Advisory Opinions - Live From George Mason

Episode Date: October 12, 2022

Recording live at George Mason University, David and Sarah open with a critical WAP correction to last week’s show, followed by updates on The Onion amicus brief and the never-ending Yale drama. Plus: Amy Coney Barrett takes on Common Good Constitutionalism and the Fifth Circuit decides a “zero-pence case” on religious coercion. Show Notes: -Fifth Circuit decision on Freedom From Religion v. Wayne Mack Learn more about your ad choices. Visit megaphone.fm/adchoices

Introducing the first ever Mazda CX-70, our largest two-row SUV. Available as a mild hybrid in line 6 turbo or as a plug-in hybrid. Crafted to move every part of you. Ready? I was born ready. Well, thank you so much and welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and I have to say that because 99.9% of the people listening are not in this room. So we're, for those of you listening, we're doing a live podcast, another live podcast at the Antonin Scalia School of Law. I've never been, and you've taught here, Sarah. This is literally the room that I taught in. It was a national security and media class that I taught with. Ed O'Callaghan, friend of the pod.

He's been a guest here. He was the pay dag, the principal, associate, deputy, attorney general, which is actually the most, I think, powerful position in the Department of Justice. Sort of all trains run through the pay dag. So it was mostly him telling war stories and me sort of fly-girling in the background. It was a good class. Nice. And I noticed there's a big blood stain, apparently, on the carpet. Did you do that, and under what circumstances? Well, it was a case on national security law, and sometimes you have to take down spies.

Right, right. Okay. So we've got a lot of stuff we're going to talk about. We have an onion update because we have the greatest listeners in the world. One of our listeners worked on the brief that we talked about, the Onion brief. I just worked on the brief. Council of Record, David. Sorry. I mean, I didn't pay that much attention to where he was on the list, but it was fantastic. So we're going to talk about the Onion update. We have an error to correct. I think we should just get that out of the way. Just get that out of the way.

Okay, so real quick again. Because we strive for accuracy. If you are driving with your minor children in the car, this is a single three-letter expletive alert. I identified the UVA libel song as wrong ass precedent. I heard from several UVA students, and in fact, they sent me the music video, which I have to tell you,

I showed it to Husband of the Pod. It was a shockingly good music video. And as the music director of the Harvard parody, we really pride ourselves on leading the way on musicals that make fun of law students. Most law schools don't do that anymore because of why UVA's is called libel. I think that they have actually really perfected it. They're not making fun of each other and law students, which can give rise to litigation as the Harvard parody does pretty much every year. But it's really good. And it was called whack-ass case law. Now, why they didn't do

Whack-Ass Precedent, which would have been WAP, which I don't— Which we don't need to talk that much about that. Anyway, it's really good. We'll put in the show notes, but if you look up Whack-Ass Case Law UVA Libel Show, you are in for a mildly concerning treatment. Yeah. Which does nothing to change my assessment of UVA Law School as the place where you go play softball and also have a lot of spare time and actually end up, when I was in law school, the happiest people on earth were UVA Law students. Yeah. I mean, to be clear, like two of the girls in the music video

look like they have definitely taken professional dance classes. The guy who's rapping in the voice of Sotomayor, I think, or Kagan, I forget, is like mind-blowingly talented. It was crazy. So again, sorry for mislabeling your doctrine. We've now corrected that. Thank you, all the UVA Law students who reached out. Yes, thank you. So we're going to talk about that. We've got more Yale updates, believe it or not. And I'm so sorry, those of you who email us and say, please stop talking about Yale.

Nobody. There's just so much beef. No, I get it. You don't dare email me such things. We're going to talk about a really interesting Fifth Circuit case about prayer in the courtroom. And this one is interesting. And we've got Amy Coney Barrett and her throwing shade on common good constitutionalism. So we've got a lot, but let's start with our Onion Update, Sarah.

Yes, so we heard—actually, I want to start with the comments section in the podcast. This is for our members. And I think it's worth reading this because I do think it's important to represent the other side sometimes. We don't do a very good job of giving the sort of 360 view on some of these cases. So when we talked about the Onion brief, we said that we thought it a little bit missed the point because while they are talking about the need for a disclaimer on parity and how surely the First Amendment doesn't require such things to avoid being arrested, something I think like goes without saying, I think that the case in this question, which is about qualified immunity, will turn far

more on the warrant that the police got. You had a lawyer sign off on it. You had a judge sign off on it. And so I said something about how the Onion Brief was, you know, amazingly delightful, but on something that we all kind of agreed on. In the comments section from one of our members, who happens to be the media relations director for the Institute of Justice, which represents Anthony Novak, our parodist in question. I just thought it'd be worth reading. One, loved the discussion about the amicus, but wanted to correct a couple facts about the case. Anthony was never asked by the police to take down the Facebook page or contacted by the police until he was arrested.

He did take it down after only 12 hours because the police went on local TV news to complain about it and announce an investigation into it. He was then prosecuted for a felony, disrupting police operations using a computer, a law aimed at hackers, not Facebook posters. All of that is true. And the law itself, which we talked about,

is, I mean, not remotely close to intended to cover Facebook posts. Finally, while the warrant factored into the Sixth Circuit analysis, that isn't the main issue in the case. The officers were granted qualified immunity because it wasn't clearly established that Anthony's parody was protected, in part because he deleted comments saying the page was fake. That's why the main argument in the Onion's amicus

is that parody doesn't work if you tell people up front that it's fake. That's why the main argument in The Onion's amicus is that parody doesn't work if you tell people up front that it's fake. And then there's a link to the IJ page that we will also put in the show notes. Okay. So then we hear from

Council of Record on The Onion Brief. He was actually like very true to form to The Onion Brief. He was like, thank you so much for all the kind words and to hear that we totally missed the point of the case.

So I asked him a bunch of questions. I was like, well, if he reached out. So just some fun things that he told us. It was a team effort. There were many people behind the scenes who have not received enough credit. He says he wishes that they could. We attorneys figured out the angle

that we thought we could take on the case and sketched out the legal argument. We thought The Onion would be in an especially good position to explain how parody functions, which would help show why some of the Sixth Circuit analysis was incomplete.

It turned out to be quite a satisfying collaboration, he says. The Onion, whose writers are exotically clever, provided some serious stuff and some funny stuff. Shockingly, the lawyers provided some funny stuff and some serious stuff, too. And he says, yes, the end product is a toned-down version of what we started with, but it actually came together pretty quickly. Just a few long nights, really, and we were basically done. And last note, most attorneys are not noticeably funny, but we put the team together pretty

carefully, and I suspect that if our conversations with the Onion folks completely lacked jollity, then this project might have started poorly and ended just about the same. That sounds like a really fun few nights. Yeah, fantastic. And then one other thing that he said was how nervous they were. Because I can only imagine you are trying to pull off humor in a Supreme Court brief, writing on behalf of arguably the most notorious slash famous humor publication in the entire United States. And as we said before in a podcast, as a practitioner, beware any effort to try humor. Be very careful about that.

It can work and it cannot work. And when it doesn't work, you can feel like an idiot. And I am not speaking from experience on that. And so I can only imagine. It causes a lot more harm than it's going to benefit you. 99.99% of the time. I did, so I had someone jokingly

sort of ask, again, explicit warning, because I do want to do the direct quote here. Who's going to be the dick to file a motion on the brief that it violates the rule of candor to the court? Because there are, okay, let me read one sentence. Rising from its humble beginnings as a print newspaper in 1756, the Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and influential organization in human history. Does that violate the federal rule on candor to the court?

