Advisory Opinions - En Bonkers Opinion

Episode Date: January 9, 2024

Sarah and David attend to AO housekeeping before diving into some creative 20th Amendment theories. Plus: —The distinction between law violation and norm violation; —Trump’s prosecutorial immunity and legal yay's; —The role of Congress in determining eligibility for office; —A prosecutor working for both sides of the bench; —Judge Ho concurs in an employment discrimination case; —More employment discrimination out of the 11th Circuit; and —The misguided war on the SAT. Show notes: - Lake Beach  Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. A new year. It's 2024. And guess who my special guest is?

It's David Fretch. It's still David. Hi, David. I'm just glad you keep inviting me back. You know, it's like Dread Pirate Roberts and Wesley. Good night, Leslie. Good work. I may kill you in That's right. Good night, Leslie. Good work. I may kill you in the morning.

Like that's, yeah. That is the kind of power that I have now in this podcast. Look, we've got a ton to get through. We've got housekeeping. We've got circuit decisions. We've got tangents and cul-de-sacs to go down.

So, David, I want to start with just some really basic housekeeping. Since we last spoke, it's been two weeks the supreme court has accepted certiorari in the 14th amendment colorado case trump being disqualified from the colorado ballot uh they have an expedited briefing schedule argument is set for february 8th'll be watching, well, listening at least. Yeah. And a lot of people have asked, what does this mean? What do we glean from any of this? What does it tell us? First of all, the schedule looks nearly identical to the vaccine mandate

case, which was so unusual because it was coming up on an emergency basis and they set oral argument for it. We hadn't really seen that before. This actually was less emergency, was more just quasi-emergency cert seeking. And they set argument again on that same expedited schedule. So if anything, seeking. And they've said argument again on that same expedited schedule. So if anything, it's less unusual than what we've seen in recent years. As far as what I'll be looking for and what we'll be talking about on this podcast before the argument, I obviously want to read the briefs. Very interested. I want to see where the argument time gets split up. I mean, right now, in theory, see where the argument time gets split up. I mean, right now, in theory, this is a 30 minute for one side argument versus 30 minutes for the other side. But those sides are right now Colorado

and the Colorado Republican Party, right? There's a reason this case has a weird name. So Donald Trump is an intervener. Will he get separate argument time? How much? What about the United States Solicitor General? Will get separate argument time? How much? What about the United States Solicitor General? Will she get argument time? How much? Because the Supreme Court, it's up to the justices of whether they want to say, look, you've got 30 minutes. You can give 10 minutes to this other side, or they can say you get 10 minutes additional, or they can say you get 30 minutes additional. So I'll definitely be watching that. And then the next thing is those amicus briefs, the sort of outside peeps. And what am I looking for in those?

I mean, obviously, there's going to be just a ton of them. So I'm just looking at who's filing, who the lawyers are, the sort of normal stuff. But David, I guess I'm looking forward to, as always, where two sides take off their hats, hand it very politely to the other side to put on their hat. So I'm looking for a lot of blue states to be talking about states' rights. And I'm looking for a lot of red states to be talking about how this is Congress's prerogative and things like that. So that'll be funny.

I'm wondering whether you're going to see red states be really explicit that if the Supreme Court says that states have this power, they plan to remove Joe Biden from the ballot for violating Section 3 of the 14th Amendment because he is engaged in an insurrection at the southern border? Will they actually go so far as to just tell the court, like, this is great, decide however you want, but here's our plan if states have this kind of power? Yeah, I'm very curious about that as well. I'm curious as to whether the Democratic Party will weigh in institutionally, Sarah, because of that very issue that you raised, which is, okay, what's going to be good for the goose

is going to be good for the gander. And will the Democratic Party suddenly feel as if, okay, we might lose some of our candidates in some of these red states? I mean, not just Biden, but could someone say, well, they voted against border enforcement, so they can't sit on the back? That kind of thing, that sort of tit for tat ism. And I think you're you know, you saw DeSantis for instance, who wouldn't concede, said the election was rigged or someone who voted against certifying Donald Trump in 2017 before his inauguration. Could all of those people be removed from the ballot in red states? Not that there are any red states. I mean, and look, I've seen all of that retaliatory talk. Like, and my response to that is give me an effing break.

Wow, we got an effing from David? Yes. Whoa. Yes. Because here's the real live discussion between as to whether an armed attack on the Capitol to stop the presidency from changing hands lawfully. That's a real live question about insurrection or rebellion. The fact that the president hasn't enacted the policy that I like or has a different

interpretation of statutes than I prefer. That's all, you know what that is? That's Tony Soprano standing on the sideline going, nice little democracy you got there. Shame if something would happen to it, which is just all more MAGA. Now that stuff is not insurrection or rebellion, but it's definitely all more of this whole pattern that MAGA has, which is we're going to break the law. And if you try to hold us accountable, watch us break it again. Maybe worse. Maybe worse. reading of this. Because look, I agree with you on whether the two are equivalent in any way. They're not. I'm not going to argue that. I don't believe that. But something I have read is this idea that what happens is the left says, we need to violate this norm to save democracy. And so then they do, and then they're shocked when there's more norm violation to follow their norm violation. But what's the norm violation here?

Well, this may not be actually the best example of that, but the norm violation is we've never taken someone off the ballot under Article 3 or Section 3 of the 14th Amendment. So I'm not sure I'd call it a norm violation as taking extraordinary steps. Which again goes back to this MAGA equation, which is we get to take extraordinarily unlawful steps that never have been taken in the history of the United States. And then when you react to something that has never happened in the history of the United States with a response that is unique. They go, look at your, you, there's never been accountability like this in the US. It's sort of like the first murder in a town.

I guess I would say that both sides are guilty of exactly that. That there was a whole lot of norm-ish violation during the Trump administration by Trump, by Trump's allies, and by the left, who was justifying it by, well, Trump's extraordinary. We have to do extraordinary things to stop him. Instead of saying, here are the rules we've always had in place, and we're going to continue to play by those rules. And so both sides then point to the other side to say, and this is why we are now going to do this thing't, I'm not really interested in who started it or what norm violated

first. But I think there's, but we need to, we need to distinguish between norm violation and law violation as well. I'm happy to distinguish between those two to be clear. Yeah. Totally not including actually breaking the law and then being shocked about consequences. I'm talking about norm violation. You know, for instance, Harry Reid blowing up the filibuster because it was such an exceptional situation that Obama's judges were being blocked and then Democrats being stunned and horrified when Mitch McConnell blew up the filibuster for Supreme Court justices. Well, I mean, that's like the that's the quintessential example. But there's a whole bunch of other Trump specific examples where I don't even know who started it and I don't care.

