinated, he'll start again packing up boxes and getting things ready for the next time something bad happens in this country.

And that's just what he does and a whole bunch of other retirees do. And it's invisible until suddenly it's visible. And I think that one of the things that was great about the book is Bush made something that is mostly invisible to us. For example, reading about Catholic Char and what Catholic charities does to help immigrants into this country. Nobody knows about that. And nobody in Catholic charities is doing that to have these headlines.

But there they are. And I'm forever indebted to Catholic charities because they were the ones who were indispensable in our adoption process. And so we have our own immigrant story in our family and Catholic Charities was indispensable to it. And I probably don't talk about that enough. And so I thought that was fantastic. But there was one part that kind of ticked me off, Sarah. Oh, yeah. So Yuval Levin, who's awesome, got his portrait painted by the president of the United States.

It's true. And I don't know if I'm ticked off. I'm just kind of jealous of that. Oh, see, I was like flipping through and loved everyone's story. And then about, what, two thirds of the way through, Dirk Nowitzki. I'm a lifelong Rockets fan. I bleed Rockets. And to see a Dallas Maverick featured, it was painful. Even though you read it and you're like, okay, he's a super good person. I know that. But he's a Dallas Maverick. I don't know. Yeah. No, I was glad to see it. Dirk's awesome. Glad to see he got a chip. As legendary producer Caleb says, 2011 NBA champs right there.

But Sarah, your Houston Rockets were a Chris Paul hamstring away from your own championship a few years ago. They won their back-to-back championships when I was in junior high. And I got to go to the ticker tape parades. Just fabulous memories. Legendary producer Caleb says nobody cares.

Fight me, Caleb. Okay. Well, let's talk some law. We got a lot. We got a lot to cover. That's really good, interesting stuff. In order of importance, no, not really. in order of importance.

No, not really. We're going to begin with the controversy, the raging question and controversy over Justice Breyer's pronunciation of the word amicus. We're also then, after we get through that, if we can get through that without this podcast evolving into a shouting match, then we're going to go and talk about Justice Kavanaugh, because there's a Second

Amendment case, as we talked about last time, that has been accepted for review. And Justice Kavanaugh has some interesting jurisprudence in his background regarding the Second Amendment. So we're going to chat about that. Then we're going to move on to Justice Gorsuch and a case that was decided this week that, let me tell you, Sarah, there's just times when I just appreciate Justice Gorsuch for being Justice Gorsuch. Yeah, this would be one of those times if you're going to appreciate Justice Gorsuch qua Gorsuch, this was it. appreciate Justice Gorsuch qua Gorsuch. This was it. Yes. So if you're listening, Justice

Gorsuch, you just keep being you because this opinion is fantastic. And then we're going to talk about what I'm calling the AC case, the angry cheerleader case. We have talked about this before, but the AC oral argument may be one of the most interesting

slash frustrating oral arguments i have ever read um and we're gonna break it down we're gonna break it down because sarah i i have lots to say about this there's a a surprise. All right. Well, let's start with the last episode. I noted that Justice Breyer said a micus brief. And I was really confused. Did I mishear it? It was kind of difficult for me to get back to hear it again. And so I just mentioned it offhand on the podcast. And we got a listener email who found some deep cuts on this. In 1997, the New York Times actually wrote about this. And of course, it was William Sapphire, who, you know, one of the best humans to have ever walked the planet. So I'm just going to read you William Sapphire because no one can do Sapphire better than Sapphire. There are two kinds of legal

kibitzers, those who pronounce A-M-I-C-U-S, amicus, and those who pronounce it, amicus. Each submits a brief as an outsider, ostensibly not with an interest in the outcome of a case, but as a, quote, friend of the court. In Latin, amicus curi. Tony Morrow, who watches the Supreme Court with a legal eagle eye for legal times, noted that Justice Stephen Breyer has his own pronunciation. During arguments January 15th in Lambric's B. Singletary, wrote Morrow,

Breyer said amicus so many times that the hapless lawyer before him, solo practitioner Matthew Lowry, adopted the same clearly incorrect pronunciation just to be accommodating. Fast forwarding, Sapphire goes on a hunt to find out what the true correct pronunciation is and talks to Brian Garner. And here's what Brian Garner says. Justice Breyer has adopted an Anglo-Latin pronunciation, Garner explains. It will make any Latin teacher

apoplectic, but it has English and American history behind it, and that, in the end, matters more than how Cicero might have mouthed the phrase. So there you go. That really is how Justice Breyer pronounces it. He, it sounds like, is quite stubborn about it from 1997 to 2021. And he's not totally, wholly incorrect. There you go. Interesting. Okay. Well, I'm glad we have solved that. And you don't have enough columns. Here's my question, Sarah. When are you going to get a font-dedicated column in the New York Times? I mean, knock, knock. Is anyone listening? I'm right here, guys. You should write and submit one about the Microsoft default font change that we were both tagged on at Twitter. And you should do it. Just do it. Put 800 words. Put 800 words on fonts on paper. Remind an editor that one of the most popular skits in the last few years of SNL was about the papyrus font.