Which is a great question. And I think it's so over the top that the answer is no, it doesn't. It's parody. It is parody. It's parody. And do you have to have a disclaimer on parody to not violate the federal rule of civil procedure? So far, no one has moved to strike the brief that I know of. Yeah, yeah.

I can imagine that enraging the justices. So, Onion, UVA, what's the latest on Yale, Sarah? Ooh, exciting. So, if you remember, Judge Ho on the Fifth Circuit announces this boycott. Then, 12 anonymous judges tell a reporter that they are going toces this boycott. Then 12 anonymous judges tell a reporter that they are going to join the boycott. You and I go back and forth

on sort of the wisdom of the whole thing. I think the anonymous judge thing is much clearer as unwise. I don't know how law students, how a law school is supposed to respond to anonymous boycotts. It's not really a boycott then. And it certainly is unfair to the law students,

in my view. Then you have another judge come out and publicly join the boycott. But now you have another Fifth Circuit judge come out and do something quite different. So Judge Jerry Smith, who shares chambers with Judge Jones, so he's sort of like my judge-in-law. We, you know, we like eat lunches in the same place. Our kitchen's the same. We do all of our Mardi Gras king cakes together, all of that. So, and you know, he was on our Christmas episode last year talking about the designated hitter rule, something he is extremely passionate about. Okay, so he says, instead of boycotting, I hope to receive even more Yale applications

from qualified men and women, referring to Judge Ho's boycott as regrettable. This is particularly interesting, David, because do you know who Jim Ho clerked for? Your judge. Jerry Smith, my judge in law. Your judge in law. Yes, yes. Yeah, so this is a judge who is now on the bench with his former clerk criticizing his former clerk's public announcement.

Really fascinating. As David Latt said, dang. And also David tweeted, hey, Fifth Circuit, the Ninth Circuit called. It wants its drama back. Article 3 Group B hereby declares that the Fifth Circuit has surpassed both the Ninth and the Sixth Circuits as the cattiest circuit court in the country. Meow. And David's a Yale law grad, right?

Yes, he is. I doubt that he went to Yale Law School thinking, one day I'm going to say meow in public about judge drama. Yep. So on the Yale boycott side, and from now on, I'm only going to talk about the judges who are on the record. On the boycott side, you have Jim Ho and Lisa Branch from the 11th Circuit. And on the give us all the yield clerks, you have Jerry Smith and Ted McKee from

the Third Circuit. Interesting. You know, it's a kind of a, it's sort of a microcosm of some of the larger debates on the right about how do you deal with and how do you respond to, for example, examples of woke, quote-unquote, woke excess, how hard are you going to punch an institution for engaging in woke excess. So you're seeing that division break out a little bit in the judiciary. And speaking of divisions breaking out in the judiciary, here's a quote. And this was after Judge Silberman, who we talked about, who had passed away recently. Judge Silberman passed away, D.C. Circuit, legendary judge. And Amy Coney Barrett

says this, I am not a fan of common good constitutionalism, Justice Barrett added, presumably because it gives judges too much leeway to smuggle their policy preferences into the law. And then she adds this, Judge Silberman was just horrified by it. Fascinating. Fascinating. And then I want to, and that made me, as I read it, I thought about something that I'd read in the Bruin, her Bruin concurrence. Bruin is the New York State Rifle and Pistol Association case. It's the case that says that the right to keep and bear arms does in fact mean a right to bear. In other words, you, a New York State's licensing regime that put your right to bear arms at the discretion of New York State officials was unconstitutional. And one of the big issues in the Bruin case was

what's the constitutional test for the Second Amendment? Are you going to create a kind of strict scrutiny style balancing test the way we do in the First Amendment or intermediate scrutiny the way we do in other contexts, or is it something different? And the real heart of the opinion was Justice Thomas' text history tradition test, which took a long look at historical, going back to 13th century England running up through Reconstruction era United States, a comprehensive view of history, which was very interesting to me, and we talked about it at length, but there's a part of Justice Barrett's concurrence

that was, I thought, very interesting in light of this common good constitutionalism argument. So today's decision, she's talking about Bruin, should not be understood to endorse free-willing reliance on historical practice from the mid to late 19th century to establish the original meaning of the Bill of Rights. On the contrary, the court is careful to caution against, quote, giving post-enactment history more weight than it can rightly bear. Now, you might ask, how does that have anything to do with common good constitutionalism? It has something to do with common good constitutionalism because a lot of folks

who are more on the side of common good constitutionalism or common good originalism, subtly different, look back at a much more authoritarian legal environment in early American law and say the Bill of Rights accommodates a lot more and greater exercise of state power. So, for example, I was on a notorious little forum. Is Clubhouse still a thing? Not that I'm aware of. I don't think it is, but I had a delightful time in a Clubhouse room called David French Baste or Cringe. I remember that night. I got on really late just to see what was happening, and you were still there, man. Still there. I was taking on all questions forever. Did you get on when a Harvard law student starts yelling at me about

blasphemy laws? That's when I got on and I was in bed, like husband of the pod is like, what are you doing? And he could hear your voice. He's like, what is this? I tried to explain Clubhouse. And he's like, why would David do this? I know. My Dungeons and Dragons group canceled for the night. So I had some time. And I don't know if that's based or cringe, but it is what it is. You'll think that was a joke, like that he was making fun of himself, but he's actually being totally serious. Yes, that is exactly what happened.

And so this guy was yelling at me about blasphemy laws because part of the argument was that, wait a minute, the First Amendment allows for a large amount of regulation of speech including regulation of speech on the basis of viewpoint because of 18th and early 19th century colonial era and early republic era blasphemy laws You know this would a similar reasoning for example would say well we have to construe the First Amendment in light of the Alien and Sedition Acts. And we talk about this a lot in kind of our opposition to 18th and 19th century infallibility theory.

That, in other words, if you want to truly understand what the Constitution means, you have to look at these early American generations. And my proposition is that a lot of these early American generations got super busy contradicting the Constitution. And so they were not infallible in their interpretation and often defied the Constitution. And it was interesting to me to see this quick quip from Amy Coney Barrett, and then it made me reread her Bruin concurrence in a little bit of a different light. So I'm really curious, Sarah, about your thoughts on this. I think that, and we talked about this originally when I said

that I thought that maybe common good constitutionalism was a long Jeremy Bentham-esque troll parody, in that there are no judges on the bench now who ascribe to this because all of the sort of Federalist Society-ish judges came up through a much different process-oriented analysis and were vetted very thoroughly for that process oriented analysis, as opposed to the judicial activism on the left. There were always some, particularly libertarians, who sort of could imagine a judicial activism on the right, but even there it was judicial activism

to get rid of qualified immunity as it currently was. Right, which is a textual. That's right. Whereas common good constitutionalism is really ends-based. And so it's very easy to dismiss on the one hand. There are no judges who support this right now because in theory they've all gotten on the bench through this process theory. But that's not necessarily always going to be the case and I think there's a battle for the soul of the federalist society that's coming I don't think the battle is happening now I think you see a few skirmishes

but frankly the common good folks are a small enough minority that you know they're maybe doing a little bit of guerrilla warfare on the margins, but there's no sort of battle lines drawn at this point. But the more that they are embraced within the debate of the Federalist Society, eventually you're going to have judges come from that school within the right. It's just not going to happen. Well, it didn't happen during the Trump administration. I don't know if it'll happen in the next Republican administration. Some of that depends on who the president is, how far off we're talking. Who knows? But the fact that Supreme Court justices turn over far more slowly, it's going to be a long, long time before you have common good constitutionalists on the Supreme Court.