Right. No, there were a lot of norm violations in the Trump years. No question about this. The issue that I have here, you know, it's funny, I've been listening to a lot of the podcasts about it, and it's just interesting to me, and I don't think this applies to us in the conversation we've had on AO,

which has been dominated by legal interpretation of the relevant language of the amendment. That's what we have talked about has been the legal interpretation of the relevant language of the amendment. That's been our whole conversation. That's why we brought Professor McConnell on. That's why I had Professor Bode on. We've probably fleshed this out, Sarah, on the merits more than anybody. And it ain't over yet. Yeah. I've got a little, I've got another question for you today. Okay. Keep going. And so, so we've really gotten into the merits a great deal. That's amazing how much of the

commentary out there actually starts to head to the consequences so fast. Like it's just going over the merits and heading straight to, but that would be really, can you imagine what that would mean? You know, the consequence conversation. And that's the thing that frustrates me. And it's one of the reasons why I wrote my New York Times piece,

which was, you know, look, there have been times in American history when the Supreme Court had to apply the text and meaning of the Constitution to really disrupt the status quo, like in a major way and sometimes in ways that actually led to violence. I mean, after Brown v. Board, it's not like the South said, I mean, after Brown v. Board, it's not like the South said, we lost, you won, congrats. You know, there was massive resistance.

There was massive resistance. But nobody looks back on that. Well, there's some horrible people who look back on that and say, well, the Supreme Court screwed up. But we look back on that as one of the proudest moments of the Supreme Court. Here's another proud moment of the Supreme Court from my perspective. that as one of the proudest moments of the Supreme Court. Here's another proud moment of the Supreme Court from my perspective, very recent, major disruption in American body politic, Dobbs. To me, Dobbs was correcting a previous major disruption in Roe. Here's another- So was Brown, by the way.

Right. Brown was correcting another major previous disruption. And then I've raised the Bush v. Gore example. If Donald Trump was Gore, we would look back on Bush v. Gore in a very different way. to, if it was Bush v. Trump, he would have, given what we know now, there would have been a violent response to Bush v. Trump. If it was, you know, you take all the same facts, you plug them into Bush v., from Bush v. Gore, and you plug them into Bush v. Trump, then you have, you have violence. You probably have major violence. But the question was, was the Supreme Court ruling then right on the law? And fair enough. Okay.

Speaking of which, though, let me finish some housekeeping, and then I'm going to circle back to a legal question on this. Additional housekeeping. While you are listening to this on Tuesday, the D.C. Circuit is hearing the case that Jack Smith has, the criminal case in the D.C. Circuit on January 6th against Donald Trump. This is on that prosecutorial immunity question. Jack Smith tried to go directly to the Supreme Court from the district court, and the Supreme Court nod-dogged it pretty hard, I'd argue. And so that is being argued at the D.C. Circuit as we speak. We will obviously cover this in the next episode and how that went. Donald Trump says he is going to be attending in the audience. I've heard some people talk about how this shows that his legal woes are encroaching on his campaign time.

Let's be clear. He doesn't have to be in the audience. He's choosing to be. Why? Because he thinks this helps him politically. They aren't his legal woes. These are his legal yays to the Trump team. So, and just for course of events, right? The district court decided this. The court of appeals had already set argument time

when Jack Smith tried to have the Supreme Court sort of skip over the DC circuit. So after the DC circuit, then it will go up to the Supreme Court to decide whether they want to hear it in the regular course. I read nothing into the fact that they declined to hear it by skipping the DC Circuit as to whether they would take it after the

DC Circuit. You know, cert before judgment's unusual. Jack Smith didn't present any legal arguments for why they should skip the DC Circuit. Lots of vibes, as we say here. And what's interesting also is it forecloses now, I think Jack Smith's, like, I think Jack Smith had a 10% chance of having the Supreme Court take cert before judgment on that case. I think he had a 20% chance after the district court would side with Jack Smith saying Donald Trump does not have prosecutorial immunity. And after the DC circuit, let's say three zero decides that Trump doesn't have prosecutorial immunity. Jack Smith was going to be able to argue Supreme court. You don't need to take this. Right. Well, now he kind of can't argue that because he just spent a whole lot of briefing

time saying how important it was that they decide this case in the end. And I think he foreclosed his more likely Avenue for his less likely Avenue. And maybe the less likely one would have saved him a little bit of time, but not really. Anyway, so that's what is going on this week. A little more housekeeping before we move on. One, David, we got a lovely note from what is now, at least our confirmed, youngest listener. Oh, love it. She is in sixth grade. She is working on her American heritage badge. And she has decided to do that by diving into the 14th Amendment section three. So God bless. They sent visual proof to me of a adorable, precocious 12 year

old girl with the podcast with Will Boat up. I wouldn't say that we gear our podcast towards 12-year-olds, but maybe more than we think we do. Yeah, I could say advisory opinions, 12-year-olds welcome. Absolutely. And speaking of the wide range of listeners that we have, I've referenced this before, but I don't know that I've explicitly said that I know we have a number of federal judges that listen to our podcast. Why? Because they send in listener notes like the rest of you. Yes, indeed. So I've gotten permission to read one of our listener notes from, I'm going to anonymize this federal judge, but an Article 3 federal judge. Can you say which level of the court

court system? I did not ask permission to do that. I'm not going to Article 3 federal judge. OK, I'll just read the whole thing. All right, David, I am hooked on your podcast. You and David do a great job. The end. No. However, you knew this was coming. I was on a treadmill today and listened to you both discuss salary and credentials for the Supreme Court. I hope you don't mind if I Uh-oh. of big law diminishes public service. Second, you do realize that most people joining big firms love the pay but hate the work. Our U.S. Attorney's Office is full of people who left big law. I hire law clerks each year from people escaping big law. Big money is great, but rewarding work is too. Judgeships involve rewarding work according to just about every judge I know. Third, the pay a person receives is no measurement of judicial abilities. Actually,

I would say the pay is no measure of legal abilities, if we include litigation skills. You mentioned that no one should join the Supreme Court if that meant their pay would go up. That would disqualify Earl Warren, Hugo Black, William Douglas, Sonia Sotomayor, Antonin Scalia, and more. Also disqualified would be Ted Cruz, Mike Lee, and Josh Hawley. Oops, you may be persuading me on this last punch. I didn't say who appointed this judge. Yes, yes, correct. It would also disqualify almost all state court judges. Think Sandra Day, Justice Department officials, and most academics. And then this person went on to describe how he

would not fit the normal profile for a federal judge. Skipping that, which would be somewhat identifying. I do agree that judges should be fairly compensated. We did receive a decent pay raise via lawsuit about 10 years ago. We now have cost of living increases every year in step with other federal employees. We received a $10,000 raise this month. I make a lot more than the governor of my state and all state judges. But I agree, I am not overpaid.

