Advisory Opinions - Another Dobbs Leak!

Episode Date: December 19, 2023

Sarah and David respond to listener comments about last week’s Texas abortion case. Then the two discuss: -Why to bet on the side of Jack Smith’s delay -The “president shoots a postal worker” hypothetical -Sarah plays detective on the second biggest SCOTUS leak -SCOTUS appointments and holding onto power -A right to compete but not to win? -Please clean your washing machines Show Notes: -Why We Fight So Ferociously Over the Supreme Court Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Introducing the first ever Mazda CX-70. Our largest two-row SUV. Available as a mild hybrid inline six turbo or as a plug-in hybrid. Crafted to move every part of you. You ready? I was born ready. Welcome back to Advisory Opinions. I'm Sarah Isger. That's David French.

And infrastructure week will continue in the sense that, yeah, we're not getting to those oral arguments today. I've got this email draft. That's how I keep my notes with all sorts of SEC v. Jarkese stuff. And it's just not going to happen. So if that's what you came for, sorry, just go on with your day. We're going to disappoint you. And I don't even want to pretend anymore. We are, however, going to talk, update just a few additional thoughts on that Texas abortion case and on the January 6th Trump case on presidential immunity. We'll talk about that New York Times bombshell reporting story about the Supreme Court. They've got the receipts on the Dobbs case, big time. And then, you know, just some chit-chatting about the Supreme Court, how it's supposed to be the platonic ideal or otherwise. And hey,

David, before we get started, we're thinking of doing advisory opinions, continuing legal education. That's right. AOCLEs. We've actually been working on this for like a year and we've made no headway. So we're coming to you listeners. We need help helping us get approved by a bunch of states to do AOCLEs. I'm thinking a law student, but could be anyone out there. You don't need a law degree to do this. You don't need to be a lawyer, certainly. If this is something you're interested in helping us out in building out and creating, shoot us an email.

Email Adam, that's two A's. It's A-D-A-A-M at thedispatch.com. And let's make magic together. C-L-E, magic. David, any other thoughts? I think that's perfect, Sarah. Just, you know, some background to know how our sausage is made here. We've been talking about this forever and just don't have the bandwidth to figure it out. And so we finally acknowledge we don't have the bandwidth

and we need help and you're that help. So thank you in advance. All right, David, I wanted to start re-upping the conversation about the Texas abortion case. Yes. So we got a lot of comments, and they were smart, interesting comments. And I just wanted to address a few of them. One, understandably, some people, I think, misunderstood me that I was saying that because the baby had a potentially fatal genetic disorder, that somehow that would be part of abortion laws in these states or should be or whatever. And I just wanted to qualify on that. I don't think abortion laws should have anything to do with the quality of life of the fetus or

baby or adult. I don't see how you'd even particularly write it particularly well that way. But if the pregnancy threatens the life of the mother, she may want to take that into account as she assesses the risk she is willing to take on. So it's not like a decision that the government can make as to whether she is willing to die or has a 2% chance of dying for her child. And there were some comments that like, well, And there were some comments that like, well, you know, from the like very pro-life side, A, you know, it's not the baby's fault that he's threatening her life. You know, the law doesn't allow you to kill a sick child. Right.

To which, you know, you're not going to like this answer. But if a three-year-old points a loaded gun at you, and again, you're gonna have to like, the lawyers listening are like, okay, I'm listening very carefully. Okay, you didn't give the three-year-old a loaded gun. Like you're just walking by and all of a sudden a three-year-old has a loaded gun pointed at you. It may be horrible, but you're allowed to shoot the three-year-old.

Yeah, yeah. This sounds like one of those really grim law school hypos, Sarah. Right, but like the point is like, yes, we do allow you to kill innocence when it comes to protecting your own life. And this is like a natural law theory. It's not even like statutory or the Constitution.

Like we're going back before that. So that's that. But David, another question that we got a lot of was, OK, you don't like this law. Rewrite it. What's your proposal? Because, and I get this, if you, Sarah, are willing to make an exception where the impairs a major bodily function includes fertility or any increased risk to life, that's all pregnancies is the comment. And so, like, didn't you just gut all abortion laws if you write it that way? I want to acknowledge that. Like, yep, that makes us

very, very tricky. And so David, I was curious if you had a solution to it. And then if I don't like yours, I'll propose mine. Yeah. So let me first say, this is a very hard problem. Okay, it's a very, very hard problem. Because on the one hand, if you draft the law extremely restrictively, with the notion that I don't want to create a loophole that an unethical lawyer can use, I mean, an unethical doctor can sort of use to write, get out of the law free cards, in essence, for routine pregnancies. Someone comes in with a routine pregnancy, and essentially the argument is, well, you know, I'm going to assess this pregnancy as presenting a material risk of substantial bodily impairment. That is a real problem if you write the law in such a way as that essentially you give a doctor a, any doctor can just sort of write the card to get them out of the scope of the law. That's a real problem.

At the same time, when you start to get really, really restrictive, you land yourself in some of these Kate Cox type situations where the pregnancy is really difficult, multiple ER visits, but life sentence hanging over your head, that creates this kind of situation that is both horrific for the doctor

and for Kay Cox and also for the baby. It's horrific for everybody. And then also creates a dynamic that absolutely guts, in many ways, the moral force of the pro-life movement sort of in the larger public. So the larger public looks at this and says, what are you doing? You know, what are you doing? I might be pro-life, but I don't like this. Sort of the way you and I, Sarah, responded to the Texas Supreme Court decision and a lot of the maneuvering and the Paxton involvement and all of this stuff, you look at it and you go, I don't know what I want, but I don't want that, right? It's sort of a way, a very sort of normal

way for the public to react to something like that. And with the situation so dreadful. So I think of it like this. I think of it as when you have a life or material risk of substantial bodily impairment, that's, I believe, the right standard, life or material risk of substantial bodily impairment, and then how do you define life or the substantial risk or material risk of substantial bodily development? That's where the devil's in the details,

and I think here there could be, and I'm not a doctor, so this is my sort of effort to get more clarity. So you could list specific conditions that meet sort of safe harbor type conditions that meet the definition so that there's no ambiguity. And then the question is, well, wait a minute, aren't there always edge issues? And in that circumstance, I would say a reasonable medical judgment that there is a danger of risk to life

or material risk of substantial bodily impairment beyond the risk associated with a normal pregnancy. In other words, the pregnancy, there is a greater risk than the risk presented by routine pregnancy. Now, I think that language could be tinkered with and could be worked on, but I absolutely get the commenter's arguments

that every pregnancy has risk, every single one. So therefore, if you created, well, just if there's any risk, well, you've just created an exception that swallows the rule. But there are pregnancies that have greater risk. There are higher risk pregnancies. And everybody, you know, I've known many, many people who've had babies over the course of my 54 years, and we all know that