And Amy Coney Barrett's going to be on there a long time. And not only does she not ascribe to it, she seems to actively poo-poo, dislike. Scorn it. Scorn. And which will end up, what might end up happening as a result is you might have some circuit court judges or some district court judges

who kind of move more in that direction and then get slapped down by Supreme Court precedent, perhaps. But here's an interesting way in which common good constitutionalism has peaked into jurisprudence, and it is the Fifth Circuit social media case. Now, why would I say that? So the Fifth Circuit social media case was really interesting because what they did, and again, we'll do the disclaimer, husband of the pod, his lawyer for net choice. I don't even have to do it anymore. Thank you. Yes. What was interesting is

the court kind of said, you know, all of that First Amendment precedent that exists, we don't really have to pay attention to it because we're going to go back to text history and tradition. So this is going back to sort of, we're going to put aside a Supreme Court precedent and we are instead going to do that kind of historical analysis. And remember, part of the basis, part of the sort of the historical argument for a more common constitutionalism is that in that early American Republic era, the view of the power of the state over speech, and I say state advisedly, not the federal government, the state, because the federal government, when the Constitution was ratified, there were, what, three criminal laws? So there was not a big view of the overwhelming power of the federal government,

but the states who were not subject to the First Amendment, which is an important detail, were quite adept at heavily regulating speech. were quite adept at heavily regulating speech. And so if you were going to be talking about a text history and tradition, it's a more difficult thing to do when you're talking about the First Amendment because the First Amendment originally didn't regulate the states. It regulated the federal government. The states could heavily regulate speech in certain respects.

The slave states regulated speech of abolitionists. There were anti-blasphemy laws. There were quite a collection of restrictions on speech historically in the United States of America. And it isn't that, say, a common good constitutionalist wants to recreate those specific speech regulations. They view the existence of the speech regulations as evidence for greater state authority, if that makes sense. It does. Hey, before we go to that Fifth Circuit case,

can I read you one thing that was in The Atlantic today where you are a contributor? What's your title? Contributing writer. So I'm not responsible for all the content of The Atlantic. Although Twitter has claimed otherwise. I have to answer for all of it. So, yeah.

So Franklin Foer wrote this really interesting piece, the punchline of which is he thinks that Garland will indict Trump. I was wondering if you were going to want to ask about it. Yeah, I do. Not overall, because I think his overall evidence for it is a little bit of like his divining rod out in the fields looking for water. Like, well, he wants there to be water over here, and lo and behold, the divining rod

is pointing him this way. You know, he's like, well, I interviewed Garland and all these other people, and Garland told me that no one's above the law, and if you squint real hard and look over there. But here's the part that I thought was really insightful. The excruciating conundrum that Garland faces is also a liberating one. He can't win politically. He will either antagonize the right or disappoint the left. Whatever he decides, he will become deeply unpopular.

He will unavoidably damage the reputation of the institution he loves so dearly with a significant portion of the populace. Faced with so unpalatable a choice, he doesn't really have one. Because he can't avoid tearing America further apart, he'll decide based on the evidence and on whether that evidence can persuade a jury. As someone who has an almost metaphysical belief in the rulebook,

he can allow himself to apply his canonical tax. I think that's a really good insight. Yes. And I think it is especially applicable right now because I think he's spot on. What I guess I found sort of interesting about it is that can apply to almost every single attorney general. That is such a core fundamental part of working at the Department of Justice that no matter what, everyone's mad. I mean, I would use this as an example when I talk to people about my job at DOJ. The attorney general's office is on the fifth floor. It overlooks Constitution Avenue. And if you look to your left, it was the dome of Congress where

the Republicans hated us, the Democrats hated us. And then if you look to the right, it was the dome of Congress where the Republicans hated us, the Democrats hated us, and then if you look to the right, it was the White House where the president was tweeting mean things every morning at 6 a.m. about us. Your allies were going to come from within. They were the people you were working with every day, and you were liberated because the only thing you really needed to worry about is what the law said, what the facts said, what your conscience said. And I'm glad, I think you wrote it really well and quite beautifully.

I think that it applies to Garland, but I don't think it means he will indict Trump. Yeah, I don't think that that factor means that he will indict either. Yeah, I don't think that that factor means that he will indict either. I'm more inclined to believe an indictment will come than any time in the post-Trump era. But I'm still, if you made me guess, if you said you have to decide on this day, today, what's it going to be? I would still say probably not, probably not, but I'm shaky on that.

But here's the other thing about this. That reasoning also applies to Supreme Court, and it also applies, and it really applies in Dobbs. And so one of the interesting phenomenons since the Dobbs decision, one of my job descriptions has been designated pro-lifer on progressive panels. So you have a designated hitter, right? I'm the designated pro-lifer on progressive panels, and there'll be four people and then me, and it's just so fun. Because you look so reasonable, and then you're insane. And then I'm nuts. But the interesting thing is I get more visible angry reactions from when I say I think Obergefell is not going to be overturned. Progressive audiences have gotten mad at me for saying that, which is interesting to me. That's a whole other discussion. But what I have tried to explain is I said the Supreme Court was

so disruptive when it overturned Roe. And I said there was not a non-disruptive option here. I said, if you wanted to see, if you think there was a non-disruptive option, if you upheld Roe, you don't know anything about the right. Because that nuclear detonation you would have seen would have been the collective body politic on the right-hand side of the aisle saying what the heck have we been doing for 50 years if not building a intellectual and coherent legal movement around an original meaning of the constitution and there isn't an originalist case for roe it's just just, it doesn't exist. And so this sort of idea that we had the clearly non-disruptive choice

and the clearly disruptive choice with Dobbs was total fiction in my view. It was one of two disruptive choices. And there is a degree of liberation inherent in that, I think, where you can say, look, we're just going to bear down and do what we think the law tells us to do. It helps you see history as the judge rather than the current political moment. You know, Jonah Goldberg wrote a G file recently advocating for

Biden to pardon Trump as kind of a way out of this problem that Garland faces. He, of course, acknowledges that it's absolutely not going to happen. But I very much buy into the reasoning behind it, and I think you look back to President Ford pardoning Nixon, and yes, at the time it was a deeply unpopular thing to do, but I think it also allowed the country to move forward from something that it's hard to imagine the counter hypothetical, given the huge impact that Watergate and Nixon had on all of these institutions, particularly the Department of Justice. Moving forward, imagine if he hadn't been pardoned. Yeah.

Well, you know, and the one thing it's it's really interesting to think about history post Nixon. It's really interesting to think about history post-Nixon. The speed at which the American body politic moved on from Nixon, in historical hindsight, is really pretty remarkable. Not the cynicism. No. That got really baked in. Not the lack of trust in institutions.

This idea that politicians were, that you could say out loud, right, that government was not to be trusted. Right. But part of that was healthy. Yeah, and part of it was Vietnam. It's not all Nixon. There were other factors. But the idea of Biden pardoning Trump would be really fascinating. You know, I talked to Jonathan Swan earlier today from Axios

about how the Trump team is thinking about an indictment vis-a-vis Trump's own political future. They wish he had announced before the Mar-a-Lago raid. They certainly think that a presidential announcement would not prevent an indictment, but make an indictment less likely. Yeah, it's a deterrent. I'm a little surprised he hasn't announced yet. I'm surprised too. Swan thought he certainly had sources that led him to believe the president was planning to announce over the summer and then he didn't. And now here we are in October. And I think, and I've said this to you before, I think the question at the federal level for the Department of Justice on that indictment

looks, you have to break it out. It's, do they have the stuff on January 6th? I don't think they do. Do they have the stuff on the actual substance of mishandling of classified documents? Question mark. Do they have it on obstruction? Absolutely. But do you charge a former president with obstruction,

something that is a process violation, more than a substantive violation. And that's where I think prudentially Garland will come out on the no side. Well, that goes back to a fateful decision to not charge one Hillary Rodham Clinton. Shall we talk Fifth Circuit and then take some questions? Yes, Fifth Circuit. This is a weird case. Yes, okay. And interestingly, even is a weird case. Yes. Okay.