Thanks for hearing me out. I really enjoy the podcast. So David, what do you think of the counter? Oh, I think he's right. He or she is right on the, you shouldn't be getting a pay raise to be a judge. I can't remember which one of us said that. If I said that, um, Yeah, no, I said it and I didn't mean it in that sense. Right, right, right. I, so yeah, I think he raises, he or she again, raises some good points, um, on that particular point. I'd be very interested in their perspective on the larger issue. And I also appreciate the points about public service. And I do agree that you are diminishing public service if you say, well, you're going to

get the exact same salary that you would have gotten as a partner at Simpson Thatcher or whatever. I do agree with that. I still think the current level is too low. That's my main point. The current level is too low. That's my main point. The current level is too low. I meant that you shouldn't get a pay raise as compared to big law,

not as compared to other public service. Right. Which is, or I'll even, maybe I'll throw in academia. I don't know if I mean academia. I'll have to ponder whether academia, where that should fall. But regardless, I meant big law to judgeship

should not be a pay raise. That's, and I remember you saying that now. And as I recall, I mean, I meant big law to judgeship should not be a pay raise. That's and I remember you saying that now. And as I recall, I mean, I could be hallucinating. You had my enthusiastic agreement on that point that it shouldn't be that I'm going from a partner at, you know, Simpson Thatcher and to a judgeship to make more money. Did Simpson Thatcher pay? Is there like a sponsorship I'm not aware of? You know, I think I have a distant memory of my mind.

And Simpson Thatcher Associates or partners who are listening, you can correct me on this. But I think when I was a first year associate, Simpson Thatcher had the highest profits per partner in the United States. So 30 years ago. And so that's stuck in my mind is that's where you go to if you want to be rich. And I know that's probably way outdated if it was ever true. I know. Yeah. Okay. Feel free to read David Latt's newsletter. He'll lay this out for you every single time that the new rankings come out. 30 years ago, I kept up with those rankings, Sarah, and I don't anymore. So it's sort of like, I guess, what was a great football team 30 years ago? Nebraska. They'd be like saying, going to play for Nebraska football. No, I don't know.

Simpson-Thatcher is in a lot better shape than Nebraska football. My apologies to Simpson-Thatcher. Well, look, here's what my thought is after reading that, that I think a federal judge's opinion about a federal judicial salary is and should be more valuable than ours. Yes. So I put the thumb on the scale with his email over our takes. Yes, and it was a good email, especially the very first sentence or two.

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Real Canadian Superstore. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time.

I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's aurafA frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right. Last housekeeping thing. Oh, this isn't so much housekeeping. It was like a question that we got about with David Latt. I talked about dissentals, dissents from hearing something on bonk. And it was like, okay, but why do you ever go on bonk when the options are, court, appellate court, and then you've got these two

options. You can try to get heard by all of the judges of the appellate court. They don't have to hear it or by all the judges of the Supreme Court and they don't have to hear it. But if you go the appellate court route, you still have the Supreme Court option, so the other side could still flip your win, et cetera. Why go en banc? And there's basically four reasons. One, that I think are merited. One, you got a really unusual panel, right? It's a random three people, but sometimes those three people can be unrepresentative of the circuit as a whole.

A highly unrepresentative panel, you might just want to try to get heard by the rest of the court, thinking they'll recognize that it was an unrepresentative panel and take it for that reason. Two, if the judges themselves, and we've seen this a lot, we'll talk about one from Willett, for instance, say, I hate the outcome of this. I don't think it's even legally correct, but I am bound by circuit precedent because the only thing that can overturn circuit precedent are the judges of the court itself. So that would be a reason, but basically the judges are saying, I want to take this en banc. Please, please, let's do this. Three is delay. You know, as I said, it's the step where you still can go to the Supreme Court

afterwards. So if you're looking to burn time, your client, you know, is out of prison for instance, or whatever else on bonk reviews, good as any way. Um, and four, which I think is the most common is your, you, you lost at the district court or sorry, at the panel level. Um, you don't think necessarily that the whole circuit will flip it or anything like that. But you know there's one or two judges that have a bee in their bonnet on this issue, and you actually want that dissent from denial because it serves almost as a cert petition to the Supreme Court, a more persuasive cert petition than the one that you're going to draft as a random lawyer with a random client. And so that dissent from

denial, the dissental, basically flags to Supreme Court, there's something wrong here. And that's why I was looking with this law clerk who did the work, actually, he's an associate, sorry, this former law clerk, now associate who did all the actual data work to look at who the most successful dissentalists are, because they're basically the ones flagging cases for the Supreme Court. Yeah. You know, and the other thing is, it's just, I think that because we talk about so many Supreme Court cases on this podcast, we can give a false impression that Supreme Court review is, if not routine, regular, okay? is, if not routine, regular, okay?

No, you can go, you could live 10 legal lifetimes litigating, even on like cool issues that the Supreme Court ultimately often decides and not have a Supreme Court case. Well, let's just do data here. So the Supreme Court gets on any given year between 7,000 and 10,000 cert petitions. They decided 58 cases last year. Right. So unless you're husband of the pod on the vaccine

mandate case or on net choice, you know, and you've got the sexiest cases in America, the sexiest cases in America, you really should not be conducting your litigation strategy as if the Supreme Court is the place where this case will be decided. Now, you can keep it in mind, and you should keep it in mind as an ultimate possibility, but if you're walking into the case with the whole thing being drawn up for a Supreme Court result. Now, again, you can do that if you've got the lead case challenging the Biden vaccine mandate or the lead case challenging the Texas

and Florida social media laws. You know where this is going. But if you have a run-of-the-mill free speech case, even if you think there's a nuance here or something that could have come up here that maybe the Supreme Court would be interested in, if you're practicing this case for the Supreme Court, you're misguided, in my view. And so the en banc appeal often is a practical matter, as a practical matter, as a practical matter is your last plausible outlet or sort of your last plausible chance is the en banc review.

Because by the time you finished your appellate court, by the time you have your appellate court decision, you're going to kind of know if this is a Hail Mary of a cert petition versus one that you've got a really quantifiable chance of getting granted. And en banc, for all the four reasons you outlined, Sarah, you could have a better chance en banc of getting en banc review quantifiably better than you would have with a cert petition.

Certainly. I mean, and it is obviously the case that the circuit courts hear a lot of en banc cases, not a ton, and I don't have the numbers in front of me. You know, there are dozens and dozens of cases that are heard on-bonk every year. And a higher percentage of those will certainly go to the Supreme Court than any other types of cases, but still very few, like not a majority by any means. Yeah.