some pregnancies are higher risk than others. And so we need to tinker with the language, but the catch-all provision, I think, would need to clearly establish that we're not talking about the routine risk of pregnancy. Okay, I will sign on to that probably being the ideal model pro-life legislation. But can I push you on this? Yes, please push. The number of abortions in the United States has increased since Dobbs. So clearly all this legislation

isn't actually doing the thing that it's meant to do. So when we're talking about exceptions swallowing the rule, like that's missing the forest for the trees. There's some reason why your rules aren't working to begin with, even though the exceptions haven't swallowed the rules yet. So I'm wondering if you went to something

and I compare it to this just, you know, back before no fault divorce, it was pretty close to no fault divorce. It's just that one person had to like check a box saying they did they had to allege certain things yeah yeah but they didn't have to be true things and plenty of people got divorced all the time for what we would now just consider no fault divorce would the pro-life community be satisfied i don't mean politically if it were something more like that as in yep, yep, you went into your

doctor and yep, I get it. All the doctor is going to have to do is sign something in your file that says there was a material risk of bodily impairment in this pregnancy. Therefore, I recommended an abortion or therefore I performed an abortion. Isn't that better than the Kate Cox situation? And then there was this woman in Ohio who was charged with desecrating a body. She went into an emergency room having a miscarriage. And so the doctors are meeting over in the other room, having a legal conversation about what they're allowed to do. Everyone agrees she's having a miscarriage. She ends up going home, having the miscarriage at home. And the fetus gets I mean, it's all kind of graphic, but it's horrible. Yeah. Gets trapped in

the pipes in the toilet, and she's charged. Set aside the specific facts of this case. But just the facts is I'm going to relay them to you. Because again, the law school hypothetical is actually more important in some ways, unfortunately. Yeah. You know, yep, I get it. Yeah. But the more you make these rules with like individual lists of what counts and what doesn't count,

and you can be this many weeks with this many days and et cetera, you are putting people's health at risk because you're asking doctors now to do something they're not trained to do. And we don't want them to be trained to do this. We'd like them to train on saving lives and doing things. So what do you think of my not no fault abortion?

Yeah, that seems to be the one where if you say, for example, okay, there's medical judgment and we're not gonna question the medical judgment and there is not a requirement of a medical judgment to determine that there is an extraordinary risk. Beyond that, like your thing about adding beyond the course of a normal pregnancy, what if I took that out and it was just,

it just, yeah, then you're right. Most pregnancies carry increased risk compared to not being pregnant. Right. And what if that was, what if that was okay under the exception? As long as you had a doctor sign off, you talk to the doctor, et cetera,

I get it's going to swallow the rule, but this isn't working. This isn't decreasing the number of abortions. Yeah, you know, that's a, so a person would immediately respond, well, wait, Sarah, what's happened is, yes, in Texas, the rule has decreased abortions in Texas. So there might have been 10, I think, I can't remember what the most recent data I saw,

but roughly 50,000 abortions post Dobbs implementation of the Texas law. It's actually dropped to in Texas abortions that are known in Texas in the dozens instead of tens of thousands. And so you might say, well, that means that pro-life law works. Look how many fewer abortions. But where did Cakes Cox get her abortion? Not Texas, but she got one. And so what's happened nationally is that,

yes, abortions have been decreasing in the states that have strict abortion laws. They've been radically increasing other places. And we also don't have any visibility on illegal abortions at all. Or say, yeah, we just have very, we have no visibility on that at all. So what's happened is that the states that have the stricter laws, a pro-life person would say, well, it's working because look, people are not getting abortions under those stricter laws,

and these Kate Cox situations, as sad and unfortunate as they are, they're extremely rare, and they're getting disproportionate attention because of the media plus, you know, yada, yada, yada. But the problem is, the answer to that is, well, these laws are creating these tensions, and these tensions are draining support for

these laws, which is one of the reasons why abortion rights in state after state after state after state after state have been strengthened since Dobbs. And so this gets really complicated because on the one hand, you don't want to draft a law that swallows the rule. don't want to draft a law that swallows the rule. And then on the other hand, when you have a law that is very narrowly drafted, you create these cake-cock situations, you create the situations like you just talked about, that then create this national backlash in addition to, let's just be honest, a horror show for the individuals who are involved in it. Like it's just a terrible horror show for the individuals who are involved in it. So you have the individual injustice of the situation that is compounding the sense that, you know, the pro-life

movement is sort of really inflexibly not willing to grant any benefit of the doubt to the women involved. And that is a strategy that like, just quite frankly, we see the result of it. We have seen what's happening. And what's happening is abortions are continuing to increase support for abortion rights is very high right now. I think higher than, you know, it's one of those interesting things

where the actual results of elections that are focused on abortion are the polls have been underestimating consistently the support for abortion rights. And then when these referenda are decided, not only is the outcome a surprise sometimes, but the gap, the, you know, the margin of the outcome has been a surprise. And so this is one of my beefs with the sort of the, quote, abolitionist wing of the pro-life movement, because the abolitionist wing is saying,

don't look at any of the actual effects of our policies at all sort of on the public. There is a set of policies that is the right set of policies, and anything else, anything else, is essentially, in their view, like murdering, you know, you're giving sanction to murdering babies, to which the answer from the mainstream pro-life movement is, no, our emphasis has always been about what's going to create a sustainable culture of life in this country. It has not been about how

can we most punitively ban this practice, because we know that even if morally you are in support of that most punitive approach, you're undermining yourself by proposing it. And so it's a very difficult, it's a very difficult question. And so I tend to think that the, my approach with this, with the defined safe harbors and then a catch-all provision that's a heightened from the routine pregnancy, but that has the Texas, you remember how the Texas Supreme Court says, but that's a medical judgment, not really reviewable by us? Yeah. So if you have the heightened requirements, but it's a medical judgment that the court doesn't review. Yeah. So if you have the heightened requirements, but it's a medical judgment that the court doesn't review is, to me, a more sustainable way of both enacting legislation that values the life of mother and child without creating this Kate Cox situation. And so that that's how I would do it. And again, this is really, really, really hard because part of the, the struggle that we're dealing with here is that support for the pro-life position nationally is, is in a state of collapse. It's, and so you have to have one eye on that. Like, what is it that I can do to deal with this state of collapse?

deal with this state of collapse. Meanwhile, you could have a pro-life movement that's a shrinking number of people who are arguing with each other over purity. And that doesn't get the job done. You know what I really like about your sample legislation, model legislation, is that applying it to the Kate Cox situation, we actually don't know the answer because we're not her doctor. Right. That's great. Love it. 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.

