Advisory Opinions - Alligator Boots

Episode Date: February 28, 2020

David and Sarah speak with Liz Murrill, Louisiana's solicitor general, about her case before the Supreme Court June Medical Services v. Russo. The three discuss the facts of the high-profile abortion case, legal strategy, and how Liz preps to face the nation's highest court. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Avion points on debit purchases, and so, so much more. Unlock more perks for less with RBC Vantage. Conditions apply. Offer ends June 30th, 2024. New eligible clients only. Complete criteria by August 30th, 2024. Visit rbc.com slash student 100. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. We have a very special podcast for you today.

We've got a guest in the studio. Sarah is going to introduce our guest who is prepping to argue one of the most important abortion cases before the Supreme Court in years. Not to put any pressure on her, but a vitally important case. But before we get to that, a couple of items of housekeeping. One, I'm going to keep hectoring you. Please subscribe to this podcast on Apple Podcasts. Also, become a member of thedispatch.com. We have had a tremendous response ever since the not pay wall came down. And we have been incredibly, we're incredibly grateful for the support that you've given us.

Incredibly grateful for the, really the incredible response we've had. So subscribe to thedispatch.com. Subscribe to this podcast on Apple Podcasts and also rate us, please. One more item of housekeeping. I have to fall on my sword. Last podcast, we had this fantastic discussion of the e-bug, the emergency backup goalie in the game between the Toronto Maple Leafs and the Carolina Hurricanes, where Dave Ayers, a Zamboni driver, came from the bowels of the stadium, subbed in for two injured goalies, helped carry the Carolina Hurricanes to victory. Amazing story.

I'm sure you've heard about it. You definitely heard about it if you listen to our podcast, where I kept calling the Hurricanes the avalanche. I completely got my natural disasters mixed up, and I have been appropriately chastised. No one feels worse about it than I feel. It was the hurricanes. My apology to the hurricanes, to Dave Ayers, to his awesome wife, whose Twitter feed I found thanks to Sarah Isker.

And on behalf of Advisory Opinions, sloppy, Sarah, sloppy. Just terrible, terrible work, David. And you have been appropriately punished. There's been several self-flagellations. I've witnessed it all. I'm wearing the hair shirt right now. I'm wearing the hair shirt right now. But enough about that. We've got a fantastic guest. Sarah, do you want to introduce the guest yes i am so excited because we have been this has been in the works for a while because i knew she was coming to dc she is a wonderful friend of the friend of the podcast who is my husband also um liz murrell is the first solicitor general for louisiana i am that's right. And I love going through your

way back educational pedigree because we do have a lot of students who listen to this, and I think it's just fun to see where people came up from. You were editor-in-chief of Louisiana State Law Review, but you got a master's of laws in alternative dispute resolution from Pepperdine, which is pretty cool and has to come in handy, I would think, more than people would think, actually. It does. You did some clerking. And fast forward a couple decades, you're this solicitor general for Louisiana, which comes with a lot of different things that people don't realize. And I want you to talk about that.

And now you're up preparing for this case. So, Solicitor General, what does your day look like? No day is ever the same. So that's probably the best answer to that. You know, every day is different. Always busy. It's, you know, I think it's the best job in all of state government. How many arguments have you had?

Three. Never really arguments have you had? Three. Never really could have anticipated that. I don't think thought about that at all as I was thinking about my career when I got out of law school, even probably five years ago. I don't think I could have would have projected and said, I'll be arguing three cases at the Supreme Court in the next couple of years. We'll get to your strategy and what prep days look like, because I love that. I obviously see it with Scott sometimes. He gets really curmudgeonly, by the way, so I'm sure you know that. But let's jump into some about this case. Walk through the law itself. This is about admitting privileges.

Well, and let's back up for a second. The name of the case is June Medical Services versus G, correct? Now it's Rousseau. Now Rousseau, correct. All right. All right. Yes, we have a new interim secretary. And so set it up with the basic facts of the case. interim secretary. And so the basic, set it up with the basic facts of the case. So the basic facts of the case are that in 2014, Louisiana passed an admitting privileges requirement. It is different from a lot of the other states who pass these laws in a couple of significant ways. We can talk about that in a minute, but go for it. So a lot of the states, for starters, had criminal penalties attached to their laws.

They also had laws like Texas did where they required abortion clinics to comply with the physical plant standards of an ambulatory surgery center, and they required them to have admitting privileges. And, you know, at least with Hellerstedt, that had kind of a double whammy effect in Texas. So our law is very different. It's not criminal. It's completely something that is part of the facility licensing requirements for abortion clinics. We do not require them to comply with the physical plant standards. There are some requirements for that that they have to comply with, but they're not the same as an ambulatory surgery center, which has a lot deeper, tighter regulations. But what does it mean to have admitting privileges? So it means you have to have the ability to admit and treat a