Okay. Uh, now we get into some law, real law. Yes. First up, there was an amicus brief filed in this Colorado, um, case pending that was pending at the Supreme court right before they took it

about why they should take it. And it was another theory, uh, that we haven't talked about on this podcast that I thought was worthwhile because we have not spent any time on the 20th Amendment, David. That poor, poor 20th Amendment. What? I know. Of all the amendments, we've given it the least attention. It's so true. So I'm going to read Section 3 of the 14th Amendment, the part that we're going to care about this time, because it's the last sentence that we also haven't really talked about. We've mentioned it. So the last sentence says, but Congress may, by a vote of two-thirds of each House, remove such disability. I.e., if you're

disqualified for engaging in an insurrection because you previously took an oath of office to support the Constitution, Congress can nevertheless undo that disability by a vote of two-thirds. Okay, now let's go visit the 20th Amendment. Also, Section 3, funny enough, if a president shall not have been chosen before the time fixed for the beginning of his term, or if the president-elect shall have failed to qualify, then the vice president-elect shall act as president until president shall have qualified, and the Congress may by law provide for the case wherein neither a president-elect nor a vice president-elect shall have qualified, declaring who shall then act as president or the manner in which one who is to act shall be selected and such person shall act accordingly until a president or vice president shall have qualified. Okay, hopefully you're about to see how these two

interact, right? Because if the 14th Amendment Section 3 says that you're disqualified and that Congress can undo that by two-thirds, and the 20th Amendment says that it is up to Congress basically to determine whether someone shall have failed to qualify because then they go to the vice president, they certify the vice president, et cetera. We've got a timing problem, right? Because the 14th Amendment says no person shall be an officer under the United States, not shall run, as in it's about holding office, not running for office under section 14.

So this amicab brief filed by Jones Day, that's Noel Francisco, the former Solicitor General, and, you know, disclaimer, former Solicitor General that I worked with and served with, filing on behalf of the National Republican Senatorial Committee. Their argument is, clearly this means it is up to Congress to determine this qualification, because if they can undo it by a vote of two-thirds, if you are allowing the states to remove someone from the ballot and say that they can't even be on the ballot, you're setting up the timeline weirdly. When is Congress supposed to have this two-thirds vote? Before they've even been put on the ballot, but then

they don't ever get put on the ballot? When they just say they're gonna run for office, then Congress is supposed to have this vote? No. The most obvious reading in light of the 20th Amendment is that the 14th Amendment qualification standard is supposed to be applied after someone is elected, but before they take office or anytime after they take office, of course, Congress could recognize that. So, David, it's a way of threading, I think, some of the things we've talked about. It's not about conviction. Congress can do this without a conviction or without any charges being filed, but it does have to be up to Congress. You can't have states doing it. And in that sense, it fixes the self-enforcement problem in that it's neither

that Congress needed to pass a statute and that you have to convict a person, but neither is it that it's just willy-nilly up to the states to set their own evidentiary standard, whether it's preponderance of the evidence or maybe it happened or whatever the Secretary of State of Maine decided, which I still don't know what evidence, what evidentiary standard the Secretary of State of Maine used.

So what say you to this 20th Amendment theory? Number one, points for creativity. Number two, actually, and when I say points for creativity, I don't mean that in a negative way. I think this is... It sounded negative. It sounded negative, but I didn't mean it the way it sounded, which is why I immediately corrected myself. No, I think it's an interesting argument, but as a practical matter,

a lot more interesting in theory than it is in fact. So the question is, if you have state law, the question is, when would Congress have a chance to remove this disability? Well, now. It can do it now. But they can't do it now. Maybe. OK. Yeah, they can.

A hundred percent they can. But they could have done it also three years ago. Like that would be weird. Nope, they can do it any time. But like you don't want to go through and like grant remove this disability for everyone based on engaging in insurrection you want to remove it for the people who actually stand like have already won or something like that but would otherwise be disqualified you know what i mean the amnesty act of 1872 removed it proactively it did so right

yeah my answer this is he is currently disqualified and Congress can remove that disqualification at any time. It could do it today. It could do it tomorrow. It could remove it at any time. Now, the question then becomes, does a state have the authority to remove a person who is currently disqualified, even if at a later time Congress could choose to qualify them? even if at a later time, Congress could choose to qualify them. That's the question that you would then have. And I think the way the court decision will, the way the court decision, I think, will ultimately go unless, if it is decided on the merits. Now, it may not be decided on the merits, Sarah, as we've been talking about, we've got the question of due process, or if it's decided on the basis of, well, the statute doesn't apply to him because of the various readings of officer that we've talked about on this. But if it goes to the core,

did Donald Trump, this statute or this constitutional provision encompasses a former president and applies to a potential future president. And if it decides whether or not he engaged in insurrection or rebellion, let's just say for the sake of argument, the Supreme Court decides he has engaged in insurrection or rebellion and is currently unqualified to serve pending a two-thirds action from both House of Congress. If that's the ultimate ruling, then the bottom line is, at that point, he is not qualified to serve. And then it becomes an issue, I would say, of state law, for example, Sarah, as to whether

somebody who is currently unqualified is eligible under state law to be a candidate. to whether somebody who is currently unqualified is eligible under state law to be a candidate, or if the Supreme Court says he's not eligible to serve, but because Congress could in the future remove his disability between now and being sworn in, that you can't knock him off the ballot, but he's unable to serve. And then what you would be doing is you would say, vote for Trump, because Congress could either remove the disability or if Congress doesn't remove the disability, then you're really electing the vice president. Good luck with that, I guess. We're running this guy that has been adjudicated, not qualified by the Supreme Court in the hopes that he's going to win such a convincing election victory that he's also

going to carry with him two-thirds of houses in both Congress. I think that is, so as a purely legal matter, I think that that analysis that you could say because the disability is susceptible to removal later, a state could still put him on the ballot with the understanding expectations that the voters are voting for somebody who is not eligible but can conceivably be eligible. And it could put pressure on Congress to do that, like to remove the disability potentially. Okay, I think we're probably going to get a lot of questions like, yeah, but how does that interact with the 35-year requirement, for instance? You have to be 35 years old.

So I want to read that part. But Congress can't remove that disability. Correct. But I just want to read the language difference because this is in Article 2. No person except a natural-born citizen or citizen of the United States at the time of the adoption of this Constitution shall be eligible to the office of president. be eligible to the office of president. Neither shall any person be eligible to that office who shall not have attained the age of 35 years and been 14 years a resident within the United States. So look, here's the problem that this argument has in general. There's a lot of case law removing people from the ballot for being ineligible. But is there a distinction then between ineligible and disqualified from holding the office?