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That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David, let's turn to another topic we talked about last episode, which is the January 6th presidential immunity argument currently pending before the Supreme Court, at least whether they're going to take it or not. I'll be honest, I don't actually remember what we said about it last episode, and it wasn't really in the comments section, but I'm worried that I didn't hit a few things that I wanted to hit. So we're going to revisit it briefly. Okay. One, remember, there's four criminal indictments against Donald Trump. And we've talked before on the strongest we think is that Florida classified documents case.

But we've also said that the fastest is likely to be this January 6th federal case out of D.C. However, I'm in the minority here, and for good reason, I'll say, but I, if I were betting my own money, would not bet on Trump going to trial before the election. Why? Because I would always bet on the side of delay. Yeah, in law, that tends to be a safe bet.

In litigation, both criminal and civil, yep. So I wanted to give the audience some examples of like how basically they need the like rifle shot, everything to go perfectly right for them to go to trial before the election. And I've got like 10 ways and I only need to get one. So, for instance, the Supreme Court declines to take this as cert before judgment. It goes to the DC circuit. Then it goes to the Supreme Court.

Already there, I've bought myself at minimum several months of delay. Let me give a different version of that, which is the Supreme Court takes it on cert before judgment, but they decided in such a way that they actually still send it back to the district court to like re-look at the issue.

That will cause a delay. And even then, that could go back up through the DC Circuit to the Supreme Court and they would take it as a merits case. And even if they accepted that in March, that wouldn't happen until next term, for instance. All of that is a delay. And that's just on the presidential immunity question. That's setting aside any other motions work that they

could have interlocutory appeals on before March, assuming that this presidential immunity thing gets resolved. So again, I think there's like so many different ways that I can win my bet. Again, I think there's like so many different ways that I can win my bet. And even though I think their way is more likely than any single one of my ways, that's not how statistics work, right? Yeah. Like I've got so many,

even if they're all 5% shots, eh, pretty high. Yeah. And also weighing on here, Sarah, I'm with you. Like if you if you put a gun to my head and you said you have to take all the money you have in the world and bet trial before trial before election or trial after. It would be hard for me to bet trial before. Yeah. Even though, again, I think it is the most of the 15 scenarios. It's the plurality

likelihood. Right. I think it's the most likely of all 15 scenarios. it's the plurality likelihood. Right. I think it's the most likely of all 15 scenarios, but the other 14 overwhelmed the... Correct. Yeah. And so, and I was actually talking about this with colleagues and I was saying, so one thing you have to remember

is in the criminal justice system... The people are represented by two separate yet equal... Yet equal. I love you, Jack McCoy. The speedy trial stuff is supposed to be in favor for the defendant. Correct. Because you don't want defendants. It's a form of punishment to sort of have a criminal trial hanging over you, being pushed

and pushed and pushed if you're seeking vindication, exoneration. So the speedy trial stuff is for the defendant, not for the prosecution. So that's one factor. So that's why if a defendant wants a delay, defendants often tend to get delays unless it's sort of transparently bad faith, et cetera, et cetera. But justice delayed in the normal criminal process is not necessarily justice denied. So you can say, I wanna get a 12-month continuance because the complexity of the case,

you're still gonna have the trial. What makes this different is in delay, you may not have the trial. So delay is so clearly in Trump's favor here that if you're a lawyer with two brain cells to rub together, your chief strategy at the moment is delay. That's your-

And you got a lot of avenues. And you got a lot of avenues to do it. And so here's one interesting question for me, Sarah, because I'm just sort of thinking through the Supreme Court's decision to take 28 U.S., to take the cases evaluating 28 USC 1512, that decision's probably not coming out till late June. Correct.

So, but Jack Smith has, you know, let's suppose the Supreme Court rules against Trump on immunity, like lickety split really fast. Jack Smith is still trying to have a case, a trial before June, but with one of the counts, the fate of one of the counts in the hands of the Supreme Court. So what do you do if you're Jack Smith? Do you try him on all four counts, even though one is being evaluated by the Supreme Court? Do you drop the one that is being evaluated by the Supreme Court and try him on the other three? Oh, remember, there were four factual allegations. And then there

were four statutes he was charged with violating. But this indictment, which I found really, really strange, never actually connects the dots together of which ones go with which, which acts go with which statutory violations. And I felt kind of dumb saying this out loud. Because, you know, everyone's like everyone's like oh obviously it's just super obvious then i'm like okay which ones go with which they don't agree when you ask people they'll say it's really obvious but then they're not giving the same answer and this gets to i think uh you know i and i i think i've said this before i think jack smith should have gone with only the obstruction charges in the documents case. He could have gone to trial immediately.

No delay in that. Second, here, I think he should have only charged the electors problem. Right. Because there's this other section, and this is a part that I want to get to next, in which, as Judge Chutkin summarized it, Donald Trump is charged with attempting to use the power and authority

of the Justice Department to conduct sham election crime investigations. There's no attempted conspiracy, David. Like, that's not a,

you can't have, like, you can't build in coates on top of each other. Yeah. Which is a little bit of what this looks like. This gets to the next question that we got.

What is the originalist take on presidential immunity? To which my answer is, oh, there's not really one, sorry. Like I can sort of, I can give you a tour of the house, but there's no specific room that I'd like sit you down in front of the fire. Because you're touching on a lot of different areas here,

sort of strong unitary executive conservatism and originalism, you know, sort of anti-qualified immunities and absolute immunities type of originalism. And here, and then you have the Trump distortion. Trump is like this, you know, gravity field. But I, here's the part I want to talk about, which is you may be similar to our abortion conversation. No matter which way you decide, you have a bit of a problem

because I think intuitively, if a president, let's say, shoots someone on Fifth Avenue, you can't charge them while they're in office. And let's say for whatever reason, they don't get impeached. You can charge them if they shoot. Well, a state court could charge them. Federally, they shoot a postal worker. Yeah, yeah. Oh, gosh. Okay. And I'm actually, I don't agree that the states can charge a sitting president, but that is at least a different conversation. Right. So let's just deal with feds right now.

So he shoots a postal worker and he doesn't get impeached. Surely, intuitively, we all agree that when he leaves office, you get to charge him with murder. You don't just get four years to crime all you want with no consequences. On the other hand, for instance,

anytime that it's Trump related, I think you and I really try to come up with another scenario that doesn't involve Donald Trump. Right. So let me give you a couple. One, if you like your health care plan, sorry, if you like your doctor, you can keep him. Was that fraud under this statute? A president said something to the public. He knew it was false. People in his staff had told him that it wasn't true before he said it. And he said it anyway. Is that criminal? I wouldn't think so, because that's such a core part of being president. What about various DOJ investigations? For instance, the Russia investigation that are opened without evidence

that turns out not to be very good or there wasn't evidence to open. As in, you open investigations before you can prove a crime. So saying that, hey, DOJ, I think you should open an investigation into whether this election was stolen um you know what how are you going to judge whether that's a quote sham investigation the fact that you don't find evidence of it of course in this case the investigation itself never happened so that again i think that's a weird attempted

conspiracy thing but um you know you open, it turns out, not only did you not find evidence of a crime, but it turns out that the even precipitating evidence to open the investigation was also faulty. Is that now a crime that we charge presidents with? No, that'd be, no, of course not. Right. That's why we have absolute immunity. We want presidents to call their attorneys general and ask things like, hey, should we open an investigation into this? Hey, there are terrorists that we're holding in overseas locations. What are the rules for interrogating those terrorists?