True. And that this is good viral content. Yeah. So do it. We had another listener who heard about our conversation last time about that New York gun case, David, that we talked about where the Supreme Court has accepted Tusharari. They're going to hear the New York gun restriction case. And we talked about the levels of scrutiny. And we talked about how we were looking to another case to see what level of scrutiny they would pick in that in a different context to apply to guns. And this listener basically was like, uh-uh, don't be so sure, and pointed me back to Kavanaugh's

2011 Heller 2 opinion, right? Because Heller gets decided by the Supreme Court, sent back down, it makes its way back up to the DC Circuit. Kavanaugh is in the dissent on the DC Circuit, but now he's a Supreme Court justice. So perhaps we can see some tea leaves. And I want to read you this section of his dissent. To be sure, the court never said something as succinct as, quote, courts should not apply strict or intermediate scrutiny, but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations. But that is the clear message I take away from the court's holdings and reasonings in the two cases. Governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition

than they would under strict scrutiny. He goes on to say a couple paragraphs down. on text, history, and tradition than they would under strict scrutiny. He goes on to say a couple paragraphs down. Super interesting. Obviously, 2011 D.C. Circuit Judge Kavanaugh, his job, not just technically speaking, you know, actually his job is to try to interpret the Supreme Court's opinion and apply it as faithfully as he can. So it is not necessarily his own opinion as to how the Second Amendment should be interpreted. Nevertheless, I think I agree with our listener that this appears to be a little bit more than just trying to interpret what the Supreme Court was doing and seems to have a little bit of his own feelings about how it should be interpreted. David, what I found interesting about it is he never really says why. Why this amendment would be text tradition in

history when other amendments have a scrutiny level. I would definitely look for that. But sometimes when people write me to tell us that we missed something, my first instinct is to want to argue back about why they're wrong and why I didn't miss anything. But in this case, I actually think that there's a pretty good chance Kavanaugh is going to follow this path and argue, whether he's in the majority, the dissent, a concurrence, or something else, argue that in fact, scrutiny is not the answer for the Second Amendment, intermediate, or what I was calling exacting scrutiny last week, or strict scrutiny. Yeah, you know, it's going to be interesting because this came up in the category of

gun ban and ban on category guns, in this instance, lots of semi-automatic rifles. And so what he's basically saying is that, wait a minute, Heller just flat out deals with this, that guns that are dangerous and unusual and not the sorts of lawful weapons that citizens typically possess at home, that those can't be banned. There's not a scrutiny level here. This is just, the court has said under the text history and constitution that, yeah, there's room to regulate or room to ban something that's dangerous and unusual and the sort that's not typically used by citizens at home. So there's no need to have a scrutiny level here. It's just flat out dealt with text history, Heller, boom, done. And this

is something that a lot of Second Amendment activists, and when he was in the first phase of his nomination controversy, this case came up quite a bit. And this is something that Second Amendment activists and advocates have pointed to quite a bit, which is, wait a minute, all these assault weapons bans, all of these large capacity magazine bans, which is, wait a minute, all these assault weapons bans, all of these large capacity magazine bans, and when they say large capacity, it typically means standard capacity. In other words, the normal magazine that comes with the gun. Under Heller, you just can't ban that stuff because it's not, yeah, of course it's dangerous,

but it's not dangerous and unusual. Of course it's dangerous, but it's not dangerous and unusual. So I think that this analysis that Kavanaugh is adopting and may well adopt as a justice of the Supreme Court is quite applicable and flows naturally from Heller. sure about the kinds of gun regulations that are not gun bans, such as permitting requirements, such as shall issue versus, you know, now on the shall issue versus may issue, I think he can go text history on may issue. I mean, uh, on that issue, uh, but the extent of permitting, um, requirements, the cost of it, I'm wondering how applicable his text history, etc., etc., would be to that kind of regulation as opposed to the gun ban category of regulation. And so we shall find out at the argument. I have a feeling this may come up a couple times. Yes, indeed.

And I have a feeling that his 2011 dissent will be quoted back to him several times in that argument. Oh, no question. No question. Well, Justice, as you wrote. Yeah, exactly. Exactly.

So shall we move on to Justice Gorsuch being Justice Gorsuch? Yeah, so this is a case called Niz Chavez v. Garland, and the opinion came out this week. And again, shout out to a listener who is an immigration attorney and wrote us a nice little explanation of how this works in his practice, knowing that we would talk about it this week. So David, I'm just going to read his explanation because I thought it was better than

the courts, actually. One of the ways an immigrant can defend him or herself against deportation is through cancellation of removal, wherein they have to prove three things. One, good moral character. Two, extreme hardship to U.S. citizen or permanent resident children, spouse, or parents. And three, 10 years of physical presence in the U.S. Immigrants started delaying their final hearings to get the 10 years. So Congress enacted a stop time rule stating that when served with the notice to appear, your physical presence time in the U.S. stops so that even if you delay your final hearing, you don't get to 10 years if you didn't already have it. That's a great explanation of where this

case picks up. He also noted the first paragraph of Justice Gorsuch's majority opinion was chef's kiss in his view. And indeed, if you agree with Justice Gorsuch, it is chef's kiss. David, should we start with the opinion or the very interesting lineup of who's behind it? Well, you've teased the paragraph. All right, I'm going to read the paragraph. Yes. I'm a little upset you're reading the paragraph instead of me, but go ahead. Anyone who has applied for a passport, filed for social security benefits, or sought a license understands the government's affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble.

But it turns out the federal government finds some of its forms frustrating, too. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires the government to serve a, sorry, to serve, quote, a notice to appear, end quote, on individuals it wishes to remove from this country. At first blush, a notice to appear might seem to be just that. A single document containing all the information an individual needs to know about his removal hearing. But the government says supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings, as many as they wish, over time, as long as they find convenient. The question for us is whether the law Congress

adopted tolerates the government's preferred practice. The answer to that question, spoiler alert, is no, according to Justice Gorsuch and his brethren. Indeed. Now, do you want to talk alignment? Yeah, we'll talk about how they came to this, but the main thing that people are noting in this case is the alignment. So, for this case, you have Gorsuch writing for the majority, joined by Thomas, Breyer, Sotomayor, and Kagan,

and Barrett. In the descent, you have Kavanaugh, Alito, and Roberts. Now, just to remind everyone, in Bostock, where Gorsuch wrote the majority, and there's a reason Bostock is very relevant to this case, Gorsuch wrote the majority with Roberts, Ginsburg, Breyer, Sotomayor, and Kagan versus Kavanaugh and Alito. Same, but with Thomas. So you basically have a Roberts Thomas flip from Bostock to Ms.