As in, does shall not be eligible really refer to being on the ballot and not qualified to hold the office refer to after you've been elected, you then can't serve and therefore that's up to Congress? Because you're going to have to weave through some case law on this where absolutely states have been allowed to remove people who are not eligible before. That this amicus brief, because it was an amicus brief for a cert petition, was very, very short. Expect a lot longer conversations of this in the upcoming briefs. I'll look forward to them, especially parsing out the case law because the amicus brief really didn't get to do that except for like a basically a sight string i think it's a really fun interesting legal argument that when you play out its consequences in the real world even if that argument wins

that it's still a it would be a devastatingly bad outcome for trump that the supreme court even if that argument wins could conceivably hold. He's not he can't hold the office. Yeah, there's a there's a deal. You could see a compromise made the log rolling that we've talked about that isn't in theory happening at the Supreme Court, but probably certainly is happening at the Supreme Court, where if John Roberts wants nine votes, you could have a sort of Frankenstein opinion of so-and-so joins this part, so-and-so does not join this part.

And the various parts put together as my little Frankenstein SCOTUS monster will include what you're saying, David, that they will reach the insurrection question. They'll find that he engaged in an insurrection in order to get the three votes. they'll find that he engaged in an insurrection in order to get the three votes then they'll hold that uh he's nevertheless eligible to be on the ballot that colorado can't remove him that states can't remove him from the ballot because um you know it's not

self-executing or more likely this argument under again under my frankenstein i mean more likely um that actually it's up to congress to do that and And then you've, yeah, you've got like a hodgepodge, some plurality stuff, some not plurality stuff. I think it would be a plurality on the insurrection question. The rest wouldn't join it because you don't need to answer that in order to decide the rest of it. Now, I know this is all, I think the probability of that kind of log rolling is definitely not zero, but it's it's a low probability that we but I think it's very interesting. And it has an interesting symmetry. As you were talking, Sarah, it has an interesting symmetry with some of the other congressional I mean, Supreme Court approaches right now, which will essentially be like. right now, which will essentially be like, you may not like this. This may disrupt longstanding administrative law practices, for example, but you know who can fix it? Congress. And you could imagine, again, low probability, but high degree of legal consistency to say the part that we can adjudicate, did he commit or aid or abet or aid or comfort

or engage in rebellion or insurrection? Yes. Does this apply to him? Yes. Does this the end of the line for Trump? No. Why? Because Congress,

it's ultimately, as of right now, Congress, by not removing the disability, he is currently not eligible to hold the office. That doesn't mean he's not eligible under any circumstances to hold the office in the future.

So if you want to put him up as a candidate and roll the dice that you can A, win the vote, the Electoral College, and B, get two-thirds of House and Senate? Go for it, GOP. Part of me would love that outcome for all sorts of reasons that should be really obvious, but I don't think it's the most likely outcome. I still think the most likely is. No, I don't think it's most likely. It's not up to the states to decide whether he's disqualified.

It's also not up to the courts to decide whether he's disqualified. It is wholly up to Congress, either to statutorily enforce Section 3, that self-enforcement problem, or under this 20th Amendment thing that, like, that's actually what certifying the vote is about. And it's not just a ministerial counting the things we already know, but rather Congress is now certifying that this person both won the Electoral College, the most votes in the Electoral College, Congress is now certifying that this person both won the electoral college, the most votes in the electoral college, and is qualified to hold the office. I just had this funny thought because we've had a lot of recent media controversies over things like headlines and quick descriptions, early descriptions of political controversies

or you name it. Could you imagine being like the 26-year-old AP staff writer who is responsible for in the lead paragraph of an article summarizing the outcome that we have just described? Donald Trump, in a puzzling and divided, in a puzzling and seemingly contradictory ruling, the Supreme Court determined that Donald Trump was not eligible to hold the office of President of the United States, but cannot be stricken from the ballot. Yeah. Yes, that is what I want. Yes.

This is our love note to the Supreme Court. Oh, man. Okay, let's move to some circuit cases now, because we've had these piling up and there's so many good ones we're not going to get through them all today but we are going to get through a lot because we're going to do fast action circuit reviews so one coming out of the fifth circuit a fascinating majority opinion by judge don willett where uh this is one of those flagging for en banc review they're bound by circuit precedent. They're arguably bound by Supreme Court precedent as well. Maybe. The facts are pretty easy.

This woman is convicted of a minor or, you know, depending on your perspective, low-level drug offense. And it turns out that someone from the prosecution team was moonlighting working for the judge. That's a no-no. Everyone agrees that's a no-no. The courts have found in that specific case that it was a no-no. There's no question about it. So now she's coming up under 1983 and saying, I want relief from my conviction. And the answer is going to, according to Judge Ho, I mean, sorry, Judge Willett, Freudian, according to Judge Willett, be, quote, utterly bonkers, which is no, even though everyone agrees that her conviction was done under, I mean, not just false pretenses, but like I would argue it

would be the opposite of violating double jeopardy. Like as in she was in so much jeopardy because the prosecution and judicial teams had teamed up. She did not have a trial at all. Regardless, under 1983, you have to have something called, quote, favorable termination in the Fifth Circuit. And again, maybe under Supreme Court law as well, where you cannot seek damages for unconstitutional conviction or imprisonment without first showing that the conviction or sentence has been reversed on appeal or otherwise declared invalid, such as by federal habeas relief. The wrinkle in this case is that the conflicted dual hat arrangement came to light only after she'd served her whole sentence. So because it was a low level offense and therefore she wasn't sentenced to much jail time,

she oddly now is a ex-felon for the rest of her life. She can't serve in certain jobs like she wanted to be a nurse. She can't be a nurse because you can't have a felony conviction and be a nurse and she can't do anything about that even though her conviction is utterly bonkers right and the outcome of this case is utterly bonkers because she's not still in jail and that that's the favorable termination right was to cut down on all of these these 1983 petitions coming through from people who were found guilty, are in jail, and are now basically collaterally trying to attack their conviction when they run out of habeas sort of direct attacks on their actual conviction.

Now they're going to say civilly that they were wrongfully convicted. That's what it was trying to prevent. But then you have these weird cases. It's a bummer. And the reason why this is it is because it both communicates a truth about the legal sort of the legal scenario for the case and the broad and but also why there's a lot of broader should be broader interest. So he says Irma Wilson faced placed her faith in the justice system, trusting she would get due process and a fair trial.

Wilson's faith was misplaced. In Wilson's trial and in hundreds of others in Midland County spanning decades, Bedrock judicial norms were dishonored, unbeknownst to Wilson. A Midland County Assistant District Attorney, Ralph Petty, had been moonlighting, acting as both accuser and adjudicator for nearly 20 years.

The multitasking Petty had worn two hats, one by day, a prosecutor in public courtrooms of Midland County judges, and two by night, a law clerk in the private chambers of Midland County judges. Disturbingly, Petty was working both sides of the bench, seeking favorable rulings while also writing them. So there's a couple of things that happened here in this setup. One is he's describing the actual injustice that she experienced, but he's also doing something else I think that's really important. He's broadcasting the consequences of when you narrow down accountability for unlawful official acts and unconstitutional acts so much that you create the conditions for this kind of conduct. create the conditions for this kind of conduct. And so because what he's pointing out is there is an individual injustice here, but there is also a systemic injustice that this individual case is highlighting.