Can we be more severe? Can we do X, Y, and Z if we think American lives are at stake? We don't want to criminalize asking those questions. This is, I think, this is why you're trying to balance that absolute immunity argument. And why I think the DC Circuit in the civil case, of course, was saying like, well, it all depends on whether it's an official act. I think that's incredibly hard to draw that line. I agree that there are, you and I could easily imagine difficulties in drawing that line, but you,

I can imagine a court opinion that goes like this. There are circumstances in which it will be difficult to discern the difference between an official act and a governmental, I mean, and a private act. This is not one of those circumstances. So for example, the fake elector scheme. But that's okay. I agree that that one is easier to discern. But now to the DOJ one, which was one of the four that he listed and then do the January 6th speech. I think that's hard. No, the January 6th speech, I think, is easy. I think the January 6th speech is easy because that's the whole context that that's a campaign event. I don't think the distinguishing between campaign and official events is easy because that's the whole context that that's a campaign event. This is a continue distinguishing between campaign and official events is is easy to do. I think it is when you're talking about something that is so clearly a campaign rally, such as the January 6th might be a campaign event. But what you say, I think is totally

the venue is irrelevant. If he announced he was nominating Amy Coney Barrett at a campaign rally, is that now an official event, a campaign event? Is it the speech that's the official event? But like, how are you gonna- I think, I mean, very plainly announcing a Supreme Court nominee is an official act. I don't think that telling a crowd to go to the Capitol

over my election is an official act. And so that's, you know, that's where I think you're beginning to get, again, when you're talking about, is it going to be difficult to draw the line in some circumstances between official act and a campaign act or a private act? Certainly, absolutely. But again, under the facts of this case, the difficulty here is that you have a lot of predicate evidence that these, the final decision of go to the Capitol or ask the DOJ to do X or the fake electors, which we agree and have always agreed is the strongest element of the case.

All of these things, there's a lot of predicate evidence leading up to these things that indicates he's acting in his capacity of Donald J. Trump for president. And that, to me, is what puts this into the private action realm, is that it's not just the culminating event of asking for X or Y, it is all of the predicate events leading to the culminating event, which are plainly in the context of him just trying to achieve reelection

to be president of the United States. We'll leave it there. But when you look at, for instance, other types of absolute immunity, prosecutorial absolute immunity, judicial absolute immunity. Yeah. The judge, for instance, doesn't get to go shoot someone and say, yeah, but I'm a judge. It does have to be in the context of their job, but it's a pretty broad context. So I'll be interested to see how that proceeds. I'll be interested to see how that proceeds.

All right, David, let's turn to what I think is more of a bombshell story from the New York Times than anyone else seems to be reacting to. Like, I think this is enormous and everyone else sort of yawned. You know, you remember back May 2021 when the Dobbs draft leaked. I'll still put that as the number one security breach from the U.S. Supreme Court. Yes. This is easily number two. And there's not even competition. Oh, the Times story, Jodi Kantor. Yeah. Yeah. So the headline is behind the scenes at the dismantling of Roe v. Wade. They've got this like neat little graphic. And it says this is the inside story of how the Supreme Court overturned the constitutional right to abortion. help undo it, opposed even hearing the case. The justices transformed a long shot case into a historic turning point, shooting down compromise and testing the boundaries of how the law is

decided. First of all, David, the biggest thing that's in this story is that they have physical access to the file, the Dobbs file at the Supreme Court. It includes all of the cert discussions, the memos that go back and forth. The justices signing on to the opinion that Justice Alito wrote. There's a lot that they've got access to. So much so, David, that I will tell you what I did with my Friday. I am eager to hear. I made an Excel sheet, David. I love it. I am eager to hear.

I made an Excel sheet, David. I love it. With every factual assertion in the story, in column A, column B, what term that factual assertion happened in, column C, who would have access to that information? Basically, for clerks, I was really looking at clerks, what term would you need it to clerk in to have access

to that information? And then where we know they didn't have access to certain information, which turned out to be the most telling aspect of the story. And I did work with with a post-COVID Supreme Court clerk, former clerk, in case certain document hygiene rules had changed since back in our time? And the answer, by the way, is not much. So look, big picture, David, I'll give you the bluff, the bottom line up front. All of this basically could have come from the same clerk who leaked the Dobbs draft in the end. Interesting. I'm not saying it did it all, but like, yeah, when you boil it down, some things you need to know about the Supreme Court are that clerks have access to everything that came before them that circulated through their justices chambers. And a lot circulates through every justices chamber. So like when a justice signs on to an opinion

that goes to everyone. Right. So you're saying, so with understanding that this is speculation, but the clerk who leaked in last term, that person's not going, if they're a clerk, if they're a clerk, if they're a clerk, the person who leaked in last term, that person's not going, if they're a clerk, if they're a clerk.

Yes. If they're a clerk, the person who, but they don't have current access. So if they're not a clerk anymore because the term is over, if they wouldn't have current access, so you're saying they may have

just kept all of it. Yeah. Just kept all of it. Okay. Yeah. So I want to run through a few of these just to give you how someone like me reads a story like this and then like where I actually dug into some pieces.

Okay. So I'm going to put this largely into two buckets. Things that happen in the OT20 term, that's when they're deciding whether to take the case. And then things that happen in OT21 when they actually hear and decide the case itself. So in OT20, for instance, when they're talking about whether to take the case, they're talking about Justice Barrett. And basically, this was not the time, she told Justice Alito, according to two people aware of the comment. So that comment happened during the OT

20 term. But you can be aware of the comment if you'd read the notes in the file about the conference. Right. So an OT 21 clerk, an OT 22 clerk, an OT 23 clerk, all of them could be aware of that comment, for instance. And by the way, the punchline of all that is that Justice Barrett and Justice Kavanaugh, along with Justices Alito, Thomas and Gorsuch, vote to take the case initially. Justice Kavanaugh and Barrett, though, don't want to publicly, Justice Kavanaugh in particular, according to the story, doesn't want to publicly announce that. He wants to like hold it over from conference to conference, as we see happen sometimes.