patient at a hospital within 30 miles, somewhere within a 30 mile radius of the clinic. So something goes wrong at the clinic, a complication of some kind, maybe it's too much bleeding, maybe it's a respiratory, you know, issue all of a sudden. Punctured uterus, that's one that typically requires immediate transfer. Yeah. So then the issue is getting her to a hospital and that the doctor has, quote, these admitting privileges. What happens if they don't have admitting privileges? So if they don't have admitting privileges, they have to either have a – I mean, so the law before this law required a written transfer agreement. Ambulatory surgery centers have to have both. They have to have a written transfer agreement and they have to have all of their medical staff have to have

admitting privileges. So we simply added that element to our law as well because they're doing high volume surgical procedures similar to what occurs at an ambulatory surgery center and they use a pretty wide variety of anesthesia at different levels as well. Seems like it made common sense. It also was a law that was passed not just by our state, but by a number of states based on the recommendations from the Kermit Gosnell grand jury report after what had happened in Pennsylvania. So it was a law that seemed like it made a lot of sense. I still think it does. It diminishes the time to transfer someone to the hospital. It diminishes communication gaps, which are when the largest amount of problems can occur if you're not, if there are delays in communication or the

doctor's not communicating directly with the hospital. And if you're just going to send someone to the emergency room on their own, then you have dramatically increased the likelihood that there's going to be a communication gap because now you've put a non-medical person who's in a crisis in a position to explain what happened to them. in a crisis in a position to explain what happened to them. So I do want to spend a little bit of time on this factual side before we get to the legal side, because a lot of the pushback is that this is, A, unnecessary, that obviously they would still accept her into the emergency room. And so why having the admitting privileges, as you said, it cuts down on time, you said, and it cuts down on this patient information gap so that, you know, she does not have to advocate for herself at that point, which is certainly we see in other health care situations that patient advocacy becomes this very big deal in some maternal health questions. big deal in some maternal health questions. Okay, but the second one... You may not, you don't know what's wrong with you. You know, I mean, you know what, you know what procedure you had, but you don't know what's causing your problem.

But I think the, I mean, there's the other element of it was credentialing. And I think that was a big deal for our state because the doctors at these clinics don't do, they're owned remotely by people who are not living in our state and aren't medical people at all. And the doctors are independent contractors, so they're not always there at the clinics. And the medical directors don't do any real credentialing at all anyway. Well, so this gets to maybe the second pushback, which is these doctors then apply for admitting privileges and get denied. It's not like, I don't know, let's compare it to our bar exams. You take the bar exam, you pass, you fail. That's what's decided. And now you're

licensed in that state. Admitting privileges at hospitals is different. It can be far more arbitrary, I guess, is maybe the best term. So I don't think it really is that arbitrary. I mean, there's been a lot of discussion in Hellerstedt. Certainly, there are a lot of arguments being made in this case that it's an arbitrary and they can be arbitrarily denied. But if you really look at the bylaws, they're very clear. They lay out that these are all really competency-based evaluations. There's an appeal process. Louisiana state law also requires that privileging decisions for nonprofit hospitals and all of these hospitals are that they provide due process. And so they can actually take that appeal all the way up through the state court system. So I don't think

it's nearly as arbitrary as it's been presented. And every single one of these bylaws also provides a mechanism to seek a waiver of any element, anything that's required. So for example, if they said, oh, there's a residency requirement, you can actually seek a waiver of that requirement. So I don't think it's nearly as arbitrary as it's been argued. And it absolutely does perform a credentialing function when they're looking at criminal backgrounds and malpractice histories and how much malpractice insurance you have and what your current skill level is. So it's not quite the black and white of a bar exam, but it's also, it sounds like, not just up to whoever's running the hospital that day and whether they ate breakfast. No, they can be sued if they're discriminating, and there are anti-discrimination

provisions in them, and the church amendment, if they receive federal funds, which they all do, and that's easy enough to check. It's on the LDH website. You can look up every hospital and every parish, and they all receive federal funding. They are subject to the federal HHS Church Amendment, which says you cannot deny and granting or denying privileges to someone on the basis of whether they do or do not perform abortions. But, you know, you said something earlier, and I wanted to clarify that. They can get privileges. I mean, that was one of the most distinctive features of our case is that the doctors, one of the doctors at the plaintiff clinic at Hope already had them and has had them for 30 years. Another doctor, I think four out of the six plaintiffs at a given time, they're not

all plaintiffs now, but the six who were currently at the time that the suit was filed challenging the law had had privileges in the past while they were performing abortions. And two of them obtained privileges during the course of the litigation. So it's just not correct that they can't get them. Their own evidence proved. So quick question. So, David, do you want to step? Yeah, yeah. Quick factual question.