And interestingly, even though, because we've said that we were going to talk about this case, and the counsel for one of the parties reached out. Oh, okay. Let's start there. Well, no, no, no. You need to set up the facts of the case. Okay, okay.

All right. By the way, this is good judicial writing, I just want to say. Right? This is the opening paragraph. Well, I just want to say. This is the opening paragraph. Tell us who wrote it. This is Jerry Smith. Of course it is. This is the Jerry Smith David Latt Podcast. Thank you for joining.

Judge Jerry Smith. So first, this is the two paragraphs. Just before the founding, the Virginia General Assembly considered supporting clergy with a new tax. The tax would have been tiny. But James Madison fiercely objected. He observed, quote, an authority which can force a citizen to contribute three pence only for the support of any religious establishment may force him to conform to any other establishment. The bill failed. And Madison may have been right, but three pence is measurable coercion. This is a zero pence case. I thought it was such

a weird opening for given how the case is about to turn out. I read that and definitely thought that we were heading the other direction. Oh, really? Yeah. Interesting. The whole thing. Anyway, go ahead. So anyway, the case basically, it's, I'm going to try to simplify the facts as much as possible, so Sarah, if I mess something up, please jump in. So essentially what you have is a guy who is a former Pentecostal pastor, and he's a Texas Justice of the Peace, and he has a really rather unique backstory of his concern for a chaplain program, that there was an individual in his previous career who died without access to a chaplain to perform last

rites. He tried to get there. He didn't make it in time. The person died before he was able to deliver last rites, and it deeply affected him. Deeply affected him. And so he started something which I think is just a tremendously good thing. He started a chaplain program where people could have access to chaplains from across the religious spectrum. And he was very keen on promoting this chaplain program. So he's a justice of the peace, and he just has some background in a Justice of the Peace, decides cases on a summary basis, and appeals from their decisions are based on what's a de novo review. And for non-lawyer listeners, de novo review means basically no deference is given to the decisions of the lower court. to the decisions of the lower court. And so he begins his proceedings with a prayer,

and prayer conducted by one of the chaplains, and it's part of the promoting the chaplain program. Now that by itself is not super controversial. If you've ever been to court, their chances are very good that, especially in state courts, you start like this. Oh, yay, oh, yay, all who have business before the court or whatever come. And then at the very end, you'll see the bailiff kind of not, you'll see the bailiff sort of lower his head, bow his head, and say, God save this honorable court. And I remember the first time I was in court and I saw the bailiff lower his head or bow his head and say, God save this honorable court. And I remember the first time I was in court and I saw the bailiff lower his head or bow his head and say, God save this honorable court. I was like, oh yeah, that's a prayer. And so I kind of bowed my head real fast. So this is very common. It's very common to begin city council meetings with prayer, non-sectarian, on a non-sectarian basis.

In other words, you could have a Christian one day, a Muslim another. So all of that is not—that's a losing federal case. It's a general matter if you're going to challenge that a court begins with prayer. But there's some twists here. He brings in the chaplains. If you're in the chambers, you cannot get out of the chambers. The door gets locked. The door gets locked. There's a bit of a Matt Lauer problem here.

Yeah, it's the Matt Lauer courtroom in Texas. And so there's a specific button you have to press to leave. Very Matt Lowery. And so he announces that he's going to have a prayer, and he announces that you don't have to participate, and anyone can leave. But to leave, you kind of have to create a scene. And then the prayers themselves are sometimes not your typical formalistic God save this honorable court, but at times, according to the record, have included eight-minute-long gospel presentations in the prayer. I wish there had been a PowerPoint, you know, that like, Jesus. Jesus.

Yeah. Cross. But some of them are very perfunctory, like normal prayers. And so the question is, does this violate the Establishment Clause? And the Fifth Circuit says no. Says no. And I'm super curious to get your take on it. Okay.

So there were a few things in here. One, as I said, I thought that opening was really weird. Read it again now that you know how the case turns out. Just before the founding, the Virginia General Assembly considered supporting clergy with a new tax. The tax would have been tiny, but James Madison fiercely objected. He observed, an authority which can force a citizen to contribute three pence only for the support of any religious establishment may force him to conform to any other establishment. The bill failed, and Madison may have been right, but three pence is measurable coercion. This is a zero pence case.

Doesn't that kind of miss the point of what James Madison was saying? He was saying even the smallest amount of coercion. He was giving a three pence example, which was a trivial amount of money. Even three pence is coercion and violates the establishment clause. Yeah. So it misses the point to say this is zero pence. He would be saying zero pence is no coerc clause. Yeah. So it misses the point to say this is zero pence. He would be saying zero pence is no coercion. Yeah, I guess.

It's just weird to start out with like any little bit of coercion, it violates the establishment clause. But anyway, this isn't that case. Oh, okay. So first of all, you had disagreements in the record. Yes. And really material disagreements. Yes.

So, for instance, they say there's a seven or eight minute exegesis on Jesus. Exegesis. The other side, the Judge Mack side, says, nope, they're all really, really short, non-denominational-y at least prayers. They come from across the spectrum. The other side says, nope, it's all the Christians and a couple Muslims, but none of the other religions are actually represented in the people who get to give the judicial, the courtroom prayers, even though the chaplaincy program has every religion because the only people eligible to give the courtroom players have to do the on

call program which means that you are willing to to minister to someone outside of your religion the other religions not so much into that evangelical stuff the jews stay home uh so they're not invited to the courtroom another factual dispute and this one on the one hand isn't legally material to me, but goes to the point of like, what courtroom are these people all in? How could you miss, like, how could you have differences of opinion on this? Judge Mack says he turns his back during the prayer and faces the American flag behind him and ponders his role in justice. And the other side says he faces the courtroom and looks into each person's eyes, judging them, The wrath of Jesus.

That's an interesting phrase. I might be ad-libbing there a little at the end. Like, which is it? Is he facing backwards or is he facing forward? And how do we not know this? And the answer is because the record was not actually part of this case yet. So it's a little odd that it was decided without some of those facts being more illuminated.

That was very interesting to me. And then just not legally relevant, but just from a Christian standpoint, praying facing the American flag, yeah. Like I get some heebie-jeebies about that. But he's like, I'm not praying. I'm just reflecting on the beauty of the chaplaincy program. I don't know. And then the locked courtroom, the Matt Lauer part, obviously I think is legally relevant.

And there were some factual disputes about that as well. And I just don't see how you can decide this case without having those facts locked down. You are locked into the courtroom. You don't know where the secret button is to get out. You have to ask a court officer, but there's only one of those, and he's at the front of the courtroom.