It becomes the second longest held over case in supreme court recent supreme court history by the time that they do announce it justice barrett has changed her vote and the line they use for that is but sometime before the announcement justice barrett had switched her vote do you know what that sentence means to me they don't have a Barrett source. Because all they have is this file from another justice's chambers. If they had anyone from Barrett chambers, they'd know when she changed her vote.

But they don't. They just have this like, you know, all through the screen basically. Yeah. So that's interesting. And so then because of that, Justice Kavanaugh is quote unquote the deciding vote to take the case. Okay so then we have ot21 start and there's this sentence which is by far if

you're just looking for leaks and you can thank me later chief justice roberts for breaking this all down for you and if you need my i love it let me know yeah this is the sloppiest thing that the reporters include but i see why they included it. Basically, Justice Alito circulates his draft opinion, and within hours, a bunch of justices sign on without changes. So what they

write about that is, when the speedy replies arrived in February, others at the court concluded that he had pre-circulated the draft opinion among his four allies, getting buy-in before sharing it with the full group of justices. First of all, I think that's probably true. I agree with the assessment that if three hours later Justice Gorsuch is like, hey, Sam, I'm in, no changes. Yeah, he probably had already read it and provided changes in a different way than how an opinion is circulated to all nine justices at once or all eight other justices at once.

But what that line means is that they don't have any sources in the Alito, Gorsuch, Thomas, Barrett, or Kavanaugh chambers, because if it's only a theory, if they had access again to those files or even to clerks from that term in any of those chambers it wouldn't be others at the court concluded that he had pre-circulated it they'd know they'd have some sources but they don't have any sources on that so that's fascinating another line if they could win him over justice briar even contemplated joining him meaning justice kavanaugh, and the chief in a 15-week position, according to people familiar with his thinking. Okay, so according to

people familiar with your thinking means you've got two sources, at least, but likely two sources, one of which is you, the person being talked about. Not always, but they can include you as someone familiar with your own thinking. And so that means that we do know that we have two Breyer-related sources. And then there's another line. Sometime during those hours when the justices were in conference together, the chief justice informed his colleagues that the full draft had been shared with Politico, according to people at the court then.

Yeah, again, that to me says they at least don't have any justices, even on deep with Politico according to people at the court then. Yeah. Again, that to me says they at least don't have any justices, even on deep background, because they included that information. It's a black hole of what actually happened in the conference. Right. It is very possible to me that justices would agree to talk about some things and just say conference is off limits. And I'm not talking about that.

Yeah. But regardless, David, bottom line, it's a fascinating story. It's incredibly well sourced because it's not based on, you know, so-and-so said, so-and-so said this other thing. Yeah. They've actually got the notes with quotes, physical notes. Look, I'm biased, but this is good reporting. notes. Look, I'm biased, but this is good reporting. This is like the Trump tape, grab them by the like, yeah, good report. Like you got it handed to you. I don't need to undermine the reporting. They have a great narrative here. They're both very talented reporters. But what I mean is like when you've got the file, you don't need to be a great

reporter. But that's getting the file is reporting. Right. I mean, that's, you know, this is how many times have we seen reporters get these files? It's not normal. Never from the U.S. Supreme Court. Right. Never. The draft opinion, again, I think, you know, publicly releasing a draft opinion was worse. But publicly releasing the case file it's pretty close it's it's like potato potato you know i mean and like i get this isn't making

a splash because the draft opinion substantively made a big splash yeah but in terms of court security this should be a huge huge deal it's a big problem I think it's interesting that again, I think it could have been the same person who leaked the Dobbs draft in terms of who would have access to both the draft opinion and the case file. You're right, they would have needed to hold on for two years. I don't know why. You know, I have some questions about that. But yeepers is what I think about this. You know, from a standpoint of court operations, yikes. I mean, the fact that these level,

and it's hard to think, I mean, the Dobbs leak obviously was the worst leak ever. And I know there's been outcome leaks before, but the whole freaking opinion, that is wow. And then this is double wow. I mean, it's just wow upon wow, is the way to think of it. But yeah, and I do think it's interesting, how do you because I really wanted to ask you about the sort of the substance of the story, not just the process of the story. What do you think about this Barrett switch?

That yes, then no on hearing the case. I was very, as soon as I saw that detail, which to me, aside from the process story of how this unfolded, the most interesting aspect of it to me was the Barrett switch because she obviously voted with the majority to overturn Roe. Had she not voted, Roe is still in place. She would have

been, or some version of Roe, she would probably have been with a Roberts. But she doesn't want to take it and then reaches this outcome. Fascinating to me. Your thoughts like on that, on that particular part of this case, and what sort of that might say about Barrett overall? It seems to me that the best explanation is that the chief justice persuaded her that if you took that case on your first term here at the court, it would look as if a change in justices changed the law dramatically and that it was that simple. There were already four votes. She didn't need to be the fifth vote. She didn't need to be the one voting for it. And, you know, I'm sure there were some smaller issues that also played a factor. But I think that was a pretty big one of just there's no need to do this right now. There's no rush.

And the other interesting question is, you know, there seems to now be a consensus that the leak, quote, hardened the court or sort of cemented it. Yeah. The New York Times even says, according to our reporting, regardless of the leakers motives, we still don't know who the leaker was. We can now report that the leak locked in Justice Kavanaugh. But the actual reporting did not say that. If you actually read the rest of the story. Can I read the paragraph? Yeah, yeah, read the paragraph. So when Justice Alito circulates his draft,

at 11.16 a.m., his clerk circulated a 98-page draft opinion in Dobbs. Again, they've got the file. They've got the emails. This is incredible. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revision, sometimes at the price of their vote, sweating sentences or even words, as I'm sure you all

listeners can imagine. But this time, despite the document's length, Justice Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. Again, every chamber's got those messages, so it doesn't tell you anything about that. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett Kavanaugh. None requested a single alteration. Their responses looked like a display of conservative force and discipline. So how did it lock him in? He'd signed on. He had no alterations,

which I agree with their theory that it had probably been worked on as a joint project ahead of time. There's no evidence that Kavanaugh ever wavered from joining the opinion. What's the lock-in feature here? Right. Aside from there was a leak and the vote stayed the same, from joining the opinion. What's the lock-in feature here? Right.

Aside from there was a leak and the vote stayed the same, but locking in is different than the vote had already been agreed upon and nothing was going to change that and nothing did change it. The leak maybe had no effect whatsoever. Yeah. So this is my question.