One, how many currently operating abortion clinics are there in the state of Louisiana? And of the number of doctors who are performing abortions at that clinic or clinics, how many of them have admitting privileges? The one who has always had them throughout the litigation and prior to that for probably, I think, about 30 years. There were two who obtained privileges during the course of the litigation, but I don't know whether they still have them. They got in, you know, when they once they obtained an injunction, I'm not sure what incentive they had to keep them. So they may not have them anymore. But, you know, the record shows they can

get them if they try. And there's how many clinics? There are three clinics now. There were five at the time this case started and two closed for reasons that are completely unrelated to this law. David, do you want to step back and give us a few bars of Casey v. Planned Parenthood? Hum a few for us? Yeah. Well, I'm not going to dive too far into the weeds, but the basic state of the law right now after Planned Parenthood v. Casey, which I remember vividly was decided right when I was in law school. There was a huge amount of anticipation about it because there was a thought that this could be the case that overruled Roe because this was a challenge to Roe mounted during the Bush administration with a majority Republican. Bush won. Sorry, yes, Bush won. I think people would assume that I was in law school during Bush won, given my venerable age. But during Bush 1, with a majority Republican

appointee Supreme Court, and the court reaffirmed the essential holding of Roe, but then put in a standard for determining whether or not a state abortion restriction or abortion restriction of any kind violated the right to abortion, essentially saying you could not impose an undue burden on the right to an abortion, which is a really fuzzy term. And a lot of abortion rights advocates after Casey, after they sort of were happy that Casey upheld the right to abortion, began to get really concerned about the fuzziness of this term. And so you're coming in, and just to be clear, your argument is that the Louisiana admitting privileges law does not, you're not trying to overturn Casey, you're trying to say it complies with Casey. Is that right? That's right. But you wouldn't be that upset if they overturned Casey.

We're not asking them to do that. I mean, we think we went under Casey or Whole Woman's right. But you wouldn't be that upset if they overturned Casey. We're not asking them to do that. I mean, we think we win under Casey or a whole woman's health. I mean, either way you cut it. We just, I mean, this was the argument we made at the Fifth Circuit. So it's no, you know, big mystery. But I mean, we argued all along, and I think it's still correct, that they simply failed to carry their burden of proof. They did not. It's a basic fundamental failure to carry your burden of proof to facially invalidate a state law. So fast forward from

Casey to Whole Women's Health. And do you want to give a few bars of Whole Women's Health? This is a little bit what your case turns on, whether it is Whole Women's Health Part 2, which you would lose under, or whether you are, in fact, distinct from Whole Women's Health. which you would lose under, or whether you are, in fact, distinct from whole women's health. Well, to be clear, I mean, we think if you apply the rule of whole women's health, if you can kind of figure out what that is, then it's some kind of, you know, it's a balancing test. No, I mean, if you're found to be identical to whole women's health, like if it's just the same case. If it was exactly the same, if it was virtually identical, then we probably wouldn't be here. I mean, there's no doubt we wouldn't be here if it was identical.

I mean, although there are some people who are identical. So we are. Yeah, they're there. And we'll get to this. But there are some people who argue it's the identical case. The only thing that's changed is the makeup of the court from Kennedy to Kavanaugh. But first, hum us whole women's health. to Kavanaugh. But first, hum us Whole Women's Health. So Whole Women's Health came to the Supreme Court as an, it was an as-applied challenge after Texas had successfully litigated and defended the facial challenge to its admitting privileges law. And it wasn't exclusively admitting privileges. They were sued over a law we called SB2.

That's the whole discussion of it in Whole Woman's Health. And SB2 had the two-prong requirement of admitting privileges and compliance with all of the physical standards of an ambulatory surgery center. And so there was a pre-enforcement facial challenge that failed and or that sex Texas successfully defended. And then a few days after that, like I think three days after that case ended and no cert petition was filed and as applied challenge was filed by a couple of clinics, I think in McAllen and maybe Corpus Christi or somewhere. And and so it was litigated entirely as an as-applied challenge. And there was an injunction that was issued. Texas went to the Fifth Circuit and got it reversed. And then it all goes up to the United States Supreme Court, whereupon the Supreme Court issues this opinion and grants facial relief to an as-applied challenge. So that's one of the weird, quirky things about Whole Woman's Health, that they granted relief that was broader than that that the parties had even asked for. Just one of the

unique things that I see about, you know, and now litigating about that case and several other cases, we've, you know, it's a challenging opinion to parse. So that was... But we're now just a couple years later. That was 5-4, right? Just to be clear, Whole Woman's Health was 5-4, correct? With Kennedy in the five. Yes. Right. Okay. That's an important fact. Yes. That's an important fact. So what are some other unique things about Whole Woman's Health? I mean, Whole Woman's Health starts, the very first sentence of that opinion starts with a quote from Casey. And then it goes through this whole kind of analysis of the undue burden test under Casey. And there's a lot of discussion in there about how to do that analysis and when do you balance the burdens and the benefits. And it's still very much something

that is debated. We argued at the Fifth Circuit about how we viewed Whole Woman's Health and what we thought the process should be and how to apply it. The Fifth Circuit told us we were wrong. process should be and how to apply it. The Fifth Circuit told us we were wrong and that it clearly requires balancing of burdens and benefits. There's still some lack of clarity about think about when you do that. Our position is that you don't get to balancing until there's actually a substantial obstacle. And so we will see probably if we're right, maybe. But one of the things that's interesting is Whole Women's Health has decided in 2016, we're only four years later. It's unusual for the court to revisit something that quickly.