Chavez. That is going to be weird as we explain to you why this case came out the way that it did. And there's two main reasons I would say, David, one is the letter A, which is also the word A. Yep. And two is the placement of quotation marks. says a notice to appear. And basically we have, you know, what is it? 35 pages on why a notice to appear means a single notice to appear. Right. And that while notice to appear is defined later statutorily, and that notice to appear

clearly can be multiple notices. The way that it's written is a quotation mark notice to appear end quotation mark. Mm-hmm. So, as Justice Kavanaugh says in his dissent, which, by the way, you will note is really similar to the dissent in Bostock. He talks about the difference in textualism between the ordinary meaning and the literal meaning and notes once again that we do not use we being his version of textualism. We do not use the literal meaning in textualism. We use the ordinary meaning in textualism. And he

uses an example that, for instance, if you are to submit, quote, a job application, you may submit your resume, and the reference might be sent separately when that person finishes writing your reference. And once those two things have been received, you have submitted a job application. I thought that was a pretty good example and very persuasive. David, what'd you think? I found it to be not as persuasive as you, because I think what we're talking about is the statute here says A noticed to appear. I mean, the word A has significance by the way i once litigated an entire i i once litigated for months over whether the word or could also mean and for months i kid you not um i took the position that or could not mean and and i won so um but does I think that when you have a statute, it has pretty precise language

that has pretty precisely lays out what is required. It is entirely right to hold the government to the precise language that is specified in the statute. And then if they say, well, collectively, we are able to sort of cobble together all of these elements in more than one document, that it's kind of no harm, no foul. And this is part of the no harm, no foul element here that was not so persuasive to me, is the court, as Kavanaugh says in his dissent, he notes that Nishavez was not prejudiced in any way by receiving notice in two documents rather than one. I mean, just comply with the statute. Just do it.

Yeah, but normally in the law, David, that you could have an opinion, for instance, that says you need to have a single piece of paper, fine. But in this case, because there was no prejudice, we find against the petitioner. Like, that's not crazy. Like, there was no prejudice. The guy did show up in person with counsel. What? No, I know. I know.

But just comply with the law, and the burden of not complying falls on the government. I mean, I think it's pretty... Also, Kavanaugh notes that this won't help removable aliens in the future because the government is very much allowed to put a random date. So in this case, it was like your notice of removal, and then separately they sent your date of your hearing. So you have to do that all on one page is now what the Supreme Court has said. But what the government can do is send you a notice of removal with, you know, May 1st, 2022 on it, and then send you a letter later that's like, by the way, we've moved it from May 1st, 2022. It's now a very specific time, you know, June 23rd at 430 p.m. 2022.

No problem with that. Look, Justice Gorsuch's first paragraph is just perfection because essentially what's happening here is he's applying to the government the same standard the government applies to us time and time again. Do the form correctly. I don't get to go back to the government and say, well, you know, the fact that I didn't date this correctly or whatever, no prejudice. They have the absolute ability to say, just do the form correctly. So just do it. Just do it the form correctly. This is not hard. I hate double standards where the government provides itself more grace than it provides its citizens. And so to me, that's what this case is. That's the argument that I am most persuaded by,

which is if it's ever a close call, the tie goes to the runner, meaning not the government. Right. And this is close enough that perhaps, and to your point, the government could comply with it. And in fact, there's no particular burden if they can just change the date later. Therefore, the tie should go to the runner. And I agree that is the Team Gorsuch most persuasive. I think that the literal versus ordinary meaning argument, however, goes to Team Kavanaugh, which I am on. But what do you make of the fact... So Barrett wasn't there for Bostock,

so she's a new vote regardless. And she's Team Gorsuch, literal meaning, slash tie goes against the government. Fine. Thomas and Roberts switching between Bostock and this case, I don't fully, I wish so much that we had a concurrence from one of them. I mean, I really wish we had one

from both of them, meaning a Roberts separate dissent or, you know, normally we'd get like a paragraph from Roberts just on why. How? Yeah, I don't. I mean, it is a fascinating alignment. I mean, you know, on the one hand, to see Barrett there and Thomas there with Gorsuch in a lot of ways doesn't surprise me. But then to not see Alito with them surprises me. So yeah, this is a fascinating alignment. And I, you know, I just wonder about

just fascinating alignment and, and, uh, you know, I, it's the kind of thing I'd love to just sort of sit them down and say, okay, what's going on here exactly? But once again, Sarah, it's a demonstration of even when you have justices who are pretty closely aligned in their interpretive philosophies, pretty closely aligned, that does not mean that they're always going to be ruling in the same direction when confronted with the same set of facts. And so textualism is not plug and play. There's a lot of judgment that still goes into a textualist analysis, as this is evidence exhibit double Z of that. I think this is now the best example, the example that I will be using most frequently on alignments and realignments that are both unusual, case-specific, and as you said, take the conservatives

and just jumble them up. Yeah, yeah. It's very interesting. Very interesting case. But I'm just, you know, I'm going to just I'm going to plant my flag next to Justice Gorsuch on the on the opinion that a notice of appear and a notice to appear means a notice to appear. My standard flies next to you, Justice Gorsuch. All right. It's AC time. Oh, boy. Okay. You've been waiting so patiently. I've been waiting. I've been waiting. Not that patiently. Well, mildly patiently. Okay. So can I tell you my main frustration and then we'll dive into the details? Yes. Okay. So here, so just to back up and remind listeners about this case, and we talked about this case before, and it's one that generated a really interesting, a lot of reader email. I'm sure this discussion will trigger a lot of reader email and a lot of, you know, sort of thoughtful thought, I would say thoughtful anguish about what to do here, and you could see it in the court's oral argument.