As I'm reading the story and I'm reading about this, which also echoes previous discussions about the effect of the leak. There sort of seemed to be this consensus like in the air. The vibe consensus was that it locked it in. Right. And then you had the reporting here that echoes that sort of vibe consensus. But we don't have the show your work follow-up. Like this is- The actual showing your work is that it didn't at all, that it had already been decided. Yeah, and so that, I've always had this question about that sort of, does it lock it in reporting

or this sort of sense that it locks it in? Because I've always wondered if some of this is based on the chief's assessment that he could have made headway but didn't make any headway and it sort of said well wait a minute I think the reason I couldn't make any headway was the leak and so that's one thing that I've always wondered about in this sort of vibe sense because where's the argument that he could have, who, who believes the chief could have made headway in the absence of the leak? Like, where is that belief coming from? Um, and I think it's just coming from people who don't want to believe that both sides don't want to believe that their

side was the leaker. Right. So on the conservative side, they believe it was a liberal because of the timing and the outrage and the breach of protocol at the court that it was meant to insult and degrade and undermine Alito or Thomas is specifically their allegation, because they didn't want Kavanaugh to get peeled off. And they thought by leaking it, they could lock in Kavanaugh. There's just there's no evidence for the conservative one. And the more that comes out, they're like, aha, see, it locked it in. I'm like, no, you're not proving that. All you're proving is that we knew the outcome. Like, we now know the outcome of the case. Yep.

And I'll just tell you, talking to people who've clerked for Justice Kavanaugh in the past, pre-Dobbs, Yeah, yeah. they absolutely, from the moment the Dobbs case was accepted, believed that they knew where

their judge or justice was going to come out in this case. And they were right. So the chances of Roberts peeling him off, I think were zero. I think they were zero the whole time. And I don't think the leak actually affected the outcome of the case, either by locking it in or by putting it in jeopardy either way. Yeah, I tend to agree with you. I tend to agree with you. I think that it's pretty clear, both from context and reporting, that the chief really didn't want this outcome. Correct. And so I can easily imagine how you create a vibe sort of consensus that is the chief had hopes and then those that he could persuade and perhaps because the chief has persuaded before or that, you know, there has

been influence before, which we don't have all the case files from all the previous cases. And there might be a number of circumstances in which we've seen the chief or other justices pull somebody in and over. I'm sure that's happened. And so if you're talking to somebody who had optimism that the chief was going to be able to pull some, maybe it's a clerk from one of the other justices who their justice had said, I think the chief is going to get Kavanaugh to move. And then after the leak, it's like, it's over. The chief has got got it's like talking to a brick wall now you know and so that i could see i would create that let me give you my what i think the the um sourcing evidence from this story supports not only i think there's lots of different versions you can come up with but let me give you

one that absolutely is supported by this the only chambers that we know talk to these reporters the briars chambers as i mentioned it's the only chambers that we know talk to these reporters, the Breyers chambers, as I mentioned, it's the only time that they say, according to two people familiar with a justice's thinking. Yeah. So, Breyer, we know,

was working with the chief justice to try to persuade Kavanaugh into this 15-week compromise. Right. Basically, save Roe by gutting Roe idea. Mm-hmm. Uphold the Mississippi law while saying we're not overturning Roe.

Right. Okay. So from the time that Kavanaugh signs on to right before the league, the Roberts and Breyers justices or chambers think that they can make headway. And then something happens right before, you know, May and April

that makes them believe that's no longer possible. Kavanaugh has politely listened to them, but has said, I'm not changing my mind. They've made their best case, right? It's not happening. Their justices come back and tell their clerks, sorry, guys, looks like this isn't gonna work. Justice Breyer tells that to his clerks

and one of those clerks then is angry about it. Again, does not think that Kavanaugh's, it's because this person believes that Kavanaugh will not change his vote. They now believe it's done. That explains the gap between when the draft is circulated and then the wait to leak it until May. If your point is to lock Kavanaugh in,

you could leak it earlier. If your point was to burn down the court, you could leak it earlier. Why did they wait till May? They were hoping. And when that hope then becomes dashed, then it's burn it all down. Yeah.

So that's my theory of the case after having read this New York Times story. Yeah, I think it's quite plausible. I think it's quite plausible. One other thing that I would note about this story is I think that if you, whenever you see how the sausage is made, it never feels like as cool and pure as you might have imagined in your idealized view.

I think there's, throughout the Supreme Court's history, there's been sort of horse trading and there has been behind the scenes negotiation and attempt to pull somebody over from X to Y. And that can look, that always doesn't look like, well, we're sort of the platonic form of justice engaging in higher legal slash moral reasoning

and reaching our conclusions and that's that. You know, there has been, there's certainly, there's certainly that kind of reasoning that goes on that says this is what I think the law is. I'm reaching that conclusion. This is where I stand. I'm not gonna move from it. But then there's also been strategic thinking

about if you have a legal objective and how do I move incrementally or dramatically one or the other towards that legal objective. And I think so a lot of this reporting, in my view, was an interesting insight as to sort of how all of this can work, how all of this actually works from sort of that horse trading kind of approach or that sort of, you know, strategizing that goes on in addition to the legal reasoning. And I think that was all very interesting. And Sarah, the other thing that I thought was interesting, and we talked about this in the green room, was the reporting about Justice Ginsburg. And, and the, the unbelievable, you know, the incredible effort to just do one thing, to try to keep her alive to the end of the election. that was an observation linked to that, that, you know, we, we're kind of unique in the world of, of liberal democracies and sort of saying, you've got this life tenure and when you leave is completely up to you. And that introduces this kind of randomness to the judicial selection process

that can be history changing. And, and so quite, the desperate effort to keep Justice Ginsburg alive, it lasts eight to 10 more weeks. And history is different. And that kind of smacks a little bit of royalty, Sarah. It kind of smacks a little bit of how people were treating royalty. And so at the end of the day, when you're looking at it, you feel like, man, I don't love that this is how some of the greatest questions in our democracy are settled is going to depend on the will of one person as to whether or not they decide it's now time for me to lay down power versus, or I have to grasp onto power no matter how physically I feel. It's a, you know, I wrote in the Wall Street Journal a long time ago, or not a long time ago, several years ago, and supported this idea of Supreme Court justices having fixed terms that rotate out in a predictable manner so that every presidential term you're not, you know, you're going to get absent some sort of, you know, absent death or disability,

a president's going to have maybe one appointment. And, and so you, you have rotating terms, where it doesn't depend on sort of random chance how many appointments a president has, and you don't have the life tenure problem of holding on. Now where we're going and saying, hey, if you're 55, you might be too old to be appointed a Supreme Court justice because we want you there for 30, 40 years to lock you in for 30, 40 years. Feels like a bad way to run a railroad, Sarah, as much as I, you know, how much I like the Constitution of the United States, but it is not a divinely inspired document. So that was kind of the Ginsburg story really activated that, that sort of that part of my thinking. David, it's interesting, because if you talk to, I mean, maybe the majority, I don't know what percentage, a lot of Supreme Court clerks

come out of their clerkship, very disillusioned about the Supreme Court, because they think of it as this platonic pursuit of truth of justice, and that there should only be sort of one correct outcome. And when they see how that sausage is made, that there are compromises, that there is log rolling of sorts, they think that that is not justice. Let me tell them why they're wrong. Yeah. No, I'm glad you're doing this.