Well, remember, the petition for cert was not filed by us. We were successful at the Fifth Circuit. We argued that that was correct. We still argue that judgment was correct. We did file a conditional cross petition, and we raised the issue of third-party standing, and just would like the court to address why these providers are perpetually allowed to raise the rights of women when there are no women actually challenging the law. And I think from a common sense perspective, if you don't have what's happened, what happened in Texas, and you don't have any proof of that sort of dramatic constriction on access, most women, I think, would feel like, and most

women I talk to do feel like, they would like, they like this law. They think it is better for them. It does ensure more continuity of care, and it protects their privacy better because they don't have to share their personal information with as many people if they do have a complication. And so for a whole variety of reasons, not, you know, the least of which is the history in our state of some pretty egregious health and safety violations, it just seems to be a good law. And I don't know that anybody that's against it. Now, it seems, you know, if you're looking, I think that your circuit court decision upholding the law made it basically inevitable that cert was going to be granted or as close

as inevitable as could be because it is facially in many ways quite similar to the Texas law. I know there's distinctions. I know they're not identical, but it was perfectly teed up by the circuit court for the Supreme Court to come in and say, for the Supreme Court to come in and say, huh, this could be confusing to people if your law is upheld and we deny cert and Whole Women's Health is still Supreme Court precedent. I took that as essentially the circuit court saying to the Supreme Court, yeah, we think this is ripe for rethinking. Am I reading too much into it? Well, I try not to try and read the minds of Supreme Court justices. So, you know, it's hard to say, but I certainly that's the way my friends who, you know, represent June Medical argued it. They argued that the court should grant summary reversal. And there was no need to even look at this case any deeper and that the Fifth Circuit

had completely gone rogue and they should just flat out reverse them. I'm glad, or reverse it, I'm glad that the Supreme Court didn't do that. And obviously, I have felt very strongly all along that our case, that our facts were different, that our regulatory structure was different, and that the record in our case was very, very different. And above all, that they had failed to prove that there would be any burden at all because they failed to prove that they couldn't get privileges. Should the purpose of the law matter in Texas or Louisiana? If the purpose is to pass a pro-life, anti-abortion, we hope that there are fewer abortions in abortion clinics because of this law. Does that have any legal significance in these cases? I mean, I think generally the answer to that is yes, it has legal significance. It always has some legal significance. I mean, what significance it has is really going to depend on the law.

And so if you, I mean, there are some laws that states pass that are targeted more toward protecting fetal life or protecting the integrity of the medical ethics or of people who have to participate in the procedure in the same way that we have laws or we have a lot of litigation in that same space around death penalty issues I mean so ethics plays a lot about into this I I think it just depends. Informed consent laws, for example, I mean, those are all every every law that's passed may it may have mixed purposes. It may have a purpose to protect fetal life or show respect for fetal life or test, you know, the viability limit. It's where the Casey test for me gets...

I mean, those are all things that the laws could do. It's where undue burden gets weird. Because if, you know, there's... Whether it is and its result has been an undue burden, whether it was intended to be a burden, to, David, to your point about it being fuzzy math, maybe. Well, the math gets real fuzzy on the large traction test. Well, you know, part of it is, okay, is it an undue burden based on effect, as you were saying,

Sarah? In other words, is this a law that, let's say you had seven abortion clinics in Louisiana, and the law is passed and enforced, and all seven stay open, and all the doctors get admitting privileges and patients are safe, that the women and girls are safeguarded and there's no effect on access to abortion? Or then does it change dramatically if instead of seven clinics, there's the three, as you said, and maybe one of them would have to close, even though the object of the law is not necessarily to force closure. It's not necessarily the natural effect of it because, in theory, doctors can get admitting privileges. It seems that's one of the things that's up in the air about this undue burden standard. You look at it and you say a law that would be otherwise valid, except that the doctors in Louisiana, the abortion doctors in Louisiana just aren't going to go get admitting privileges. Would that then render the law

invalid because of its effect? And again, that's part of the fuzzy math of this standard. And it struck me that part of the whole women's health calculus was that the Supreme Court was looking at not just intent and not just whether this made sense in the way that you've described it, but what would it actually do to how many clinics are open in the state? Yeah. I mean, if you had a law and its purpose was to close clinics, let's say just you have a law, its purpose is to stop all abortions by shutting down all the clinics, but it doesn't work. It just doesn't do that. They're bad at lawmaking. The test is whether its purpose or effect is to create a substantial obstacle for

women and their ability to exercise their choice. So if the purpose is illegitimate just for purposes of discussion, but it doesn't actually carry out that purpose, then it's like a tree falling in the forest with no one there to hear it. I mean, I don't it doesn't do anything. It doesn't violate the Constitution because it just doesn't have any effect on that choice. It might be a stupid law or a bad law, but I don't think that it's, I don't think that, I think that it has to ultimately to have an effect. And if we just carry that back into kind of the injury element to create an injury to women, which is where things, Article 3 gets a little bit fuzzy, I think. you have these doctors who breathe these bring these claims and they may have to change what they're doing so they obviously i have to

change i thought it i thought of a of a simpler way of describing what i was trying to get out which i just realized what i was what i was trying to get at was confusing well sometimes at was confusing. Wow. Sometimes I start rambling. Is it possible that bad doctors could defeat this law? In other words, the fact that the abortion doctors performing abortions in Louisiana are so bad, I'm not evaluating one way or the other, but is the possibility that the very fact that abortion doctors are too poor, too bad to get admitting privileges, could that create an effect of, in other words, of closing the clinics that could perversely save the law? That's what the question I was getting at. Yeah, let's talk about it in a different context than our law, because I have an example of that. So in Missouri, for example, the doctors refused to participate in the relicensing process. There's one clinic in St. Louis, and the doctor said, we won't let you interview us. So they're all independent contractors of the clinic.