The basic facts are these, that this cheerleader, BL, she has the initials BL, I just call her AC, Angry Cheerleader. She suffered some adversity on her cheer squad and in a private softball club that she's a part of. And so she puts a Snapchat, posts a Snapchat or puts something in her story that's going to go to a couple of hundred of her closest friends. And it's something like F cheer, F softball. She's mad. She's frustrated. Sends it into the ether. She's not on school ground. She's off the school campus. She's not under school supervision at that time.

Of course, the fact that she says that to 200 of her closest friends means it gets back to school authorities, cheerleading coach, and she is suspended from the team for a period. I believe a year. And so she, AC, does not take this lying down. Rather than just accept her punishment, she says, for a period. So I believe a year. And so she, she, AC does not take this lying down rather than just accept her punishment. She says, wait a minute. I wasn't on school grounds. How dare you try to punish me for something that is not in your domain? You have no control over me when I'm not on a school activity. I'm not on school grounds. I'm not under school supervision. This is the domain of my parents, not the government. She sues. Case goes to the Supreme Court. that said that students don't shed their rights at the schoolhouse gate, but allows for schools to be more restrictive of speech of students than the government is permitted, for example, to be restrictive of our speech, you and I, Sarah, or of kids who are not in school. And essentially the standard that the school's allowed to use

is it's allowed to restrict speech that is substantially disruptive of the learning environment. So this disruption standard is the key for Tinker. And there have been so many Tinker cases since Tinker. And so the question is, does the cheerleader speech get analyzed under the Tinker standard? Or as the Court of Appeal said, does Tinker not apply here? And therefore, the school doesn't have sort of that enhanced regulatory authority over her speech because she wasn't,

she was not in her capacity as a student or athlete or whatever when she spoke. That was the key. Okay. That's the basic fact. So here's what frustrated me. At the end of the day, what you seem to have was two advocates trying to explain how their standard permitted speech that everybody likes, but still allowed for regulation of speech that everybody doesn't like. Does that make sense? So essentially what you had were these, on the one hand, you had

the school's attorney who did a really good, and I thought that, I didn't listen to it, I read it, so I'm interested in your view of, in listening to it. It was different. I thought these guys did a good job. But the school's attorney is essentially saying, look, under my standard, what I'm advocating is that, you know, look, if if she's doing, you know, political speech or religious speech or whatever, that's not going to implicate anything. It's got to be sort of targeted at the school. There's got to be this disruption. And the justices were like, what are you talking about? Under Tinker, political and religious speech gets regulated all the time, all the time. And so doesn't your test mean essentially that the student is carrying the school with them wherever they go. Essentially,

it's carrying the regulation school, even when they're under parental authority and not school authority. So what was obvious is what the school's attorney was saying was, no, no, all the speech that is like really valuable speech you get to do and all the speech that is really not valuable speech, that's what we get to regulate. So then here comes the attorney for the cheerleader and he says, wait a minute, when the student is not at school, that's the parent's domain. And then the justices are like, well, what about bullying? What about all these awful things that students do to each other? And he says, well, you can still get to bullying. And he sort of puts out this test, this sort of objective harassment-related test for bullying that can apply sort of everywhere. And no bullying rule can be carried

with the student. And so the emphasis kept being something like, everything you like can happen. Everything you don't like can still be prohibited. But here's sort of take my test to do that versus your test to do that. And it frustrated me because at some point I wanted a litigant to say, you know what, in a free speech environment, sometimes a government doesn't get to regulate things it doesn't like. And sometimes people do bad things and the government can't reach it. Now, as an attorney, I can imagine if you're in the actual moment and your case is hanging in the balance, you might not want to say that. That might lose the case. But that's what I kept getting to in my mind was, wait a minute,

sometimes free speech rules mean that you can't do anything government about the speech you don't like. Even when it's bad speech. So that's my frustration, Sarah. I ranted. I'm sorry. I listened to the argument, as you said. I actually listened to the school's argument twice. Lisa Blatt argued for the school. She is, at this point, certainly the woman with the most arguments, but also just one of, you know of maybe three people with the most arguments ever before the Supreme Court. If you want to listen to a totally distinct style of argument, go listen to Lisa Blatt's argument in this case. And I mean distinct, not from Lisa Blatt's other arguments necessarily, but from any other advocate I listen to. You know not from Lisa Blatt's other arguments necessarily, but from any other advocate

I listened to, like, you know, it's Lisa Blatt. And I'll just give you an example. So at the end, she gets her five minutes of reserve time to respond to everything that has now, you know, happened over, I mean, that was a long argument. And she ends with, please don't do this to schools. They are going to freak out when Tinker has been the law for 20 years. Thank you. You just don't hear an advocate say freak out. She was super aggressive,

informal at times. It was a really unique argument style that at times worked for me. And at times didn't not because I was like, Ooh, she's being too informal, but actually because I wasn't sure which side she like, what, what exactly we were arguing for at different points. Um, but that's because as you said, David, in the end, the justices finally towards the end of the argument were like, what are we arguing about here? So I want to walk through Blatt's argument. The Solicitor General got time to argue. Why? Very hard to say. I know. That is like...

It was bewildering. And then the ACLU got argued on behalf of the student. So, but I'm going to skip ahead to the punchline here, which is what are we arguing about? The school wants this outcome.

The court to say, Tinker applies off campus, and therefore we remand for reconsideration. The end. The student wants the court to say, Tinker does not apply off campus, but the school can therefore reach off-campus speech with this creation of a bullying standard, basically, where the conduct, the speech in this case, is so severe or pervasive to deny educational opportunity to a student that is targeted by that speech. Well, here's the problem that the justices

keep coming back to. You have three justices who say, we do not want to write a treatise on the First Amendment. And if we find for the student, we basically have to write this treatise about this bullying standard and what you can reach off campus because of the example that is given of the idea of boys basically creating a website off campus that ranks the girls, talks about their sexual attractiveness, and is bonkers not okay. Well, under the student standard where Tinker doesn't apply off campus, the school has no way to reach that conduct. But the ACLU, as you said, David, doesn't want to say, well, that sucks, but is what it is. Hashtag First Amendment.