So you're not getting out, basically, under one version of these facts. And then if you do get out, you have to stay out until all of the court's opening proceedings are done, including a lot of non-prayer stuff. And then another factual dispute on whether if you stay for the opening prayer, which again includes all this other opening stuff, your paperwork already has been moved into a different basket, where if you come after the opening prayer when the door is briefly unlocked for you to re-enter why is this courtroom locked yeah um

that then your papers like the judge is going to know because your paperwork is still in the one basket and that because there's only one bailiff that's why the like door isn't going to be unlocked in time for you, but they're getting more bailiffs. I mean, there was some real fact stuff in this opinion that does not get resolved, and instead they decided in favor of Judge Mack. I think I simply would have said

that they can get past this initial phase, taking only the facts most favorable to the no prayer side. And then let's have an actual record that we can agree on with findings. Yeah, because we can't have all these facts flim-flamming about of whether you're locked into worshiping Jesus for eight minutes or the judge is barely paying attention and you can leave freely and you're not Matt Lauer-ing yourself. One thing that really stood out to me, because the opinion is very thoughtfully written, and when you get into Establishment Clause

jurisprudence, and those of you who've taken a look at Establishment Clause jurisprudence know that it is a mess from which you run screaming when you read it. And it's very clear from this opinion what a mess it is. And so if you're a lower court judge, yikes. So this is the, they're interpreting the, they're talking about the Galloway case, which is a legislative prayer case. It says a three justice plurality led by Justice Kennedy recognized that objective evidence that a person has been treated differently from others, even if that difference is abstract, can show coercion. The plurality's approach is fact-sensitive and holistic,

but it emphasizes that subjective offense does not equate to coercion. Three-justice plurality. So is that what guides you? Huh. Well, let's see. Two justices led by Justice Thomas advanced a stricter coercion test. Their approach would recognize coercion only as a compulsion of religious orthodoxy and a financial support by force of law and threat of penalty. That's the three pence right there. Four justices led by Justice Kagan dissented, and they posited a hypothetical.

You are a party in a case going to trial. The judge bangs his gavel to call the court to order, asks a minister to come to the front of the room, and instructs the individuals present to rise for an opening prayer. The clergyman faces those in attendance and delivers a sectarian Christian prayer. The judge then asks your lawyer to begin the trial. And they said the justices expressed every confidence that the court would hold that practice unconstitutional. So what's the test? Then he goes on. Two justices, led by Justice Alito,

responded to the dissent's hypothetical and appear to agree with it. If I'm a just, if I'm a Fifth Circuit judge, I have to decide this case. What's the test? What is the test? I don't know, Sarah. You got an email from the lawyer.

Yeah. Real quick, there was a dissent, a partial dissent, Grady Jolly, who is a very conservative judge on the Fifth Circuit. This is not some mealy-mouthed, anti-religious. You go to dinner with Judge Jolly in New Orleans, and you might get treated to some seersucker if it's the summer. There's a good accent going on. This is like a—

Old-school Southern judge. Old-school Southern judge. All right, got it. And if you can just put yourself hearing Judge Jolly say this, I will not deliver it in the Jolly accent. Please imagine it. First, although the majority's opinion states that the, quote, want of evidence showing coercion dooms this case,

it is actually the want of acknowledging evidence of coercion that dooms the majority opinion. That's good. I invite the majority to step back and absorb the following picture painted by plaintiff's evidence. When litigants enter Judge Mack's courtroom, they must decide whether they will stay for the prayer ceremony or exit the courtroom for its duration. If they stay, thus aligning with Judge Mack, the courtroom is closed and the door is locked, leaving only the righteous with the judge. The litigants cannot sit back and observe. They are required to stand for the prayer ceremony. And when the actual prayer begins, the testimony indicates that Judge Mack scans the courtroom, leaving the impression upon litigants that he is indeed judging audience participation, despite their supposed ability to abstain without consequence.

Yeah, I'm not sure why this wasn't sent back for more evidence. As you said, counsel for Judge Mack reached out after we said we were going to discuss this case. He is at Gibson Dunn. And, you know, it's an interesting part of just being human. If you've ever, you know, done debate in junior high school and you were assigned one side of the case, and then by the end of your debate preparation, you found yourself very much believing in your side of the case. I mean, he, and I enjoy this, right?

He very much believes in his client. And I thought this, right? He very much believes in his client. And I thought this was nice. He says, basically, when they called to relay the good news about the decision, the stay to Judge Mack, that he can continue honoring the volunteer chaplains. He then shared with us that he had been awake all night responding to a tragic fatal boating accident on Lake Conroe. He explained to us that the victim's family had a long road ahead of them, but that they were so grateful to have the support of one of the volunteer chaplains during their time of greatest need.

It's hard to describe the impact of knowing our work helps and touches not only Judge Mack, but people throughout Montgomery County. That's lovely that a lawyer feels like that their work is meaningful outside of messy establishment clause jurisprudence. Well, and I cannot say enough good things about what I read about the chaplain program. The chaplain program seems to be one of these classic examples, and we don't hear about these stories enough, of somebody who's a public service, a public servant with a big heart, who wants to provide assistance to, you know, his community in a time of ultimate need. And I think that is entirely

good. I think that's entirely good. There was another piece of this. So I mentioned it's Gibson Dunn, a major law firm. This is out of the Dallas office. And I don't think he's saying this because he knew I would say it out loud, but we've talked about how this is the Jerry Smith podcast. It's really just the Jerry Smith, Jim Ho, and David Latt podcast because that Amy Coney Barrett quote on common good constitutionalism, she said that to David Latt when he was collecting quotes from all nine justices about Larry Silberman's passing. So Judge Ho's wife is Alison Ho at Gibson Dunn. And you need to know that before I go on here. I need to express my undying gratitude to Alison Ho, without whom none of this would have been possible, and to Gibson Dunn, which enthusiastically supports pro bono work and gives full one-to-one credit for it.

Allison has been a staunch advocate for religious liberty throughout her career, including being at the center of her very own post-Town of Greece en banc circuit split. Not only was Allison a thought leader throughout this case, including persuading everyone that we could write a persuasive and compelling brief in fewer than half of the allotted words, which we did, but she also selflessly turned over the reins of this incredibly important case and created an oral argument experience for a lowly associate, me, the third time Allison has facilitated me arguing an appeal. That's the kind of law firm you want to go work for.

Yeah, yeah. I had a lot—I did a lot of pro bono when I was in my big law career, and my law firm supported me, and some of it was some pretty wild cases. One of my favorites was when a zoning board was about to shut down a very small Assembly of God church in a rural part of Fayette County, Kentucky, which is where Lexington is. Tucky, which is where Lexington is. And I had to come in and make the case that the pastor's goats and chickens were not a nuisance that should require the shuttering of the property. I did not expect that to me making that kind of argument when I went to law school. So he said, you know, this is part of the ongoing conversation. Is there room for conservatives in big law? And says he can't agree more with your advice on the podcast about picking a firm. Pick a mentor.

They matter so much. If you can get that right, everything else will fall into place. So, David, last thing on this case. Chances of the Supreme Court taking this as an establishment clause case, a way to sort of maybe better define some of those plurality opinions that we talked about. I'm giving it zero percent. I'm curious if you give it any higher. Lower. I'm going lower than zero.

I think this is the last we will hear of Judge Mack's chaplaincy program. I think he won his case. Yep, it's over. It's over. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on

giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com.

Use code ADVISORY at checkout to save. Terms and conditions apply. All right, so should we go to some questions? Let's do it. So you guys say the questions, and we will repeat them to the microphone. Oh, the shy George Mason crowd. Yes.