And they just said, you know, we're not going to participate. So it creates this kind of problem where the providers can make decisions on their own independently. The law didn't require them to do that. The law does require the clinic to go through a licensing process to keep its license and renew its license, but they're not playing ball. They just don't want to – they won't participate. And the clinic is able to go and get an injunction and stay open anyway. is flawed because it tends to be built around the effect rather than the reasonableness or the necessity of the law. So if you have a really bad history like we do, it seems pretty reasonable that we should be able to regulate and heighten our regulatory requirements on the basis of facts on the ground in our state. That's how we protect people.

But if the effect of a law is simply to restrict access, and that's enough for a federal court to basically force us to keep the place open, then yeah, you have this problem where you potentially have very bad doctors or bad clinics or clinics who are just willfully noncompliant, which we've seen in the deficiency reports in our state. And they just basically can get away with it because the Supreme Court precedent kind of draws this protective zone around them. But to use my lawyer example, my bar exam example, you can have a bar exam that is completely fair. And unfortunately, all the law students taking it are too dumb to pass it. And now we have no lawyers in the state because they're all just dumb dumbs. Right.

But you could also create a bar exam that is so intentionally difficult that even though the law students, some of them should pass it, none of them are going to pass it that way. And I think that's sort of where... Well, I'm sure some of the ones who don't pass it think that that's already the case. And the dumb-dumbs also think that they're smarter. I do want to talk a little bit about now legal strategy here. You said y'all are not asking to overturn Casey. That's right. What are you asking for?

Who are your swing votes? How are you targeting them? I mean, let's get into it. This is the sexy part. Yeah, I'm not sure how much I'm going to say about that. But, you know, generally, I will say this. We did not ask to overrule Casey or Whole Woman's Health because we think we win, whether you apply either one, even if you read Whole Woman's Health as requiring this balance of benefits and burdens, we think we win. So we don't think the court is necessarily in a position where we'd have to overrule.

So we don't think the court is necessarily in a position where we'd have to overrule. Now, if the court disagrees with me on everything, then we have suggested that it should clarify whole woman's health in a manner that reconciles it with Casey. Like all good lawyers, you have fallback positions. That's right. So that's kind of where we are. Well, you know, you raise something, I think, that's very valuable, especially for a week. Again, we've got a lot of law students who not only listen, but they want to do the kind of work that you do, the kind of work that I used to do. And one of the things I tell law students all the time is you represent a once you're in in the court battle, your your prime your prime focus is on your client needs to win the case.

You're representing a client more than you're representing a cause. Right. And so you don't walk into the court and think, what can I argue for the cause today? You walk into the court and you say, how can I argue so that my client is most likely to win? And that's why I don't think, you know, you don't walk in, to use a baseball analogy, And that's why I don't think, you know, you don't walk in, to use a baseball analogy, taking these gigantic swings for the upper deck, knowing that nine times out of ten you're going to swing and miss. You're just trying to get on base, so to speak. And it seems to me that if you're arguing, if you're walking in arguing that Casey has to go for you to win, you're putting your client in a difficult position. Yeah, I don't think that's a very smart

strategy. I mean, you know, courts by their nature, not just the United States Supreme Court, certainly I think they are, but the circuit courts, the federal circuits, the state, our state courts are similar. I mean, they're generally reluctant. They're conservative by nature. Their job is to adjudicate cases and controversies and to try and apply the law in an even way. And where facts and circumstances are similar to come up with rules that will be similarly applied. And so I think that the more radical you're asking the court to be, the less successful you probably will be. So maybe without getting into specific strategies for individual justices that you may have, why don't we talk a little bit about the preparation? You're up here doing moots.

Yep. What do those look like for you? What's helpful about them? So moots are brutal. That's what you want them to be i've done i did but someone doesn't like they don't all wear robes and one person puts on a doily and one other person sits way back in their chair and makes guffawing laughs uh you know they don't actually it's not like a presidential debate prep what people think it is where each one plays a candidate oh do they do that well no actually but people think it does because that's what it looks like on tv no but i you know i so i mooted

it i've done a couple of moots before i came to dc i was here last week for uh for three moots i've done three more this week all together i will have done nine moots. I've done three more this week. Altogether, I will have done nine moots for this case. And I've done, I've argued two other cases, and I did three in D.C., and I did a couple of moots at home, you know, with law professors at LSU and with some other folks that I could get to volunteer to do it. It's a lot of work to prepare for a moot. So not just for me. I mean, obviously, It's a lot of work to prepare for a moot. So not just for me. I mean, obviously, I'm preparing for months to argue a case.