And instead, they're creating this other standard of how you can still reach that speech. OK. I mean, I thought I super fast. I thought early in the oral argument the ACLU got it right. They said, look, Tinker doesn't apply, but that doesn't mean that you can't discipline somebody. It's just that you can only discipline somebody if their speech isn't protected by the First Amendment. Otherwise, in other words, if normal law applies, boom, done.

But then they kept trying to pull a whole lot of other nasty things that people don't like and shoehorn it into this harassment standard that I get what they're saying. You have to be really deep in the weeds of harassment law jurisprudence to sort of get what they're saying. You have to be really deep in the weeds of harassment law jurisprudence to sort of get what they're saying. But I think it's just so much cleaner to say, well, justices, if the expression you're giving me hypotheticals about violates existing applicable constitutional law, constitutionally valid law, then it's prohibited because it's not protected. But the normal First Amendment jurisprudence applies. Period. Done. Boom. Over. Yeah. So I just want to, under Tinker, there's two questions that you need to answer that I

just want to tell people before I then walk through the argument, because it's going to be pretty important to the two things we're going to discuss throughout this oral argument. The Tinker standard is two elements. One, is it school speech? And two, is it substantially disruptive? So on that first question, is it school speech? That's where you get the on-campus

versus off-campus distinction. Tinker never really discusses that. But there's also questions beyond whether it's on-campus or off-campus in terms of whether it's school speech, of course. And that's where you get the political discussion. If you say, I believe in marriages between a man and a woman or something like that. Well, is that school speech? Well, it has nothing to do with the school and has nothing to do with the school activity. So maybe not. The second question, is it substantially disruptive, has also been a big problem

because lots of things can be substantially disruptive. And this is where Lisa Blatt, who's arguing for the school, has to make this argument that substantially disruptive does not include a heckler's veto. So just because it is substantially disruptive, she's creating this new test that the speech has to be the but for, sorry, the proximate cause of that substantial disruption. As in, the proximate cause of that substantial disruption as in it itself is what created the disruption, not that the other students didn't like the speech and so reacted poorly to it. And that's what created the substantially disruptive environment, which is a pretty hard line to draw David.

And, you know, obviously I'm very, very in favor of not having a heckler's veto in school speech cases. But where that line is was rough. So can I just walk through some highlights of the argument? Yes, please. All right.

When Lisa Blatt's arguing, a lot of this is a conversation about her heckler's veto line and how she's defining substantially disruptive. Because if you're going to extend school speech to basically all speech that happens off campus that has anything to do with the school. So for instance, you say, women's rights and the Me Too movement

are the most important and our school doesn't do enough to address it. Well, that's now school speech. Even if you say it on a weekend, even if you say it in a conversation to your best friend at a slumber party. And that best friend records it and forwards it to a friend, let's say, and it creates a substantially disruptive environment at the school. Well, you're now in the world where the school can punish that, even if you said it at a slumber party, according to Blatt's test.

But her argument is that no, the substantially disruptive standard would be what prevents the school from being able to punish that, because it's not that the speech was what caused the substantial disruption. It's that all these other students reacted too poorly to it, basically. Wearing a Confederate flag t-shirt, She gives us an example that the speech, a Confederate flag t-shirt on your own time. Yes, it could cause a substantial disruption, but in that case, the Confederate flag t-shirt, you'd have to take into context. It means nothing on its own. You can't have a heckler's veto. That's a hard argument to make. heckler's veto that's a hard argument to make um okay then you have the solicitor general's argument why is the solicitor general arguing justice gorsuch would like to know the answer to that

as well what is the federal interest here where school districts that are all run by state and locals why does the federal government here? And to the extent the federal government does have an interest, David, I would have assumed that their best argument was to argue on behalf of the student, that they're simply arguing for, you know, this sort of individual first amendment expansion or application. But no, the federal government's arguing on behalf of the schools. It was really weird. And so when the Solicitor General asked for divided time and oral argument, they almost always get it. I think this is a case where they abused the privilege. And indeed,

when they're asked, how does your standard differ from the school standard? The guy's like, oh, it doesn't. Then why are you here? And not surprisingly, by the way, reminds me of that office space. Yeah. What would you say you do here? Reminding me of that office space. Yeah. What would you say you do here, Bob? The Solicitor's General Office asked for divided time recently and was denied for the first time in like 10 years, I think. So they maybe abused their privilege a little bit here. He got asked some interesting questions. For instance, Justice Barrett asked what's going to be a really important question.

Barrett asks what's going to be a really important question. Could a student waive their First Amendment rights to join an extracurricular activity? As in, to join the cheerleading squad, you have to agree that you can't discuss controversial political topics off campus. And the Solicitor General says, no, you could not waive your First Amendment rights. And the Solicitor General says, no, you could not waive your First Amendment rights. Wait for it, because the ACLU is going to argue, yes, you can. Also, an interesting question about whether cheating is speech that happens during the SG's time, if you're going to go back and read this. Okay. But then we get to what I think is where this case gets decided, which is the ACLU's argument

on behalf of the student. the ACLU's argument on behalf of the student. The ACLU does not challenge, Tinker does not challenge Morse, aka bong hits for Jesus. They're just going to argue that like, no, no, it's just that those only apply on campus school activities. And their philosophical argument behind this is the in loco parentis standard, right? This idea that the school stands in for the parents, but that only applies when you're at the school. Outside the school, they argue, students have the protection of their parents. Inside the school, they don't, and that's what gives the school the power to monitor their speech. Therefore, outside the school, it's up to the parents to monitor their speech. And David, to your point, his whole argument is, and if you don't like that, eh, you know, sorry.