So the question is a very good one. It is very good. Our next podcast will be on the pork producer's case, which was all about the Dormant Commerce Clause. And the question was about whether history and tradition and the way that it has illuminated some of these other parts, Second Amendment, et cetera, will be applied to commerce, Dormant Commerce Clause, et cetera. David. I'm thinking not really. And let me back up for a minute and go back into Bruin and New York State Rifle and Pistol. So Justice Thomas

writes the majority opinion, and it is very much text history tradition rich. I do think that signaled that history and tradition is going to matter more, but at the same time, the cautionary concurrences from both Kavanaugh and Barrett were kind of a version of slow your roll. And if Kavanaugh, and there's a lot of evidence that says that Kavanaugh is sort of the median justice, I think Kavanaugh is not as institutionalist as Roberts. He's more originalist, say, than Roberts is. is rethinking wholesale a lot of the precedent that has granted the federal government many of the rather expansive powers that it holds today. And part of the reason for this is, remember, one of the factors when you're talking about are we going to reverse precedent is reliance.

precedent is reliance. And so if you have a governmental slash economic system that is built up over decades and decades, that if you wanted to unwind that would have a rather dramatic effect, you're going to have a pretty strong reliance interest on precedent. But that, I do think, what I do think is I'm very interested to see how the administrative state is dealt with more on the margins. I don't know, will we see a full revival of non-delegation? I don't know. Are we going to see trimming of Chevron if either explicitly or turning Chevron into more zombie type precedent? I think maybe. But a lot of that will be on what happens next to the federal government versus what happens to the existing structures,

if that makes sense. So I think the Dormant Commerce Clause stuff is so freaking interesting. Oh, man. Get ready for tomorrow's podcast. It's going to be fire. And like every podcast after that. Like I plan to talk about this case all term because it's going to be for the ratio of least sexy to most impactful, it wins hands down. It's a little like the Clean Power Plan case from last term.

Sure, it didn't get all the headlines. The Dobbs did. But in terms of what actually is going to matter, the economy, the law moving forward, pork producers wins this term. I don't think it's going to be close. So we'll talk about the facts of that tomorrow. But in short, what you're going to be dealing with is the Dormant Commerce Clause and all of the precedent that is behind that, which for the most part is really old,

as they talked about in the argument, the dormant part of the Dormant Commerce Clause, the most dormant of our cases. Yeah. clause, the most dormant of our cases. But this case called Pike v. Bruce Church from 1970 involves this balancing test. It is considered really longstanding precedent when it comes to when a state's regulations can mess with another, you know, out of state interests. And you have that longstanding precedent, all the reliance that goes with that against what isn't textual. There's no text about the dormant commerce clause. That's why it's called dormant because the commerce clause exists and there's this like, and then

if you look in the shadow of the commerce clause, it's like an eclipse. And the eclipse of the commerce clause is this like theory that you also can't uncommerce clause things. But that's at its base an atextual clause. But the argument is, yeah, there's not text, but it's in the structure. Necessarily implied. It's necessarily implied. It's part of the structure of the Constitution. And you are going to look to history and tradition to do that. The argument, which again we'll talk a lot more about in our next episode, never used the terms like history and tradition, but it was there. The Dormant Commerce Clause case, this is the case where California is regulating the circumstances under which uncooked pork can be sold in the state and regulating how pigs can be raised. We'll get in more to this in the podcast tomorrow.

But very few pigs are raised in California that provide pork in California. So if you're regulating how the pigs are raised, you're regulating the pigs in Illinois or in Arkansas or wherever. Mostly Iowa. Mostly Iowa. Sorry. Sorry, Iowa. I didn't mean to slight you as a pig capital. But if you have, here's an interesting question. If you have, we're in an era of wild culture war legislation. So just to go to the links of absurdity, absurd hypos. So California wants to combat climate change and says, third hypos. So California wants to combat climate change and says, you can only drive electric-powered tricycles in California. And then Texas is like, forget that. Everyone's

required to have an F-350 that's rolling coal. Then what kind of impact is all that going to have on American commerce? And of course, the answer is, by the way, that companies can cater to California and they can cater to Texas and you can pick your market, which was brought up by several of the justices. Yep. Yep. It's going to be interesting and we're going to have a lot more to say about that. And does it matter that, you know, Rhode Island makes a rule and nobody cares and now Rhode Island just doesn't get any bacon. But when it's California, you know, your impact is greater through sort of no fault of your own, if you will. I will volunteer to man the bacon distribution checkpoint at the border of Rhode Island. Any other questions?

Yes. What is the relationship between originalism and judicial restraint in the context of sort of the argument that this is the most conservative court since the 1920s. But of course, that 1920s court was an originalist. They were conservative in a very hands-off way. And even where they were striking down laws, it was to strike down economic regulations on wages, on conditions in working. So it was almost, you must be hands-off. Right. Yeah. You know, there's a, there's a, I think a difference between what you might call big originalism and incremental originalism. So, you know, one of the reasons why Dobbs, in my view, and we talked about this at some length,

kind of had to be big, was that you were either going to affirm Casey, but if you were not going to affirm Casey and you were going to uphold Casey and you were going to uphold the Mississippi statute without affirming Casey, you were going to kind of have to make something up to do that. You had to just make up, it would have been, so Roe was made up con law 1.0, Casey was made up con law 2.0. To uphold the Mississippi statute without striking down Rower Casey, you had to go made up con law 3.0. So the situation there kind of more forced, if you're going to be an originalist,

what was the small originalism there, right? But I can think of many circumstances where you might have, here's a good example, Masterpiece Cake Shop, okay? The Masterpiece Cake Shop decision, which was a smaller decision than what, say, the Master, you know, Jack Phillips Council wanted to have, but you want to win, they're happy with the win, but if you, you know, they're wanting a home run and they got a good solid ringing double, wanting a home run and they got a good solid ringing double, deciding it on the smaller basis of specific targeting is completely consistent with an originalist point of view, right?

So you don't have to go big. And so a lot of that is judicial temperament. And one of the things that I think that is, if we can have any service, public service that this podcast delivers, it is that originalism is a debatable legal doctrine. It is debatable in any given case what originalism should dictate. It is not a scientific doctrine that there is the originalist answer and then every other. There are originalist forms of reasoning that can lead to different kinds of decisions, even within the originalist framework. And back when I was in law school and originalism was just really this minority position. I mean,

just really emerging as a strong legal argument. That was not the perception. The perception was, here's the originalist answer. And then here's everything else, dorkanism, positive, you know, whatever. But now we've got, after 25, 30 years of patient, persistent, fed-sock presence in the academy, you have a robust array of original scholars and a robust originalist internal debate. And I think it's awesome. I think it's interesting. I think it's fascinating. And I think it really demonstrates that originalism is an intellectually interesting and rich and rigorous discipline. It is not a plug and play that you're going to input into a case and get specific,

constant, specific, predictable outcomes. There's still a lot of room for really interesting judicial reasoning, debate, and argument. really interesting judicial reasoning, debate, and argument. Dealing with that is how annoying I find it when people try to, well, it's really on both sides. On the partisan side, to compare current parties to the parties of the 1920s. Right, yeah. It's not the Republican Party isn't the same, and the party of Teddy Roosevelt, what? Like, it just, it doesn't make sense to me at all.

In the same way that Republicans who are like, we're the party of Abraham Lincoln. No, you're really not. Abraham Lincoln also called himself a Republican, but the things that they were arguing about then set aside the slavery issue, by the way. Let's just talk about silver. I mean, that was a huge...

Not a lot of controversy on silver. Not a lot right now about, you know, going back to the gold standard. The issues were just so different. And similarly, on the legal side, saying that this is the most conservative court since the 1920s implies that we've simply been moving along a pendulum

back and forth, when in fact, again, the debates are totally different. No one's striking down how many hours your six-year-old can work in the bakery. And I, for one, want my six-year-old. When Lila, my granddaughter, hits six, she needs to be in that bakery. So yesterday, Nate, a girlfriend called. One of Nate's little baby girlfriends was in the car. And Nate grabs the phone from me and he goes, Hi, Carmen, Nate working. And he grabbed my laptop and opened it.