But the people who are mooting me, it is a lot of work for them because they've got to go read all the briefs. And, you know, if they're really going to kind of get into it, they're going to read it. They're going to read it. Some of the they're going to read the cases. So, you know, the best moots are with people who kind of do this for a living and are really interested in making sure that we don't kind of mess it up, you know, for lack of a better term. I mean, I think that the Supreme Court bar in D.C. is very, very generous with their time. It's a pay-it-forward system. Yeah. And to pay it forward system. G's and people who may be up here arguing cases. So we do get a little bit of a chance to be repeat,

to come up here more than once. But, you know, we all know there are stories of, I think, Justice Thomas likes to tell a story about a district attorney, an assistant district attorney from Louisiana who did such a terrible job that they, you know, they really hope that never happens again. So I saw him at a reception once. I said, I hope we're doing a better job. He said that we were, but I'm not sure he was, you know, I don't know if he was just being kind. He had to say it. So I've got a kind of a brass tacks question about prep. So I've not had the privilege of arguing in front of the Supreme Court. I've done federal court of appeal, state Supreme Court. And I would prep knowing full well I was going to be interrupted. But I would I would kind of prep. I would have a for lack of a better term, a speech that would fill the time that I had in the back of my mind to where I could keep going until I was interrupted. Do you do something like that? Or do you kind of, how do you, how do you construct here is how I, here is how when I

stand up and I start talking, here is how I start to construct it. Cause that's a, that's a kind of a different thing from here's how I respond to all of the incoming questions that I know I'll get. It is. You kind of have to change. I guess it's like training for anything. You have to cross train. You know, you want to kind of change what you do a little bit. So the one thing a lot of people forget to do is to plan and train for silence. And at the United States Supreme Court, it's rare that you have that, but it's not unlikely. And I mean, there are some cases where you just may not get any questions and you're going to be standing up there and you've got to talk. And, you know, the one thing that I always tell law students, and I was a moot court coach and

I taught legal writing and appellate advocacy at LSU for years, and you don't have to stay up there and talk the whole time. So that's a good rule to remember, too, is that if you've said what you need to say, then you just sit down. If nobody's asking you any questions, then sit down. But usually up there, they're asking you questions. And so one of the things that you need to do is prepare for a couple of things. You need to be prepared for all the questions that you might get asked. And that's part of what the moot process does. You also have to prepare for judges. And this happens, you know, in all the circuit courts, too, that might filibuster you and try and use up your time or keep you talking about something that you don't want to talk about or keep you from talking about things you do want to talk about. Especially a vote you're never going to get. Yeah. So that's just part of the practice and the discipline.

The other thing is you can moot. Like when I moot, I usually moot for and I'll stand up and answer questions for an hour, an hour and a half, sometimes two hours. And I'll go just as long as somebody's got questions, I'm going to keep answering them. And that's not realistic. I mean, you're not going to be at the podium for two hours. So then you kind of have to switch your strategy again and change like, okay, now I'm going to do this for 30 minutes or 20 minutes or 15, you know, however long you actually have at the podium. And think about, you know, managing your time well have at the podium, and think about, you know, managing your time well. Reserving time, what's your strategy there?

Well, if I am topside, I always reserve some time for rebuttal. That's usually when I'm on my best game. So I have a quick, fun story about rebuttal. I was once in courtroom in a federal district court, you know, and you know how when often they'll have motion days and you just sit there and you watch your colleagues and other cases, you know, arguing case after case, waiting your turn. And I saw one time I saw an attorney after their opposing counsel was brutalized by the judge, just brutalized during his oral argument. He got up for rebuttal and he literally said, and I'm trying to remember the words exactly, but something to the effect of, after witnessing what you did to opposing counsel, anything I say at this point could only hurt my case. So. Thank you. I will refrain from rebuttal. Yes. Have a good day, Judd. That would be a move. Yeah, that would be a move at the Supreme Court. I don't think that I don't think that would be wise.

But wow, I'm not sure they'd let us get away with that. But do you have day of rituals? I don't really have day of rituals. I'm wearing some earrings now that my mother gave to me for good luck. Let's see, I'll wear those will you eat a good breakfast I will I will eat a good breakfast with a lot of protein carb load the night before yeah I exercise a lot I do that I do exercise a lot in the prep in the months before and you know now right now basically every day it helps to manage kind of the stress I mean when you're that focused and reading and you know I will sit and read and work manage kind of the stress. I mean, when you're that focused in reading and,

you know, I will sit and read and work and kind of work in the cases and work on my notes and things like that for hours at a time. And so you really have to kind of make yourself get up. Do you think, you know, so Scott, my husband, argued whole women's health in Texas. Scott argued nine cases. So he's still got the record, I think, for SGs. First of all, do you have a plan of how you're going to gloat if you win and he lost? I personally vote that we have to come to Louisiana and have dinner and buy you dinner. Can I put in for that bet? But, you know, as a man arguing an abortion case, certainly media-wise, press-wise, it's different. You are the female SG of Louisiana.