There's some things that you're just not going to like. That's at least how it starts, but it's not how it ends. It starts. Exactly. Oh, my gosh. Okay. So then Sotomayor asks, okay, could you have a rule, like you have to sign a form to join this extracurricular activity that you can't curse to be on the cheerleading squad? He says, yes.

And then goes on, okay, what about waiving, you know, no political speech off campus? He says, yes. Yes. And the distinction he draws there is the extracurricular-ness of the activity, that the school couldn't require that to go to school, to go to attend class, but that the cheerleading squad could. And in this case, there was a code of conduct standard that BL signed, and that the lower court, in fact, found that she didn't violate the code of conduct. And as he says over and over and over and over, and that wasn't appealed. That is not the question presented

and you don't get to reach that. You also, by the way, have this conversation going on about the justices seem particularly concerned that basically this member of the cheerleading squad could every night when she goes home, send these Snapchats that are like, my coaches suck, the cheerleading squad sucks, everything sucks, these people, you know, I hate them. And that the school couldn't reach that conduct and couldn't punish her on the cheerleading squad. David, to your point, this is where it kind of, I think, if you're a big, very, very strong First Amendment fan, the ACLU argument kind of falls apart because he's like, no, no, no, you can get to that. What? I think the answer to that should be no, you can't get to it. Sorry. Yeah. So I kept

having this sensation, like imagining, you know, the famous case of the Nazis marching through Skokie, you know, this sort of famous line in the sand cases is, look, we all hate Nazism, but the First Amendment is going to allow for the expression of repugnant opinions. It just does. And I imagined if I was imagining the Nazis marching through Skokie oral argument where it would start out like this, look, you know, sometimes the government can't reach speech and the government shouldn't be able to reach speech

that it just subjectively finds repugnant. And you're just going, yeah, you're right, you're right. And then one of the justices says, counsel, but those are Nazis marching through Skokie. So what's the rule that you can fashion? Do we need to write a treatise here about the rule that you can fashion that's going to protect speech, but get those Nazis out of Skokie? That's what it felt like to me, the latter half of the oral argument, where the justice is, and this often seems to come up in these school cases, where it's like, well, we want free speech, but we also really want respect for authority.

It was like this obsession with sort of the internet has made it all different. So it means that in some ways you're always at school because you have Snapchat. And because somebody could pull up, conceivably pull up Snapchat at school, I'm thinking, wait a minute. Look, when I was in school, you know, I was cut from the basketball team because I was, frankly, Sarah, a player ahead of my time. I was not appreciated in my day because, um, I,

I, I know it's, it's still with me. I was a three point specialist before the three point line. I mean, what can I say? So that means I'm a long two point specialist and nobody needed that. Um,

and so the, so anyway, so I'm cut and I was pretty vocal about feeling like that was unjust. And people would go to school and repeat what I said. Okay. So is it somehow different that they're seeing what I said on Snapchat versus repeating what I said verbally that then is going to extend the government sphere? That was, again, another problem I had with this, that the fact

that my off-campus speech was seen or repeated on campus was somehow special. No, there's nothing special about that. Off-campus speech has been repeated on campus since the beginning of time. Well, I think what they would argue about that is the school could have punished you. They just didn't. So therefore, you know, the First Amendment's a floor, not a ceiling. Like, the school didn't have to punish you, but they could have under Tinker, according to the school. Yeah, except nobody cared that I was upset. Yeah, so it didn't cause a substantial disruption.

It didn't cause a substantial disruption. So there was a moment in... Oh, keep going. I'm sorry. Go ahead. The best moment to me, David, of the ACLU's argument on behalf of the student is this Kavanaugh exchange where Kavanaugh asked, what if she had called the coach a racial epithet off campus? And I thought he had a very good answer to that, one that I'm sure you applauded, which is if there were no rule that she agreed to to join the cheerleading squad, then no, they cannot punish her

and they cannot take her off the cheerleading squad. They can call her into the office. They can talk to her about why that's not okay. And then they can create a rule and have her sign that rule to continue on the cheerleading squad. But you have to be told what your First Amendment rights that you're sacrificing are before you can be punished for them. That was one of the few examples where it was something like bad speech that everyone

wouldn't like, where the student's lawyer said, like, nope, you're just going to have to not like it. Right. No, yeah, you're right. You're right. Absolutely. And one other thing I do think that was, so Lisa Blatt was trying to make this argument. And I think because back in the back of everyone's mind and somewhat it moved to the front of mind was this, that we're in really highly polarized time and the expression of political opinion that people don't like can cause a big disruption. It can cause sort of, not disruption, can cause an uproar, can cause a big uproar. And this is what I talked about in my very first piece about this, my French press newsletter about this, which we'll put in the show notes, is how an angry cheerleader could help stop

cancel culture. Because essentially what was happening, a lot of this sort stop cancel culture because essentially what was happening a lot of you know this sort of cancel culture world depends on i'm so mad about what somebody said on social media now what can i do about it in this other sphere and one of the interesting things about black's oral argument is she kept on saying that well of, political and religious speech isn't the kind of thing that Tinker really, truly applies to. Substantial disruption over political and religious speech, that's not really what Tinker is going to allow a school to do, and that's not law that allows schools to punish religious and political speech. I mean, Harper v. Poway Unified School District, Sarah, just off the top of my head, 445 F3-1166, Ninth Circuit, 2006. Ninth Circuit upholds a punishment on a kid who responded to a Gay-Straight Alliance Day of Silence by wearing a t-shirt that says, I will not

accept what God has condemned. And that's upheld as punishing the student is upheld on the grounds that his statement, that religious statement, and also I think on the front it said, I will not accept what God has condemned. On the back it said, homosexuality is shameful, Romans 127. But that shirt was deemed a violation of the rights of the students, of the other students on the back. It said homosexuality is shameful, Romans 127. But that shirt was deemed a violation of the rights of the students, of the other students at the school.