Oh, that could be bad. It was bad. It took me 30 minutes to figure out how to get the screen back to a way where you could read the screen. But I think it's like, my son is ready to go to work. What did he tweet, though? That's the key question. There was a lot of banging on the keyboard, which isn't that different than any of my tweets, frankly. Other questions. Yes. And by the way, just before you ask your question, I want to note what's on his laptop.

The Federalist Society here appears to have, like, branding. So there's, like, a whiskey. What is that? Yeah, the Jack Daniels logo has been turned into the James Madison Federalist Society. Oh, fantastic. And then what's the bottom one? Guinness. Guinness, that's right. Guinness with James Madison's head,

and it says FedSoc with the J. Madison signature at the bottom. It's pretty well done. Yeah. So do you all do a theme every year? Well, actually, that's not a theme now. That's National FedSoc that's doing that. Well, things have gotten meme meanier since my days. Yeah.

But anyway, what's your question? Is there really that much about the framers that we don't know when we think about the limits of originalism, and at some point you go back and you're just like shrug, now we're looking at some other stuff, because we don't really know what they meant with that word in particular. I mean, militia comes to mind. Right.

Yeah, I think sound originalism really begins with text. And so the kind of originalism I object to just slides past text really fast, right? So in my view, if you're talking about the Second Amendment and the right of the people to keep and bear arms, you're kind of ending with and bear in Bruin. So bear is carry, and right is right. So if I have a right to bear, a legal regime that says that I have to demonstrate need to a public official is not a right to bear. So I think the best form of originalism really focuses on text, then moves to original public meaning when the text is difficult to apply. And then after you get through original public meaning,

there's another aspect here that I think is important, which is, okay, wait a minute. If you take the combination of the text and what we know of original public meaning, it's really tilting the scales in a particular direction. And so what is the legal test that we'd apply to continue to tilt those scales? So I think of free speech jurisprudence, for example. You're not going to find strict scrutiny in the Constitution. That is an extra-constitutional test. But if you look at the text of the Constitution, Congress shall make no law, and then very clearly protecting free speech, very clearly protecting the right to,

you know, assemble and petition the government for address of grievances, you know that you have a big thumb on the scales towards free speech. That's why I think of a strict scrutiny test as something that is in keeping with what is original intent, because that's thumb on the scales towards free speech. How do I know there's a thumb on the scales towards free speech. How do I know there's a thumb on the scales towards free speech? Because of the text. And so I think what you'll end up finding with the Second Amendment, and Sarah and I have talked about this, is that you're going to end up with balancing. You're going to end up with balancing. You're going to end up with balancing because... Justice Breyer, you're the worst.

Actually, because... Pike balancing is what got us to the pork producers in the first place, by the way. Was that Justice Stewart? You're following a long line of balancers, friend. Because the problem is with the Thomas test is we're going to now have the competing historian brief. And the competing historian brief is going to be, well, and what do you do? Here's the law of 17 states, and here's the law of 11 states, and 17 greater than 11. So that's not, that ain't it. And so, you know, one thing you read, you get through Bruin,

and I'm reading through Bruin, and I'm diving into the history. I'm like, this is more complicated than I remember. And it's not clear to me when Thomas says justices and judges are completely capable of resolving these historical disputes. It's not clear to me that it's going to be more workable than strict scrutiny, for example. Yeah, another interesting example, if you want to get out of the Second Amendment context, I think is this debate over the ERA. Set aside the ERA, actually the Equal Rights Amendment,

actually becoming an amendment to the Constitution. But just the question over, can a state de-ratify an amendment? There's just no particular answer to that. And to your point, we can sit there and go back to the founders, and there's not a whole lot there. The text doesn't help us a ton. And so what are you going to fill that in with? That's why I find that case interesting. Again, I do not think the Equal Rights Amendment is suddenly going to appear in our Constitution, but it gets to some really good questions that originalism and textualism don't get you all the way there. And I like those moments because I think it makes you really tease out where those legal philosophies take you. Well, Sarah, just mentioning the Equal

Rights Amendment, you just guaranteed 100 emails. You have no idea. Like the way you get emails about Yale, I get emails about the ERA. Yeah. Yeah. Yes. Morally justify originalism, David. Wow.

That's a really interesting question. So I think that's a really easy question. Well, I know. Morally justifying— I mean, it's not a good question, but it's an easy one because originalism is process. Impositive law is outcome. And I think that in all cases, agreeing on a process, even an imperfect one, even one that can lead, as you said, David— Kagan's an originalist.

Gorsuch is an originalist. Those maybe aren't the best examples, but whatever. They can come to different outcomes. Let's pick Alito instead of Gorsuch. That arguing about where the process takes us is morally a better system of governance than arguing about the outcome, because at the end of the day, what was Elon Musk's quote?

War is the final Supreme Court or something? Yeah, war is the ultimate Supreme Court. Yeah, I mean, that's where positive law eventually gets you, I think, versus process. Right, I think originalism, the ultimate, for me, defense of originalism is it is the best legal philosophy we've yet constructed to embody the rule of law. If you're going to have law as a limit on the discretion of rulers, then that law has to actually have a meaning that you can discern using common instruments of interpretation of text and common instruments of interpretation of original public meaning. And that law is going to have to bind the decision maker.

And if the decision maker wants to enjoy more power and autonomy, then the decision maker is going to have to find a way to change the law. So originalism to me at its core is the rule of law. And one of my issues with a lot of common good constitutionalism is that what you're seeing is an argument which I do not see as the rule of law. What you're seeing is, and many people would say, no, no, it's the rule of law. It's the rule of natural law. As if natural law is something that you can quite easily discern and apply in a variety of contexts. Now, natural law advocates would say, well, why yes? But what they're really saying is, my vision of natural law is quite easy to discern. Just ask me. I mean, apply it again to

this ERA debate over whether a state can de-ratify something. What does natural law say about that? Yeah, that's a great question. And I'm sure we'll get some emails from natural law. I bet it says that the ERA doesn't become part of the constitution. Right. Just a guess. So in my view, you know, if you're talking, and I know a lot of folks on the right now like to really scorn process. They like to really scorn process and say. Because it thinks it's what got them boss stock. Right. They like to scorn process because process is going to lead to outcomes that they

don't like. I hope so. The fact of the matter is if we're going to have a pluralistic society, which is really sort of the fundamental beef people have is they want less pluralism. The fact is, if you're going to have a pluralistic society, I like the way that the pseudonymous writer Scott Alexander described classical liberalism and pluralism. He was talking about it, speaking to left-wing illiberals and saying to left-wing illiberals, look, classical liberalism and pluralism, they are not utopian visions. Because if your vision of utopianism is I win, my view controls, and you go away, of utopianism is I win, my view controls, and you go away. Pluralism means I win, but I might not permanently win, and you might lose, but you're not going to go away. And so there's going to be

inherent give and take and contention in a small liberal pluralistic society. And what Alexander says is that classical liberalism is almost like an alien technology for the avoidance of civil war. Yeah, because if you, and we talked about this in the consignment of permanent losers, once you believe that you are a permanent loser, why would you keep playing by these rules? And the answer is I have no reason. And, you know, Joe and I mentioned that G file before,

and I'm going to mispronounce this guy's name. Oakeshott? Oakeshott, Oashot okashot yeah i've only read it yep so that dude um says that we should stop thinking in a left right paradigm and think of it versus a a civil versus enterprise scheme so he argues that all totalitarian totalitarian and authoritarian regimes, regardless of ideological or theological flavor, operate as enterprise associations. Whether it's Calvin's Geneva, Lenin's Soviet Union, Hitler's Germany, Khomeini's Iran, the idea is to direct the whole of the people toward a single unified goal. Burke, on the other hand, believed that the state exists to create space for society and individuals to flourish on their own terms. I actually think that that is, at its most

fundamental, the difference between originalism, and I'm using that in the really broad sense. Originalism is the Burkean framework. It is the state exists to create space for individual flourishment, which is now a word that exists because I said it, versus the common good constitutionalism is that, Oakeshott, we're heading in a direction. We have a goal. The goal is, you know, a sort of natural law country, nation state. Those are just very different paradigms. And I think, to your question, morally, I think Burke has the better argument. Right. And I think historically, if you're going to look at a statist moral enterprise,

it's a long and bad and checkered history. And I'm— Real statism has never been tried. I was about to say, but this time we'll do it better isn't a great argument when we have the legacy of history. Especially when we have, for example, the legacy of the history of religious supremacy as a formal method of state power. And that is a bloody past. It's also worth noting, we keep using common good constitutionalism because we're trying to define those debates on the right.