It's both systemic in Midland County and systemic in the whole treatment of Section 1983 and the law itself. So I think that that was very, very well done. And look, we've had lots of conversations about qualified immunity in the course of this podcast, and we don't need to rehash them all now. But the thing that is really important about this is it's another case that highlights that even when your constitutional rights have been violated and the evidence that your constitutional rights have been violated and the evidence that your constitutional rights have been violated is

overwhelming it is like running a freaking obstacle course to get the merits of your case in front of a court and in front of a jury it is an absolute challenge to do that even when it is virtually certain that your constitutional rights have been violated. It's in ways that have lifelong consequences like here. And I think the way Willett did this, here's the circuit court precedent. It's bad. Here's why it's bad. But this is rule of law.

We're governed by it. But here's how to change it. I think that's, to me, that's the ideal way to approach this kind of situation. And for those curious how this all ended up for the dual hatter, not so bad. He lost his law license. He's barred from practicing in the state of Texas, but that's it. And what about those hundreds of convictions? Well, one of those people was on death row. Now, he did obtain habeas relief because he was still in jail on the grounds that Petty had been working directly on both sides of his case. But yeah, I mean, I've got to say, I'm not sure losing your law license is enough here, given the damage both reputationally and directly to the justice system.

All right, well, thank you, Judge Willett, for the utterly bonkers opinion. Next up, we've got a Judge Ho concurrence. Ooh, I like this one. The facts of this case aren't actually important. It's an employment discrimination case, and the panel on the circuit finds that this person was not discriminated against in their employment. Now you've got this judge-ho concurrence. I agree that plaintiff's record of absenteeism forecloses his racial discrimination claim and that we should affirm.

Okay, so the facts of this case aren't really that relevant or that interesting. This comes up just all the time, like at the circuit level. Basically, someone sues saying that they were fired because of their race or religion or something. And then it turns out, you know, the business argues, no, you were fired for not showing up to work on time or at all, as was the case here. And so the circuit court found that, no, you were fired for not showing up. You did not meet your burden for showing that

you were fired because of your race. All right, so now we've got this Judge Ho concurrence. I agree that plaintiff's record of absenteeism forecloses his racial discrimination claim and that we should affirm. I write separately to highlight plaintiff's contention that the use of the term, quote, diversity may be evidence of an employer's discriminatory intent. Specifically, plaintiff alleges that a plant manager told a supervisor that the company, quote, needed more diversity in the workplace. Plaintiff took the reference to diversity

to mean that the company should hire fewer African-Americans in the future due to the racial composition of the existing workforce at the plant. Cases like this reflect the growing concern that diversity has increasingly become a code word for discrimination. David, what'd you think?

He's right. He's right. So this really dips into a larger cultural conversation where the meaning of words, Sarah, is really up for grabs. And one word can mean one thing to one person and another thing to another person entirely and you know there are legions of examples of this like the word woke for example is now almost completely meaningless what does it even mean somebody on the right it usually means

anybody who's one millimeter to the left of them on any relevant cultural issue someone on the left it actually has a meaning of sort of being awakened to systemic injustice in society. It's just a word that doesn't have a lot of universally understood meaning any longer. And diversity is getting to be that way, Sarah. So this goes to some of the, for example, we've had a lot of arguments in the last several weeks in response to the anti-Semitism crisis on college campuses,

in response to the president's testimony, in response to the Claudine Gay situation at Harvard, where DEI, diversity, equity, and inclusion, is in the crosshairs again. And a lot of people will look at the word diversity and say, who can be against diversity? Everyone loves diversity. Diversity. Everyone loves diversity. Okay, okay, I'm with you. I'm a believer in diversity. I think that an institution definitely benefits from having people from all different backgrounds and lots of different viewpoints to avoid groupthink, to avoid that sort of hive mind that can take over institutions. And plus, it's just putting the equal protection principles of the American Republic into practice. But you can't discriminate, invidiously discriminate against one category of persons. And then when you're called out on your invidious discrimination,

say, oh, but this kind of invidious discrimination is fine because it's for diversity. Because that gets us back to the Harvard situation, which Judge Ho talks about, where you had for, quote, diversity, because diversity was a compelling governmental interest that was allowing these schools for a time to discriminate on the basis of race. In the name of diversity, they were systematically, Harvard was systematically for year after year after year discriminating against Asian applicants. So diversity in that circumstances, Judge Ho outlined, was the pretext for actual invidious discrimination. And so he's right. There are circumstances where somebody could say, we need more diversity.

And that's an immediate code for race. We're going to start discriminating on the basis of race. I think in this case, it was. It's hard. Again, you would need a trial to determine whether that was in fact said, things like that. But let's assume that a dude did say that, you know, we are need some more diversity in this place and the place is full of black workers. Yes. That was clearly evidence of wanting to discriminate

against hiring more black workers. And that's not good because you're then just hiring on the basis of race. Judge Ho is so, let me give you a real world example from a case I had years and years and years ago, a case I was involved in years and years ago. Some of you may remember the restaurant Shoney's. And it's very, I think Cracker Barrel almost destroyed it, like in the head to head matchup between the roadside restaurants. Cracker Barrel just ate Shoney's lunch. But back in the day, Shoney's was all over the place, huge. And we had a situation involving a claim that it was either maybe the founder. It's been years and years. But the claim was that a leader at Shoney's walks into a Shoney's and says, there's too much salt. I mean, there's too much pepper in this workforce. We need more salt. Clearly, he was saying we had too many black employees. We need more white employees. That was the foundation of a very successful anti-discrimination

lawsuit. Little did he know, all he had to do is walk in and say, we just need more diversity in this workplace. That's why I appreciate the Judge Ho opinion. Basically, without reading the whole thing, what Judge Ho is saying Basically, without reading the whole thing, what Judge Ho is saying is, look, if the absenteeism hadn't been the obvious reason this guy was fired, if it had just been a fight over whether we need more diversity here,

was evidence of racial discrimination? My answer, Judge Ho, would be yes. Yeah. Good to know. Exactly. There was a case when I was clerking that you could, for instance, go find the footnote on. Basically, same exact thing, right? On the one hand,

the person hadn't been doing a good job at work. And on the other hand, he had various comments that had been made, one of which was that a foreperson had referred to him as Bubba. And he was Black, and he claimed that Bubba was a discriminatory term for Black people. And the opinion turns out exactly like this. No, because there were all these all sorts of evidence that in fact you were fired for not showing up and not being good and whatever else. But I included a footnote on Bubba. I was like, Bubba, however, is hard to describe as a purely racial term. It is often a term for Southern men, C.Eg bill clinton and i went through all these