You're not here because you're a woman. You're here because you're the Solicitor General. But it is different. you're a woman, you're here because you're the Solicitor General, but it is different. Do you, when you're approaching media interviews about this or talking about it publicly, do you approach that differently? Well, I think because I am a woman that I have probably, I have to be, I mean, obviously I'm concerned about women and I have, you know, a couple of nieces and, you know, I mean, I'm part of the sisterhood. I'm worried about women. I want to make sure that they're safe. It's very easy, especially once I read all of the documents in this case and read the history of the abortion providers' behavior in our state and their lack of compliance. It was absolutely not difficult for me to talk in the press and tell them this is about taking care of women and girls.

of women and girls. I mean, there are documents that I have dealt with in this litigation and in other in the subsequent litigation and the cases that the other cases that I'm defending that show that there are girls as young as 11, 12 and 13 years old who are obtaining abortions at these facilities. And yet I can't document any reporting or any compliance with any of the state laws that that would protect them from what is, by state law, a first-degree rape. So, you know, I do talk about those things in interviews. I think it's important for the public to understand that facts can differ from state to state and that we regulate based on the needs of our states. And so, you know, yeah, I mean, I probably, I certainly don't have to worry about being accused of mansplaining, which I think the men do get accused of, you know, unfairly.

But that's kind of the reaction that I've seen. you know, unfairly, but that's kind of the reaction that I've seen. One other female-specific question, just as someone who, you know, whether it's press conferences or on the trail or whatever, I do have to give my shoe wear some real thought ahead of time. What do you think of shoes for your argument? I mean, you're standing up there, it's stressful, there's this podium, the floor is very, very hard. So that's a great question the shoes that I desperately wanted to wear are the the black Christian Louboutin pumps with the red soles yeah hell yeah so I went searching for them when I was here for the Ramos arguments yes

there was actually a specific pair that I was looking for, and I found them, and they were so uncomfortable that I couldn't buy them. So then I tried on another pair, but they were so high that I thought that that would not be court appropriate. As you teeter over. So I just couldn't wear shoes that were more distracting than my argument. wear shoes that were more distracting than my argument. So I'm still in search of the right exact pair of shoes, but I still think those are kind of the right pair, the right shoes, because you can see the right. Now, I have a question that the court hasn't, I haven't actually posed the question. I'm afraid of the answer. It's one of those things where I may want to ask for forgiveness and instead of permission.

But but what could I just wear red pumps like I love to wear red pumps to court. I wear them to the Louisiana Supreme Court all the time. But you know when they always say wear dark clothes. But does that mean I can't wear red shoes when Ted Cruz was solicitor general of Texas. He's very proud of this. John Roberts is the chief justice and he asked the chief justice can i wear cowboy boots to the argument because similar to what you said that is not included in the rules though it isn't specifically prohibited either and the chief justice says the solicitor general of texas i would expect you to wear cowboy boots well so

to that point that should mean that I could wear my alligator boots. Yes. Because I have alligator cowboy boots. You know, it's my alligator. They're my boots. And I should be able to wear my alligator boots. Maybe that's what you should wear. You know, how about what? Can I get in on this clothing conversation? Sure. I mean, mansplained the heels. How about a very tasteful Joe Burrow jersey, LSU? Very tasteful. I have a Joe Burrow t-shirt, and one of my rituals right now is the hype video. Have you seen the LSU championship pregame hype video by The Rock? No.

Oh, man. That sounds amazing. You've got to see the hype video. It's super fantastic. Oh, I've seen that. If you combine SEC football and Dwayne the Rock Johnson, who is the official advisory opinions greatest living American, then I am all about it. So it's great. If you haven't seen it, you can look it up on YouTube. It is so great.

On alligators, your boss, the Attorney General of Louisiana, hosts an alligator shoot. Is that what y'all call it? It's an alligator hunt. Yep. Annual alligator hunt. Is that where your boots are from or is that a separate alligator for you? That is where I acquired the alligator. Nice.

I mean, that is a credentialed solicitor general for Louisiana. That's fantastic. Well, so let me wrap up this discussion and we'll move on to the movies we're talking about beforehand. A quick discussion about got to have our pop culture segment, got to do it. up real quickly by just sort of breaking down for everybody. Here are the potential outcome, most realistic potential outcomes here and why I think this is, as I said at the very beginning of the podcast, why I said this is a really important case. It's going to tell us an awful lot about where the post-Kennedy court is. So one potential outcome is they just apply, they say this is encompassed within whole women's health. If they say that and Louisiana loses, then that's going to be, I don't, I think it would be very, very, very bitterly disappointing to pro-life voters and to the pro-life movement. That would be very bitterly disappointing. If the Supreme Court says whole

women's health, we're not overturning whole women's health, but it doesn't apply here in Louisiana wins, that's a good outcome. But it's a modest outcome in the scheme of things. If the Supreme Court says whole women's health would apply, but whole women's health was wrongly decided, then you're beginning to open up whether this court is interpreting undue burden in a substantially different way than previous courts have. I won't even get into overruling Casey. I don't think that is even in the ballpark of possibilities. I think I see those as the three main outcome possibilities. Do you what do you think of those as sort of a sort of a general range of expectation? I think that's about right. I mean, I don't think the court either way is going to is going to do

anything that's super dramatic. You know, our case, to the extent that it presses, you know, our case, to the extent that it presses, it may press on some of the softer points of whole woman's health. And I do think that case needs to be clarified. Now, whether they do that in this case or not, remains to be seen. But we have a lot of other cases that are pending, and all the states have been, you know, pretty tied up in knots over how to how this opinion is is to be applied and not just the states, but the courts. So I think it does need to be clarified and that that would at least be a step in the right direction. What do you do right after the argument? Do you have lunch plans, plans nap plans the last two times i've you know went back and fixed a good stiff drink and kicked my shoes off and took a deep breath and kind of relaxed i think

this time i'll you know i'll go home and maybe go to the beach. Going to Disneyland. All right, David, movie time. No, that is way too much work. We're not going to Disneyland. I'm going to go to the beach and not moving. Yeah, so right before it started, I asked Sarah if she had seen the movie Midway. Okay, and the reason why I bring it up, it wasn't an awesome movie. It wasn't like it, it wasn't nominated for anything. It didn't deserve to be nominated for anything. I believe it's the same guy who did Independence Day. Do you remember that movie? The original Independence

Day? You mean the best movie ever of the nineties? Yeah, no, I remember it. Oh, Sarah, you are so, you're almost right. You're almost right. That is one of the best movies of the 90s. That should have been nominated for everything, but it wasn't. Everything. But anyway, I saw it, and I haven't been able to stop talking about it because it just reminded me how suicidally brave, I mean, suicidally brave our sailors and airmen had to be in the, to even have a chance against the Imperial Japanese Navy in the aftermath of Pearl Harbor. There is, it captures

better than anything I've seen, this phenomenon. The only way to really accurately destroy ships from the air other than torpedoes that didn't work was this phenomenon of the only way to really accurately destroy ships from the air other than torpedoes that didn't work, was this phenomenon of dive bombing. And where these planes, these rickety planes, inferior planes, essentially dive straight head on into a wall of flak at high speed and have to release the bomb at exactly the right moment. Too soon they miss, too late they crash into the water, all under fire. And I would encourage you to see the movie just for those scenes to get a sense of what it meant, what our guys went through in World War II. I mean, it's one of the most vivid things I've ever seen as far as just like the sheer bravery.

So I just had to put that out there. It's incredibly vivid. Liz, we talked about 1917. We've both seen that. But do you have a favorite war depiction movie? I don't know. You're kind of putting me on the spot. I know.

I was trying to think of my own as he was describing that. We've seen Saving Private Ryan multiple times. That's a pretty good one just of more recent years. I mean, my all-time favorite movie. We were big John Wayne fans, so we used to watch all the old movies. No, those count? Yeah. Bridge on the River Kwai definitely is on the list for me.

My favorite all-time movie is Zero Dark Thirty, which whether you count that as a war movie or not, that could be a whole different discussion. But that's my go-to. I think it's feminism. I think it's war. I think it's patriotism. It's like everything for me.

So, Sarah, can I tell you the correct answer to that question? Best wartime movie ever? Okay. Yes, yes, yes. It's Black Hawk Down. Oh, yeah. so Sarah can I tell you the correct answer to that question best wartime movie ever okay yes yes yes it's Black Hawk Down oh yeah that's a good one have you have you seen that one about the Battle of Mogadishu oh yeah it's a very good one uh so here's the reason I haven't I have started it like seven times and I know how hard it will be for me to watch it and so I keep stopping it after 30 seconds or so because I just can't handle it at that moment,

which is weird. I watch all sorts of horrible movies. The one about Benghazi is good too. That's 13 hours. Yeah, that one's really good too. Tough. Tough to watch. The thing I think that's so amazing,

Black Hawk Down is very, very, very tough to watch. It's based, a lot of it is based like it's on based on the the book Blackhawk Down which was based on actual transcripts and actual communication between uh you know the the rangers and delta force who are out there the radio traffic it's very very very true to life and not to say others aren't, but it's incredibly true to life and also true to feel from, you know, somebody who's been on foot patrols in Iraq, which is not Somalia, obviously, but it just communicates the sort of the feel of that kind of unraw danger. But anyway, we're way far afield. I didn't know you're going to ask

that question, Sarah. So I had to give the correct answer to that question. Liz, thank you so much for coming over here. We will absolutely be listening to the audio, if not going in person. And I think Scott has been at some of your moots, at least one of them. He has. Yeah. So he has a knack for showing up at those arguments. I'm sure you'll see him in the audience with the cowboy boots. Well, I hope to spend some time with you guys again. Thank you for having me. This is a lot of fun. So, you know, invite me anytime you want to. I'm very hopeful that sometime in the next few months we'll be analyzing a victorious opinion.

So you'll have to come down to New Orleans. Good luck and God bless. The gloating. Yes. Hopefully. I'm not counting my chickens before they're hatched. I'm still waiting on an opinion from October. So we'll see.

Well, thank you all very much for listening. This has been the Advisory Opinions Podcast with David French and Sarah Isger. And please, again, subscribe to us on Apple Podcasts. Become a member of the Dispatch. And please rate us on Apple Podcasts. Five stars only, please. Thank you very much. Bye.