But I think living constitutionalism on the left could equally be substituted in for that Ocasio-Texas enterprise heading towards a single goal. The goal is progress, human progress, and we define what progress is. I was at Duke last week, and I had a really good back and forth with some students who were taking issue with my religious beliefs and arguing that they were inherently intolerant, that my faith was inherently intolerant. And as evidence that my faith was inherently intolerant,

they pointed to various religious supremacists over the years, people who had used the power of the state to oppress. For example, when America's previous Protestant power structures using the power of the state to pass Blaine Amendments that were aimed directly at catholics and they said so isn't isn't your faith sort of inherently prone towards intolerance and i said well let's hold on a minute i spent 20 years of my life protecting religious student groups from aggressive secularism and religious individuals from aggressive secularism. So if I could point to you of stories of intolerance directed towards

people of faith that would be so over the top that they'd like make your hair stand on end, it would then be fair for me to say to you that your secularism is inherently intolerant. Or is it more fair to say that your secularism can be weaponized in the same way that a faith can be weaponized? That's a more fair critique of what's potential, but it is not unique to people of faith that their worldview can be weaponized. I mean, my gosh, just look at the giant atheistic communist regimes of the 20th century. So that's why, you know, when I think about classical liberalism, when I think about originalism, what they are is in many ways a bulwark against weaponization of the state.

I thought that was a good question. That is a great question. Thank you. All right, last one, or we can just, you know, the poor people listening will just cease and we'll keep taking questions, but we'll see. Right. Well, let's do one more and then we'll, we'll, uh, Bucky's. I gotta go with Bucky's. He's wearing a Bucky shirt, y'all. Where are you from? Bacon free. He is from Rhode Island wearing a Texas Bucky shirt. And I have so many questions. Rhode Island wearing a Texas Bucky shirt, and I have so many questions.

Can we turn off the rules side of our brain when playing tabletop games? I've often said, by the way, David, and I think you agree with me, that the absolute worst place on earth is a basketball court at a law school. Oh, my gosh. It's a bunch of dudes who really aren't athletic enough, but really rules-based. And there's just a lot of screaming about fouls and like, no, and there's a lot of injuries and it's an unpleasant space for me. I am, I am formulating balancing tests in almost every area of life. balancing tests in almost every area of life. So, yeah, that's where my mind goes. Like, it just goes.

I remember one time creating for my World of Warcraft guild a three-part test to determine who's going to become healing class leader, and it was a solid test, I have to say. It was really a good faith effort at the rule of law in World of Warcraft, but there's ways of doing it that can be fun, and there's ways of doing it that can be super, super, super annoying. And I try to err on the side of fun. Luckily, I only have friends who are lawyers.

And so it's really husband of the pod's job to read all the rules for a game and enforce said rules. He seems to thrive in that environment. I then, I mean, every relationship is kind of yin and yang. Whatever your partner excels at, you will kind of de-excel at in sort of this evolutionary sense. So he very much enjoys reading those rule books and explaining it. And so I will cease to pay attention and need it re-explained to me

several times over. And that seems will cease to pay attention and need it re-explained to me several times over. And that seems to work for us. My first effort at creating the spontaneous rule of law came in college when a friend of mine, I'm shocked he's still a friend, and you will be too when I tell you what he did. In January, he tried to call shotgun on the drive to Florida for spring break in March. Wait, why is that wrong? Are you kidding me? Thinking back to high school, so I was a year younger.

My birthday's in November, and I started kindergarten at four, right? So by the time you get to high school, everyone is driving, and so I am the best shotgun caller ever, and you better be damn right. I had rules for shotgun, and they were heavily enforced, and I didn't have many friends. Yeah, well, the rule handed down on the tablets is that you have to be in sight of the vehicle on the way to the trip in question, which when he called shotgun three months early led to, oh, sorry. I missed that part. Led to.

I mean, like, that's the whole story. Sorry, the car has to be in sight for the trip in question. So the funny, the denouement. But you can call it for as long as you want. That trip can be a 48-hour car journey, and, like, you called shotgun. No. You can't leave the car. Right.

Yeah, but if you want to sit in that car. But you have to sit in that car. Yeah. Right, okay. I mean, you're a man. Y'all have bottles and stuff in the car. As a woman, I would be in more trouble. David's already turning red.

The funny part, though, was when we righteously piled on him, he literally in tears turned to us and said, guys, you know I'm a firm believer in the rules of shotgun. It's like, obviously not. But anyway, yeah, that was the beginning of the creation of the rule of law in college. Oh, also when I stood in line for the argument for Heller, I think that's actually my best. Like, if you were to try to explain my personality to, like, a bunch of aliens,

and you could only take a 24-hour period, it would definitely be that. So I got in line at 4.30 p.m., and I was the sixth one in line. And so I got out a piece of paper, because obviously, you know, we have to go the whole next morning. You're going to need the sixth one in line. And so I got out a piece of paper because obviously, you know, we have to go the whole next morning. You're going to need to get out of line, go to the bathroom, get some food. Well, what happens? Do you have to go to the back of the line? So I created a whole basically code of criminal conduct for our lines. Everyone had to check in with me, the self-appointed Supreme Court of this line. I assigned them each a number.

the self-appointed Supreme Court of this line, I assigned them each a number. You were allowed to leave for 30 minutes, and we would do random checks. If in the course of those random checks, you had been gone for more than 30 minutes, you lost your place in line, you could use that 30 minutes how you wanted.

You could not sit for someone else. You couldn't be paid. All sorts of things. And it's... I love it. And the number seven person was Tharu Vignarajah, the briar clerk who goes on to be the appellate prosecutor at the U.S. Attorney's Office who did the Adnan Syed case. Interesting. Yeah. Wow. We've stayed friends. We talk all the time. And it was all from my legal assembly. We ended up with like 127 people who all followed the made up rule of law. And it's fascinating anthropologically because presumably at every Supreme Court

argument that's big enough to have people camping overnight, they must create their own rule of law systems. And there aren't repeat players like there are in so many other things. And so who is that person? What are their rules that were different from mine? How does that function? This is a whole study that someone could do. And I hope someone listening to this podcast

will write their doctoral dissertation on this. So at this point, the listeners actually are screaming, make it stop. So we'll stop and I'll spare everyone the story of how I created a spontaneous court to adjudicate the righteousness of a fistfight that I witnessed at the Talladega Motor Speedway in 2006. So listeners, thank you for hanging with us. Students, thank you for coming. Please rate us, please subscribe, please check out thedispatch.com and we're going to be back hanging with us. Students, thank you for coming. Please rate us. Please subscribe. Please check out thedispatch.com and we're gonna be back really soon.

With more pork!