like white bubba's and then i got to do the uh butsy bubba gump shrimp factory right so i got to run through all the history of race bubba's but how actually like sort of the southern uneducated man like it may be an insult but it may not be a racial one yeah when as soon as i heard heard the word bubba i'm thinking like your stereo the stereotypical of kind of like your yeah he's drinking paps and yeah you know his pants are falling down yeah that's a bb yeah exactly pbr by the side of the lake man that's a bubba yeah yeah it was a little weird because if bubba has any racial uh implications i would have generally argued it was white yeah you know what that reminds me of just immediately came to mind did you see the saturday night live and nate bargatze i mean i've seen everything nate

bargatze's done so oh oh yes yes oh of course i've seen the saturday night live on the where he's on and he's george washington the george well he has another skit so he was hosting his stand-up is phenomenal uh his his monologue was phenomenal the george washington skit will live in eternity and then he had this song called lake beach oh yeah where adam we got to include this in the show notes, Lake Beach. And he's singing with the musical guest, a song about the Lake culture in the South. And watch that and just know that every guy in that Lake Beach song is named Bubba. And that's who we're talking about.

All right, David, we're going to wrap up our circuit wrap up with another racial discrimination, employment discrimination case. This is a Newsom concurring with Newsom on the 11th Circuit. And it's just peak Newsom concurring with Newsom. And it was interesting. And it's like legal nerdery at its finest. And I think for some of our conservative lawyers who actually do this kind of work,

they're going to be shocked with how Newsom came out in all of this. So just to rehash some of the law involved. came out in all of this. So just to rehash some of the law involved, Title VII of the Civil Rights Act of 1964 broadly prohibits workplace discrimination. It shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against blah, blah, blah, because of an individual's race, color, religion, sex, or national origin. Okay. Now, most of these cases are decided at summary judgment. That's why I said in that previous case we talked about, if it were found at trial that the guy actually said the thing about diversity, because most of these are simply decided on the papers.

The plaintiff gets to allege the guy said that, and it's like even if he did say that, you lose. That's what happens in most of these cases. So what are the rules for summary judgment? That would be Federal Rule of Civil Procedure 56. The court shall grant summary judgment if the movement shows that there is no genuine dispute as to any material fact and the movement is entitled to judgment as a matter of law.

So again, take our previous case. He didn't show up to work a whole bunch of times, got warned, kept not showing up to work, but also a guy said, we need more diversity in this place. The business is like, sure. Even if he said that, though, we fired him because he didn't show up. So you would get summary judgment because you are entitled, the business was entitled to judgment as a matter of law.

Now we're going to get to something that's special. Summary judgment in Title VII cases follows something called the McDonnell-Douglas framework. This comes down from the Supreme Court, and you end up with this burden-shifting test. And the test goes something like this. First, the plaintiff has the burden of proving, by the preponderance of the evidence evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by preponderance of the

evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. So again, let's use that last case because it's so easy. Plaintiff said, look, he said we needed more diversity in this workplace. Then the burden shifts to the employer. Employer says, aha, but you didn't show up to work for weeks. And then the plaintiff says, yeah, but you just used that as an excuse because I was black, which won't fly because you didn't show up to work. And so you lose, plaintiff. Here's where I think the Newsom concurring with Newsom gets really fun because most judges like the McDonnell Douglas framework because it gets rid of a lot of cases real quickly. You lose on summary judgment and you don't have to go.

So he says, in the discussion that follows, I'll explain briefly why I've come to believe, one, that McDonnell Douglas is the wrong framework to apply in deciding Title VII cases at summary judgment, and two, that our convincing mosaic standard, which I'd rebrand slightly, is the right one. I'll also try to anticipate and respond to a few objections. To start, why the loss in McDonnell Douglas? In short, I fear that it doesn't reliably get us to the result that Rule 56 requires. And I really liked this part. I've concluded that I was wrong about McDonnell Douglas, as in 180 degrees wrong. Upon reflection, it now seems to me that McDonnell Douglas is the interloper. It is the judge-concocted doctrine that obfuscates

the critical inquiry. The convincing mosaic standard, by contrast, despite its misleadingly florid label, is basically just Rule 56 in operation. Quite unlike McDonnell Douglas, it actually asks the key question, does the record, viewed in a light most favorable to the plaintiff, present a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision maker? Strip away the grand... Am I drunk? Strip away the grandiloquence. After all, convincing mosaic of circumstantial evidence just means evidence, and that is exactly Rule 56's summary judgment standard. David, I think this is why we love Judge Newsom. We like his writing, but even more more we like his brain because i really appreciate a judge who is willing to revisit some just really basic parts of the law that we're all sort of

taught to like move past he's like oh no we're gonna check every brick that builds this house and look at that brick i think it's a little shaky so sarah what do you notice in our Willett and Newsom cases? So in our Willett and Newsom cases, we have seen two GOP appointees. I don't know if Newsom and Willett are FedSoc or not, but two GOP appointees, Trump appointees, who have written really sparkling opinions that would have the effect of opening the courthouse doors to lots of marginalized folks. In wrongful conviction cases and in employment discrimination cases, the two areas where generally on that right-left x-axis political spectrum, conservatives are on the opposite end of that. Yes. This is a really interesting thing because this is what, so what a lot of people who listen to this podcast know, but most people outside of our podcast universe are rapidly expanding podcast universe, but outside of our podcast universe don't know is that Congress has passed a number of statutes that grant broad rights of action for people to file lawsuits against both the government and private employers for discrimination and also against the government in the Section 1983 case when their civil rights were violated.

And then for years and years and years and years afterwards, courts went about creating new hurdles and obstacles for these rights that had been crafted by Congress, these rights to sue crafted by Congress. So courts spent years and years and years creating atextual hurdles, additional hurdles and tests. And what Willett and Newsom are saying is, no, no, no, no, no, no. Let's go back to the original text here. What does 42 U.S does 42 USC section 1983 say? What are the civil rights statutes saying plaintiffs are entitled to? And then here's Newsom saying, whoa, what's this McDonnell Douglas thing? We have a written test for when you grant summary judgment. It's in the federal rules of civil procedure. summary judgment it's in the federal rules of civil procedure why why do we have a mcdonald douglas burden shifting when we just have the federal rules of civil procedure and i think it's

a both willett and newsom are doing if anyone has sort of eyes to see and it's not so nailed down in their partisan camps that they just can't credit anybody with anything. Guys, what they're showing is that originalism and textualism are not a pretext for discrimination and oppression. That in fact, there are many circumstances where originalism and textualism are removing discrimination and they're removing barriers to achieving compensation for discrimination. And so I thought the Newsom opinion, super obscure issue, you could pull a hundred lawyers off the street and ask them about the McDonnell Douglas test

and maybe two would know it. But you, so it's obscure legal issue, but really, really important for those people who believe that they've suffered from discrimination, discriminatory conduct. So I just wanted to put a pin in that for a second, Sarah. David, can I tell you a realization that I just had? Yeah, go about it. Because the right has been saying that the whole time, that if you get rid of the SAT, it's going to hurt the most disadvantaged people the most, because that's how you stand out

when you're in from a crappy school with teachers who aren't going to care to write you recs and grades that nobody thinks matter. You take the standardized test that everyone takes and you do better than the kids at the rich school, or at least the same as the kids at the rich school. And instead, the kids at the rich school can have all of these extracurricular activities, amazing essays that were edited by Nobel prize winners, et cetera. And so getting rid of the SAT did the exact opposite thing of what they said. The right's been saying that the whole time. And then all of a sudden, people on the left say it, and it's like, oh my God, they have a point.