So that was a religious statement, boom, specifically targeted. Then you fast forward, Sarah, to another case off the top of my head, John D'Ariano, D'Anna D'Ariano, on behalf of their minor child MD, versus Morgan Hill Unified School District, you have Cinco de Mayo,

you have some students who are going to wear a Mexican flag and some students who vow to wear an American flag, and the students who are going to wear an American flag are prohibited from doing so, and the Ninth Circuit upholds it. Why? Because they're worried that the students who are wearing the American flag might be subject to violence.

What is that, Sarah? It's a heckler's veto. Yeah, so, you know, that's, and those are just two cases that you can think of where when you're talking about the Tinker standard, just to be clear, readers who are listeners who want, who are going to write me and say, well, we need to be able to control this off-campus speech because of all of these reasons. The law as it is right now under Tinker

in numerous circuit courts is going to allow for targeting of political and religious speech if they can make a claim that people on the campus are upset enough about it. Okay. So that, that's where the law is. And I think that where, um, you know, and it was Kagan who kind of brought this in, in the oral argument with Blatt. And I don't think that, that she had the best response to that. And she didn't have the best response to that because the law is kind of a mess in this area right now. It really does allow for targeting of specific political or religious speech based on fears about a heckler's veto. of specific political or religious speech based on fears about a heckler's veto.

And if you're going to carry that outside of school, well, my goodness, watch out social media posts about politics. Watch out social media posts about religion. In this hyper-polarized time, you're talking about really clamping down because that's what Tinker lets schools do right now. Tinker needs work. It needs revision because it is a mess. And I think that Blatt tried to

idealize it like, no, not political religious speech. Heck yeah, political and religious speech. Well, and I think that that's why Blatt had to spend so much of her argument time on her heckler's veto examples because she basically had to say that those cases were wrongly decided. And she did. Yeah. I mean, she almost gave the exact example of the homosexuality t-shirt and said

like, no, just because it upsets the other students, not enough. And the Confederate flag t-shirt, I think is far more egregious in some ways than the American flag versus Mexican flag things. Although, folks, Cinco de Mayo, look up the history of it. This is not a Mexican holiday in any real sense. Mexican Independence Day is.

It's in September. That's what we can wrap our heads around. So three notes also that I thought were just fun notes, David. One, Cavanaugh used the phrase, worth the candle. I had not heard this phrase in oral argument, and I went and looked up the etymology of it because it's a fun phrase. It dates from the medieval times when any nighttime activity had to be lit by candles, which were expensive. So the question, is this worth the candle means, is it worth, you know, the time and expense to have a candle at night? Cool. Two, did you hear birds in the background every time Alito was asking questions? Uh, I only read it. Oh, that's right.

I heard birds. So either I'm losing my mind or Alito was maybe outside or had a window open. It is lovely in DC right now. Three, and this was just very funny if you watched the Kavanaugh

confirmation hearings or know anything about him, Justice Kavanaugh was just having none of this as a coach of girls' basketball. I know. He was basically like, time out.

I'm not going to be a justice for a second, and I don't care about the law. This coach clearly overreacted. It was bad coaching. You have a responsibility to these kids to teach them stuff. And like, what was this? to these kids to teach them stuff and like, what was this? And, you know, the SG and the ACLU lawyers

both like all got these questions and each time it was like, maybe. Lisa Blatt was kind of like, yeah, I mean, you can't really second guess the coach though. I mean, here we are. These are the facts. I don't know. guess the coach though? I mean, here we are. These are the facts. I don't know.

I literally, Sarah, laughed out loud at that portion because I'm reading and I'm going, oh, wait a minute. He's on full girls basketball coach mode right now. And he knew it. He was basically sort of musing out loud his thoughts about the coaching experience. And he knew that it wasn't relevant to the legal analysis and said so in so many words. But he just had to get it out. And it was, again, exhibit number infinity that these justices are human beings. And as a human being with experience in coaching, he's looking at this and going, what the heck? Why? You know, Blatt didn't really want to engage on it and she didn't. By the time he went to the SG, though, the SG actually had an answer to it and said, actually, it was very proportional

because the punishment was to be suspended from the cheerleading squad for a year, not the school. To which I think everyone's like, I mean, I hear you that because her actions were directed toward the cheerleading squad, the punishment was from the cheerleading squad, but a year suspension for a Snapchat, you know, F cheerleading? I mean, okay. And the best argument was, well, a mission of the cheerleading squad

is team cohesion, and this, you know, was specifically against team cohesion. All right. I also love that Kavanaugh brought up Michael Jordan as arguably the best basketball player. So I will argue with you, Justice Kavanaugh, about that. And then he brought up Jordan as being still ticked off,

so ticked off about his treatment, what, as a sophomore in high school, that he brought it up at his Hall of Fame induction ceremony? Yes. And his point was, these students are very emotionally upset by this stuff. And you as a coach should know that and should be prepared to handle it and prepared to work through those emotions with your student rather than simply throwing them off the team and being so shocked in some Victorian sense that the student was upset in the first place. That was, of course, correct in some sense, but also not all that relevant.

But when he said those words, I thought, Justice Kavanaugh, I feel seen. I feel seen right now. Do you know how many consecutive top-of-the-key jumpers I hit in the tryout? Oh my god. Also, on the response

on the Michael Jordan thing was and if Michael, we don't know what Michael Jordan's response was to the school, but the school could have suspended him from the basketball team, basically. And I was like, alright, I don't know that that's the answer you want to give. Exactly. could have suspended him from the basketball team, basically. And I was like, ugh, all right. I don't know that that's the answer you want to give.