Go ahead. If we wanted to have sort of the divinely inspired platonic guardian of justice thing going on, we'd have one Supreme Court justice. The reason you have nine is that it is supposed to look far more like compromising, putting our heads together and coming up with the best rule we can come up with that we think abides by the U.S. Constitution. we can come up with that we think abides by the U.S. Constitution. You know, most Supreme Court clerks, not all,

are undergrad, straight to law school, straight to their circuit clerkships, plural now, and then to the Supreme Court. They haven't spent time on campaigns or on the Hill and seen how, this is how self-government and pluralism is supposed to work. So- They haven't litigated?

Yeah, like compromise is a good thing. It's not a bad word. And I even think that horse trading is a good thing and not a bad word. It's part of compromising. And to amplify that point, which I think is a very valuable point, I feel like in some ways,

we originalists have contributed to this sense of, false sense of what the law is, that essentially that the law is taking really complex questions and through argument, reaching sort of like digging for gold. You know, the originalists would essentially say, well, we can dig and we can find the pure gold nugget

that is the actual interpretation of this statute that is sound and all others are not sound. When in reality, as we, I hope if you're a longtime listener to this podcast, you're going to see that a lot of these questions are so hard that, for example, Sarah and I, who have broadly a very similar outlook on sort of originalism, textualism, and things like this, we will look at the same statute, we'll look at the same set of facts,

and we'll come to different conclusions because the law is not actually like digging and then you find the one pure gold nugget and every other nugget is less pure. The law is often really difficult. And you need the give and take of different voices to try to reach the most what you believe in good faith to be the most sound outcome. And, and then also, you can be a judge a justice. So for example, let's go back to talk about Ruth Bader Ginsburg. And you can have a belief of what the law should be,

that there is an A and then that there is a Z. And then at the same time, you can believe it's really imprudent to move the law from A to Z in one case. And so that was Ginsburg's argument about Roe, for example. It was breathtaking in scope. Did we really need to move from A to Z in one case? And somebody might say, well, of course, because Z is the absolute correct answer. But then we

can't forget the prudential, equitable aspects of being a judge that are inherent in being a judge. And so this is not STEM. This is not a STEM discipline. This is one in which there is a lot of ambiguity, there's a lot of difficulty, and often certainty is elusive. And the longer you practice law, the more you understand that, I think, in many ways. If I was listening, in my 25-year-old just got out of law school with all of this originalist energy, you know? And then a 54-year-old me says, hey, you need to slow your roll. The law is a little bit more complex,

maybe a lot more complex than you're thinking with all of your shining post-law school originalism. I would have thought immediately, squish, squish. No, no, actually, a lot of these questions are difficult. They're not only difficult on substance, they're difficult on process. How do we get there? Do we get there quickly? Do we get there slowly? And so there has to be a sausage making process, Sarah. So anyway, I'm glad you said that. The other thing I want to mention about someone being wrong is you being super wrong about the term limits for Supreme Court justices. Oh, I'm so right about that. The other thing I want to mention about someone being wrong is you being super wrong about the term limits for Supreme Court justices. Oh, I'm so right about that. And that being the worst

idea I've ever heard. Close. I mean, the worst idea is just adding just this to the Supreme Court until it looks like the New Hampshire legislature. But the second worst idea, and I'm being a little facetious here, because I actually totally understand the benefit. But I think the cost outweighs the benefit. And I'll tell you why. Okay, I'm interested. There's understand the benefit. But I think the cost outweighs the benefit. And I'll tell you why. Okay, I'm interested. There's absolutely a benefit. You're right.

It will get rid of the randomness. Every president will get two appointees, according to at least the versions that have been circulated that I've seen. They'll serve 18-year terms. Great. And you know what will happen if every president gets two appointees?

They will end up having to announce who their appointees will be while they're running, same as the vice president, right? So it'll be the ticket of, you know, Joe Biden, Kamala Harris, Kentucky Brown Jackson, and Sri Srinivasan. And that will politicize justices so much more. They'll end up campaigning with them. There's nothing to stop that. It'll take some time, but in the end, you will turn them into political hacks.

And I think my fear of that far outweighs the benefit. I get that people don't like how this has currently ended up, but for the most part, it's actually been fine in our history. Calm down, take a breath, give it a few decades. If we still have a problem, I'll hear you out in 2060. How about that? Yes, okay. I do not think there is any such thing as reform

to a longstanding system that doesn't have potential downsides. I completely agree with that. And unintended consequences, I completely agree with that. And I do see that as a potential downside that has echoes, actually, Sarah, with the abolishment of the filibuster, which has sort of led to judges kind of laying all their cards on the table in this sort of really blatant way, in a way that's obviously designed to catch the attention of political actors, right?

And so I do see, for example, that that was a really foreseeable, that was a really foreseeable consequence of eliminating the judicial filibuster. But yeah, I do think there would be any change results in unintended consequences. I also think that it's equally likely that you would have people running

similarly to the way Trump did in 2016 and 2020 with a list. You know, here's my list. That's been happening already now. Yeah, that's going to happen. But at least you don't know how many you get. You don't know when you'll get them. It's why people revisit the list because it's been three years and we now have circuit judges that have gone up. That won't be the case if you have 18-year terms.

You'll know exactly when you're getting your opening and you will just announce who those people are. But I also think that the current system, because remember, for a lot of our court's history or a lot of our nation's history, we haven't had a situation where Congress had receded so much, the presidency advanced so much that now Congress is the least powerful branch. It's kind of can be a debate, a viable debate, whether the presidency or the judiciary is the most powerful branch. That's exerting a lot of distorting effects on our political culture. And so I do think that we're moving into a world in which the combination of life tenure combined with the absolute abdication of congressional power

has resulted in a reality that is straining our system. And so, and then it's also, by the way, resulted in a situation where the presidential race, because of the randomness of it and because any given president may appoint between one and three,

that's been the range in the last 30 or so years. You every single election, you've got this randomized element where activists can say, and the whole Supreme, the fate of the whole Supreme Court is at stake versus a more predictable pattern in which, you know, you begin to sort of even out the stakes. But I agree that the and I'll put and we'll put in the show notes. We'll put in the show notes my my piece about and it's from a couple years ago, and it's called why we fight so ferociously over the Supreme Court. And it's a pretty long read. And I'll put it in the I'll put it in the show notes. So listeners, let us know,

what do you think? Something we will be talking about more as it gets to the court. The court accepted cert in that Mifeprestone Fifth Circuit case that we talked about at some length, David, many episodes ago. That will almost, well, we'll see. It could actually get argued at the very end of this term

and get decided this term. Could also get pushed to next term. We're sort of in that liminal period where cases getting granted. You're not quite sure, although generally, if the case gets granted in December, it is getting argued this term. So that's the abortion, chemical abortion drug. abortion drug. David, there were two other interesting cases. One, do you remember the Second Circuit panel decision, which held that female students who thought that they had been adversely affected by trans students competing in track and field, they had their case thrown out and the Second Circuit in that panel opinion said there was a right to compete, but not a right to win under Title IX. And you and I were like, what the flipping flipperties? And then all of a sudden the case went en banc

and I actually made some comment about that was the dumbest litigation strategy I'd ever seen. Why would you ever go to the Second Circuit en banc instead of taking your meal ticket and going to the Supreme Court? To which I was told by Legal Eagle Listening, in fact, there was no petition for the Second Circuit to hear it en banc. They did it sui sponte, which isn't wildly unlikely at circuits, but it's not common. So the Second Circuit now came out with their decision. And they held that, in

fact, the women in question did have standing to bring their case and they've sent it back to the trial court to actually now have the case in full. Similarly, the Virginia Supreme Court decided that a high school teacher who had been fired for refusing to use pronouns in class. He just used whatever your preferred name is, but he wouldn't use your preferred pronoun. He wouldn't use any pronoun. That teacher was fired. The Virginia Supreme Court said he also had basically stated a claim for relief, even though his case had been dismissed. And that's now also going back to the trial court. So both similar in the sense they've been thrown out really early on

without actually having the merits of their cases litigated. Both of those cases now going back in. Yeah, and one other point about the decision to take it on bunk, this was a Second Circuit panel originally that had ruled against the female athletes in favor of the trans athletes. And then the Second Circuit took it on its own. And it's one of the very one of the few circuits that still had a Democratic

appointed majority, which was interesting. So you had a outcome by three judge panel that you would think that the Democratic appointed majority, just if you're going by like rough stereotyping of where people land on this, would have supported. But then the Democratic majority Second Circuit takes it en banc and reverses. And the opinion was authored by a Biden appointee, which is very, very interesting. And so one of the, let's put a pin in this because on the one hand,

we have this case of the Second Circuit, we have the Virginia Supreme Court case, but we also had the cert denial in the Supreme Court case around this quote, conversion therapy discussion around trans, transgender counseling patients. And so the law right now is really, we're, we're really, I think on the cusp of defining the law in this area much more. We're on the cusp, I think, of defining the law in this area with much more particularity and precision than we were even a year ago. And so I think you're going to see a series of decisions over the next 12 to 24 months that are going to kind of settle a lot of these legal issues, even if they don't settle sort of the larger cultural argument.

All right, David, infrastructure week continues. It does. We're just piling up cases. But you know what? There's going to be slow times. There always are. Yep. You know, this is a feast and famine topic.

So we'll just store our nuts away. We'll bury them in the leaves and come back for SECV jargony as we dig it up maybe for the next episode. I'm going to stop promising it because yeah, let's just not. Yeah. Yeah. I do want to report to you that I had an incredibly proud moment this morning. Oh, do tell. One of my proudest accomplishments of 2023 comes here at the very tail end. David, I didn't know that you have to clean your washing machine. Wait, you have to clean your washing machine? Doesn't it isn't a washing machine? Oh, sir. You need to take apart your washing machine. You need to go

right now and do this because it's disgusting in there. I had to take like a whole lot of it apart, soak it in vinegar, get a little toothbrush, do a lot of scrubbing. The black, I've basically been clothing my children in mold and mildew for God knows how long. You're supposed to clean your washing machine every six months or more,

depending on use. The thing was horrible looking inside. And if you're wondering why I had the idea to take it apart, yes, it did smell terrible. I thought it was because in our potty training adventures, I was putting just straight human feces into my washing machine. And maybe that did in fact feed some of what we had going on in there. Maybe that wasn't an ideal thing to do. But there's a little,

there's a little hose. It'll be at the bottom of your washing machine. You like undo a little, um, window thing, and then you pull out the hose and you unhook the hose and water will come out. That smells like a mix of human feces and sewer. Um, and so that's what I did today. Then I put it back together, feeling really good about myself, poured a lot of vinegar in so it could run a cycle with just vinegar. And then water started gushing out. Oh, no. There's water, just the whole thing. The husband of the pod was not here at all. And you know what, David? I did it all because I'm amazing.

The leaking, I solved it. The washing machine, I solved it. The candles didn't burn anything. I will say on Thanksgiving, I did set a small fire due to a candle in a hurricane glass with those nice little balls of twigs and whatever. Definitely set that on fire. But that's what the hurricane glass was for. At one point, Scott walks in and is like, is that supposed to be on fire? So, you know, this reminds me, your independent effort to take apart and reassemble a washing machine reminds me of when a few years ago, Nancy was

helping Austin move in to school. And when they were going, I couldn't go because of conflict. And Nancy was going to be driving a pretty good size U-Haul. No, it was helping Camille. So that would leave Nancy to drive a pretty good size U-Haul to Knoxville,

navigate it through the city and everything. And I was like, Nancy, why don't you wait until I can drive the U-Haul? I have more experience driving big trucks, you know. And she looks at me and says, I'm a strong Southern woman. I can drive a U-Haul. I can imagine. I'm a Texas woman.

I can assemble a dryer. I mean, I can assemble a washing machine. It is a that that this idea that there is a degree of independence where, you know, you don't necessarily have to have the guy coming in to save the day. Damn right. I was you know, my girlfriends were like, shoot off the money cannon, call someone money fixes this problem. And I was like, no, I would rather destroy my house today. And at one point it did seem like that was likely, but all's well that ends well, I think. But now do I have to rewash all the clothes in my house? I don't even know.

So that's my PSA to everyone. It turns out you do have to wash your washing machine. Yeah, and I'm pretty old to be learning that now, but you're older. I'm far older and I just learned it. So much older. Go ask Nancy if she washes your washing machine. I'm going to ask that. Yeah. I think someone's been washing it.

Yeah. Okay. I'm going to ask because we've never had that smell. Yeah. Straight feces into your washing machine like I was. So you did have that going for you. But at some point you were doing that. Everyone poops, as they say. True facts. With that, thank you listeners for joining us. And Infrastructure Week continues next week. And by the way, that's a joke of just there was this thing called Infrastructure Week in the Trump administration where every week they said they would tackle infrastructure and never did because things would get distracted all the time. So infrastructure week, it continues for our Supreme Court cases. Bye. you