And it's so frustrating because those on the right were called racist this whole time. But David, I just had a realization. That's exactly what's happened with favorable termination in McDonnell Douglas. The left has been saying this whole time that they're not good law. And now that someone on the right said it, we're like, oh my God, that's so right. Oh gosh, Sarah.

I just did the thing. Oh no, are you saying we're guilty of the same thing that we just pre-podcast ranted about the left? Oh, gosh. Yes. And I can't dispute it. It's 100% what we did. I know. There's zero record of me prior to this very moment that I can remember or think of saying,

you know, McDonnell Douglas is misguided. Never. Never. And then Judge Newsom comes along and says,cdonald douglas is misguided i'm like well boy howdy he's got a point yeah and again just to be clear people on the left have been saying mcdonald douglas is misguided for a long long time same with the favorable termination in that you know post habeas context uh and we haven't been paying attention so i don't take back what i said about the new york times only caring about this because the left is now criticizing getting rid of the sat

instead i'm still criticizing the new york times i'm now just in addition criticizing us yeah and it's not a defense really to say this is a very human thing because some of our human nature is kind of flawed but it's a very human thing to trust the words that you hear from somebody that you have a pre-existing sort of set of appreciations for versus when somebody doesn't when somebody comes from a position that you've long argued against and and by the, Sarah, that explains why when you talk to people who are experts in sort of how civil conflict unfolds, that the very first victim or in the very, the class of people who are among the first victims of any revolutionary movement are the in-group dissenters. Because they know that the in-group dissenters because they know that the in-group dissenters are the ones

that your base is most likely to listen to. Yeah. Right? Well, we're screwed. Oh, man. We have been screwed, Sarah, for years now. But this helps explain why is it there is such intensity. There's often more intensity, say, for example, that you'll see from MAGA against never Trump

conservatives than against the left, because MAGA knows that greater threat to its ascendancy on the right are conservatives, not folks on the left that Republican the Republican base isn't likely to gravitate towards anyway. And one other thing on this, Sarah, this reminds me, both the Willett and the Newsom cases remind me of the conservative movement that I thought I was joining. Because the conservative movement I thought I was joining years and years and years ago had said, wait, left, you do not have a monopoly on caring about america's history of oppression you do not have a monopoly on caring about racial equality in this country you don't have a monopoly on caring

about civil liberties we care about all of those things as well but we think that your solutions are not working and we have alternative solutions and i've been in those those debates where then you're immediately called a racist, not because you disagree with the value of diversity, so to speak, but you disagree with the method that the left is taking to achieve diversity. And then in the stupid way we conduct political debates in this country, everything is reduced immediately to, well, you're a racist if you don't agree with me. And the thing that really made me angry about the New York Times opinion

is that if you didn't agree that getting rid of the SAT was actually going to promote racial diversity somehow, and again, it was like one of those, like, get rid of the SAT, yada, yada, yada. Diversity! Like, there was no real explanation of how that was ever going to work

except that rich kids do better on the SAT. Yeah, rich kids do better at everything though. So duh, getting rid of the SAT though was not a good solution. So you were called racist. And then fast forward to now, the same people who said that you were racist for not wanting to get rid of the SAT are now the ones revisiting, oh, maybe we shouldn't get rid of the SAT and now it's no longer racist magically. That really makes me angry. Yeah, but that's not the author of the piece that you're talking about. I'm not mad at David Leinhart. He's great. Yeah, yeah. David's piece is great.

Yeah, yeah. Sorry. When I say I'm mad at the New York Times story, I mean the story, like the words in the story. Right, right. Like what it's communicating. Now, the piece I thought was phenomenal. And by the way, David, A, is a super nice guy. And B, man, he has a way of sort of critiquing the left that causes, now there are people on the hard left who get really angry at him and reject him, but he has this really good way of critiquing things that the left does that causes an awful lot of people on the left to go, oh, he's got a point. Can I read this one paragraph about how, like, yes, the SAT people, rich people or white people do better on the SAT? To put it another way, the existence of racial and economic gaps in SAT and ACT scores doesn't prove that the tests are biased.

After all, most measures of life in America, on income, life expectancy, home ownership, and more, show gaps. No wonder. Our society suffers from huge inequities. The problem isn't generally with statistics, however. The relatively high black poverty rate is not a sign that the statistic is biased, nor would scrapping the statistic alleviate poverty. Right. Yes. Yes. Yes.

Yes. And that wasn't a quote from someone. That was just David Leinhart writing, and I like it. And thank you. Yes, I should have clarified that this was not a media outrage rant I had. It was just like a fact rant that I had. Exactly.

And I just feel so ashamed, Sarah, because before the podcast, we were like joint full rant mode. And then after you realized, yeah, we just did exactly the same thing. And I got no defense to it. But surely part of growth is recognizing your faults. Yes. Yes.

And growth can be painful because you don't want to actually recognize your faults and flaws. But yeah, you called it. You nailed it. All right. As I said, next episode, we're going to talk about the D.C. Circuit oral argument on Trump's prosecutorial immunity. We have more circuit cases to get through, including a really interesting one on campaign advertisements and the First Amendment coming out of a night circuit

on Bach that I'm so into, but we need some real time to dive into because, I mean, it's all the things I love. It's campaigns. It's campaign finance. It's the First Amendment. It's electioneering. And it's California state law, which is generally wrong. So we'll come back that way. It also has, by the way, a dissental from Judge Collins, who I said has the highest dissental grant rate of any judge in the country. But it also has a dissental from Judge Van Dyke, who has the lowest dissental grant rate

of any judge in the country. So will these dissentals cancel each other out? Will the Supreme Court take this case? Find out next time on Advisory Opinions. I think the big yawn needs to be in the start of the... We've got an exciting podcast, Sarah's Yawn Twice. Gripping podcast today.