Exactly. Well, it's sort of like, it was sort of, it really kind of, in many ways, boiled down to what kind of excessive behavior is the court going to tolerate? Is it going to tolerate excessive behavior from the state or excessive behavior from the state or excessive behavior from the individual? And because, you know, under the way that the Tinker law has developed, law under Tinker has developed, it gives the state a lot of leeway. And I thought that in

one sense, the Kavanaugh questioning was really interesting because it was flipping around the negative hypo, or not even a hypo, he was sort of flipping around the sort of fairness dynamic here and saying, but yeah, you really brought the hammer down on this kid. And I think the First Amendment says the state is going to have to bear the burden and the individual gets to exercise the freedom. And that's the balance that the First Amendment has struck. So how do you think this is going to come out, Sarah? I'm stumped. Here's the problem. I think if you took 90% of the argument, took 90% of the argument,

the student is looking pretty good, except that the much easier outcome is to fine for the school. Tinker applies off-campus and remand. That's a problem. Because again, you had three justices, Justice Breyer, Justice Kavanaugh, a little bit, and one other justice who I'm forgetting who said we don't want to write a treatise

and if you're going to not allow the schools to apply Tinker off campus you're going to be writing a little bit of a treatise. We'll see. I think there's a way to cut this Gordian knot. All right. And the way forward has been shown by Justice Alito in a little case called Sachs versus State College Area School District when he was a third circuit judge in 01.

And this is one of these seminal student speech cases. I don't know if listeners can tell, I've thought a lot about student speech over the years. But SACS versus State College Area School District, essentially, I think here's what they can do. I think they can say, Tinker doesn't apply, affirmed, Third Circuit ruling affirmed, period, end of discussion. And if they want to include any dicta that sort of says, well, okay, what do we need to do or what kind of liberty or what kind of restrictions can schools impose, CEG, SACS versus State College Area School District district because as the ACLU lawyer pointed out a few times that was a case in which Alito very carefully described what is a

constitutional versus non-constitutional anti-harassment policy and this was this is the case that I use time and time again to strike down speech codes across the country because this was an anti-harassment policy written for a public school that was subjective. It had a subjective test. So, in other words, if I perceive something as harassing, essentially it was harassing rather than an objective test grounded in typical anti-harassment law. And I think that, I think they can just say, affirm Third Circuit, Tinker doesn't apply. To the extent that you're curious about constitutional regulations of harassment off-campus, see SACS and incorporate the SACS

standard from 01. Boom, done. And ACLU was moving towards that and was trying to get there. And I think that was sort of the best part of their argument was, hey, if you want to know, there's this case that Justice Alito decided when he was Judge Alito, and it's got the standard. And I feel like they could have just sat right there and said, we don't have to decide all these hypos because there's a bot, there is case law that gives guidance here. If the Supreme Court adopts that, you don't have to write a treatise. You don't have to write a treatise, just affirm, done. So that's my thought. I certainly hope that Tinker doesn't apply off campus. To your point, David, I am terrified if Tinker applies off campus because

of social media. The ability to cause substantial disruption at school from something that you say at a slumber party has just been magnified wildly. And the school can reach then any and all speech, and the school can reach then any and all speech, you know, no matter where you are. That's really scary. Yeah. But this argument was a lot closer than I thought it would be. I agree with you.

That's why I'm really stumped. And we really seem to have a disease, Sarah, right now that's saying where people on both sides of the political spectrum are saying, yeah, I love free speech, but what are you going to do about this kind of free speech? Well, it's, I'm going to disagree with it. Nope, not enough. Not enough for you to disagree with it. You got to do something about it. And you get this constantly now. We've seen some pretty interesting examples on the left and on the right in the last few days when major corporations do things we don't like. So for example, Now, you know, we've seen we've seen some pretty interesting examples on the left and on the right. In the last few days, when major corporations do things we don't like. So, for example, people on the right are trying to see if there's a way to bring fairness doctrine to cable TV to do something about Tucker Carlson.

Well, I don't like Tucker Carlson speech. I think Tucker Carlson is serially, grotesquely wrong and deceptive, but introducing a trying to bring the fairness doctrine, revive it, and then bring it into cable news where it doesn't apply so that you can do something about Tucker Carlson is a real First Amendment problem. You see the same thing on these moderation decisions that conservatives get really upset about from private social media companies. Well, I know I like the First Amendment, but who's going to do something about content moderation? Well, you can disagree with it, but the idea that the First Amendment has got to protect the free speech I like while also creating loopholes that allow me to suppress the speech I don't like, that's not the First Amendment. And it's breaking out everywhere,

this idea that, yeah, I love free speech, but what about that bad speech? And you just kept having that theme in this argument. And that's what really worries me, to be honest. Well, we'll find out soon enough. We will indeed. And listeners, just if we've sounded a little off in some of our conversation, we're operating under about, what, a third of a second delay? Which is, it doesn't sound like much, but it causes, in your normal conversations, it's hard.

Yeah, exactly. So, but your normal conversations, it's hard. Yeah, exactly. But we fought through. We fought through. David, a topic for another time. The night I camped out in front of the Supreme Court to hear the Heller arguments in 2008. The whole night? Whole night. Did you have a tent? Nope. Really? You can't have a tent. We got to save this conversation. It's too long. Okay. Okay.

All right. All right. We're going to have a camp out conversation in a future Advisory Opinions podcast, but we're starting, we're moving more towards the exciting time, Sarah. We're moving. David, I'm nervous about that. I don't know that I have the bandwidth for Christmas this year. For Christmas? Where we get all the opinions.

Oh. Yeah. No, I know. And I just keep being surprised that we don't have the Obamacare decision. I know. It makes me wonder what's in it and what's going on for sure. Yeah. Yeah. Okay. Well, we'll leave that. And I think I heard housekeeping knocking on your door. You did. That's a really good microphone because that was pretty quiet.

Yeah. No, I heard it. I heard it. All right means we're done. And we are done. Thank you for listening. As always, please rate us on Apple Podcasts. Please subscribe and please check out our offerings at thedispatch.com and we will talk to you on Monday. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload

photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply.